Presidential signing statements had been considered relatively obscure executive policy tools that have been used since at least the time of President Monroe. Their usage by former presidents aroused little attention until highly publicized reporting alleged that President George W. Bush had issued an unprecedented number of signing statements relative to his predecessors. The intense debate that followed in the legal community and among media commentators raised claims that signing statements threatened separation of powers as a line-item veto that deprived the U.S. Congress of the opportunity for a veto override. The American Bar Association taskforce on the subject released a bipartisan report that criticized such signing statements and urged the president to halt the practice.
This Comment argues that the genuine constitutional mischief of signing statements arises from the manner in which they are used rather than the instruments themselves because signing statements are not self-executing and, thus, have no practical or legal effect. The misplaced emphasis of the debate on the legitimacy of the practice is further transported into the proposals offered within the current debate, which accordingly are flawed because of their misdiagnosis of the problem. The debate should shift its focus toward the true separation of powers threat: how the vague legal boilerplate and sweeping generality that are characteristic of President Bush’s signing statements have created uncertainty over whether the president’s actions conform to his signing statements. Consequently, the unknown practical effect of signing statements impedes congressional oversight. Congress and the public should respond by exerting political pressure on the president to make his views and intended actions more transparent in his signing statements. Increased transparency would promote cooperation with Congress, provide Congress, courts, and the public the opportunity to strike the proper separation of powers balance with the president, and preserve the legitimacy of signing statements as a meaningful executive policy tool.