His successor, President Andrew Johnson, signed but protested an Army appropriations bill, claiming that one of its sections "in certain cases virtually deprives the President of his constitutional functions as Commander in Chief of the Army."
In 1876, when signing a river and harbor appropriations bill that included local appropriations, President Ulysses S. Grant issued a Signing Statement saying that "under no circumstances will I allow expenditures upon works not clearly national."
In 1909, President Theodore Roosevelt issued a Signing Statement proclaiming his intention to ignore a restriction on his power to establish volunteer commissions. In 1920, President Woodrow Wilson signed a merchant marine bill, but determined not to enforce a provision he found unconstitutional.
In 1941, President Franklin Roosevelt found a provision of the Lend-Lease bill “clearly unconstitutional," but signed the bill as a matter of diplomatic and political necessity. Ten years later, when President Harry S. Truman signed the General Appropriation Act of 1951, he issued a statement describing as unconstitutional a provision authorizing loans to Spain.
In 1959, President Dwight Eisenhower signed the Mutual Security Act, but made it clear in a Signing Statement that he was willing only to enforce the bill to the extent that it did not infringe on his definition of executive authority.
When President Lyndon B. Johnson signed a crime bill in 1968, he criticized as "vague and ambiguous" provisions dealing with Federal rules of evidence in criminal cases.
President Richard Nixon objected to a 1971 military authorization bill which set a date for withdrawal of U.S. forces from Indochina. He said the bill was, “without binding force or effect.”
President Gerald Ford objected to a provision of a 1976 Defense Appropriation that restricted the Executive's ability to obligate certain funds until it received approval from several Congressional committees. Ford said he could not "concur in this legislative encroachment," and that he would treat the restriction "as a complete nullity."
President Jimmy Carter issued several Signing Statements in 1980-81. The first of these related to a bill mandating the closing of certain consular posts. Carter objected that Congress "cannot mandate the establishment of consular relations at a time and place unacceptable to the President."
But it was not until the administration of Ronald Reagan that the nation saw a dramatic increase in the frequency of presidential Signing Statements. Reagan saw the statements as a strategic tool for molding and influencing the way legislation was interpreted by Executive agencies. In eight years as president, he issued statements objecting to 72 congressional provisions, a record at the time. His successor, George Herbert Walker Bush, topped that mark in only four years in the White House. Bush objected to 232 provisions. President Bill Clinton followed with 140 objections in eight years.
But, as noted by the ABA’s bipartisan task force, while the current president is not the first to use signing statements, “the frequency of signing statements that challenge laws has escalated substantially.”
From the inception of the Republic until 2000, presidents produced fewer than 600 signing statements. Since 2001, President Bush has objected on constitutional grounds to sections of more than 750 laws.
Prof. Peter Shane of Ohio State University law school believes the current Bush Administration is creating faux law. He told us, “The Bush Administration’s repeated utterance of its constitutional philosophy shapes executive branch behavior by solidifying allegiance to norms of hostility to external accountability. Like the torture memo or the rationalizations for warrantless NSA wiretapping of domestic telephone calls, the Bush 43 signing statements embody both a disregard for the institutional authorities of the other branches – especially Congress – and a disregard for the necessity to ground legal claims in plausible law. They are best understood as an attempt to invent law, and as an exploitation of Congress’s unwillingness, at least while in Republican hands, to allow the Administration’s more extreme theories of presidential authority to go unchallenged.”
A similar view was expressed by Brian J. Foley, visiting associate professor at Drexel University College of Law. He told us that many of Bush’s Signing Statements “are based on the view that the constitution provides for a 'unitary executive.' That theory does not have wide currency outside of the White House. It's a tendentious theory. It's a power grab. So the president is really saying, 'I won't enforce that law because it's unconstitutional. It is unconstitutional according to this theory that just happens to say that I have way more power than anybody ever thought I did.' How convenient!”
He added that Signing Statements make it more difficult for the president to work with Congress as a co-equal branch of government. “The president ends the game by taking the ball home with him. But here it's not even clear that it's his ball to take home."
How convenient indeed!
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