Unitary Executive and the Presidential Signing Statement

Chapter One

Introduction

When Governor George W. Bush was campaigning for the

presidency, he appeared on the ABC Sunday morning talk show, “This

Week with Sam Donaldson and Cokie Roberts.” This was in early

January 2000, and he was being asked a number of questions about

how a President George W. Bush would govern. One question, from

George Will, was aimed at campaign finance reform.

After asking Governor Bush whether he thought the president had

a constitutional duty to independently interpret the Constitution, which

Governor Bush agreed he could, Will asked him if he would veto

McCain-Feingold or Shays-Meehan, the two campaign finance reform

bills in Congress because they unconstitutionally infringed upon free

speech. Governor Bush did not hesitate in telling Will that he would

veto the bill due to its infringement upon free speech.1

Flash forward to March 27, 2002, and President George W. Bush is

fixing his signature onto the “Bipartisan Campaign Finance Reform Bill

of 2002,”2 and noting that, while not perfect, it will “improve the

current system for financing federal campaigns.”3 George Will noted

the “stealthy” manner in which he signed the bill, and then noted with

bitter disdain that “…[It] is his job to defend the Constitution…” and to

those who filed suit to block it, Will noted that “… someone has to do

Chapter One--Introduction

2

his [President’s] job when he will not.”4 Byron York, writing for the

“National Review,” noted that Bush could have used “something called

the signing statement, which presidents have used in the past to take

public positions on bills about which they have reservations, but have

chosen to sign.” York argued when President Reagan signed Gramm-

Rudman deficit reduction legislation, he publicly disapproved of

unconstitutional provisions which the Supreme Court later agreed with

in the decision, Bowsher v Synar.5 By scurrying out of town without a

public statement, the president in effect cut himself off from that

avenue.6

The president did issue a signing statement, only one that was not

done in a formal bill signing ceremony which York referred to. When

President Bush issued his signing statement, he noted that there were

significant constitutional problems with the bill. Bush argued:

Certain provisions present serious

constitutional concerns. In particular, H.R.

2356 goes farther than I originally proposed by preventing all individuals, not just unions and

corporations, from making donations to

political parties in connection with Federal

elections. I believe individual freedom to participate in elections should be expanded,

not diminished; and when individual freedoms

are restricted, questions arise under the First

Amendment. I also have reservations about the constitutionality of the broad ban on issue

advertising, which restrains the speech of a


3

wide variety of groups on issues of public

import in the months closest to an election. I

expect that the courts will resolve these legitimate legal questions as appropriate under

the law.7

The fact that President Bush gave lukewarm support to the bill (he

did not contact McCain personally upon signing it) and his past

statements on the matter clearly suggested that the president was not

in favor of the bill. The language of the signing statement may help

the president rectify his signature on the bill with his public statements

on the matter. True, he did sign it—president’s are often confronted

with bills, whether it be appropriations bills or those with tremendous

public support ( as was the case with the bill he signed) that they

reluctantly sign. However, this does not render the president without

options. In this case, President Bush could instruct the Justice

Department to not defend the law against court challenges, as

suggested by Constitutional Law Scholars Akhil Reed Amar and Vikram

David Amar.8 This would enable President Bush to both support the

popular campaign finance reform legislation and hold true to his earlier

promise of not infringing upon First Amendment free speech rights.

Whether the President does this remains to be seen.

This dissertation project is the first systematic study of the

presidential signing statement. It represents an interest that I was

drawn to early in graduate school when I finished a research paper on


4

the presidential signing statement, and concluded that they were

important and that there was very little actually written about them.

As I will discuss in much greater detail in Chapter Three, the

presidential signing statement really is nothing more than the

statement a president makes after signing a bill into law. But this

research would not be interesting if it were nothing more than that.

As I will demonstrate, it is what the president does with the signing

statement that makes this an area of interest to those studying

presidential power. The president can use the signing statement to

reward constituents, mobilize public opinion toward his preferred

policies or against his political opponents, decline to defend or enforce

sections of the bill he finds to be constitutionally objectionable, reward

political constituents by making political declarations regarding the

supposed constitutional veracity of a section of a bill, and even move a

section of law closer to his preferred policy.

In this dissertation project, I will attempt to answer the

questions of what is a signing statement and why have they been

used, particularly in a systematic attempt, in the course of the last

thirty years? In doing so, I will explain what the signing statement is,

how it has developed over time, trends in its use, and why it has

become a valuable political tool to presidents from Reagan through

Clinton. The focus on the Reagan through the Clinton presidency will


5

also allow me to introduce a theory that explains the systematic use of

the signing statement. It will also allow me to suggest that this theory

might be useful in explaining a number of creative executive actions

that have taken place over the previous thirty years. Actions that dig

into Article Two and help justify actions that previously have gone

unnoticed—actions such as executive orders, presidential

proclamations, presidential directives, and presidential memoranda, to

name a few.

I will employ a variety of research techniques that will help me

to answer my research questions. First I will rely upon original source

documents such as The Weekly Compilation of Presidential Documents,

The Congressional Record, The Public Papers of the Presidency,

Congressional hearings, a number of papers held at the Ronald Reagan

Presidential Library, The Federal Register, The United States Code,

Congressional and Administrative News, The Public Papers and

Addresses of Franklin Delano Roosevelt, and A Compilation of the

Messages and Papers of the Presidents 1789-1897 to name just a few.

I will use these original source documents to help me mine all the

signing statements issued to date, to categorize the signing

statements, and to help answer why particular administrations used

the signing statement the way in which it did—particularly if the


6

administration was innovative, such as the case of the Reagan

administration discussed in Chapter Four.

I will use elite interviews to help me fill in the blanks where the

original source documents fail to help me answer my particular

questions. Since the signing statement is such a unique device, it is

my hope that talking to individuals in the Reagan, Bush, and Clinton

administrations will help tell the story of why the administration turned

to the signing statement, or why did a particular administration choose

to be innovative when it did. I think that, as the following chapters

will show, using the elite interview greatly enhanced my understanding

of the signing statement.

Where appropriate, I will employ case studies to illustrate a

particular point, either in the use of the signing statement or in the

development of my theory. The case study is useful in helping to

answer the how or why questions, and will be ideal in later chapters

when I need to focus on key events in a particular administration.

This will give the reader a context in which the signing statement

takes place.

I will also use very rudimentary quantitative tools to help me

assess what trends, if any, exist on the use of the signing statement.

It is not enough to simply describe over time what the signing

statement is. To better square all sides of the signing statement,


7

quantitative tools can help me discover whether events such as an

election or such things as presidential popularity impact the use of the

signing statement. This proved valuable in confirming hunches in the

data that showed particular trends in the use over time or a particular

spike in the use of the signing statement within one particular

administration. From this I can offer some general conclusions.

I will also rely on a number of secondary sources, including, but

not limited to, law journals, newspapers, scholarly books and articles,

and web sources, particularly the Lexis-Nexis databases, which are a

valuable source for finding a variety of different types of information.

The law journals are important for two key reasons. First, nearly all

discussions of the signing statement have taken place in the law

journals. And second, the theory that I am employing is a theory that

was born in the law journals by a number of law professors who had

left the Reagan and Bush administrations. The problem with the law

journals, and what makes this work important, is that the

concentration on the legal aspect of the signing statement completely

misses the political importance of their use. In this sense, law journals

have a valuable, but limited importance.

The outline of the books is as follows. This chapter will

essentially design the research that lays ahead. I have offered the


8

research questions, the methodology, and then a sketch of the

chapters that will follow.

In the second chapter, I will focus on the theory that I am using

to help explain why the signing statement is used and why it is

important. This will be a theory that is called the “Unitary Executive.”

The Unitary Executive rests upon two core principles—the principle of

coordinancy and the principle of accountability. Coordinancy gives the

president an independent constitutional right to not defend or enforce

laws that he deems to be unconstitutional. This constitutional right

emerges from the “Oath” Clause of the Constitution, which obligates

the president to uphold and defend the Constitution and the laws of

the United States. Accountability derives from the president’s position

as the only nationally elected figure in the United States. Thus, by

taking care that the “laws are faithfully executed,” the president is

constitutionally obligated to tell inferior officers how to interpret and

execute the laws that he signs. This leads to a more political role for

both the Office of Management and Budget and the Department of

Justice, beginning in the 1970s, but accelerating from the Reagan

administration through the Clinton administration.

In Chapter Three, I will spend a great deal of time explaining

what the signing statement is, where it originated, how many have


9

been issued through the end of the Clinton administration, and what

sort of external political events seem to affect their use.

In Chapter Four, I will look at the important role that the Reagan

administration played both in developing the Unitary Executive and

developing the signing statement. The Reagan administration used

two important Executive Orders to gain control over the administrative

process, giving to the OMB, in particularly the OIRA, a highly political

role to insure that the administrative agencies were enforcing

legislation in the manner that the Reagan administration wanted it

enforced. Up to this point, a problem for presidents was the

bureaucratic agencies often times dragging their feet or using

administrative discretion to execute legislation in a manner consistent

with the wishes of the Congress or varying interest groups that had

“captured” the agency. The Reagan administration sought to control

the bureaucracy, which it was generally successful.

Additionally, the Reagan Justice Department was very aggressive

in defending the president’s prerogatives against, what it accurately

perceived, was a hostile Congress. The Reagan administration had a

number of high profile fights with the Congress, but in the end, it had

managed to advance the signing statement into a powerful tool to

control the president’s policy wishes as well as to protect presidential

prerogatives.


10

By the end of Reagan’s term, it had managed to get the signing

statement added to the “Legislative History” section of the United

States Code Congressional and Administrative News. In a series of

interviews with people in the Reagan administration, I am able to

confirm that this was done for strategic reasons that are predicted by

the theory of the Unitary Executive—control over policy and protection

of prerogatives.

In Chapter Five, I look at how the Bush administration continued

the evolution of the Unitary Executive and the signing statement. The

Bush administration, via the Council on Competitiveness, was highly

judicious in controlling policy that favored the interests of those who

supported the Bush administration and the Bush Justice Department

was very aggressive in defending the president’s prerogatives. In both

instances, the signing statement plays a key role. Further, the Bush

administration builds on the legacy of the Reagan administration by

using the signing statement to point to an alternative legislative

history when the administration would lose a political battle in the

Congress. I will use a couple of case studies to illustrate how the Bush

administration made effective use of the signing statement.

In Chapter Six, which is the last substantive chapter, I will show

that even though there was a change in administrations from a

Republican to a Democrat, the notion of a Unitary Executive and the


11

signing statement had become institutionalized so that the Clinton

administration, while differing politically from the Reagan and Bush

administrations, continued the work of centralizing policy and

protecting presidential prerogatives. President Clinton will issue an

Executive Order that overrides the Reagan administration while

simultaneously incorporating most of those previous Executive Orders.

In addition, President Clinton expands his reach over the bureaucracy

to incorporate the independent regulatory agencies, something not

accomplished by the Reagan or Bush administrations.

Additionally, President Clinton’s Justice Department begins the

administration by defending both the right of the president to

unilaterally decide not to enforce or defend laws deemed to be

unconstitutional as well as the right of the president to use the signing

statement to do this.

In Chapter Seven, I will briefly describe how the George W. Bush

administration has continued to develop the Unitary Executive, paying

close attention to administrative centralization and the protection of

his prerogatives as the Unitary Executive predicts will happen.

Further, the current administration has continued to rely on the

signing statement to carry out the two principles of the Unitary

Executive.


12

I will then discuss what the findings and the implications are of

this dissertation as well as what future directions will need to be

explored to continue to develop both the theory and the power

described in this dissertation.

1 Will1, George. “This Week with Sam Donaldson and Cokie Roberts.” ABC News.

January 23, 2000. Lexis-Nexis online (www.nexis.com). Newsgroup File, All.

July 10, 2002. 2 Public Law 107-155 (2002). 3 Bush, George W. “Statement on Signing the Bipartisan Campaign Finance Reform

Bill of 2002.”Weekly Compilation of Presidential Documents. March 27, 2002. pg.

517. 4 Will2, George. “Reforming’ Free Speech.” The Washington Post. March 31, 2002.

pg. B02. 5 478 U.S. 714 (1986). 6 York, Byron. “The Man Who Won't Veto: One Power that George W. Bush Eschews.

National Review. Vol. LIV, No. 11. June 17, 2002. Lexis-Nexis online

(www.nexis.com). Newsgroup File, All. July 10, 2002. 7 Bush, George. “Statement on Signing the Bipartisan Campaign Finance Reform Bill

of 2002.”Weekly Compilation of Presidential Documents. March 27, 2002. pg. 517. 8 Amar, Akhil Reed and Vikram David Amar. “Breaking Constitutional Faith:

President Bush and Campaign Finance Reform.” Findlaw’s Legal Commentary.

www. writ.findlaw.com/amar/20020405.html. Accessed June 18, 2002

Chapter Two—The Unitary Executive

Chapter Two

The Unitary Executive

On October 21, 1986, then-Attorney General Edwin Meese III gave

a speech at a Tulane colloquium on the Constitution that sent a shock

wave among legal and political scholars across the country. Meese, in

a speech that clarified, in his view, the distinction between the

Constitution and constitutional law, argued, “constitutional

interpretation is not the business of the Court only, but also properly

the business of all branches of government.”1 One commentator

painted a scenario in which the police kicked in the door of his home in

an unreasonable search and seizure. When he objected that the

Constitution, per Supreme Court interpretation of the Fourth

Amendment prevents such action, the police threw down a copy of

Meese’s speech and declared: “"My department wasn't a party in any

of those cases; therefore, they don't apply.”2 Meese, many argued,

was speaking on behalf of an administration that had complete

disregard for the Constitution.

Even though the Meese speech was perceived to be startling, his

argument was hardly new. President Thomas Jefferson’s Attorney

General argued that the president could ignore Supreme Court

1 Meese, Edwin III. “Perspective on the Authoritativeness of Supreme Court

Decision: The Law of the Constitution.” Tulane Law Review. 61:979. April, 1987.

pg.986. 2 Labunski, Richard. “The ‘Dangerous’ Views of Ed Meese.” The Chicago Tribune.

November 6, 1986. pg. C27.


2

opinions if he believed that the opinions were erroneous.3 President

Lincoln flouted an order by Chief Justice Taney which demanded the

release of a prisoner that the Court viewed was improperly jailed. As

Joel Goldstein notes, “modern presidents have refused to abide by

legislative vetoes, the War Powers Act, the Federal Advisory

Committee Act, the Competition in Contracting Act (discussed below),

and the Foreign Relations Authorization Act.”4Ed Meese was criticized

for stating a position of executive power that has been present

throughout the entire history of the Republic and had been building

steadily since the Nixon administration—that the president, as a

coordinate branch of government, has the constitutional duty to not

enforce laws it determines to be unconstitutional and to interpret laws

as a matter of administrative guidance.

The argument that supports this notion is often referred to as the

Unitary Executive and those supporting it have been dubbed

“unitarians.”5 The model of a Unitary Executive argues that the

president, as a coordinate branch of government, may independently

interpret the Constitution. Further, the president is the only nationally

3 McGinnis, John O. “Introduction.” Cardozo Law Review. 15:1-2. October, 1993.

pp.21-22. 4 Goldstein, Joel K. “The Presidency and the Rule of Law: Some Preliminary

Explorations.” Saint Louis University Law Journal. 43:791. Summer, 1999. pg.

809. 5 See for example Mayer, Kenneth. With the Stroke of a Pen: Executive Orders and

Presidential Power. New Jersey: Princeton University Press. 2001. pg.38;


3

elected official which makes him accountable for how laws are

executed. Therefore, the president is best situated to coordinate

agency activities and by virtue of his accountability and central

position, he can bring energy to the administrative process that

agency officials cannot muster by themselves.6 Thus, as I will show,

the president independently interprets laws deemed to be

unconstitutional as a matter of coordinancy and directs agency officials

in the interpretation of laws because he is politically accountable as

chief executive officer.

As I noted above, the argument for a Unitary Executive is not new.

Those who argue on its behalf trace its roots back to the origins of the

Constitution and the writings in the Federalist Papers. Professor

Steven Calabresi argues that the Federalist Papers advanced three

arguments in favor of a unitary executive—energy, accountability, and

separation of powers.7 Drawing on the arguments put forth by

Alexander Hamilton, Calabresi argues that the design of a single

executive versus a plurality “fosters energy” because it leads to

“decision, activity, secrecy, and dispatch.”8 A Unitary Executive was

essential both to the protection of the community as well as to the

Froomkin, A. Michael. “The Imperial Presidency’s New Vestments.”

Northwestern University Law Review. 88:1346. Summer 1994. 6 Davies, Susan. “Congressional Encroachment on Executive Branch

Communications.” University of Chicago Law Review. 57:1297. Fall, 1990. pg. 1301. 7 Calabresia, Steven G. “Some Normative Arguments for the Unitary Executive.”

Arkansas Law Review. 48:23, 1995.


4

“steady administration of the laws.”9 Accountability reinforced the

need for energy, according to Calabresi. Again, arguing that the

Founders chose a single executive versus a plural one was meant to

insure that it was clear had responsibility for how laws were executed:

“Thus, plurality in the executive will greatly raise the costs to the

‘zealous citizen’ who would expose wrongdoing, which costs may

already be overly high given that the exposure of government

wrongdoing is often, for other reasons, an ‘unpromising task.”10 And

finally, separation of powers involved each branch of government

having sufficient powers to counter the “ambition” of the other.

To get a clearer picture of how the Unitary Executive model works,

it will prove useful to explain what is meant by coordinancy and

accountability. Coordinancy is often traced back to Madison’s writing

in Federalist 49: “The several departments being perfectly co-ordinate

by the terms of their common commission, none of them, it is evident,

can pretend to an exclusive or superior right of settling the boundaries

between their respective powers.”11 In our system of government,

each branch of government is given constitutional powers that cannot

be delegated to or infringed upon by the other branches. By

“independently interpreting the Constitution, presidents need not

8 Ibid. pg. 42. 9 Ibid. pg. 37. 10 Ibid. pp. 43-44.


5

adhere to ‘unconstitutional’ acts of Congress or to Supreme Court

decisions.”12This is a principle that has been recognized by the

Congress and the courts. As I will discuss later, in the late 1970s and

early 1980s Congress created mechanisms to provide for legal

representation in the event that the president refused to defend a

law.13 Further, Congress statutorily mandated the Department of

Justice to inform the Congress whenever it refused to enforce or

defend a law.14 The Supreme Court has also recognized this principle

of coordinancy. Justice Scalia, in a concurring opinion in Freytag v.

Commissioner (90-762), 501 U.S. 868 (1991) wrote that “…it was not

enough simply to repose the power to execute the laws (or to appoint)

in the President; it was also necessary to provide him with the means

to resist legislative encroachment upon that power. The means

selected were various, including a separate political constituency, to

which he alone was responsible, and the power to veto encroaching

laws…or even to disregard them when they are unconstitutional.”15

This coordinate power has also been referred to as the “Merryman

power.” The “Merryman” in question was John Merryman, a farmer,

11 Madison, James. “Federalist 49.” The Federalist Papers.

http://www.constitution.org/fed/federa49.htm. Accessed May 16, 2002. 12 Devins, Neal. “Defending Congress’s Interests in Court: How Lawmakers and the

President Bargain over Department of Justice Representation.” Presidential

Studies Quarterly. 32:1. March 2002. pg. 158. 13 See 2 USC Sec. 288 (e). 14 Ibid. pg. 159; see also (US Code) 15 Scalia, Antonin. Freytag v. Commissioner (90-762), 501 U.S. 868 (1991).


6

legislator, and an officer in a secessionist cavalry unit during the Civil

War.16 In May, 1861, Merryman was among a group of secessionist

soldiers in Maryland who was rounded up for burning bridges and

tearing down telephone wires.17 Immediately upon his arrest, his

lawyer asked for and was granted a writ of habeas corpus from Chief

Justice Robert Taney, and directed toward General George

Cadwalader, the commanding officer at Fort McHenry, which was

where Merryman was being detained.18

Nearly a month prior to Merryman’s detention, Lincoln had

suspended the right to habeas corpus relief. He did this in an

“unpublicized order to Commanding General Winfield Scott.”19 At the

time of the suspension, Congress was not in session. General

Cadwalader declined Taney’s order to produce Merryman, which Taney

responded to by issuing a contempt charge against General

Cadwalader.20 When the contempt charge was refused at the gate of

Ft. McHenry, Taney issued a final ruling, finding General Cadwalader in

contempt and arguing that President Lincoln had overstepped his

16 Paulsena, Michael Stokes. “The Merryman Power and the Dilemma of Autonomous

Executive Branch Interpretation.” Cardozo Law Review. 15:1-2. October, 1993.

pg.90. 17 Ibid. pg. 90. 18 Ibid. pp.90-91. In fact, for a time nearly every public officer in the State of

Maryland was detained at Fort McHenry while denied their rights to habeas

corpus relief. 19 Ibid. pg. 90. 20 Ibid. pg. 91.


7

constitutional authority. But because Taney did not have the means to

enforce his decision, the opinion was left without force.21

Both Lincoln and his Attorney General, Edward Bates, grounded

their power to deny a writ of habeas corpus as well as to ignore the

Chief Justice’s opinion in the theory of coordinancy. Lincoln argued

that the writ clause was silent on who had the authority to suspend it,

noting that since “the provision was plainly made for a dangerous

emergency, it cannot be believed the framers of the instrument

intended, that in every case, the danger should run its course, until

Congress could be called together; the very assembling of which might

be prevented, as was intended in this case, by the rebellion.”22

Attorney General Bates was more pointed:

If it be true, as I have assumed, that the President and the judiciary are co-ordinate

departments of government, and the one not subordinate to the other, I do not understand how it can be legally possible for a judge to

issue a command to the President to come

before him ad subjiciendum—that is, to submit

implicitly to his judgment—and, in case of disobedience, treat him as a criminal, in contempt of a superior authority, and punish

him as for a misdemeanor, by fine and imprisonment.23

In the end, Merryman was left imprisoned and the power of the

president to ignore a court directive when the president determined

21 Ibid. pg. 91. 22 Ibid. pg. 95.


8

that he had the correct reading of the Constitution was left in place. It

certainly would not be the last time and, as I will show in my review of

constitutionally-based signing statements, it is a practice that

continues to this day.

Critics of the Merryman power contend that it disrupts the balance

of powers laid out in the Constitution, specifically ignoring the well-

established edict of Marbury v Madison (1803) that the courts have the

final say in defining “what the law is.” In response to this, coordinate

power means just that—all three branches have independent powers

to interpret the Constitution and the mechanisms to check

inappropriate behavior of the other branches. As Michael Stokes

Paulsen noted:

…the President legitimately may nullify statutes and court judgments by refusing to enforce

them, acting on the basis of his independent legal judgment. But Congress legitimately may seek to enforce its contrary view by

declining to appropriate (or affirmatively

cutting off) funds for programs desired by the

President or for entire executive branch agencies, by refusing to confirm appointees (or simply abolishing their offices), or by pursuing

a legislative agenda the President despises until the President capitulates or compromises.

In a bare-knuckled brawl, Congress can reduce the President to little more than a bureaucrat

drawing a fixed salary, vetoing bills, granting pardons, and receiving foreign ambassadors—

23 Ibid. pg. 97.


9

but without funds for hosting a state dinner (or

even taking the ambassador to McDonald’s).24

Indeed, this is exactly what happened when the Reagan

administration ignored a statutory mandate and a court order

regarding the “Competition in Contracting Act of 1984 (CICA).” The

portion under dispute under dispute was a section that required that

protests over the awarding of government contracts would be referred

to the Comptroller General, who would then hold the contract until the

dispute was resolved. The Reagan administration determined that the

Comptroller General was not an executive body and therefore did not

have a constitutional right to stay the awarding of any contract. The

Justice Department and the Office of Management and Budget (OMB)

ordered the executive branch agencies to ignore that particular

provision of the CICA. A lower court ruled against the administration,

and newly appointed Attorney General Edwin Meese informed

Congress that the Reagan administration would appeal the ruling and

until the appeals were exhausted, it would continue to ignore the

provision of the law. This action drew a strong outcry by the press,

members of Congress, and legal scholars. In response, the House

Judiciary Committee threatened to cut-off Justice Department funding,

24 Paulsenb, Michael Stokes. ““The Most Dangerous Branch: The Executive Power to

Say what the Law is.” Georgetown Law Review 83:217. December 1994. pg. 322,


10

at which point Meese and the Reagan administration capitulated and

agreed to enforce the provision in question.

To respond to the criticism that the independent interpretive

function violates the mandates of Marbury v Madison (1803), Thomas

Merrill has pointed out that Marbury never did resolve the question

whether judicial interpretation of the laws bound the other branches of

government.25 Merrill argues:

…Marbury determined that courts must exercise independent judgment about the meaning of the law is performing the function

of resolving particular cases and controversies; it did not address the distinct question whether

the judicial understanding, once reached, is binding on the other branches. In other words, Marbury establishes the autonomy of

judicial interpretation. It does not

demonstrate the absence of autonomy in executive interpretation.26

Thus, Marbury establishes the judiciary’s coordinate power, it does not

establish the right of the judiciary to trump the constitutional powers

of the other two branches of government. Thus encroachments are

kept in check by each branch of government, each armed with its own

special power to thwart advancements of the other. So when a

president issues a signing statement challenging the constitutionality

of a provision of a bill he is signing into law, he is simply stating that it

25 Merrill, Thomas W. “Judicial Opinions as Binding Law and as Explanation for

Judgments.” Cardozo Law Review. 15:1-2. October, 1993.


11

is his determination that it is unconstitutional and how it will be

enforced (or not enforced) will be determined by him. As such, the

president then can let his statement be a matter of record for any

future situation in which the provision is challenged, he can use this

statement as a start to a bargaining process with the Congress to get

rid of the obnoxious provision, or he may use the statement to signal

to the Congress that should the provision be challenged in court, the

executive branch will not defend it.

Accountability has been a major theme of administrative control by

the president. Since the president is the only nationally elected

official, something that bureaucrats are not, by allowing the president

to exercise control over discretionary decisions works to enhances

accountability. As Elena Kagan argues, “When Congress delegates

discretionary authority to an agency official, because that official is a

subordinate of the President, it is so granting discretionary authority

(unless otherwise specified) to the President.”27 Congress, when it

passes a bill on to the president, does not have the means to monitor

how the bill is carried out. The president has the resources to ensure

that a bill is “faithfully executed.” Further, by giving the president

centralized control, it relieves “the individual agencies from the

26 Ibid. pg. 51. See also Colby, Paul L. "Two Views on the Legitimacy of

Nonacquiescence in Judicial Opinions." Tulane Law Review. 61:1041. 1987 noting

“executive review” of the laws. pp. 1053-56


12

political pressures brought by specialized constituencies.”28And since

the president has electoral concerns, and giving that he is nationally

elected, he has “incentive(s) to steer national resources toward the

51% of the nation that last supported him (and that might support him

again), thereby mitigating the bad distributional incentives faced by

members of Congress.”29

As I will show later, when the Reagan administration made the

decision to attach the signing statement to the “Legislative History”

section of the United States Code Congressional and Administrative

News, part of the rationale for doing so was to make sure that the

heads of the bureaucratic agencies were on the same page as the

president when it came time to interpret a statute. To highlight why

this is important, Terry Eastland remembers a story that took place in

1983 when he first joined the Reagan Justice Department.

Eastland was seated around a conference table at the

Department of Justice reading news clips with other Justice

Department officials regarding how President Reagan and then-

27 Kagan, Elena. “Presidential Administration.” Harvard Law Review. 114:8 June

2001. pg.2327. 28 Breyer, Stephen. “Symposium: Agency Autonomy and the Unitary Executive.”

Washington University Law Quarterly. 68:3. 1990. pg.512. 29 Calabresia, Steven G. “Some Normative Arguments for the Unitary Executive.”

Arkansas Law Review. 48:23, 1995. pg. 35. This does not diminish in his second

term. As Peter Shane argues, in the second term the president works to help party members during the mid-term election, he works to help his successor, and

finally he works to build a positive legacy. Shane, Peter M. “Political

Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking.” Arkansas Law Review. 48:161, 1995. pg.193.


13

Attorney General William Smith were censoring films that were coming

in from Canada. The subject of the films was about acid rain. The

administration was taking a beating in the press about how it was

infringing upon First Amendment freedoms. Eastland, who originally

thought that Attorney General Smith was responsible for the

censorship, later found out that the Attorney General, or any other

high ranking official in the Reagan administration had anything to do

with the action. It turned out to be a civil servant in the Criminal

division of the Department of Justice applying his interpretation of the

“Foreign Agents Registration Act”.30

Even though the Unitary Executive can trace its lineage to the

writings of the Founding Fathers, it is my contention that the forces

that shaped it are relatively new, emerging from the political

hydraulics of the last 30 years. While much ink has been spilled

arguing what the Founding Father’s truly meant by the various clauses

of Article II of the Constitution, my point in this endeavor is to view

that particular argument as moot. Regardless of what the Founding

Father’s meant about executive power, the fact is that the executive

has amassed a number of significant powers over the last three

decades as a result of pressures in the political system that have given

rise to the Unitary Executive.

30 Eastland, Terry. "Symposium: Agency Autonomy and the Unitary Executive."


14

What then are the significant pressures? It is my belief that two

forces have managed to solidify the need for unified control by the

president. The first is the rise of and attention given to the vast

administrative state, beginning with President Nixon and every

subsequent president. The second is the effect that Watergate had on

the system—a popular desire to muzzle the power of the presidency

and the persistence of divided, highly partisan government.

Beginning with the New Deal, the bureaucracy in Washington D.C.

has become an important component of the political process.

Congress has viewed the bureaucracy as a means to distribute benefits

to constituents, all the while putting the bureaucracy mostly under the

direction of the executive branch. Starting with the Nixon

administration, the bureaucracy was viewed with suspicion as an

institution whose politics largely conflicted with the politics of his

administration. Nixon was convinced that to gain control over the vast

administrative state, he had to centralize the policy process as tightly

as possible—to remove discretion from the hands of career, non-

appointed bureaucrats. Nixon turned to the Office of Management and

Budget, which was formed in 1970 from the Bureau of the Budget.

The Bureau of the Budget was established in 1921 out of the Budget

and Accounting Act of 1921. Congress created the Bureau within the

Washington University Law Quarterly. 68:3 1990. pg.509.


15

Treasury Department to “coordinate presentation of an annual

comprehensive budget with estimated expenditures and revenues and

requested appropriations.”31 The first director, Charles G. Dawes

established procedures that would lead to a central clearance process,

ultimately giving tremendous political power to the executive branch

from 1970 on to the present.32 When Nixon created the Office of

Management and Budget in 1970, central clearance and coordination

was still an integral part of what the office did, only now rather than it

being handled by career civil servants it was now handled by political

appointees.33 The OMB, as I will show later, has become a

tremendous part of the process in which presidents use the signing

statement as a way to gain control of policy.

The second force, also a Nixon creation, was the impact that

Watergate had on the presidency. When it was revealed that

President Nixon was using his political appointees to commit criminal

acts, Congress, the press, and the public sought to gain greater

control and oversight of the executive branch. Thus, Congress passed

laws such as the Ethics in Government Act of 1978 that established the

Office of the Independent Counsel to avoid a repeat of the “Saturday

31 Garrison, Loretta Hagopian. “Who Decides? The Struggle for Control over the

Federal Government’s Spending Power.” Case Western Reserve Law Review. 38:66. 1988. pg. 89.

32 Fisher, Louis. The Politics of Shared Power: Congress and the Executive. 2d.

Washington D.C.:Congressional Quarterly Press. 1987. pg.45. 33 Ibid. pg. 46.


16

Night Massacre” in which President Nixon ordered Attorney General

Elliot Richardson to fire special prosecutor Archibald Cox. Richardson

resigned and newly-appointed Attorney General Robert Bork fired Cox.

The Office of the Independent Counsel would be free from executive

branch pressure while charged with investigating potential criminal

activity within the executive branch.

Congress also established a number of institutional resources to

allow it to better deal with the activities of the president. For instance,

in 1974 the Congress passed the Congressional Budget and

Impoundment Control Act of 197434 “to reassert the congressional role

in budgeting, to add some centralizing influence to the Federal budget

process, and to constrain the use of impoundments.”35Up until the

Nixon administration, presidents had withheld appropriated funds,

“justified either on the basis of statutory authority or on the claim that

presidents had inherent authority to withhold funds from obligation.”36

Presidents mostly used impoundment as a bargaining tool with the

Congress, agreeing to release funds in an informal negotiation with the

Congress when the Congress and the president worked out an

agreeable position on the issue in conflict.37 In 1974, this informal

mechanism fell apart after Nixon began to systematically use the

34 PL 93-344. 35 http://www.house.gov/rules/jcoc2y.htm. Accessed May 17, 2002. 36 Fisher. pg.86. 37 Ibid. pg. 86.


17

impoundment as a way to curtail Congress’s spending power. The

1974 act enabled the Congress, through a legislative veto, to obtain

the release of funds being withheld by the president. If the president

refused, the comptroller general was authorized to bring suit against

the president to obtain the release of the funds.38

The budget portion of the Congressional Budget and Control Act of

1974 established the Congressional Budget Office (CBO). The CBO

provided a mechanism for the Congress to go toe-to-toe with the

Office of Management and Budget, whose now highly politicized

budget recommendations could no longer be trusted.

In addition to this, Congress established oversight of the

intelligence agencies in the executive branch and begin to attach

legislative vetoes to most legislation as a way to inform Congress as

much as possible on the activities of the president. This “increasing

tendency to interfere with executive power…made it much harder for

the Executive to fulfill its responsibilities.”39

At this same time, the presence not just of divided government,

but highly partisan divided government became a staple of the political

system.40 Divided government occurs when the presidency is

38 Ibid. pp. 86-87. 39 Thornburgh, Dick. “The Presidency and Congress: Constitutionally Separated and

Shared Powers.” Washington University Law Quarterly. 68:3. 1990. pg.487. 40 See, for example, Bond, Jon R. and Richard Fleisher. Polarized Politics: Congress

and the President in a Partisan Era. Washington D.C.: Congressional Quarterly Press. 2000.


18

controlled by one political party and the Congress, either one house or

both, is controlled by the other party. There are some who argue that

divided government does not have a significant impact on the

legislative success or failure of the president.41 My argument differs in

that it asserts that the perceptual barrier of dealing with a Congress

controlled by a different party of radicalized partisans has forced the

president to look elsewhere for advantages over policy—and

“elsewhere” has been the political signing statement as a means to

control how the bureaucracy will enforce a particular piece of

legislation. As I will show later, after the early successes the Reagan

administration had in dealing with the Congress in 1981, it found a

loss of support in every subsequent year culminating in the 1986

midterm elections that brought Democratic control to the Congress.42

As the administration slowly lost support in Congress, its attention

increasingly turned to administrative control of the policy process.

I would now like to turn my attention to how the president asserts

unitary control over the executive branch. I am going to argue that

41 Mayhew, David. Divided We Govern: Party Control, Lawmaking, and

Investigations, 1946-1990. Connecticut: Yale University Press. 1991; Krehbiel, Keith. Pivotal Politics: A Theory of U.S. Lawmaking. Chicago: University of

Chicago Press. 1998; Brady, David W., and Craig Volden. Revolving Gridlock.

Colorado: Westview Press. 1998. But see Edwards, George C., Andrew Barrett, and Jeffrey Peake. “The Legislative Impact of Divided Government.” American

Journal of Political Science. 41:2. April, 1997 for a counter argument regarding the affects of divided government.

42 Bond, Jon R. and Richard Fleisher. “Congress and the President in a Partisan Era”

in Bond, Jon R. and Richard Fleisher. Polarized Politics: Congress and the


19

the foundation of the Unitary Executive is constitutional, drawing its

strength from the “Oath” Clause and the “Take Care” Clause of the

Constitution. The “Oath” Clause allows the president to defend from

encroachments upon executive prerogatives as well as to protect the

constitutional rights of individuals. The “Take Care” Clause allows the

president to “interpret” legislation in a manner that maximizes

executive branch policy preferences.

The “Oath” Clause of the Constitution is found in Article II, Section

I. It states that the “President will faithfully execute the Office of the

President and will preserve, protect, and defend the Constitution of the

United States.” It is in this phrase that the president both protects the

prerogatives of his office (faithfully execute) as well protects the

liberties of individuals. As Steven Calabresi argues, “…it is a duty of

the President to preserve, protect and defend his office, which is, or

course, a creation of the Constitution itself. The President takes an

oath to uphold that Constitution and the public judges him, and ought

to judge him, by his vigilance in fulfilling that oath.”43

To enforce the “Oath” protection, the Justice Department has

carved out two caveats to the president’s constitutional obligation to

defend and enforce statutes: The first is to not defend or enforce those

President in a Partisan Era. Washington D.C.: Congressional Quarterly Press.

2000.


20

statutes that are “clearly unconstitutional” and the second is to not

defend and enforce those that encroach upon the prerogatives of the

executive branch.44 The first caveat “accommodates the conflict

between the constitutional mandate that the President execute the

laws and his oath to support and to defend the Constitution” while the

second caveat “accommodates the occasional conflict between the

roles of the President as the chief law enforcement officer of the United

States and the role of the Attorney General as the advocate of the

executive branch.”45

Michael Stokes Paulsen perhaps better clarifies the point of the

“Oath” clause acting as a shield for the executive branch:

It is plain from the context that the President’s

power to “shield himself” does not mean that the power of constitutional review is limited to the President’s exercise of his veto in order to

protect his own constitutional prerogatives (though it certainly means at least that). Rather, this check extends to “refus[ing] to

carry into effect” (that is, refusing to execute)

any that the President concludes transgresses

constitutional limits. The power to “shield”

oneself is the power (and duty) to refuse to act in complicity with unconstitutional

conduct.46 (emphasis mine)

43 Calabresib, Steven G. “Advice to the Next Conservative President of the United

States.” Harvard Journal of Law and Public Policy. 24:369. Spring, 2001.

pg.375. 44 Note. “Executive Discretion and the Congressional Defense of Statutes.” Yale Law

Journal. 92:970. May,1983. pg. 973. 45 Ibid. pp. 973-974. 46 Paulsenb, Michael Stokes. pg. 253.


21

If Article II enables the president to shield his office from enforcing

or executing unconstitutional laws, then the particular entity within the

executive branch that is charged with enforcing this shield is the

Department of Justice (DoJ), and even more specific, the Office of

Legal Counsel (OLC).

William Barr notes that in addition to acting as counselor to the

president and resolving legal disputes between departments within the

executive branch, an often overlooked duty of the Attorney General

involves providing legal interpretation of bills the president is signing

into law. An as part of this duty, the DoJ will advise the president on

vetoing a bill and if a veto is impossible, then an appropriate

interpretation of the bill (the signing statement) to avoid constitutional

difficulties.47

In many cases, the Department of Justice will propose, as a fallback position, that an issue be addressed in a signing statement if it would

be politically impossible simply to veto a bill.

For instance, at the very end of its session,

Congress frequently passes large bills and then leaves town. The only choice we have is to veto the bill and, say, shut down the foreign

operations of the US altogether for six months, or sign the bill and note exception to some

provision we think is unconstitutional. Thus, in some instances, signing statements have

directed subordinate officials to disregard

47 Barr, William P. “Attorney General’s Remarks.” Cardozo Law Review. 15:1-2.

October,1993. pp.33-34.


22

provisions of a bill that are thought to be

clearly unconstitutional and severable. 48

Barr concludes, with a position supported by Solicitor General

Theodore Olson, that when the president is faced with a decision in

which the Constitution says one thing and a statute says another, the

president is left with no other choice than to enforce the Constitution.

“Particularly where a law encroaches on executive power, the only

effective way of challenging the law is by declining to enforce it.”49

As I noted above, within the Department of Justice are various

agencies that are specialized to handle particular legal issues

confronting the nation (See Appendix 2.1). Of particular importance to

the shielding power of the executive branch is the Office of Legal

Counsel (OLC).

The OLC was formally created in 1953 to “maintain the

constitutional protections for the President.”50 The OLC both provides

legal advice of a constitutional nature to all the departments within the

executive branch and it provides “both written and oral advice in

48 Ibid. pg. 39. 49 Ibid. pg. 39. Devins, Neal. “Political Will and the Unitary Executive: What Makes

an Independent Agency Independent?” Cardozo Law Review. 15:1-2. October,

1993. pg. 281. 50 Baker, Nancy V. “The Attorney General as a Legal Policy-Maker: Conflicting

Loyalties” in Cornell Clayton. Government Lawyers: The Federal Legal Bureaucracy and Presidential Politics. Kansas: University of Kansas Press. 1995.

pg. 32. Shanks, Robert B. “Office of Legal Counsel—The President’s ‘Outside”

Law Firm” in The Department of Justice Manual. New Jersey: Prentice Hall. 1990-91. pg. 1-38.


23

response to requests from the Counsel to the President.”51 Over the

course of the twentieth century, the OLC “came to present themselves

as agents of the Constitution itself and as guardians of an office whose

significance to our nation far outstrips the petty political disputes that

consume the daily life of most of those around the president.”52

The OLC will eventually evolve into a major player in the

development and significance of the signing statement. As I will show

later, during the Reagan administration it was the OLC that came up

with the novel approach of attaching the signing statement to the

“Legislative History” section of the United States Code, Congressional

and Administrative News (USCCAN). Further, during the Clinton

administration, the OLC issued an opinion regarding the significance of

the signing statement. In that opinion, Walter Dellinger, Assistant

Attorney General in the OLC, advised President Clinton’s White House

Counsel, Bernard Nussbaum, that the president is obligated to use a

signing statement in which legislation appears constitutional on the

surface, but has parts that would be unconstitutional if executed.53 In

keeping with practice, Dellinger argued, a signing statement “that

51 http://www.usdoj.gov/olc/index.html. Accessed February 15, 2002. 52 Lund, Nelson. “Guardians of the Presidency: The Office of the Counsel to the

President and the Office of Legal Counsel” in Cornell Clayton. Government

Lawyers: The Federal Legal Bureaucracy and Presidential Politics. Kansas: University of Kansas Press. 1995. pg. 212.

53 Dellinger, Walter. “The Legal Significance of Presidential Signing Statements.”

Memorandum, Office of Legal Counsel. November 3, 1993. http://www.usdoj.gov/olc/signing.htm. Accessed May 20, 2002.


24

challenges what the President determines to be an unconstitutional

encroachment on his power, or that announces the President’s

unwillingness to enforce (or willingness to litigate) such a provision,

can be a valid and reasonable exercise of Presidential authority.”54

Even though the OLC has undertaken the primary responsibility of

protecting the president from encroachment upon the constitutional

powers of the office, this does not mean that the OLC gets the final

say. There are times when political expedience may overrule the

opinion of the OLC. For example, when the bill to bail out the failed

Savings and Loans in the late 1980s reached President Bush’s desk,

the OLC found some constitutional problems regarding how the

director of the Office of Thrift Supervision was appointed. The OLC, in

this instance, argued that the bill should be vetoed on that defect

alone. However, many people in Congress and in the executive branch

found this bill to be too politically important to allow a minor

constitutional defect to derail it, and as such, the OLC was overruled.55

In this first leg of the Unitary Executive, the president, by relying

upon the “Oath Clause” of the Constitution shields his office from

encroachments upon its prerogatives. The primary protector of the

president’s prerogatives is the Department of Justice, in particular, the

54 Ibid. 55 Barr, William P. pg. 38.


25

Office of Legal Counsel. All enrolled bills56 that go to the president’s

desk for signature flow through the OLC “which reviews them for

constitutional problems and makes a recommendation to the President

whether to sign or veto.”57 The OLC may also play a role in drafting

both the veto statement if the president vetoes the bill and the signing

statement if constitutional objections need to be made.58 This does not

mean that the OLC gets the last word. In fact, in some instances

political expedience can overrule the Constitutional objections of the

OLC, as the case of the Savings and Loan bill above illustrates.

The “Take Care” Clause is found in Article II, Section III of the

United States Constitution. It obligates the president to “…take care

that the laws are faithfully executed.” Further, in Article II, Section II

of the United States Constitution, the president may solicit the

opinions of the principle officers of the various executive branch

agencies to help him to take care that the laws are faithfully executed.

These two powerful components of the Constitution have been used to

argue for a unified interpretation of laws that the president is signing.

As Michael Herz argues:

The Take Care Clause is backed up by the President’s specific, and unique, oath to

“faithfully execute” his office. The use of the

56 Those bills that are advanced by the Administration are circulated to all interested

agencies for comment. OLC will only get a bill if the Office of Legislative Affairs

(OLA) seeks a legal review. Shanks, Robert B. pg. 1-43. 57 Ibid. pg. 1-43. 58 Ibid. pg. 1-43.


26

passive voice in the Take Care Clause indicates

that the President will not necessarily be

executing the laws directly, but only overseeing others to ensure their “faithful”

execution. [Further], the Take Care Clause

uses the active voice to impose a direct responsibility on the President to “take care.” Interpreting statutes to ensure that what the

agencies are doing is consistent with the

statute, as opposed to some independent policy goal, seems an inescapable part of “taking care” that the agency is faithful to the

statute.”59

As the Supreme Court has noted, “Interpreting a law enacted by

Congress to implement the legislative mandate is the very essence of

‘execution’ of the law.”60

President Wilson argued in 1908, regarding the “Take Care” clause,

that “[It] is therefore becoming more and more true, as the business

of the government becomes more and more complex and extended,

that the President is becoming more and more a political and less and

less an executive officer.”61

The use of the political signing statement gets at the very root of

the “Take Care” power. It is meant to put the executive branch

agencies, more than any other actor in government, on the same page

as the president when it comes to interpreting the meaning of a

59 Herz, Michael. “Imposing Unified Executive Branch Statutory Interpretation.”

Cardozo Law Review. 15:1-2. October, 1993. pp. 252-53. 60 Bowsher v Synar. 478 U.S. 714 (1986). 61 Goldstein, Joel K. "The Presidency and the Rule of Law: Some Preliminary

Explorations." Saint Louis University Law Journal. 43:791. Summer, 1999. pg. 803.


27

particular statute. David Rivkin sees the political signing statement as

“crucial to the executive branch to put its own house in order and to

run it by issuing binding policy directions to its subordinates.”62

If the “Take Care” Clause gives the president the power to direct

his subordinates as to how to interpret laws, as I assert it does, then

what is to stop the president from interpreting all legislation that

comes across his desk in a manner that consistently favors his policy

preferences? First, the Supreme Court has held that an executive

branch agency must interpret legislation per Congress’s wishes when

the plain meaning of the legislation is evident; absent the intent of

Congress, the agency, under the direction of the president, may

interpret the meaning of the statute.63 And second, the administration

is constrained by the collective will of the Congress.

Terry Moe and William Howell have argued for a theory that seeks

to explain why presidents rely upon such informal powers like

presidential signing statements. According to Moe and Howell,

presidents exploit the ambiguities within the formal structure of the

Constitution to advance their own powers, and “neither the Congress

62 Rivkin, David B. Jr. “The Unitary Executive and Presidential control of Executive

Branch Rulemaking.” Administrative Law Journal. 7:309. Summer, 1993. pg.

321. 63 Chevron U. S. A. Inc.. v. Natural Resources Defense Council, Inc. et. al. 467 U.S.

837 (1984).


28

nor the courts are likely to stop them.”64The steady use of these

powers over time tilts the balance in favor of the presidency.

However, this does not allow the president to do whatever he wishes.

If the president takes an action that allows Congress to overcome the

collective action problem inherent in the institution, then it can act to

check the advances of the president. Kenneth Mayer, drawing upon

Gordon Silverstein’s work on the separation of powers between the

Congress and the president, makes a similar case. Mayer notes that

legislators will more likely organize effectively

when they are dealing with issues directly affecting their constituents. Congress, in other

words, is most effective when it is acting as a representative institution, because it is more likely to respond to sustained electoral

pressures than to vague concerns that the

president is encroaching on its administrative or procedural prerogatives.65

How did presidents come around to interpreting the “Take Care”

Clause to provide them with the means to control the administrative

state? This is the more recent component to the development of the

signing statement. The Nixon administration was the first to look, in

any systematic way, at removing administrative discretion from the

heads of the bureaucratic agencies. In essence, this “Take Care”

power came about as a result of the administrative presidency.

64 Moe, Terry M. and William G. Howell. "Unilateral Action and Presidential Power: A

Theory." Presidential Studies Quarterly. Volume 29, Number 4. December,1999.

pg.852.


29

The administrative presidency is:

… a management strategy designed to ensure bureaucratic responsiveness to the president.

It is intended to help presidents achieve their

policy goals administratively through the bureaucracy rather than legislatively through Congress, and to bring the bureaucracy to

heel. It consists of a set of tools whose

purpose is to reign in the bureaucracy, overcome bureaucratic advantages, and enable presidents to achieve their policy objectives

without requiring congressional consent.66

It was the Teddy Roosevelt administration that first looked to the

advantages of controlling the administrative state. The Hoover

administration was aided greatly via the creation of the Bureau of the

Budget.67 However, systematic centralized control of the bureaucracy

to advance policy preferences was not something picked up on until

the Nixon administration.

As Richard Nathan argued, Nixon deployed four key strategies to

exert administrative control:

• Personnel shifts—putting top political appointees into important

agency positions; • Budget impoundments and reductions—using the fiscal power of the

presidency to halt entire programs;

• Reorganization—whole agency activities would be reorganized right out of existence or “super secretaries” would be created to serve as

a counter-bureaucracy;

65 Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential

Power. Princeton: Princeton University Press. 2001. pg.27. 66 Golden, Marissa Martino. What Motivates Bureaucrats? Politics and Administration

during the Reagan Years. New York: Columbia University Press. 2000. pp.5-6. 67 Kagan, Elena. pg. 2274.


30

• Regulation—writing regulation was seen as a method to achieving

major policy goals.68

As Nathan concluded in his study, this move by the Nixon

administration was largely a failure. However, it laid the ground work

for future presidents to pick up and exploit, so by the time of the

Reagan administration, it had the necessary tools to centralize control

over the bureaucracy unlike any administration that came before.

When Nathan revisited his thesis and applied it to the Reagan

administration, he determined that Reagan accomplished what Nixon

could only dream.69

Just as the Department of Justice was the chief enforcer of the

“Oath” Clause, the Office of Management and Budget (OMB) is the

entity chiefly responsible for administrative control under the “Take

Care” Clause of the Constitution.

The Office of Management and Budget, aided in great part by a

couple of executive orders, has undertaken a strategy to impose

executive branch statutory interpretation.70 Beginning with the Nixon

administration and perfected in the Reagan administration, the OMB

has been used as a “point of central clearance for all executive branch

budgetary requests” to reduce “the ability of individual agencies to

68 Nathan, Richard. The Plot that Failed: Nixon and the Administrative Presidency.

New York: Wiley and Sons. 1975. pp. 72-75. 69 Nathan, Richard. The Administrative Presidency. New York: John Wiley and Sons.

1983


31

make an end run around the president and request more money from

Congress.”71

To insure the central point of clearance, President Reagan issued

two key executive orders that made OMB a central player. The first,

executive order 12,291, was issued just a month into Reagan’s

presidency. Executive order 12,291 required executive branch

agencies to submit all of their proposed rules and policy documents to

the OMB before they were released. OMB was then able to insure that

the proposals were consistent with five general principles:

Under these principles, agencies must base

their decisions on adequate information concerning the need for and consequences of the proposed action, and must determine

regulatory objectives, priorities, and actions in

a way that will maximize net societal benefits when costs and benefits are compared. Major rules72 require a formal “regulatory impact

analysis (RIA)” analyzing the costs and benefits, including those that cannot be quantified monetarily, of the regulation,

discussing more cost-effective means to the

same end, and explaining the legal obstacles, if

any, to pursuing the more cost-effective approach.73

70 Herz, Michael. “Imposing Unified Executive Branch Statutory Interpretation.”

Cardozo Law Review. 15:1-2. October, 1993. 71 Golden, Marissa Martino. pg.7. 72 Executive order 12,291 defines a "major rule" as a regulation likely to produce an

annual impact of $100 million or more on the American economy or a major

increase in costs or prices. Executive Order No. 12,291, 46 Fed. Reg. 13193

(1981). 73 Herz, Michael. pg.222.


32

The second executive order, 12,498, modified 12,291. Executive

order 12,498 instructs agencies to prepare annual agendas that detail

all ongoing or potential rulemaking activities and to explain to OMB

how these activities are “consistent with the administration’s

regulatory principles.”74 The OMB also was empowered to “approve the

rulemaking agendas prepared by the agencies” and barred those “rules

not identified” in the president’s agenda or otherwise approved by the

OMB.75

Taken together, these two executive orders enabled the president

to control a great deal of the policies that made their way through the

bureaucracy. As one former staff member at the EPA noted, "You

don’t spend two years thinking about a regulation without thinking

about whether OMB is going to shoot it down."76

Given the discretion to the OMB to monitor and clear the rules and

proposed rules from the executive branch agencies, the use of the

political signing statement then becomes significant. In 1979, the

OMB issued OMB Circular A-19 which asked all agencies that wished to

have a signing statement included in a piece of legislation to submit

74 Executive order 12,498. 50 FR 1036, 3 CFR, 1985. 75 Cooper, Joseph and William F. West. "Presidential Power and Republican

Government: The Theory and Practice of OMB Review of Agency Rules." Journal

of Politics. 50:4, November 1988. pg.874. 76 Ibid. pg. 876.


33

the draft to the OMB.77 This enabled OMB to oversee the use of signing

statements by the executive branch agencies in an effort to coordinate

their use with the policy purposes of the administration. On its own,

A-19 was more or less meaningless, used to insure that the signing

statements were issued in a coherent fashion. However, when put

together with executive orders 12,291 and 12,498, it increased the

“degree to which the commitments a president shares with key

elements of his electoral coalition will be given priority over legislative

intent or technical expertise in the service of such intent.”78

The political signing statement, then, is a creature of the

president’s interpretation of the “Take Care” Clause of the

Constitution. To take care that the laws are faithfully executed, the

executive branch has sought to centralize as much of the policy

process into the hands of the executive branch political appointees.

Because the president has a constituency of his own, the political

signing statement is a way to respond to the wishes of a particular

constituency who failed to get their message through to Congress.

Centralization of the rulemaking process is isolated in the Office of

Management and Budget, which has become a pivotal player in the

77 The Office of Management and Budget. Circular No. A-19 Revised September 20,

1979. http://www.whitehouse.gov/omb/circulars/a019/a019.html. Accessed May

23, 2002. 78 Cooper, Joseph and William F. West. pg.883.


34

policy process beginning with the Nixon administration but actually

perfected in the Reagan administration.

In Conclusion, the Unitary Executive is different from the model

offered by Richard Neustadt.79 As Kenneth Mayer argues, the

Neustadt paradigm has remained influential in the study of the

presidency for two reasons: “First, Neustadt’s views found support in

normative prescriptions of how the president should behave. The

‘power to persuade’ model of an activist presidency fit with the notion

of the president as a leader, at the center of the give and take of

political bargaining.”80 And second, “Presidential Power served to

demarcate a shift away from traditional avenues of presidential

scholarship.”81 Prior to Neustadt, presidential scholars focused more

on the formal constitutional powers of the president. Neustadt

uprooted the study of the presidency from that which gave it meaning.

As Mayer documents, it wasn’t until the last thirty years that a

minority of presidential scholars began to refocus our attention on the

constitutional meaning of the presidency.82

79 Neustadt, Richard. Presidential Power and the Modern Presidents: The Politics of

Leadership from Roosevelt to Reagan. New York: Macmillan, 1990. 80 Mayer, Kenneth. pg.12. 81 Ibid. pg. 12. 82 Ibid. pg. 14.See also Pious, Richard M. The American Presidency. New York: Basic Books, 1979: “The fundamental and irreducible core of presidential power rests not

on influence, persuasion, public opinion, elections or party, but rather on the

successful assertion of constitutional authority to resolve crises and significant domestic issues.” pg. 17.


35

The Unitary Executive is a creation of constitutional

interpretation. It is not a subtle model like the Neustadt model of

informal bargaining and persuasion but rather a blunt instrument that

allows the president to strategically and methodically use a wide array

of tools to push his legislative preferences forward and to protect his

office or the constitutional liberties of individuals.

As I noted earlier, the model of the Unitary Executive argues that

the president, as a coordinate branch of government, may

independently interpret the Constitution. Further, the president is the

only nationally elected official, which makes him accountable for how

laws are executed. Therefore, the president is best situated to

coordinate agency activities and by virtue of his accountability and

central position, he can bring energy to the administrative process that

agency officials cannot muster by themselves.

Two key institutions allow the president to centralize control within

the executive. First the Office of Legal Counsel, located in the

Department of Justice, scans all pieces of legislation for anything that

might infringe on the president’s prerogatives. The Office of Legal

Counsel will attach signing statements to legislation outlining what

parts of the legislation has constitutional difficulties and what the

administration plans to do about it.


36

The second key player in the Unitary Executive is the Office of

Management and Budget. A creation of the Nixon administration, the

OMB incrementally centralized administrative control through the Ford

and Carter administrations, and fully blossomed as a powerful

organization in the Reagan administration. The OMB monitors all

rules, both actual and proposed, to see that the rules line up with the

administration’s policy preferences. The OMB also collects signing

statements, which it uses to give notice to executive branch agency

heads what the president’s views are on a particular piece of

legislation.

What this model should not suggest is that the executive branch is

a monolith. In fact, the Congress can still exert, as I will show,

tremendous pressure upon executive branch officials to check the

administration’s ambitions. The Supreme Court has also outlined

exactly how far the administration can go in interpreting policy. And

finally, there is tremendous in-fighting among executive branch

players so that in some instances a constitutional signing statement

gives way to political interests.

Before I begin the story of how the Unitary Executive became

solidified in the Reagan administration, I think it will be useful to

provide a picture of the presidential signing statement to date and how


37

they became institutionalized. This will be the focus of the next

chapter.


38

Chapter Three-A Macro-view of the Signing Statement

1

Chapter Three

A Macro-View of the Signing Statement

Article One, Section Seven of the United States Constitution

contains the president’s involvement in the legislative process. It

states that a president, when presented with a bill from Congress,

signs it, if he approves of it, or vetoes it, with his objections, should he

disapprove. There is nothing in the Constitution that mentions a

president offering extraneous statements of the bill after he signs it

into law.

It was not until the 20th century that presidents even began to

regularly use the signing statement, and as argued earlier, not until

the last 30 years that the signing statement became a significant tool

in a president’s toolbox. This chapter will look at the history and

development of the signing statement. It will be useful to discuss

what the signing statement is before examining how it has developed

along with the Unitary Executive, which will be the focus in the

chapters that lay ahead.

In this Chapter, I will address the following questions: What is

meant by a presidential signing statement? How many signing

statements have been issued from Washington to Clinton? Who issued

the first signing statement? Are there any patterns in the use of the


2

signing statement? Does the frequency vary with a president’s

political situation?1

On the surface, signing statements are quite simple to understand.

They are nothing more than a statement issued by the president,

mostly in written form but also at times “announced” during a bill

signing ceremony. There are instances when the verbal signing

statement differs slightly from the written statement on the same

piece of legislation. This is largely in recognition to the different

audience the president is hoping to reach. For example, in signing the

“Railroad Retirement Solvency Act of 1983,”2 President Reagan

released two different bill signing statements. The written statement,

which was three paragraphs long, was specifically meant to explain to

the Congress and the executive branch agencies the constitutional

problems of having the Railroad Retirement Board submit reports

concurrently to the President and the Congress.3 However, in the

formal bill signing ceremony on the same day, which constituted seven

paragraphs, there was no mention of the constitutional defects of the

bill. Instead, President Reagan took time to single out members of

1 These questions are exactly the same questions Kenneth Mayer asked in his

discussion of executive orders. I have borrowed them because they are

particularly useful in explaining a similar presidential power, the signing

statement. See Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders

and Presidential Power. New Jersey: Princeton University Press. 2001. pg. 66. 2 PL 98-76.


3

Congress, many of whom were fellow partisans, for the good work that

was done on the bill.4

Ever since the Reagan administration, the signing statement now

appears in the “Legislative History” section of the United States Code,

Congressional and Administrative News (USCCAN). However, prior to

this 1986 decision (explained in greater detail in Chapter Four), the

signing statement could be found in The Weekly Compilation of

Presidential Documents (1965-present), and The Public Papers of the

Presidents. The Public Papers only fully covered President Hoover and

President Truman through President George W. Bush. The Public

Papers and Addresses of Franklin Delano Roosevelt only sporadically

contained signing statements. To insure that all were being

considered, I had to also review the Congressional Record, which

contains communications from the president. Prior to President

Hoover, the Congressional Record and A Compilation of the Messages

and Papers of the Presidents 1789-1897 were reviewed for presidential

signing statements.5

The importance of the signing statement has largely gone

unrecognized by political scientists interested in the study of

3 Reagan, Ronald. “Statement on signing the Railroad Solvency Act of 1983.”

Weekly Compilation of Presidential Documents. Vol. ? pg. 117. September 12,

1983. 4 Ibid. pg. 116 5 I also received the data gathered by Professor Christopher May when he worked on

a similar project. For this I am forever grateful.


4

presidential power. And what has been written by political scientists

has often been dramatically wrong6 or incomplete.7 Instead, the study

of the signing statement has been relegated to legal scholars who,

while making an important contribution, overlook the political

importance of the signing statement. Mostly, the discussion of the

signing statement appears in arguments over formal versus functional

separation of powers8 and the role it should serve in legislative history

(see below). Additionally, many who do discuss the signing statement

make a number of serious errors. The pad story line goes something

like this: President Jackson was the first to use the signing statement

over a bill regarding internal improvements. President Tyler received

a public rebuke from the Congress for issuing a signing statement.

And in 1986, the Reagan administration took the unprecedented step

of having the signing statement included in the "Legislative History”

section of the United States Code Congressional and Administrative

6 Chris Cookson, in a 1997 article appearing in the Southeastern Political Review both

greatly overstates the power of the signing statement and falsely charges

popular hostility to the use of the signing statement in the Reagan and Bush

administrations. Cookson, Chris E. "Formal Executive Power: The Contemporary

Presidency." Southeastern Political Review. 25:3, September, 1997. 7 Even the most recent book that discusses the signing statement by a noted expert

on the means that presidents use to exert power within the political system

discusses signing statements that have been used but not what effect they had

on the system. Additionally the “expert” gives no sense of where they began or

how many have been used to date. See Coopera, Phillip J. By Order of the

President: The Use and Abuse of Executive Direct Action. Kansas: University of

Kansas Press. 2002. 8 Formalists argue that each branch of government must be hermetically sealed from

the other branches of government with no mixing of powers while functionalists

take the position of “separate institutions sharing power.” Thus in this vein you

see arguments regarding the role of the president in the legislative process.


5

News. What this misses is a sense of history—who was the first to

issue a statement and how many have been issued to date? Knowing

this can give us not just an historical context but also recognizable

patterns (do they vary during election years? for example). By not

having an accurate count of how many signing statements have been

made, scholars make significant mistakes. For example, William

Popkin notes that “[Before] President Reagan, only a few presidents

issued (signing statements).”9 However, up to President Reagan there

were a total of 1294 statements issued. Also, by not knowing how

many signing statements are issued, scholars take to guessing the

number, which often times produces dramatic results. For instance,

Kristy Carroll’s 1997 Catholic University Law Review article on

presidential signing statements notes that President Reagan issued

“approximately 1046 signing statements accompanying the bills he

signed into law.”10 Some slack can be given in that she qualified her

account by noting that it was “approximately” correct. In reality,

President Reagan issued a total of 276 signing statements. A complete

picture of all signing statements issued can be found in Appendix 3.1.

The other part of the development of signing statements that has

not received adequate attention is the importance that the Reagan

9 Popkin, William D. “Judicial Use of Presidential Legislative History: A Critique.”

Indiana Law Journal. Volume 66. Winter, 1993. pg.702.


6

administration placed on the signing statement. We are mostly left to

intuit that the inclusion in the USCCAN was important. In the next

chapter, I will explain why that decision was important and how it lead

to the solidification of the Unitary Executive.

I have identified three categories11 in which signing statements

“fit.” The first category I refer to as “Constitutional.” The second

category I refer to as “Political.” And the third category I refer to as

“Rhetorical.”

Category One—Constitutional Signing Statements

Constitutional signing statements are those statements that

address constitutional defects in a section or sections of legislation.

The president outlines what the defect is and what he intends to do

about it. This can range from urging Congress to pass legislation that

corrects the defect to directing executive branch agencies to ignore the

provision. They may also be no more than the president issuing a

constitutional corrective to a section that he agrees with. For

example, when President Reagan signed the “International Security

10 Carroll, Kristy L. “Whose Statute is it Anyway?: Why and How Courts Should Use

Presidential Signing Statements When Interpreting Federal Statutes.” Catholic

University Law Review. 46: 475. Winter, 1997. pg.491. 11 Carroll, Kristy L; Dellinger, Walter. “Memorandum for Bernard N. Nussbaum.”

Arkansas Law Review. 48: 333. 1995; May, Christopher. Presidential Defiance

of “Unconstitutional” Laws. Connecticut: Praeger. 1998. Burgess, Christine E.

“When may a President Refuse to Enforce the Law?” Texas Law Review. 72:

471. February, 1994.; Gaziano, Todd F. “The Use and Abuse of Executive

Orders and Other Presidential Directives.” Texas Law Review. 5: 267. Spring,

2001; Garber, Marc N. and Kurt A. Wimmer. “Presidential Signing Statements as


7

and Development Cooperation Act of 1985”,12 he made objections in

the bill regarding the Palestine Liberation Organization (PLO). Section

1302 stated that it is the position of the United States not to recognize

the PLO due to the PLO’s refusal to recognize Israel’s right to exist.

President Reagan, while agreeing with the position, noted that only the

President can decide what the foreign policy position of the United

States is or should be, and that section 1302 constitutes a “non-

binding (expression) of congressional views.”13

Constitutional signing statements almost invariably deal with some

perceived encroachment upon executive prerogatives, but also may

include issues of federalism and individual rights. Constitutional

signing statements originate in the Office of Legal Counsel (OLC) which

is located within the Department of Justice.

Category Two—Political Signing Statements

Political signing statements differ from constitutional signing

statements in that the focus is not legal, although the statement may

be structured that way. For example, as I will discuss in Chapter Six,

President Clinton used a signing statement to oppose a provision of an

authorizations law which sought to remove members of the military

Interpretations of Legislative Intent: An Executive Aggrandizement of Power.”

Harvard Journal on Legislation. 24:363. 1987; Coopera, Phillip J. 12 PL 99-83. August 8, 1985. 13 Reagan, Ronald. “Statement on Signing the International Security and

Development Cooperation Act of 85.” Weekly Compilation of Presidential


8

who were infected with the HIV virus. There was no constitutional

precedent for his reasoning, and in reality, he was reaching out to an

important constituency during an election year.

The political signing statement is normally meant as a directive to

executive branch agencies on how they are supposed to carry out a

particular statute.14 It is important to note, as I will show later, that

often times the political signing statement can appear very similar to

the constitutional signing statement in that the president will make

constitutional arguments that in reality are done for purely political

reasons.

The origins of the political signing statement can either stem

from executive branch agencies or from the White House staff. As I

will discuss below, there are times when the politics can overrule the

constitutional objections made by the Office of Legal Counsel.

The constitutional and political signing statements have also

taken on added significance, and attention, following the Reagan

administration’s 1986 move to have them added to the USCCAN. In

addition to serving as executive branch guidance, many legal scholars

have also noted that they have been meant to serve as guides to

Documents. Washington: United States Government Printing Office. August 8,

1985. 14 See, for example, Zinn, Charles J. "The Veto Power of the President." Committee

on the Judiciary, House of Representatives. Washington: United States

Government Printing Office. 1951. pg. 24.


9

judicial interpretation of statutes.15 Judges often time will look to

other political documents16 when it is unclear what the Congress

intended the meaning of a statute to be.17

Quite often a tug of war breaks out over whether or not to

attach a statement to a bill the president is signing. More often than

not, the battle is between the Office of Legal Counsel and the politicos

in the White House. For example, in signing the Immigration Reform

and Control Act of 1986,18 President Reagan made a number of

statements that were highly political and drew a great amount of

criticism from members of Congress and the press (discussed further

in Chapter Four). Douglas Kmiec, who worked in the Office of Legal

Counsel during this period of time, argued that the bill was

15 Carroll, Kristy; May, Christopher; Garber, Marc N. and Kurt A. Wimmer; Popkin,

William D.; Boulris, Mark Johnson. “Judicial Deference to the Chief Executive’s

Interpretation of the Immigration Reform and Control Act of 1986 Anti-

discrimination Provision: A Circumvention of Constitutionality Prescribed

Legislative Procedure.” University of Miami Law Review. 41:5. 1987; Kmieca,

Douglas W. “Judges Should Pay Attention to Statements by the President.” The

National Law Journal. November, 1987. 16 McKinney, Richard J and Ellen Sweet.. “Federal Legislative History Research: A

Practitioner’s Guide to Compiling the Documents and Sifting for Legislative

Intent.” Law Librarians' Society of Washington, D.C.

http://www.llsdc.org/sourcebook/fed-leg-hist.htm. Accessed June 10, 2002. 17 How much extra examination the courts do tends to vary. By the end of the

Carter administration, the Supreme Court took an expansive examination of the

legislative history of a given statute, yet by the end of the 1980s, use of

legislative history had greatly contracted. See Carro, Jorge L. and Andrew R.

Brann. “The U.S. Supreme Court and the Use of Legislative Histories: A

Statistical Analysis.” Jurimetrics Journal. 22:294. Spring, 1982; Wald, Patricia

M., “The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in

the 1988-89 Term of the United States Supreme Court” American University Law

Review. 39:277. 1990; Koby, Michael H. “The Supreme Court’s Declining Reliance

on Legislative History: The Impact of Justice Scalia’s Critique.” Harvard Journal

on Legislation. 36:369. 1999. 18 PL 99-603. November 6, 1986.


10

“hijacked” by a few people in other divisions

within DOJ and at the [White House] who

wanted, somewhat imprudently in my judgment, to express political rather than legal

concerns that did not fairly reflect, at least in

part, either legislative intent or a constitutional

evaluation that necessarily must qualify that intent.”19

In another instance of the battle over a signing statement

between the OLC and those concerned with politics within the White

House, Douglas Kmiec recounts the reauthorization of the

“Whistleblower Protection Act”, which had originally been passed as

part of the “Civil Service Reform Act of 1978”.20 Kmiec notes that

during the original debate over whether to sign the act, then head of

the OLC John Harmon protested that the provisions for a special

counsel was an unconstitutional infringement upon the president’s

removal power as well as a violation of the separation of powers

doctrine.21 In 1986, the House moved to authorize additional powers

to the special to give it the authority to sue executive branch agency

officials independent of the wishes of the attorney general or the

president. The OLC argued that this would “place the President in an

untenable position of speaking with two conflicting voices in federal

courts.”22 Further, the OLC objected to a provision by the House that

19 Email interview with Douglas Kmiecb, April 23, 2001. 20 Public Law 95-454. October 13, 1978. 21 Kmiecc, Douglas W. “OLC’s Opinion Writing Function: The Legal Adhesive for a

Unitary Executive.” Cardozo Law Review. 15:1-2. October, 1993. pg.340. 22 Ibid. pg. 340.


11

allowed the special counsel to transmit materials to the Congress

without review of the executive branch.23 Kmiec notes that OLC’s

objections were never brought to the attention of the Congress

because

a few late-in-the-term Reagan OMB appointees

apparently wanted to make the transition to

the Bush administration. Thinking that a “kinder gentler” Bush would be more tolerant

of legislative usurpation, these individuals

informally signaled Congress that OLC’s

constitutional concerns need not control the legislative outcome.24

Kmiec notes that when the “Whistleblower Protection Act of 1988”

passed and was sent to the White House, he and others in the OLC

were shocked to see the offending provisions still in the bill and

recommended that President Reagan veto the bill. The members of

the Bush administration who were worried that this could create an

election year issue argued vigorously for the President to sign the law.

In the end, Reagan pocket vetoed the bill and OMB had to admit to

Congressional leaders that it had been less than forthcoming.25

The rhetorical26 signing statement generally does not make a

legal or constitutional claim, nor is it intended to be a directive to

23 Ibid. pp. 340-41. 24 Ibid. pg. 342. 25 342-43. 26 The rhetorical importance to the presidency has been well documented by Tulis,

Jeffrey. The Rhetorical Presidency. New Jersey: Princeton University Press.

1998 and Kernell, Samuel. Going Public: New Strategies of Presidential

Leadership. California: University of California Press. 1997.


12

executive branch agencies, even though it is largely done for political

reasons. The rhetorical strategy involves the president’s “attempt to

mobilize political support by means of public comments.”27 In this type

of statement, which constitutes the majority of all signing statements

made, the president attempts to draw the public’s attention to

something positive or negative largely to benefit his office, favored

constituents, or fellow partisans. As Mark Killenbeck found in his

analysis of presidential signing statements, that it is

… difficult to believe that anything other than

sheer politics motivates pronouncements like

President Reagan’s statements regarding

“overzealous and unnecessary regulation” of the steel industry, President Bush’s

pronouncement that “the chief highlight” of the

Energy Policy Act of 1992 is that “Government

will serve as the partner of private enterprise, not as its master,” or President Clinton’s

declaration that “it was America’s families who

have beaten the gridlock in Washington to

pass” the Family and Medical Leave Act of 1993.”28

The next step in this chapter will be a brief discussion of how

signing statements fit in with other type of presidential powers. It can

be confusing to discern how a signing statement differs from an

executive order, proclamation, or national security directive. The

signing statement, which bears a great deal of similarities to all of

27 Zernicke, Paul Haskell. “Presidential Roles and Rhetoric.” Political Communication

and Persuasion. Volume 7. 1990. pg.231. 28 Killenbeck, Mark R. pp. 273-74.


13

these, tends to be the black sheep of presidential power. It exists, it is

significant, but it is mostly unexplored.

Presidential “Power”Tools

The more famous of the powers (or presidential “tools”29)

mentioned above is the executive order. According to Kenneth Mayer,

the executive order is a “directive issued by the president, directing

the executive branch in the fulfillment of a particular program,

targeted at executive branch personnel and intended to alter their

behavior in some way and published in the Federal Register. 30It has

only been relatively recently that executive orders were even

documented, but their existence stretches deep into presidential

history. The target of the executive order is clearly the executive

branch, in which government officials are instructed to “take action,

change their behavior, or cease some activity in which they are

currently engaged.”31 The executive order traces its root to the “Take

Care” clause of the Constitution and has been upheld by the Supreme

Court as having the effect of law. Executive orders do not have to be

codified to have the force of law. As discussed by Phillip Cooper, when

George H.W. Bush imposed a 90-day moratorium on the issuance of

new regulations as well as a review of existing regulations to

29 See Cooperb, Phillip J. “Power Tools for an Effective and Responsible Presidency.”

Administration and Society. 29:5. November, 1997 for a discussion of the

variety of “tools” that presidents utilize from their “toolbox.” 30 Mayer. pg. 34.


14

determine which were burdensome, he did so in the form of a

memoranda. This memorandum had the effect of an executive order,

even though it was not called one nor codified as one.32 In fact, as

Cooper argues, the memorandum, or explanation of the executive

order, can sometimes be more significant than the executive order

itself, as was the case in the memorandum issued by President Reagan

explaining the regulatory review process embodied in Executive Order

12498 (discussed in the next chapter).33

The presidential proclamation is “generally issued to affect the

activities of private individuals.”34 This makes them distinct from

executive orders, which are directed primarily at those working in the

government.35 In many instances, the proclamation is ceremonial,

such as the Thanksgiving Proclamation. However, many have the

force of law, such as Washington’s Neutrality Proclamation36 during the

war between Britain and France, or Lincoln’s proclamations during the

Civil War suspending habeas corpus relief (discussed in the last

chapter).37 As Phillip Cooper notes, because the proclamation is

31Cooperb, pg. 529. 32 Ibid. pg. 529. 33 Ibid. pg. 529. 34 Fisher, Louis.a President and Congress: Power and Policy. New York: The Free

Press. 1972. pg. 49. 35Cooperb. pg. 529. 36 Ibid. pg. 529. 37 Fisher. pg. 49.


15

directed towards individuals outside of the government, they are more

limited than the executive order because

The chief executive cannot…merely assert

general authority to control the executive

branch under Article II of the Constitution as a basis for issuing a proclamation affecting those

outside government. Moreover, it is much

easier to mount a challenge to a proclamation

than to an executive order because those affected can more easily gain standing to

sue.38

Finally, National Security Directives are meant to “stimulate

policy development, announce presidential decisions, and guide policy

implementation.”39 They prove to be difficult to define, much like the

signing statement, because the “presidents have learned since at least

the Truman administration that, by using labels other than those

specified in the Federal Register Act, they can avoid publication of

statements issued with the formal authority of the presidency.”40 The

fact that presidents call the directive by different names has made it

difficult for members of Congress and scholars to track the

development and significance of the directive, but what is known is

that they “have been employed for significant policy making that could

not be principally classified as execution of policy.”41 Further, even

38Cooperb. pg. 529. 39 Digital National Security Archive. “Presidential Directives on National Security

from Truman to Clinton.” http://nsarchive.chadwyck.com/pdessayx.htm.

Accessed 6/13/02. 40Cooperb. pg. 529. 41 Ibid. pg. 529.


16

though they mostly involve issues of foreign policy, they have been

known at times to affect domestic policy. Phillip Cooper references a

GAO report that studied 247 National Security Directives from

Kennedy through Reagan and found that nearly a quarter (22%) dealt

with issues involving domestic policy—that is, either ordered the

implementation of a particular policy or committed resources to a

particular policy.42 The Department of Housing and Urban

Development (HUD) in the Reagan administration, for example, was

subjected to the Hostile Contacts Directive despite the difficulty in

understanding “how any employee in HUD could be coerced by a

foreign agent into disclosing the secrets of HUD successes.”43

What this shows is that president’s have become quite innovative

when it comes to implementing their policy preferences. The signing

statement is one “tool” among many that a president can rely upon

that gives him or her flexibility in responding to the external political

environment.

The Process of the Signing Statement

Before discussing how signing statements have been used over

the course of history, it will be useful to explain how a signing

statement gets attached to a particular piece of legislation. That

decision takes place long before the bill is actually signed into law.

42 Ibid. pg. 529.


17

Once a bill reaches the White House, facsimiles are dispersed to

the Office of Legal Counsel and the Office of Management and

Budget.44 The Office of Legal Counsel examines the bill for

constitutional defects and makes recommendations to the President on

whether to sign the bill or veto it.45 In the event of signing the bill,

the OLC may draft a signing statement on how the bill can avoid the

constitutional problem(s).46

The process of going to the Office of Management and Budget

has been “relatively stable since its development during the Franklin

Roosevelt administration,” where a bill would go to the Bureau of the

Budget.47

Additionally, since 1979 the Office of Management Budget

coordinates and centralizes all enrolled bills that come to the White

House. This functions serves to

(a) assist the President in developing a position

on legislation, (b) make known the

Administration's position on legislation for the

guidance of the agencies and information of

Congress, (c) assure appropriate consideration of the views of all affected agencies, and (d)

43 Ibid. pg. 529. 44 The original bill, with the signatures of the presiding officers of both Houses of

Congress remains with the White House. 45 Shanks, Robert B. "Office of Legal Counsel—The President’s ‘Outside" Law Firm" in

The Department of Justice Manual. New Jersey: Prentice Hall. 1990-91. pg. 1-

43. 46 Ibid. 47 Wayne, Stephen J., Richard L. Cole, and James F.C. Hyde, Jr. “Advising the

President on Enrolled Legislation: Patterns of Executive Influence.” Political

Science Quarterly. 94:2. pp. 304-05.


18

assist the President with respect to action on

enrolled bills.48

Currently, the Legislative Reference Division within the OMB

requests each agency that has an interest in the bill to submit its

analysis and recommendations to the OMB within 48 hours after

receiving the bill.49 If the agency wishes to add a signing statement, it

is responsible for preparing the draft of the statement for

consideration by the OMB and the White House staff.50

All of the enrolled bills in which an agency wishes to attach a

signing statement to are sent to the OMB before going to the

President. The only exception to signing statements that is either

added or subtracted without OMB approval are those that are added or

subtracted by the White House staff.51

The OMB, often in conjunction with the White House staff,

determines whether the signing statement rises to the level of

significance of being added to the bill. Often times, multiple agencies

will be involved in a particular piece of legislation. In those instances,

OMB will try to consolidate and synthesize the draft statements, which

it sends back to the interested agencies for their approval. After the

48 Office of Management and Budget Circular A-19. September 20, 1979 49 Daniels, Mitchell E. “Memorandum for the Heads of Departments and Agencies:

Legislative Coordination and Clearance.”

http://www.whitehouse.gov/omb/memoranda/m01-12.html Accessed May 24,

2002. 50 Ibid.


19

OMB has given the green light for a signing statement, usually on the

fifth day of the 10-day period in which the president must act, it then

sends the bill on to the White House staff.52 All signing statements

must be approved by the White House before they are attached to a

bill.53 A diagram of the process is provided in Appendix 3.2.

The History of the Signing Statement

I would next like to turn focus attention to the use of the signing

statement over time. This will be important to give a sense of context

in how the signing statement has developed. After this I will look at

what, if any patterns have emerged with the presidential use of the

signing statement. I will then conclude by setting up the context for

Chapter Four.

As noted earlier, the first signing statements were issued by

President James Monroe. In one instance, President Monroe issued a

statement regarding interpretation of a law he had signed a month

earlier. The law both reduced the size of the army and laid out how

the president would select new officers.54 Monroe had gotten criticism

from Congress for not abiding by the congressional demand to appoint

officers, instead arguing in his signing statement that the president,

not the Congress, had the constitutional responsibility of appointing

51 Phone interview with Jim Yokes, representative in the Legislative Reference

Division of the Office of Management and Budget. May 24, 2002. 52 Wayne, Stephen et. al. pp.304-05. 53 Ibid.


20

officers.55 Monroe in this instance was acting true to his responsibilities

as a co-ordinate branch of government. As Christopher May notes,

“Monroe appears to have implemented the statute in good faith, even

though some members of Congress disagreed with his interpretation of

it.”56

Andrew Jackson is credited by most scholars as issuing the first

signing statement simply because his “sparked a controversy” with the

Congress.57 In 1830, Jackson approved an appropriations bill that

involved internal improvements, something he objected to. The

improvements in question had to deal with road examinations and

surveys, so in his signing statement he noted that the road in

question, which was to span from Detroit to Chicago, was not to

extend beyond the Territory of Michigan.58 The House of

Representatives sharply criticized Jackson, noting that what he had

done amounted to an “item veto” of the legislation.59Nonetheless,

Jackson’s directive was implemented and the road did not extend

beyond the Michigan Territory.60

54 May, Christopher. pg.116. 55 Ibid. pg. 116. 56 Ibid. pg. 116. 57 Most scholars, when they begin with the Jackson administration, refer to Louis

Fisher. See Fisher, Louis.b Constitutional Conflicts between Congress and the

President. Kansas: University of Kansas Press. 1991. pg. 128. 58 Waites, Bradley. “Let Me Tell You what You Mean: An Analysis of Presidential

Signing Statements.” Georgia Law Review. 21:755. Winter, 1987. pg.777. 59 Fisher.b pg. 128. 60 May notes that after Jackson had left office that the road did extended beyond the

Michigan Territory, into Indiana. May, pp. 84-85.


21

President John Tyler bore the full brunt of a rebuke from the

Congress for issuing, what was, a rather timid signing statement.

President Tyler disagreed with a portion of a bill dealing with the

apportionment of Congressional districts. Tyler wrote:

In approving this bill I feel it due to myself to

say, as well that my motives for signing it may

be rightly understood as that my opinions may not be liable to be misconstrued or quoted

hereafter erroneously as a precedent, that I

have not proceeded so much upon a clear and

decided opinion of my own respecting the constitutionality or policy of the entire act as

from respect to the declared will of the two

Houses of Congress.61

The House of Representatives would have none of it. In a sharp

and lengthy protest (authored by John Quincy Adams62), A House

Select Committee wondered why the President would add this

extraneous document to the public record? The Committee argued:

The private and personal interest of the president in the organization of the House of

Representatives of the next Congress suggests

motives on his part for desiring to influence

that organization in the direction of his

individual interest…63

61 Richardson, James D. Messages and Papers of the Presidents. Bureau of Natural

Literature and Art. Volume 2. 1903. pg. 159. 62 McGreal, Paul E. "Unconstitutional Politics." Notre Dame Law Review. 76:519.

January, 2001. 63 H.R. Rep. No. 909, 27th Congress, 2d Session. 1842.


22

The House concluded that President Tyler’s signing statement should

"be regarded in no other light than a defacement of the public records

and archives."64

Even though by the end of the nineteenth century the Supreme

Court had recognized the right of the president to use a signing

statement,65 and with the exception of some of the extraordinary

measures taken by the Lincoln administration, most presidents shied

from using the signing statement after the rebuke the House had given

President Tyler.

In the twentieth century, there was a greater tendency for the

president to use the signing statement in all three of the ways I listed

above, and in many instances to get the courts to recognize the

president’s legitimate right to make the kinds of assertions that he

makes in the signing statements.

One such instance came when President Roosevelt signed the

“Emergency Price Control Act of 1942”.66 The “Emergency Price

Control Act” was designed to help stabilize the economy during the

height of the Second World War. Roosevelt objected to a section of

64 Ibid. 65 In La Abra Silver Mining Co. v United States (175 US 423) 1899, the Supreme

Court noted that “it has properly been the practice of the President to inform

Congress by message of his approval of bills, so that the fact may be recorded.” 66 56 Stat. 26, January 30, 1942.


23

the bill that was a “protectionist measure for farmers”67 in the United

States. Roosevelt stated:

…there is nothing contained therein which can

be construed as a limitation upon the existing

powers of governmental agencies, such as the Commodity Credit Corporation to make sales of

agricultural commodities in the normal conduct

of their operations.68

Roosevelt further demanded that the provision be removed and

if the Congress did not remove it, he would treat it as a nullity.

Roosevelt had solicited and received advice from the Dean of the

Oregon Law School regarding what powers were afforded him during a

time of war, particularly what rights did he have to ignore sections of

laws he determined interfered with the war effort. The Dean told him

that “if you decide that a certain course of action is essential as a war

measure, it supersedes congressional action.”69 The Congress yielded

and the section was removed.70

An example of the courts supporting a presidential signing

statement came in the Supreme Court case United States v Lovett.71

When Congress passed the “Urgent Deficiency Appropriation Act,

67 Monaghan, Henry P. "The Protective Power of the Presidency." Columbia Law

Review. 93:1, January 1993. pg. 29. 68 Roosevelt, Franklin D. “Statement on Signing the Emergency Price Control Act.”

The Public Papers and Addresses of Franklin Delano Roosevelt. 1942 Volume.

January 30, 1942. pg. 69. 69 Monaghan, Henry P. pg. 29. 70 Ibid. pg. 29. 71 238 US 303, 1946.


24

1943”72, it attached a rider (section 304) that was aimed at punishing

three federal employees, labeling them “irresponsible,

unrepresentative, crackpot, radical bureaucrats.”73 When President

Roosevelt was presented with the bill, he issued a signing statement

condemning Section 304, but allowed the bill to become law because it

funded nearly all governmental agencies. Roosevelt, who argued that

this represented a bill of attainder, noted in his statement that the

“rider is an unwarranted encroachment upon the authority of both the

executive and the judicial branches under our constitution. It is not, in

my judgement, binding on them.”74

Roosevelt, however, enforced the section of the bill and when

the suit was brought against the government, Roosevelt sided with the

plaintiffs and attacked the statute. Congress was forced to authorize a

72 57 Stat. 431, 450. 73 In part, Section 304 read:

"No part of any appropriation, allocation, or fund (1)

which is made available under or pursuant to this Act, or

(2) which is now, or which is hereafter made, available

under or pursuant to any other Act, to any department,

agency, or instrumentality of the United States, shall be

used, after November 15, 1943, to pay any part of the

salary, or other compensation for the personal services,

of Goodwin B. Watson, William E. Dodd, Junior, and

Robert Morss Lovett, unless prior to such date such

person has been appointed by the President, by and

with the advice and consent of the Senate: Provided,

That this section shall not operate to deprive any such

person of payment for leaves of absence or salary, or of

any refund or reimbursement, which have accrued prior

to November 15, 1943 . . . ." 74 Roosevelt, Franklin D. “Statement on Signing the Urgent Deficiency Appropriation

Act, 1943.” The Public Papers and Addresses of Franklin Delano Roosevelt. New

York: Harper Brothers Publishing. 1943. pp. 385-86.


25

special counsel to submit an amicus curiae brief defending the statute.

The Supreme Court sided with President’s Roosevelt statement that

the Section 304 represented an unconstitutional bill of attainder and

struck it down.75

President Truman used a couple of signing statements, later

affirmed by the courts, to define ambiguous sections of the bills that

protected a key constituency—labor. In signing the “Hobbs Bill”,76

Truman made a point of noting that nothing in the bill was “intended

to deprive labor of any of its recognized rights, including the right to

strike and to picket, and to take other legitimate and peaceful

concerted actions.”77 The “Hobbs Bill” was created from an earlier

vetoed act that contained the same language. As one legal scholar

has suggested, “[b]oth statements were partisan attempts to assure

interpretations favorable to labor.”78 The second statement, again

aimed at labor, gave labor favorable treatment by defining an

ambiguous term related to the “good faith” provisions of the “Portal to

Portal Act”.79 Truman stated:

I wish also to refer to the so-called “good faith”

provisions of Sections 9 and 10 of the Act. It

75 In a gesture of coordinancy, the House Committee on Appropriations refused to

carry out the Supreme Court’s order, but was overruled later by the full House. 76 60 Stat. 420 77 Truman, Harry S “Statement on Signing the Hobbs Bill.” Public Papers of the

President. July 3, 1946. Washington: United States Government Printing Office.

1962. pg.337. 78 Popkin, William D. fn 14. 79 61 Stat. 84


26

has been said that they make each employer

his own judge of whether or not he has been

guilty of a violation. It seems to me that this view fails to take into account the safeguards

which are contained in these Sections. The

employer must meet an objective test of actual

conformity with an administrative ruling or policy. If the employer avails himself of the

defense under these Sections, he must bear

the burden of proof.80

Truman used the objective standards test, as he noted, because it

shifted the burden of proof upon the employer. Truman’s definition of

“good faith” would be the definition the courts would later use when

challenges to the law were made.81

President Kennedy also used the signing statement to signal to

Congress that he would not defend a law that contained a “separate-

but-equal” provision in federal funding for “racially segregated

hospitals.”82 Eventually the provision was struck down in the Court of

Appeals without the administration’s defense of the provision.83

As noted above, the most common type of signing statement is

the rhetorical signing statement. The purpose of the rhetorical signing

statement is to either move public opinion in a manner that supports

80 Truman, Harry S “Statement on Signing the Portal to Portal Act. May 14, 1947.”

Public Papers of the Presidents. Washington: United States Government Printing

Office. 1963. pp. 243-44.. 81 Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969); EEOC v.

Home Ins. Co., 672 F.2d 252, 264-65 (2d Cir. 1982); and Cole v. Farm Fresh

Poultry, Inc., 824 F.2d 923, 928 (11th Cir. 1987). 82 Gussis, Chrysanthe. “The Constitution, the White House, and the Military HIV Ban:

A New Threshold for Presidential Non-defense of Statutes.” University of Michigan

Journal of Law Reform. 30:591. Winter/Spring, 1997. pg. 610. 83 Ibid. pg. 610.


27

the president’s preferences, successes, and/or the successes of his co-

partisans; or, the purpose is used to show the president supports

important constituents.84

In the first, two back-to-back presidential elections stand out.

Referring to Appendix 3.3, the distribution of the rhetorical signing

statement from 1932-2000 is recorded. In terms of proportion, the

issuance of signing statements by President Ford stands out as the

most by any president in any year before or since. President Ford

issued 84 rhetorical statements in 1976, a whopping 93% of all

statements issued. It wasn’t just that this was an election year, but it

was one where Ford was battling the burden of a pardon as well as an

“outsider, not tainted by politics” candidate in Governor Jimmy Carter.

It appears that President Ford was doing his best to direct the press

and the public’s attention away from the issue of the pardon and to

the actions the president was taking on behalf of the American people.

This course of action was not successful as President Ford lost the bid

for election in 1976.

In Jimmy Carter’s re-election bid, he too issued a staggering

number of rhetorical signing statements, the most in real terms of any

president before or since (89 or 88% out of 101). In the 1980 election

84 For example, Lyndon Johnson issued so many rhetorical signing statements

because he felt that it fostered good legislative-executive branch relations. Johnson,

Lyndon B. “Statement on Signing the Medicare Extension Bill.” Weekly Compilation

of Presidential Documents. April 8, 1966. pg. 510.


28

year, President Carter was hounded by the specter of the Iranian

Hostage Crisis, and he too turned to the rhetorical signing statement

in a bid to divert the nation’s attention away from his failure to

retrieve the hostages and towards the actions he was taking on behalf

of the American people. Like Ford before him, President Carter lost his

bid for re-election.

The other use of the rhetorical signing statement lies in its value

for constituent service. It is often the case that the rhetorical signing

statement serves the political purpose of appeasing a valuable

constituent that has failed to win concessions during the legislative

process. An example of this can be found in the case of

environmentalists who fiercely lobbied the 104th Congress to defeat a

rider to the Omnibus Consolidated Appropriations Act, 199785 that

amended the Endangered Species Act and the National Environmental

Policy Act. When they failed to win in the Congress, they were

pleased86 to have obtained a paragraph in the bill signing statement by

the President.87

85 Public Law No. 104-208. 86 A statement on the Defenders of Wildlife webpage announcing the concession

read: “GREEN, Defenders of Wildlife and the Endangered Species Coalition

mounted a fierce battle to stop the waiver that failed, but elicited a paragraph in

the President’s signing statement regretting that the provision remained in the

bill.” http://198.240.72.81/104th.html. Accessed June 19, 2002. 87 Clinton, William Jefferson. “Statement on Signing the Omnibus Consolidated

Appropriations Act, 1997.” Weekly Compilation of Presidential Documents.

Washington: United States Government Printing Office. September 30, 1996.

Even though this was a political gesture to an important constituent of the Clinton

administration, it is not classified as a political signing statement simply because


29

More typical of the rhetorical signing statement involves the

president, particularly during an election year, beating up on his or her

political opponents. An instance of this can be found in the critical

election year of 1948 when Truman issued a number of scathing

attacks on his opponents in the Congress. For example, in signing the

“Displaced Persons Act,88 Truman began the bill by stating that “it is

with great reluctance that I have signed S.2242…”89 He continues later

in the bill by observing that “…the bad points of the bill are numerous.

Together they form a pattern of discrimination and intolerance wholly

inconsistent with the American sense of justice.”90

In a later bill signing ceremony, President Truman was more

pointed. In signing a housing bill,91 Truman blasted Republicans for

calling it a “housing bill” when in fact it was “nothing at all.”92A bit

later, Truman pointed out the failures of the bill and blamed

Republican leadership, labeling the bill the “teeny-weeny housing

it does not purport to alter the language in any way that would benefit the

environmental groups. It simply pledges the administration’s continued support,

giving environmental groups something to go back and tell their members

regarding gains in the environmental battle. 88 Public Law 744, 62 Stat. 1009. 89 Truman, Harry S “Statement on Signing the Displaced Persons Act.” Public

Papers of the President. June 25, 1948. Washington: United States Government

Printing Office. 1964. pg.382. 90 Ibid. pg. 383. 91 Public Law 864, 62 Stat. 1206. 92 Truman, Harry S “Statement on Signing Amendments to the Servicemen’s

Readjustment Act of 1944.” Public Papers of the President. June 25, 1948.

Washington: United States Government Printing Office. 1964. pg. 391.


30

bill.”93 He concluded the ceremony by noting that “there can be no

excuse for such slipshod legislation, thrown together only a few hours

before adjournment.”94

Gerald Ford not only had a bill signing ceremony to attract

attention to his attacks on Congress, but he also had his signing

ceremony on a prime time national broadcast. In signing the Tax

Reduction Act of 1975,95 President Ford blasted members of Congress.

In particular, he was addressing the problems of extraneous riders

added to the bill, creating a sloppy piece of legislation that he was

forced “to take it or leave it.”96 Ford went on to argue that he was

confident a veto of the bill would be sustained, but that he was “by no

means sure that this Congress would send” him a better bill.97 At the

close of his evening speech to the nation, Ford ended with an appeal

to the public, in the truest sense of what the rhetorical strategy is all

about, to contact members of the Congress to let them know that their

constituents are frustrated with the pork in important pieces of

legislation.98

93 Ibid. pg. 392. 94 Ibid. pg. 392. 95 Public Law 94-12. 96 Ford, Gerald. “Statement on Signing the Tax Reduction Act of 1975.” Weekly

Compilation of Presidential Documents. March 29, 1975. pg. 320. 97 Ibid. pg. 320. 98 Ibid. pg. 322. Ford even noted that if he “were still in the House of

Representatives, [he] would have opposed extraneous amendments and would

have voted to send this bill back to committee for further cleaning up.” pg. 320.


31

In perhaps one of the more interesting rhetorical statements,

President Clinton makes a similar claim over a national missile defense

system that both President’s Reagan and Bush made, but made it in a

way that was contrary to the desires of Reagan and Bush. Presidents

Reagan and Bush pushed for a missile defense program (commonly

referred to as “Star Wars”) despite the treaties the United States had

with Russia and over the objections of the Democratically-controlled

Congress. It was Reagan and Bush’s contention that the president had

the prerogative to decide what the foreign policy of the United States

should be, and if the president decided in favor of a national missile

defense system despite our international treaty obligations, then so be

it. In 1999, President Clinton signed the “National Missile Defense Act

of 1999”.99In the act, the President puts the Congress on record as

supporting international arms negotiations as a way to prevent the

missile defense program from proceeding. Clinton stated that

“…section 3 puts the Congress on record as continuing to support

negotiated reductions in strategic nuclear arms, reaffirming my

Administration's position that our missile defense policy must take into

account our arms control and nuclear nonproliferation objectives.”100

Prior to that it was the Democrats in Congress who attempted to stall

99 Public Law No. 106-38. July 22, 1999. 100 Clinton, William J. “Statement on Signing the National Missile Defense Act of

1999.” Weekly Compilation of Presidential Documents.

http://frwais.access.gpo.gov August 2, 1999. Accessed April 10, 2002.


32

the implementation of the program by claiming it violated international

treaties the United States held with the Russians. Now, it was the

Republicans in Congress who were pushing for a national missile

program and a Democratic President stalling the implementation of the

program. Even worse for the Republicans was President Clinton noting

how the Congress supported his position on the missile defense

program!

The Effect on the Signing Statement

How does the political environment affect, if at all, the use of the

signing statement? In this section of the chapter I will look at how

elections affect the use of the signing statement, how public opinion

affects the use of the signing statement, and how the political context

from Nixon-Clinton effected the use of constitutional and political

signing statements.

Elections

I first turn our attention to the impact of elections on the use of

the signing statement. I argue that during an election year (federal),

the president will be more inclined to use the signing statement than

during off-election years. He will, for example, turn to political signing

statements to increase his value when he runs for re-election as it

gives him something to run on. Rhetorical signing statements will aid

the president and his co-partisans during presidential and mid-term


33

election years because the president, who is inherently newsworthy,

can use the occasion of the bill signing statement to praise his

administration’s record, to praise co-partisans in Congress, and to

attack his opponents, as I illustrated above.

Turning to Appendix 3.4, I tested the argument that an election

year does make a difference on the use of the signing statement. I

created a dummy independent variable in which “0” represented an

off-election year and “1” represented an election year. The output of

the results show significance at the.05 level.

Presidential Approval

A second question to consider is what affect presidential approval

has on the use of signing statements of all forms? The argument in

this instance is that the higher the level of public approval, the less

likely the need to use signing statements.

A test of public approval101on the use of signing statements from

1945-2000 yielded poor results, as Appendix 3.5 illustrates. In none

of the results is the variance explained to any degree of satisfaction

nor do the results of the F-tests yield statistically significant numbers.

It would appear that public approval has little to do with the use of

presidential signing statements of any variety.

101 Public approval was taken from Gallup opinion polls, 1945-2001.


34

But what happens when the years are restricted to those

between 1968-2001? A major portion of my argument in this

dissertation is that the use of the signing statement, particularly the

constitutional and political signing statements, became more prevalent

in the years from the Nixon administration through the Clinton

administration. Not only did the political terrain become more difficult,

but the Vietnam War, coupled with Watergate, dragged down the

public’s faith in institutions of government in general and in the

presidency in particular.102 A test of public approval of the presidency

on constitutional, political, and rhetorical signing statements during

this more restricted period yielded some interesting findings, as

illustrated in Appendix 3.6. The effects that public approval has upon

constitutional and political signing statements are significant at the .05

level (.003 for constitutional and .02 for political) and insignificant for

rhetorical (.09). In the case of constitutional signing statements, an

adjusted R squared yields an explanation of nearly a quarter of the

variance (22%), and nearly 15% of the variance (.14) for political

signing statements. Why would it be significant for constitutional and

political, but not rhetorical during this period of time?

If my argument is correct, and this appears to be an indication in

that direction, during this period of time the president was unable, in

102 The mean approval rating from 1945-1967 was 56% compared to 54% from


35

any systematic fashion, to use public opinion to check the

encroachment of Congress or to succeed in advancing the president’s

policy preferences. As I indicated in the previous chapter, and I will

argue in greater detail in the next chapter, during this period of time

there was a number of high profile events (Watergate, Iran-Contra)

that moved the public to call for checks on presidential power

(independent counsel statute, War Powers Act, congressional

oversight, etc.). Further, the president found it more to his advantage

to utilize the bureaucracy rather than public opinion to advance his

policy preferences. If this argument is correct, then the president

should see little advantage in turning to public opinion to either help

him check congressional encroachments or to help him move his policy

preferences.

Finally, looking specifically at the use of constitutional and

political signing statements from FDR through Clinton, Appendix 3.7

illustrates the steady climb of each over time, with a dramatic leap

from Carter to Reagan. In the next Chapter, I will explain why that

leap was made. As a preview, I return again to the difficult terrain

that the president had to navigate during the 1970s. Even though the

difference in the use of the signing statement did not increase

substantially from FDR-Carter, it did increase. The important point

1968-2001.


36

that I wish to make is that during this period, the Unitary Executive

was incubating. President’s Nixon, Ford, and Carter were all laying the

ground work for the Reagan administration. Hence the Reagan

administration seized upon the vigorous use of the signing statement,

particularly the constitutional statement, to help it solidify the

protection of his office and control over the executive branch. Turning

our attention to Appendix 3.8, I test the argument that a combination

of public approval and support for the president in Congress103 during

the period Nixon through Clinton will show that the troubled political

environment yielded an increase in the use of political and

constitutional signing statements. The tests of the two variables are

all significant at the .05 level and the adjusted R squared shows that

these two variables alone account for nearly 40% (.38) of the

variance. This simply confirms what the qualitative analysis will show

in the next chapter—president’s from Nixon through Clinton had a

difficult time protecting their powers as well as advancing their policy

preferences.

This chapter set out to provide a context that will allow me to

demonstrate how and why the signing statement is important. This

chapter was important in providing the universe of signing statements,

103 Support scores were taken from the Congressional Quarterly Almanac. The

scores are based on all roll call votes on which members were asked to vote

“yea” or “nay.”


37

in describing how signing statements can be categorized, and by

showing what patterns have emerged regarding their importance in

relation to an election year, public opinion, and support in Congress.

The next chapter will explain how the Unitary Executive came

about and was centralized in the Reagan administration. From that

chapter forward I mostly focus on the constitutional and political

signing statements, as they represent the use of “hard” power by the

president and most directly go to the core of my argument regarding

the Unitary Executive.


38

Appendix 3.1

Presidential Signing Statements—Washington through Clinton

President Constitutionally based

Political Rhetorical Total

Washington 0 0 0 0

Adams 0 0 0 0

Jefferson 0 0 0 0

Madison 0 0 0 0

Monroe 0 0 0 2

Adams JQ 0 0 0 0

Jackson 1 0 1 2

Van 0 0 0 0

Harrison 0 0 0 0

Tyler 1 0 0 1

Polk 0 0 0 1

Taylor 0 0 0 0

Fillmore 0 0 0 0

Pierce 0 1 0 1

Buchanan 1 0 0 1

Lincoln 1 0 3 4

Johnson A 2 1 0 3

Grant 1 0 5 6

Hayes 0 0 0 0

Garfield 0 0 0 0

Arthur 1 0 0 5

Cleveland 1 0 0 4

Harrison 0 0 0 0

Cleveland 0 0 0 0

McKinley 0 0 0 0

RooseveltTR 0 0 1 1

Taft 0 1 1 2

Wilson 1 0 6 7

Harding 0 0 0 0

Coolidge 0 0 0 0

Hoover 1 0 11 12

Roosevelt F 0 3 48 51

Truman 3 7 108 118

Eisenhower 9 7 129 145

Kennedy 1 0 79 80

Johnson L 11 2 289 302

Nixon 6 2 181 169

Ford 10 0 120 130

Carter 24 8 215 247

Reagan 71 23 182 276

Bush 146 30 38 214

Clinton 105 21 265 391

Total 397 106 1594 2175


39

Appendix 3.2

How a signing statement is attached to a bill

Congress White House

Enrolled

Bill

DOJ

OLA

OLC

OMB

OIRA

Interested Agencies

White

House Staff

President

Enrolled Bill


40

Appendix 3.3

The Distribution of Rhetorical Signing Statements, 1932-2000.

Rhetorical Statements, by Year

0

10

20

30

40

50

60

70

80

90

100

1932 1937 1942 1947 1952 1957 1962 1967 1972 1976 1981 1986 1991 1996

Y ea r

Nu

mb

er

Rhetorical Statements, by Year


41

Appendix 3.4 Effect of Elections on the Use of Signing Statements, 1932-2000.

No

Election

(N=34)

Electi

on

(N=3

4)

Standard

Deviation

Standard

Deviation df

f-

score

Sig.

Level Signing

Statements,

(1932-2002) 14.4658 29.9515 66

18.41

9 .000


42

Appendix 3.5

Ordinary Least Square Models of Public Approval on Political,

Constitutional, and Rhetorical Signing Statements, 1932-2000.

Political Signing Statements

(n=56)

Standar

d Error 10.18

R2 .04

Adjusted R2 .03

F 2.76

df

55

Sig. F .10

Constitutional Signing

Statements

(n=56)

Standar

d Error 3.05

R2 .03

Adjuste

d R2 .02

F 2.13

df

55

Sig. F .14


43

Appendix 3.5 (cont.)



Rhetorical Signing Statements

(n=56)

Standard Error 21.13

R2 .02

Adjuste

d R2 .01

F 1.66

df

55

Sig. F .20


44

Appendix 3.6




(n=33)

Standar

d Error 10.49

R2 .24

Adjuste

d R2 .22

F 10.25

df

32

Sig. F .003


Statements

(n=33)

Standard Error 3.45

R2 .17

Adjuste

d R2 .14

F 6.5

df

32

Sig. F .015


45

Appendix 3.6 (Cont.)



Rhetorical Signing Statements

(n=33)

Standar

d Error 22.13

R2 .08

Adjuste

d R2 .05

F 2.99

df

32

Sig. F .09


46


47

Appendix 3.7

Signing Statements, FDR-Clinton

0

20

40

60

80

100

120

140

160

Roosevelt F Eisenhower Johnson L Ford Reagan Clinton

President

Num

ber

Constitutional

Political


48

Appendix 3.8

Ordinary Least Square Models of Public Approval and Support in

Congress on the Use of Political and Constitutional Signing

Statements.


(n=33)

Standar

d Error 9.39

R2 .41

Adjusted R2 .38

F 10.86

df

32

Sig. F .0002


Statements

(n=33)

Standar

d Error 3.2974507

7

R2 .27

Adjuste

d R2 .22

F 5.6122937

5

df

32

Sig. F .008

Chapter Four—The Institutionalization of the Signing Statement

Chapter 4

The Institutionalization of the Signing Statement

The Reagan administration gets a great deal of credit for

centralizing presidential power. When Jimmy Carter left office, many

bemoaned an “imperiled” presidency1 that was frozen by interest

group politics and by the proverbial train wreck that was Watergate.

The Reagan administration brought the hostages home, it reigned

in the bureaucracy, and it stood firm against the Soviet Union. And

with respect to the melding of the Unitary Executive and the signing

statement, the Reagan administration gets credit for both of these as

well. To be sure, the Unitary Executive jelled during the Reagan

administration. OMB administrative control coupled with aggressive

defense of the executive prerogatives by the Department of Justice led

many scholars to conclude a rebirth in executive power. 2 But often

1 After Watergate and the publication of Arthur Schlesinger’s The Imperial Presidency

Boston, Houghton Mifflin, 1973, the public and the Congress sought to reign in

presidential power. The presidencies of Ford and Carter caused many to worry that the presidency was hobbled to the extent that the separation of powers was

tilted dangerously towards the Congress. See, for example Genovese, Michael A.

The Power of the American Presidency: 1789-2000. Oxford, 2001. Chapter 7. The term, “imperiled presidency” was highlighted by Gerald Ford, who

proclaimed in a 1980 interview for “Time” magazine that "[We] have not an

imperial presidency but an imperiled presidency. Under today's rules... the presidency does not operate effectively... That is harmful to our overall national

interests". Wasser, Hartmut. “Politics and Politicians in Current Democratic

Systems or: Democracy and its Discontents.” A paper presented at Democracy and the New Millennium International Conference Malibu, California October

2000. http://www.civiced.org/german_conference2000_wasser.html. Accessed 7/16/02.

2 Ironically, this conclusion is shared by all but those who served in the Reagan

administration. See, for example, Crovitz, L. Gordon and Jeremy A. Rabkin. The Fettered Presidency: Legal Constraints on the Executive Branch. Washington:

2

overlooked in the story is the work done, largely by the Ford and

Carter administrations, to lay the foundations of executive power that

the Reagan administration so successfully built upon.

Development of the Unitary Executive—Ford and Carter

The 1970s forced the executive to look toward extraordinary

powers to advance its policy preferences as well as to protect its

prerogatives. Beginning with the Ford administration and then

continuing through the Carter administration, the Office of Legal

Counsel aggressively asserted the president’s constitutional right not

to enforce legislation it deemed to be unconstitutional, even though

the president signed the legislation into law.

The Ford administration was emboldened by a number of Supreme

Court decisions that found sex-based distinctions in the Social Security

Act to be unconstitutional. After the Supreme Court made its decision,

the Justice Department scoured through other portions of the bill,

looking for those the Court found unconstitutional, and then declined

to enforce them.3

One example of how the signing statement became

institutionalized within the Department of Justice came after the

The American Enterprise Institute. 1989; and Eastland, Terry. Energy in the Executive: The Case for the Strong Presidency. New York: Free Press. 1992.

3 Easterbrook, Frank. “Presidential Lawmaking Powers: Vetoes, Line Item Vetoes,

Signing Statements, Executive Orders, and Delegations of Rulemaking Authority.” Washington University Law Quarterly 68:533-560 1990. pg. 537.

3

passage of the “Federal Advisory Committee Act” (FACA)4 and the

subsequent objections to a provision of the Act from the Nixon

administration through the Reagan administration.

During the Nixon administration, the Congress had passed the

FACA, which was meant to open up the presidential advisory process

to public scrutiny. One organization that was effected by the act was

the American Bar Association’s Standing Committee on the Federal

Judiciary. The Committee, since 1946, had been instrumental in

assisting the president on judicial selections to the federal bench.5

After the passage of the Act, the Nixon Justice Department informed

the Chairman of the American Bar Association’s Standing Committee

on the Federal Judiciary that, in the view of the Department of Justice,

the FACA applied to the ABA Committee, and that at best, it might be

able to approach the Congress for an exemption, which was not taken

kindly by the ABA.6 The ABA threatened to stop its participation in the

judicial selection process, forcing the Department of Justice to look at

the “possible unconstitutionality of the legislation as it applied to this

particular Presidential function.”7 The Department of Justice then

4 Public Law No 92-463 (1972). 5 Bybee, Jay S. “Advising the President: Separation of Powers and the Federal

Advisory Committee Act.” Yale Law Journal. 104:51. October, 1994. pg. 76. 6 Ibid. pg. 77. 7 Ibid. pg. 78.

4

advised the ABA that “it would proceed on the assumption that FACA

did not apply to the Standing Committee.”8

During the Ford administration, the Department of Justice

aggressively interpreted the Act to exclude the ABA, with Attorney

General Edward Levi issuing an opinion to President Ford that the

requirement that the ABA submit to an open meeting violated the

separation of powers doctrine.9 Every subsequent administration

refused to extend the FACA to the Standing Committee on the Federal

Judiciary, and during the Reagan administration, the Supreme Court

heard the matter of Washington Legal Foundation v. U.S. Department

of Justice and Public Citizen v Justice Department 10 challenging the

executive’s interpretation of the Act. In a brief filed with the Court,

Solicitor General Charles Fried argued that “since 1974, the Justice

Department has taken the position that the law does not apply to the

ABA.”11 The Supreme Court agreed with the executive branch and

upheld its interpretation.12

8 Ibid. pg. 78. 9 Easterbrook. pg. 537. 10 88-494 and 88-429, 1988. 11 Mauro, Tony. “Well Recuse Me, Just Don’t Ask Why.” Legal Times. December 12,

1988. Pg. 8 12 The case was not resolved without a bit of controversy. During the Ford

administration, the Assistant Attorney General who worked on the Ford opinion was Antonin Scalia. When the Supreme Court heard the case, Solicitor General

Fried had to inform Justice Scalia to recuse himself for conflict of interest. Mauro,

Tony. “Well Recuse Me, Just Don’t Ask Why.” Legal Times. December 12, 1988. Pg. 8

5

The single most important thing that tied the presidencies of

Gerald Ford and Jimmy Carter together, and was the important

catalyst to institutionalizing the signing statement, was the refusal of

both presidencies to recognize the legitimacy and constitutionality of

the legislative veto.

The legislative veto is

used when Congress is delegating power to the executive branch to make decisions in a broad

program area. The legislation provides that whenever the power is used in a specific instance, such as passing regulation or shifting

funds among appropriation accounts, that Congress (or one house or a committee) be

notified of the specific action and have the chance to disapprove that one application of the general delegated power.13

The use of the legislative veto had dated back to the early part of the

twentieth century, but in the late 1960s and particularly the 1970s,

the Congress began to use more of them as the administrative state

grew beyond the oversight ability of the Congress. As Barbara

Hinkson Craig observed:

One of the major reasons for Congress’s love

affair with the veto in the late 1970s was the discovery of its utility in the regulatory arena.

During the late 1960s and early 1970s Congress passed dozens of broad, often vague

laws calling for clean air, clean water, safe workplaces, safe products, equal opportunities,

13 Pfiffner, James P. The Modern Presidency. New York: St. Martin’s Press. pg. 140.

See also Korn, Jessica. The Power of Separation: America Constitutionalism and the Myth of the Legislative Veto. New Jersey: Princeton University Press. 1996.

6

and the like. By the mid-1970s executive

branch and independent agencies responsible

for implementing those laws were publishing new regulations by the hundreds to accomplish

the laws’ goals.14

When constituents began to pressure Congress for regulatory relief,

Congress began to use the legislative veto to control how the broad

laws were being carried out. David Mathews, the Secretary of Health,

Education, and Welfare (HEW) in the Ford administration notes that

the Department’s most serious clashes with the Congress came about

as a result of the passage of legislation with broad language and then

the subsequent micromanaging of how the legislation was carried

out.15

From 1975 to 1980, President’s Ford and Carter objected to the

use of the legislative veto a total of seventeen times through the use

of the signing statement. Some of the objections were meekly

worded. For example, when President Ford signed a bill that dealt

with child welfare support,16he objected to an amendment that

required the Secretary of HEW to submit all proposed standards to the

14 Craig, Barbara Hinkson. “Wishing the Legislative Veto Back: A False Hope for

Executive Flexibility” in Crovitz, L. Gordon et. al. The Fettered Presidency: Legal Constraints on the Executive Branch. Washington: American Enterprise Institute.

1989. pg. 204. 15 Mathews, David. “Democracy and Rule Making in Government.” Working Paper

for the Public/Public Schools Working Group. July 12, 2002. pg. 3. On file at the

Kettering Foundation. 200 Commons Rd. Dayton, OH 45459. 16 Public Law 94-88 (1975)

7

Congress for approval or disapproval.17 Ford instructed the Secretary

to treat the legislative veto as a “request for information.”18 However,

most of the legislative veto objections were more severe in that the

president simply stated that the provision was unenforceable or a

“nullity.”

The Carter administration singularly focused on the

unconstitutionality of the legislative veto. For example, John Harmon,

head of the OLC under President Carter told me that

…we took the position with regard to the so-

called legislative veto devices that the Department of Justice had no obligation to

defend the constitutionality of a statute that infringed on the constitutionality dictated separation of powers between the legislative

and the executive branch. As the legislative

veto effectively gave to one house of congress the power to overturn an executive act, it undermined the constitutional requirement that

congress should act only by legislation enacted by vote of both houses subject to the veto of the president. As such it infringed on the

President’s veto power. The Executive Branch

had the obligation, we reasoned, to defend the

powers conferred by the constitution on the institution of the presidency. Therefore, in the Chadha litigation (discussed below) we notified

Congress that the Department [of Justice] would not defend the legislative veto device

contained in the statute in question and would instead argue that it was unconstitutional.19

17 Ford, Gerald. “Statement on Signing a Child Support Program.” Weekly

Compilation of Presidential Documents. Vol. 12, August 11, 1975. pg. 856. 18 Ibid. pg. 856. 19 Email interview with John Harmon. January 4, 2002.

8

In an example of the Carter administration’s objection to the

legislative veto, in 1980, Attorney General Benjamin Civiletti instructed

the Secretary of Education, who was faced with a forty-five day wait

and report provision in the General Education Provisions Act20 to

ignore it because it was unconstitutional. Civiletti argued that

[O]nce a function has been delegated to the executive branch, it must be performed there,

and cannot be subjected to continuing congressional control except through the

constitutional process of enacting new legislation.21

To respond to the number of instances in which the executive

branch failed to defend or enforce the legislative veto, Congress was

forced to create its own offices to defend statutes not defended by the

Attorney General and then, at the insistence of Representative Elliot

Levitas, Congress codified demands to the Justice Department to

inform the Congress in every instance in which the executive either

nullified a provision in a statute or refused to defend a statute in

court.22

While the Justice Departments in both the Ford and Carter

administration were busy using the signing statement to void

provisions of legislation deemed to be unconstitutional, administrators

20 20 USC 31, section 1221. 21 Civiletti, Benjamin. “Constitutionality of Congress' Disapproval of Agency

Regulations by Resolutions Not Presented to the President.” 4A Op. O.L.C. 21, 27.

1980, quoted in OLC “Memorandum for the General Counsels of the Federal

Government.” http://www.usdoj.gov/olc/delly.htm. Accessed July 24, 2002. 22 2 USC Sec. 288 (e).

9

within the executive branch were busy looking for ways to control

policy that the president preferred, but was unable to get passed,

either due to legislative gridlock or interest group capture of executive

branch agencies.

The Development of the Administrative Presidency

The Nixon administration, and its distrust of the bureaucracy, was

credited with the first to attempt to strategically organize the

executive branch in such a way to insure that the president’s policy

preferences were written into the implementation of law. The strategy

was coined the “administrative presidency” by Richard Nathan23 and

involved bypassing the Congress in an effort to “effect domestic policy

directly through control of agency discretion.”24 For President Nixon,

Watergate effectively ended the chance to put the administrative

presidency into practice, but the idea did not end with the resignation

of the president. In essence, it was perfected by the Reagan

administration, which normally gets the credit formalizing the

administrative presidency. However, as I will discuss below, the

pieces of the administrative presidency were put in place by the Ford

and Carter administrations, and with that a key piece of the Unitary

23 Nathan, Richard P. The Plot that Failed: Nixon and the Administrative Presidency.

New York: John Wiley and Sons. 1975. 24 Clayton, Cornell W. The Politics of Justice: The Attorney General and the Making

of Legal Policy. New York: M.E. Sharpe, Inc. 1992. pg. 189.

10

Executive—centralization of policy within the executive branch as a

means to administrative control.

Marissa Martino Golden writes that the

The administrative presidency is a management strategy designed to ensure

bureaucratic responsiveness to the president.

It is intended to help presidents achieve their policy goals administratively through the bureaucracy rather than legislatively through

Congress, and to bring the bureaucracy to heel. It consists of a set of tools whose

purpose is to reign in the bureaucracy, overcome bureaucratic advantages, and enable presidents to achieve their policy objectives

without requiring congressional consent.25

A key element of the administrative presidency that is also a key

piece of the political signing statement is the centralization of policy by

the Office of Management and Budget. Not only does the OMB make

final budgetary decisions, but also, and important to the Unitary

Executive, it manages personnel in such a way to insure that when

they exercise discretion, it is done with an eye to the president’s policy

preferences.

Both Presidents Ford and Carter sought to centralize policy by

subjecting agency rules to a cost-benefit process. President Ford, who

implemented a scaled-down version of the policies that President

Nixon put in place, used an “inter-agency review process to encourage

25 Golden, Marissa Martino. What Motivates Bureaucrats? Politics and Administration

During the Reagan Years. New York: Columbia University Press. 2000. pp. 5-6.

11

greater analytical rigor by agencies, particularly regarding the costs of

regulations.”26 President Carter required his agencies to “submit

analyses of major proposed rules—including a description of

alternatives and a comparative evaluation of their economic

consequences—to the Regulatory Analysis Review Group, a new body

consisting of decisionmaking authority to rest with the initiating

agency.”27

In addition to policy decisions to attempt discretionary

centralization within the Oval Office, Presidents Ford and Carter were

also aided by a couple of key Supreme Court decisions. In the case

“Mathews v Eldridge,”28the Supreme Court upheld the refusal, on the

part of the Secretary of Health, Education, and Welfare, to give social

security recipients a right of a hearing prior to termination of social

security benefits. The Court felt that granting such a right was an

unreasonable burden on agency resources. More importantly, the

Court felt that the Secretary made a reasonable interpretation of the

Social Security Act where the law is silent. In the case “Vermont

Yankee Nuclear v Natural Resources Defense Council, Inc. et. al.,”29the

Supreme Court ruled that lower courts could not place extra-statutory

restraints on agency rulemaking beyond those that were already

26 Kagan, Elena. “Presidential Administration.” Harvard Law Review. 114:8 June 2001. pg. 2276. 27 Ibid. pp. 2276-77. 28 424 U.S. 319 (1976) 29 435 U.S. 519 (1978)

12

established in the Administrative Procedure Act (APA). The importance

of this decision was that the Court signaled to the executive branch

that it would no longer be a convenient outlet for disgruntled interest

groups that had used the courts to thwart agency discretion and

interpretation.30In essence, agency discretion was placed back into the

executive branch.

Neither Ford nor Carter was successful in completing administrative

control over the policy process, which would explain how little the

political signing statement was used during their terms in office. Ford

did not use one political signing statement and Carter issued only

eight.31 However, both presidencies were important for laying the

groundwork for the Reagan administration’s unique defense of the

prerogatives of the presidency and for the push of Reagan policy

preferences through the executive branch.

A noteworthy bit of evidence to take from the discussion so far is

the way in which Justice Department and political officials worked in

tandem to build unified control. The Justice Department consistently

30 Clayton, Cornell W. pg. 178. 31 “Statement on Signing the 1979 White House Conferences on the Arts and

Humanities Bill.” Public Law 95-272. Weekly Compilation of Presidential Documents. Vol.14. May 3, 1978. pg. 823; “Statement on Signing Amtrak Improvement Act of

1978.” Public Law 95-421. Weekly Compilation of Presidential Documents. Vol. 14.

October 6, 1978. pp. 1718-19; “Statement on Signing Fishery Conservation and Management Act Amendments.” (2) Public Law 96-61. Weekly Compilation of

Presidential Documents. Vol.15 August 15, 1979. pp. 1435-36; “Statement on Signing Panama Canal Act of 1979.” Public Law 96-70. Weekly Compilation of

Presidential Documents. Vol.15. September 27, 1979. pp. 1760-61; “Statement on

Signing Administration of US Territories.”(2) Public Law 96-205. Weekly Compilation

of Presidential Documents. Vol.16. pp. 466-67. March 12, 1980.

13

thwarted the use of the legislative veto—that device that gave the

Congress an in on executive branch interpretation. The OMB, along

with successful Supreme Court opinions, began to move the executive

branch agencies inward, toward presidential interpretation of policy,

and away from congressional, judicial, and interest group pressures.

The Reagan Administration and the Unitary Executive

The Reagan administration receives a tremendous degree of credit

for making the signing statement into the significant tool that it has

become. It was the Reagan administration that made the decision to

attach the signing statement to the “Legislative History” section of the

United States Code Congressional and Administrative News (USCCAN),

a decision that received a great deal of attention by the press and by

law scholars. This decision did not come out of a vacuum, but rather

was a natural outcome of the Unitary Executive. I will discuss this

decision below. First, why did it take a Reagan administration to both

develop the Unitary Executive and to develop the power of the signing

statement?

When the Reagan administration won the presidency, it promised

to return pride in America—pride lost by the Carter administration and

the long debacle in Iran. What the president also promised to fellow

conservatives was a return of power to the presidency—power that

had been enfeebled by Watergate and the capture of the regulatory

14

state by interest groups, particularly liberal interest groups. Cornell

Clayton notes that the “prescription for solving these problems is

judicial deference to the executive and energetic control of the

administrative bureaucracy by the White House: administrative

policymaking should be centralized, the President should be

contentious in the selection of judges, and the administration should

utilize government litigation aggressively.”32

Prior to the administration’s taking control of office, the Heritage

Foundation released the report Mandate for Leadership that urged the

Reagan administration to use the Justice Department to have greater

control over policymaking as well as to turn back encroachments upon

presidential prerogatives. Further, the report called for greater

administrative control over the bureaucracy. These two

recommendations form the basis for the unitary executive.

Administrative Control

The Heritage plan first advocated the use of strategic appointments

as a means of reigning in the bureaucracy. Previous presidents had

been plagued with appointees who would “go native”33once in office.

By making a strategic appointment, the president could

32 Clayton, Cornell W. The Politics of Justice: The Attorney General and the Making

of Legal Policy. New York: M.E. Sharpe, Inc. 1992. pg. 173. 33 This term suggests that once a political appointee was put in place, he or she became “captured” by interest groups that lobbied the agency.

15

“select…appointees strategically based on their ideological policy

congruence with the president.”34

When the transition team was beginning to put people into

place, it was not unusual for those who were installed into key

positions to be required to pass an ideological litmus test before

assuming their post. For example, an individual would be asked if he

or she was a Republican and a Reagan supporter? Pendelton James

and Lyn Nofziger, two individuals charged with setting up the

administration, had their own set of criteria for choosing the right

appointees for the bureaucracy:

1. Are you a Carter appointee? If so, you’re rejected. 2. Are you a Democrat who didn’t work for Ronald Reagan? If so,

you’re rejected.

3. Are you a Republican? Are you the best Republican for the job? 4. Are you a Ronald Reagan-George Bush supporter? 5. Did you work in the Reagan-Bush campaign? How early before the

convention? 6. Are you the best qualified person for the job? But that’s only

number 6.35

The Reagan administration had carefully studied what failed the

Nixon administration, and quickly noted that reigning in the

bureaucracy was important to clearing a path for their agenda. The

administration benefited mightily from reforms enacted in the Carter

administration. The Civil Service Reform Act of 197836 allowed the

34 Golden. pg. 6. 35 Warshaw. pg. 131. 36Civil Service Reform Act of 1978 (PL 95-454).

16

Reagan administration to appoint 5,000 of “their” people, who were all

carefully screened to insure they shared, enthusiastically, the

President’s agenda. With respect to the choosing of the “right” people,

part of the team who was making these choices was Ed Meese. As

Meese noted:

[W]e sought to ensure that all political appointees in the agencies were vetted

through the White House personnel process, and to have a series of orientation seminars for

all high-ranking officials on the various aspects of the Reagan program. We wanted our appointees to be the President’s ambassadors

to the agencies, not the other way around.37

Strategic control of the personnel process was one way to bring

about administrative control. A second recommendation was the

centralization of the policymaking process within the Executive Office

of the President. And it is here that the Reagan administration was

very successful. Policy centralization within the Office of Management

and Budget is the key component behind taking care that the laws are

faithfully executed. As Marissa Martino Golden argues, the OMB, when

used effectively, can make all final budgetary and administrative

decisions while at the same time preventing the bureaucratic agencies

from having recourse to the Congress. 38

37 Meese, Edwin. With Reagan: The Inside Story. Washington: Regnery Gateway.

1992. pg. 77. 38 Golden. pg. 6.

17

To effectively centralize OMB control, the Reagan administration

relied upon two key executive orders—EO 1229139 and EO 12,498.40

Executive Orders 12,291 and 12,498 required administrative agencies

to obtain OMB cost-benefit analysis and clearance before issuing new

rules and regulations.41

EO 12,291, which was issued in February 1981, contained two key

elements that led to centralized control. The first, which had to do with

“Major” rules (defined as those having a projected economic impact in

excess of one hundred million dollars per year) had to be submitted to

the OMB’s Office of Information and Regulatory Affairs (OIRA) sixty

days before the publication of the notice in the Federal Register, and

then again thirty days before their publication as a final rule.42 The

second, which had to do with non-major rules, required their

submission to the OMB ten days prior to notice and to final publication.

The OMB was empowered “to stay the publication of notice of

proposed rulemaking or the promulgation of a final regulation by

requiring that agencies respond to its criticisms, and ultimately it may

recommend the withdrawal of regulations which cannot be

39 46 Federal Register 131937. 40 50 Federal Register 1036. 41 Clayton, Cornell W. pg. 192. 42 Cooper, Joseph and William F. West. "Presidential Power and Republican

Government: The Theory and Practice of OMB Review of Agency Rules." Journal of Politics. 50:4, November 1988. pp. 870-71.

18

reformulated to meet its objections.”43 Joseph Cooper and William

West argue that EO 12,291 was important in enhancing presidential

control of the federal bureaucracy—something previous

administrations had attempted and failed to do. Cooper and West note

that:

Whereas traditional mechanisms, such as budgeting, appointments, and reorganization,

often restrict executive influence to the contours of administrative policy, the Reagan

order allows the president and his agents to monitor and influence the substance of individual regulations. This expansion in

presidential power is tied both to doctrine and events. Arguments for a strong presidency

became more and more compelling in the 1970s as government continued to expand and allegations of "interest group liberalism" gained

currency. Clearly the Reagan order reflects the

view that the president, as the prime representative of the public interest and as the official best suited to coordinate executive

decision making, should control the administrative process in opposition to the centrifugal forces of sub government politics.44

EO 12,498 simply built upon EO 12,291. EO 12,498 was issued in

January, 1985 and was designed to influence agency rulemaking prior

to their analysis of the potential rule. The order instructed agencies to

prepare annual reports of all “ongoing or contemplated rulemaking

activities and to explain to OMB how such activities are ‘consistent with

43 Ibid. pp. 870-71. 44 Ibid. pg. 871.

19

the administration’s regulatory principles” (emphasis added).45 The

power of EO 12,498 is that it allowed “OMB control of the boundaries

within which individual rules may be formulated.”46

Taken together, these two executive orders have allowed the

White House to impact the regulatory process at an early stage and

often against the policy wishes of agency heads. Again, Cooper and

West suggest that:

[the] requirements of the Reagan order, together with the other sanctions available to OMB and the president, have encouraged a

good deal of informal monitoring and communication. As a former staff member of

EPA has stated, "You don’t spend two years thinking about a regulation without thinking about whether OMB is going to shoot it

down."47

Marissa Martino Golden argues that OMB’s point of central clearance

for all requests “reduced the ability of individual agencies to make an

end run around the president and request more money from

Congress.”48

The key agency within the OMB that forged centralized clearance

was the OIRA. It was the job of OIRA to conduct administrative

clearance, to review regulation, and to employ cost-benefit analysis to

45 Ibid. pg. 874. 46 Ibid. pg. 874. 47 Ibid. pg. 876. 48 Golden, pg. 7.

20

all proposed regulations.49 The OIRA effectively monitored what

regulations the agencies were considering and so effective it was that

it also successfully monitored what regulations agencies could

potentially consider. As a former staff person at the EPA noted: “You

don’t spend two years thinking about a regulation without thinking

about whether OMB is going to shoot it down.”50 Further, Reagan OIRA

administrator James Miller proclaimed about OIRA: “If you’re the

toughest kid on the block, most kids won’t pick a fight with you.”51

The use of the executive orders to centralize administrative control

has been well documented as one of the most instrumental things to

returning power back to the presidency. Cooper and West suggest

that the key executive order, 12291, was an “effective means of

identifying, evaluating, and influencing those agency policies most

important to the president and his key constituencies.”52 Further, they

argue that 12291

[e]voked a diffuse but effective set of

mechanisms for bringing especially significant and/or politically troublesome rules to the attention of administration officials. To this

end, OMB has relied on an extensive “alarm system” which has included letters and calls

from regulated interests, informal contacts with agencies, and monitoring of trade

49 Ibid. pg. 7. 50 Cooper and West. pg. 876. 51 Ibid. pp. 873-74. 52 Ibid. pg. 877.

21

publications as well as internal memoranda

alerting OIRA staff to sensitive issues.53

A final key piece of the puzzle that locked in administrative control

came as a result of favorable Supreme Court rulings allowing for

administrative discretion when interpreting statute.

The most significant of these ruling was the Chevron v Natural

Resources Defense Council decision,54which dealt with administrative

interpretation of the “Clean Air Act Amendments of 1977.”55 Under

dispute was a section of the “Clean Air Act Amendments” that allowed

a company with several industrial plants spread across a wide,

geographical area to operate as a single plant, or as a stationary

source. The concept, known as the “bubble” concept, permitted an

“existing plant that contains several pollution-emitting devices [to]

install or modify one piece of equipment without meeting the permit

conditions if the alteration will not increase the total emissions from

the plant.”56

While the details of the case are not important, what is important is

how the Court settled the issue of what to do with a vague or

ambiguous concept not clearly defined by the legislative history of the

case. The Supreme Court, in deciding the case, adopted a two-part

guide to judges in determining “intent.” What the Court said was:

53 Ibid. pg. 877. 54 “Chevron v. Natural Resources Defense Council,” 467 U.S. 837, (1984) at 837. 55 P.L. 95-95 (1977) 56 “Chevron v. Natural Resources Defense Council.”

22

If the reviewing court, “employing traditional

tools of statutory construction,” determines

that Congress has spoken directly on a precise issue, the court “must give effect to the

unambiguously expressed intent of Congress.”

If after examining the text and legislative history of the statute, the reviewing court determines that a statute is silent or

ambiguous regarding a particular issue, the

court must defer to any reasonable interpretation made by the implementing agency.57

Chevron then allowed the administrative agency, in the absence of

clear, congressional intent and within reasonable statutory

interpretation, to interpret the meaning of the law. Taken together

with the two executive orders, this pushed “interpretation of the

meaning” of the law up to political officers within the executive

branch—to the OMB and the White House staff. Doug Kmiec noted

that Chevron was crucial to getting the courts to recognize executive

branch interpretation of the law, and to recognize the importance of

the president’s views in informing that interpretation.58

The following year the Court again buttressed agency discretion in

the case Heckler v Chaney.59Chaney involved the ability of death row

inmates to sue the FDA to prevent the injection of drugs in the process

of lethal injection. The FDA argued that it had “inherent discretion” to

57 Eisner, Oren. “Extending Chevron Deference to Presidential Interpretations of

Ambiguities in Foreign Affairs and National Security Statutes Delegating

Lawmaking Power to the President.” Cornell Law Review 86:411. pg. 412 58 Email interview with Douglas Kmiec, April 23, 2001. 59 470 US 821 (1985).

23

refuse to act unless there was a “serious threat to public or a blatant

scheme to defraud,” something not present in the inmate’s suit.60The

Court held that reasonable agency interpretation existed, which

shielded it from judicial review.61

All three of these taken together complete the first leg of the

Unitary Executive—the congealing of centralized, administrative

control to support the Article II command that the president must

“take care that the laws are faithfully executed.” OMB oversight,

coupled with the power of administrative agencies to interpret,

reasonably, vague provisions in law, meant that the executive could

place before the administrator’s eyes the meaning of the statute.

Protection of Prerogatives: The Justice Department

The second leg of the Unitary Executive, the Oath Clause, involves

the aggressive protections of presidential prerogatives. Aggressive

protection adequately describes the Justice Department in the Reagan

Administration.

The Justice Department became embroiled in a number of high

profile legal battles, often involving the Congress, which would prove

successful in advancing the cause of the presidential signing

statement.

60 Ibid. 61 Ibid.

24

Two very high profile and successful examples, the fight against

the legislative veto and Gramm-Rudman-Hollings, all involved the use

of the presidential signing statement.

The legislative veto fight was something the Reagan administration

inherited from the Carter administration. In late December 1980,

when a federal appeals court ruled that the legislative veto was

unconstitutional, President Carter seized upon the opportunity to

announce that 150 bills containing the legislative veto would be

challenged.62 Governor Ronald Reagan, who was running as the

Republican candidate for President, had endorsed the legislative veto

as a constitutional congressional prerogative. Governor Reagan had

endorsed the legislative veto as an aid to control the administrative

state, which fit into the anti-regulation rhetoric of his campaign.

However, when Governor Reagan became President Reagan, the

support for the legislative veto dropped, and the Reagan Justice

Department announced it would support Chadha in his effort to find

the legislative veto unconstitutional. This switch in positions resulted

in an angry backlash from members of Congress. In particular, Elliot

Levitas, a champion of the legislative veto, noted that he and

Congressman Trent Lott went to see Vice President Bush, who was the

62 “Vetoing the Legislative Veto.” The Washington Post. December 29, 1980. pg.

A12. Accessed from Nexis (www.nexis.com) News File, All database. July 20, 2002.

25

head of the Task Force on Regulatory Reform, to ask him why the

administration was changing its position on the legislative veto.

Levitas said:

Vice President Bush, in a moment of startling tangent, said to us: “You have to understand

that when we were supporting the legislative

veto, we were running for office. Now the administration is ours, and we don’t want any interference from Congress.”63

The Supreme Court decided, in a seven-to-two majority that the

legislative veto was an unconstitutional violation of the “Presentment”

Clause. What gave the Reagan administration an added boost to the

decision was the attention the Supreme Court gave to the signing

statement. In footnote 13 of the decision, the Court wrote that:

“…11 Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to

challenge congressional vetoes as unconstitutional. ..Perhaps the earliest Executive expression on the constitutionality of

the congressional veto is found in Attorney

General William D. Mitchell's opinion of January

24, 1933, to President Hoover. 37 Op. Atty. Gen. 56. Furthermore, it is not uncommon for Presidents to approve legislation containing

parts which are objectionable on constitutional grounds. For example, after President

Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a

memorandum explaining the President's view that the provision allowing the Act's

63 Telephone interview with Elliot Levitas. August 18, 2001.

26

authorization to be terminated by concurrent

resolution was unconstitutional.”64

The Reagan administration did not really intend, as a goal, to get

rid of the legislative veto. When the OMB sent a memo telling lower

branch agencies to disregard legislative vetoes, Congress responded

by “tying the administration’s hands with even stricter,’ legally

binding, restrictions on spending decisions.”65 OMB Director James

Miller promptly rescinded the order, noting that “I believe the

congressional leadership is now fully aware of the principle involved.

We have made our point…”66 Jessica Korn adds “White House officials

in the Reagan administration knew that there were no gains to be won

from Chadha because they were well aware that Congress’s power to

exercise control over administration did not depend on shortcuts

through constitutional procedure.”67

The larger victory for the administration was the test of the signing

statement. The Reagan administration would use the signing

statement to curb future encroachments by the Congress, most of

which were met with success.

A second major successful use of the signing statement came when

President Reagan signed the high profile “Balanced Budget and

64 INS v Chadha 462 U.S. 919 (1983). 65 Korn, Jessica. pg.37. 66 Ibid. pg. 37. 67 Ibid. pp. 37-38.

27

Emergency Deficit Control Act, 1985,” or more popularly known as

“Gramm-Rudman-Hollings (hereafter GRH) .”68

GRH was designed to eliminate the budget deficit by the year 1991.

In order to accomplish this, the president’s budget and the

congressional budget resolution were to meet statutory decreases in

spending each fiscal year.69 “If both the Congress and the president

failed to meet these targets and the deficit exceeded the statutory

allowance of more than $10 billion, a ‘sequestration process’ was

triggered to make across the board cuts to meet the target.”70 The

money was then taken from defense and social spending programs.

The body charged with the sequestration of the funds was the

comptroller general, which would review reports issued by the

Congressional Budget Office (CBO) and the Office of Management and

Budget (OMB), and then decide on what adjustments needed to be

made. The comptroller general was an agency within the General

Accounting Office (GAO), which is an agent of Congress.

When President Reagan signed the bill71 into law, he issued two

constitutional objections to the bill. First, in a separation of powers

objection, he noted that both the directors of the CBO and the

68 PL 99-177 69 Fisher. pg. 207. 70 Ibid. pg. 207. 71 Reagan, Ronald. “Statement on Signing H.J.Res 372 into Law.” Weekly

Compilation of Presidential Documents, Vol. 21. December 12, 1985. pp. 1490-91.

28

comptroller general in the budget process were given executive

powers, and as such, were not appointed by the president. Second, he

argued that the responsibilities given to the comptroller general to

terminate or modify defense contracts for deficit reduction purposes

violated Chadha.

President Reagan was not alone in this assessment. Within hours

of signing the bill into law, Representative Mike Synar (D-OK), along

with eleven other members of Congress as well as the National

Treasury Employees Union, filed a suit in federal district court for D.C.

challenging the constitutionality of the authority vested in the GAO to

make automatic cuts.72 On July 7, 1986, the Supreme Court issued

its’ decision in which it upheld the district court’s ruling that the deficit

reduction procedure was unconstitutional.

In the decision, Bowsher v Synar (1986),73the Court, in footnote

one, relied upon President Reagan’s signing statement issued when he

signed GRH into law. The Court validated both objections raised by

President Reagan. It held that the powers given to the comptroller

general violated the separation of powers doctrine in so far it does not

give the president the right to remove officers involved in executive

powers. Further, the deficit reduction provisions violate the separation

72 “Constitutionality of Automatic Cuts Challenged.” CQ Almanac. Washington,

1985. pg. 461. 73 478 U.S. 714 (1986)

29

of powers doctrine by giving executive powers to an agent of

Congress.

The use of the signing statement to protect presidential

prerogatives was not totally successful. When President Reagan

signed the law he had made the same objections to the comptroller

general provisions that were successfully made in GRH.74 However,

when the Reagan administration sought to unilaterally enforce its

objections, the Congress forced a retreat after threatening to cut-off

the appropriations for the Justice Department.

The Justice Department also took a very aggressive approach

towards Congress, in an effort to signal its clear intentions that the

presidency was not just one among equals, but possibly even first

among equals. For example, in the area of civil rights policies, the

Justice Department and the Congress butted heads over the extension

of the Voting Rights Act, with the Justice Department arguing to

remove provisions that permitted minorities to use disparate impact75

evidence when challenging local voting practices.76Even though the

provision passed by wide majorities in Congress and was reluctantly

74 See Reagan, Ronald. “Statement on Signing the Deficit Reduction Act of 1984.”

Weekly Compilation of Presidential Documents. Vol. 21. July 18, 1984. pg. 1037. 75 Disparate impact describes policies or practices that result in an adverse effect on

minorities or women. Such practices could be tests that are not germane to a job to be performed or height and weight requirements that exclude groups of people.

http://www.civilrights.org/library/permanent_collection/resources/glossary.html.

Accessed 12/31/02. 76 Cornell. pg, 200.

30

signed by President Reagan, the Justice Department “continued to

refuse to use impact evidence to bring voting rights suits, or to reject

local voting practices under preclearance requirements under the

act.”77

The Justice Department also forced a very high profile fight with

the Congress and with the lower courts over the Comptroller-General

provision in the “Deficit Reduction Act of 1984.”78The point of

contention, which was objected to in a presidential signing statement,

was the Competition-in-Contracting Act’s (CICA) provision of the law,

designed to “reduce the number of noncompetitive contract awards

made by federal agencies.”79If a federal contractor objected to a

submitted bid, the act provided for the holding of federal funds by the

Comptroller General in the event a big was contested. After the CICA

became law, the Attorney General instructed the OMB to direct all

executive branch agencies to refer to the presidential signing

statement with respect to the Comptroller-General provision of the

CICA.

Not long after the act became law, a domestic contractor to the

Navy complained about the awarding of a bid to an Israeli contractor,

even though the domestic contractor had submitted a lower bid.

77 Ibid. pg. 200. 78 PL 98-369 (1984) 79 Burgess, Christine E. “When May a President Refuse to Enforce the Law?” Texas

Law Review 72: 631, 1994. pp. 642-43.

31

When the Comptroller-General moved to intervene and withhold the

funds, the Reagan administration ordered the Secretary of the Navy to

disregard the Comptroller-General’s demands and to award the bid to

the Israeli contractor.80

In a suit filed against the Secretary of the Navy,81and joined by

both Houses of Congress, the Court rejected the administration’s

constitutional rejection of the Comptroller-General provision of the

CICA and ordered the contract to be held. The Justice Department

made a high profile decision to ignore the demands of the Court,

arguing that the final arbiter of the decision would have to be the

Supreme Court and not the lower courts, and ordered the Secretary of

the Navy to ignore the lower court decision. Only after the House

Judiciary Committee threatened to withhold the following year’s

appropriated funds did the Justice Department give way. The

important point from this example is the stand that the executive

branch was willing to take to protect its prerogatives, ignoring edicts

both from the Congress and from the lower judiciary.

The 1986 Westlaw Decision

The scholars that have written on the signing statement have all

agreed that the decision to have the Westlaw company add the

presidential signing statement to the “Legislative History” section of

80 Ibid. pg. 643. 81 Lear Siegler v Lehman. 842 F.2d 1102 (1988).

32

the USCCAN was very significant. What is not discussed is how this

decision was made. Why did the Reagan administration make such an

unprecedented move? And what did they hope to gain from it? This

discussion will focus on what prompted the decision and what the

administration hoped to gain from it. I will argue that by 1986, the

administration’s relationship with the Congress had become so

fractured that any attempt to move the administration’s policies was

very difficult. Additionally, the Unitary Executive had been put into

place, as I have discussed above.

Bitter Relations with Congress

The Reagan administration’s relationship with the Congress was

highly fractured. In fact, outside of the first year in office, the

administration had a terrible relationship with the Congress right up to

the end. In 1981, President Reagan received 82% approval ratings in

Congress on roll call votes with those who supported positions the

administration took.82 However, in every subsequent year Reagan lost

support within Congress for his policy initiatives, bottoming out in

1987 when he was only able to win 43.5% of the 177 roll call votes on

which he took a position.83 Roger Davidson observed that “Reagan got

82 “Presidential Success on Votes, 1953-1988.” CQ Almanac 100th Congress, 2d

Session 1988. CQ Inc. Washington: 1989. pg. 23-B. 83 Ibid.

33

his licks in early in 1981. By 1982 he had a hard time selling them

cheap lemonade.”84

Key in the loss of support in Congress was the loss of the coalition

of conservative Democrats and moderate Republicans who had made

Reagan’s 1981 successes happen. President Reagan spent a great deal

of time in 1981 courting conservatives in Congress to help pass many

of his legislative initiatives. For example, by wooing Republicans in the

Senate in 1981, President Reagan narrowly won a contentious battle

over the sale of aircraft with advanced radar equipment to Saudi

Arabia.85 By 1987, the year in which the President scored the lowest

on roll call votes, he vetoed the first two big bills of the year—bills that

dealt with water treatment and highway construction.86 Despite his trip

to Congress to meet with wavering Republicans over the issue of

overriding the President’s vetoes, he could not get one Republican to

switch, resulting in the override of his vetoes. In fact, President

Reagan had nine of his vetoes overridden in his eight years in office, a

rate matched or exceeded by only three previous presidents in the 20th

century, 87clearly pointing to the extent of the division between the

Congress and the administration.

84 Ibid. 85 Ibid. pg. 904. 86 Ibid. pg. 904. 87 Those Presidents are: Ford (12), Truman (12) and FDR (9). See “Presidential

Vetoes, 1789-1999.” http://clerkweb.house.gov/histrecs/househis/lists/vetoes.htm

34

In addition to his loss of support in Congress, President Reagan

also suffered electoral defeats in every election in which he was

president. While President Reagan won easily in his re-election bid in

1984, members of his party did not. In 1982, the first midterm test of

the administration, the Republicans suffered the worst midterm losses

for a President since any administration dating back to 1922.88 The

gains by the Democrats (a net gain of 26 House seats) embolden the

Democrats to challenge the administration’s claim of a “mandate.”

This meant that the Democrats were set to challenge the Reagan

Revolution of tax cuts, an increase in defense spending, and the major

cuts in domestic spending. In 1984, despite Reagan’s impressive

victory over Walter Mondale (525 electoral votes with 54% of the

popular vote89), Republicans running for Congress did worst than they

expected. In the 1984 election, Republicans picked up only 14 House

Seats and lost two Senate seats, setting up the 1986 shift in power to

the Democrats.90

In February 1986, Attorney General Ed Meese, who had recently

come off a bitter confirmation battle with the Senate, announced that

the signing statement was going to be added to the “Legislative

History” section of the United States Code Congressional and

88 “The Reagan Presidency.” CQ Almanac. Washington: 1988. pg. 904. 89 “Electoral College Box Scores.” http://www.nara.gov/fedreg/elctcoll/ecfront.html,

accessed July 12, 2001. 90 “The Reagan Presidency.” CQ Almanac. Washington: 1988. pg. 904

35

Administrative News. Meese made the announcement to the National

Press Club almost as an afterthought in a speech on gun control.

Meese explained that the decision was meant:

To make sure that the President’s own understanding of what’s in a bill is the

same…or is given consideration at the time of

statutory construction later on by a court, we have now arranged with West Publishing Company that the presidential statement on

the signing of a bill will accompany the legislative history from Congress so that all can

be available to the court for future construction of what that statute really means.91

While this decision received immediate notice, and has been the

point of a great deal of discussion, there has been no attention paid to

why this particular decision was made in the first place.

Not long after Meese took over as Attorney General, he began to

convene early morning “brainstorming”92 sessions, held in the Attorney

General’s conference room, in which all the division heads would

gather to discuss important and immediate business. Most discussions

in particular would focus on how to advance the President’s legislative

agenda with a Congress that was recalcitrant.

A bonus for the administration was to have on staff some very

talented people, particularly working in the Office of Legal Counsel,

who would turn to the creative ways in which the president could

91 Quoted in Garber, Marc N. and Kurt A. Wimmer. “Presidential Signing Statements

as Interpretations of Legislative Intent: An Executive Aggrandizement of Power,”

Harvard Journal on Legislation 24:263, pg. 367. 92Phone interview with Attorney General Edwin Meese, conducted April 12, 2001.

36

insure his control over the legislation he was signing into law. Among

those people were Douglas Kmiec and Steven Calabresi, both currently

constitutional law professors.93It was Calabresi who identified the

signing statement as a significant tool and who urged the

administration to contact the West Publishing Company to have it

included in the “Legislative History” section of the USCCAN.94And

Kmiec told me that the signing statement would become a crucial

vehicle for the president to give his subordinate officers direction.

Kmiec stated: “It was crucial for the administration to give executive

top-down on inevitable interpretation, rather than relying solely upon

the far less transparent judgment of someone in an executive agency

applying the law for the first time.”95Why was this crucial? As I noted

before, and reflected in my discussion with Kmiec, the Chevron

decision allowed the president’s interpretation to become important

absent a finding of clear legislative intent. So for Calabresi and Kmiec,

the signing statement was an important administrative tool, going

back to the early days of the Reagan administration, to reign in

centralization over the vast administrative agencies. As to whether it

was successful in achieving administrative control, Kmiec told me:

I do think the initiative was successful insofar as it conveyed presidential direction to

93 Calabresi is professor of constitutional law at Northwestern University and Kmiec is

Dean of Catholic University School of Law. 94 Email interview with Calabresi, June 15, 2001. 95 Email interview with Kmiec, April 23, 2001.

37

members of the executive branch at the

earliest possible point of implementation. In

other words it let agencies know that their work product under new law was not only to

reflect their considered judgment, but also that

of the President, who unfortunately can sometimes seem like a distant abstraction when one works in a sprawling administrative

agency.96

But for Attorney General Meese, the signing statement had an

additional advantage beyond administrative control. For Meese, the

importance of attaching them to the “Legislative History” section was

to place the president’s understanding of the meaning of a bill along

side the congresses understanding. Meese told me that:

[I]t was felt that the president, in signing a

bill, should also have a way of expressing his view of the bill, particularly in regard to certain provisions of a bill where he might have questions about his constitutionality and to be

indicated that he had those questions and why those provisions of the bill might not be enforced.97

Up to this time, the signing statement had been viewed as “ancillary to

the bill,”98and as nothing more than a press release. The only way,

according to Meese, to get the president’s views into the statute books

was to have it included as part of the legislative history section of each

bill.99

96 Ibid. 97 Phone interview with Ed Meese, April 12, 2001. 98 Ibid. 99 Ibid.

38

Now that the signing statement was published in the USCCAN, an

agency head “understands not only that this … indicates the political

position of the administration, but also that the Justice Department will

not be prepared to support the [agency head] should he or she seek to

depart from the mandated course of action."100

The political and the constitutional signing statements were a

deliberate outcome of the Unitary Executive, brought about by the

Reagan administration’s search to insure maximum centralized control

over the protections of the office and of agency interpretation.

It was not long after Meese made the announcement that the

administration became engaged in some high profile, and effective,

uses of the signing statement. In the three examples discussed below,

the Reagan administration was able to take advantage of unresolved

debates in Congress to push its interpretation of vague and undefined

sections of law.

In the first example, the Reagan administration took advantage of

a contentious battle in Congress regarding the “Safe Drinking Water

Amendments of 1986.”101 In the bill signing statement, President

Reagan objected to mandatory enforcement language as a violation of

100 Branum, Tara L. “President or King? The Use and Abuse of Executive Orders in

Modern-Day America.” Journal of Legislation. 28 J. Legis. 1. 2002. pg. 87. 101 Public Law 99-339. (1986).

39

executive discretion.102 President Reagan’s interpretation of the

language, “which permitted executive discretion, directly contradicted

a Senate Committee report and disregarded the fact that the statute

replaced the prior discretionary "may" language with a mandatory

“shall.”103 As William Popkin notes:

This interpretation not only attempted to resolve an unresolved, contentious political

debate, but also undermined the statutory structure mandating federal enforcement, as

evidenced by the fact that "shall" replaced "may" in the statutory text. This presidential foray into creating legislative history evoked a

critical response in the New Republic and a defense in the National Law Journal from a

Deputy Assistant Attorney General.104

A second, and more high profile example of the strategic use of

the signing statement arose after President Reagan signed into law the

“Immigration Reform and Control Act, 1986.”(IRCA)105 Reagan issued

eight separate signing statements with the law, three which made

constitutional objections and five that made political interpretations.106

The most contentious interpretation had to do with the “Frank”

Amendment to the bill. For two years prior to the passage of IRCA,

102 Reagan, Ronald. “Statement on Signing the Safe Drinking Water Act Amendments

of 1986.” Weekly Compilation of Presidential Documents. Vol.22. Pg.831. June

19, 1986. 103 Popkin, William D. “Judicial Use of Presidential Legislative History: A Critique.”

Indiana Law Journal. 66:699. Summer, 1991. pg. 706. 104 Ibid. pp. 705-06. 105 Public Law 99-603. (1986). 106 Reagan, Ronald. “Statement on Signing the Immigration Reform and Control Act,

1986.” Weekly Compilation of Presidential Documents. Vol.22. pp. 1534-37. November 6, 1986.

40

Congressman Barney Frank had been trying, unsuccessfully, to build

into law protections that would benefit workers who were fired from a

job due to discrimination. In IRCA, Congressman Frank was successful

in getting the House to pass his amendment to the bill. However,

when the bill went to conference, the amendment (section 247B) was

left intact but the meaning behind “discrimination” was stripped away.

When President Reagan signed the bill into law, he defined

discrimination as discriminatory intent rather than disparate

treatment. The significance is that discriminatory intent shifted the

burden of proof from the employer unto the employee. Congressman

Frank charged that the Reagan administration was “intellectually

dishonest” and the shift in burden “tells the bigots how to be smart

and evade the law.”107 Even Doug Kmiec, a champion of the signing

statement noted that:

I objected internally at the time, but alas,

everyone in a political administration does not

always play their assigned roles. Every

organization has a few mavericks.108

In addition to Congressman Frank, other members of Congress

expressed dismay at what the administration had done. Kmiec tells of

a tongue lashing he received from Senator Ted Kennedy for

107 Killenbeck, Mark R. “A Matter of Mere Approval? The Role of the President in the

Creation of Legislative History.” Arkansas Law Review. 48: 239. 1995. pg. 272. 108 Email interview with Kmiec, April 23, 2001.

41

attempting to subvert the legislative will.109 When the final rule was

published, the interpretation of the Reagan administration prevailed.

A final example of the effective use of the signing statement

following the 1986 Westlaw decision came upon the signing of the

“Sentencing Act of 1987.”110 In it, President Reagan once again took

advantage of a contentious debate between the House and the Senate

to express his understanding of the legislation. President Reagan

issued three separate signing statements that had the effect of having

greater retroactive impact and less judicial discretion, which sided with

the Senate view over the House’s view.111 In 1989, the Supreme Court

upheld President Reagan’s interpretation in the case “US v Story.”112

In the Story decision, the Court noted that the Department of Justice

participated in the negotiations in Conference and that President

Reagan, in his bill signing statement, had agreed with the Senate’s

understanding of the definitions and the Court relied upon that

interpretation.113

When the Reagan administration left office, they left a presidency

that was much stronger than when they had inherited it. They left to

109 Ibid. 110 Public Law 100-182. (1987). 111 Reagan, Ronald. “Statement on Signing the Sentencing Act of 1987.” Weekly

Compilation of Presidential Documents. Vol.23. December 7, 1987. pg. 1452. 112 891 F. 2d. 988. (1989). 113 Carroll, Kristy L. "Whose Statute is it Anyway?: Why and How Courts Should Use

Presidential Signing Statements when Interpreting Federal Statutes." Catholic

University Law Review 46:475 1997. pg. 511.

42

successors a unified, unitary executive and a powerful weapon—the

presidential signing statement. The Reagan administration had

successfully gotten the courts to recognize the presidential signing

statement, they had gotten it included into the USCCAN, and they had

managed to use it to define contentious and ill-defined sections of a

bill.

Chapter Five and Six will examine how the Bush and Clinton

administrations both improved upon the Unitary Executive and further

developed the use of the signing statement.

43

Chapter Five—The Unitary Executive and the Bush Administration

Chapter 5

The Bush Administration

President George H.W. Bush won election in 1988 with a mandate to

carry on the Reagan Legacy. President Bush, who had run against President

Reagan in 1980, had served ably as Vice-President for the eight years of the

Reagan administration. Importantly, President Bush was instrumental in

constructing and maintaining the Unitary Executive while serving in the

capacity of head of the regulatory task force in the Reagan administration.

But President Bush was not Ronald Reagan. First, he was not the

conservative that President Reagan was, and thus did not enjoy the

complete support of the conservative wing of the Republican Party. During

the 1988 Primaries, President Bush found one of his greatest challenges

came from the Reverend Pat Robertson, who had the support of the

Christian Coalition and the Moral Majority. In fact, two staunch

conservatives from this part of the Republican Party noted that “a Bush

defeat would not be the worst thing that could happen to the Republic or the

Republicans.”1 And second, President Bush did not have the rhetorical appeal

that Ronald Reagan had. President Bush would not be able to go directly to

the people in the same manner that Reagan did, which would be a factor in

dealing with the Congress.

1 Dionne, E.J. “Bush Moving to Solidify Ties to Republican Right.” The New York Times. .

Section A, Column 1. April 28, 1988.

Chapter 5 Draft Copy—Not for Citation

2

President Bush ably performed in the challenge of maintaining and

improving upon the Unitary Executive. In a speech given at Princeton in

1991, Bush outlined the basic themes of the Unitary Executive and blasted

the Congress for attempting to encroach upon the prerogatives of the

Unitary Executive.2 Bush argued that the president is the only nationally

elected official, and as such, he has certain prerogatives that only he may

exercise. Congress, he felt, was too busy trying to micromanage foreign and

domestic policy, and it was the president’s constitutional duty to see that it

did not.

This chapter will examine how the Bush administration built upon the

principles of the Unitary Executive, and in so doing, how it used the signing

statement. I will begin with a restatement of the key principles of the

Unitary Executive, and where the use of the signing statement has been up

to the end of the Reagan administration. This will give the context to

examine how the Bush administration advanced the cause of the Unitary

Executive and sharpened the strategic significance of the signing statement.

I will then examine how the Bush administration used the signing statement

overall before discussing what strategic significance he gave to the signing

statement. Finally I will tie this discussion into how the Bush administration

built upon the foundation of the Unitary Executive provided to it by the

Reagan administration.

2 Bush, George H.W. “Remarks of President George Bush Building Dedication at Princeton

University.” Federal News Service. May 10, 1991.


3

The Unitary Executive—Restatement of core principles

It has been my argument that the Unitary Executive rests upon the

notions of coordinancy and accountability, and has been in development

over the course of the last thirty years.

Coordinancy, it was suggested, originated in Federalist 49 where

James Madison argued that each branch is given coordinate power which

each branch enjoys only for itself. This is the basis of power checking

power. It also has served as the basis of the argument in which each branch

of government is responsible for deciding the constitutionality of legislation

on its own—no one branch, it is argued, should be able interpret for another

branch of government the meaning of the Constitution.

The second key foundation of the Unitary Executive is accountability.

Because the president is the only nationally elected official, it is his

responsibility to insure that the way in which the laws are implemented are

in line with his views of public policy and not the views of an unaccountable

bureaucrat.

I have argued in previous chapters that the Unitary Executive is really

a product of the political hydraulics of the last thirty years. Two notable

events gave rise to the Unitary Executive. The first is the attention that has

been given to the vast administrative state, beginning first with President

Nixon and then with every subsequent president. The second is the effect


4

that Vietnam and then Watergate had on the political system—a popular

desire to muzzle the power of the presidency.

Further, and what I think to be the most important, is the persistence

of highly partisan, divided government that created within the presidency a

perceptual barrier in interacting with the external political environment.

As I will discuss below, the emphasis on coordinancy and

accountability served as a basis to the Bush style of governing. President

Bush was highly aggressive in defending presidential prerogatives and

pushed the centralization of control over the bureaucracy even further than

what was obtained during the Reagan administration.

Signing Statements and Bush’s use

Table 5.1 Comparison of Signing Statements—Reagan-Bush

As I noted in Chapter Three, the use of the signing statement exploded

from the Reagan administration through the Clinton administration. If you

look Table 5.1, a few things merit attention. First, the total number of

signing statements actually decreased from Reagan to Bush from 276 to

214. Also notable is the decrease in the number of rhetorical signing

statements from Reagan to Bush. The number dropped nearly 40%, but this

is consistent with President Bush’s style. He was not the “Great

President Constitutional Political Rhetorical Total

Reagan 71 (26%) 23 (.08%) 94 (34%) 276

Bush 146 (68%) 30 (14%) 38 (18%) 214


5

Communicator” that President Reagan was, and it shows clearly in his use of

the rhetorical signing statement. However, in the two categories that are

important for this research, the constitutional and political signing

statements, both show an increase. The number of political signing

statements from Reagan to Bush moved upward, albeit slightly (23 to 30)

and the numbers of constitutional signing statements exploded, from 71 in

the Reagan Administration to 146 in the Bush administration.

The Bush administration was the most aggressive in protecting the

office from constitutional encroachments upon the powers of the presidency.

As I will discuss below, this likely comes from the highly partisan nature of

his last two years in the Reagan administration. Not only did Bush inherit

the polemics from the Reagan administration, but he also was dogged,

initially, by his role in the Iran-Contra affair. Hence the Bush administration

was more focused on the constitutional signing statements than on any

other type of signing statement. As Nelson Lund notes, “[T]he Bush signing

statements are pervaded by an amazing scrupulosity about the separation of

powers. Even a cursory review of the record suggests that the

administration tried to identify and deal with every such issue in every bill

that was presented to the president.”3 For example, in Bush’s signing

statement of the National and Community Service Act of 1990, Bush

3 Lund, Nelson “Guardians of the Presidency: The Office of the Counsel to the President and

the Office of Legal Counsel” in Cornell W. Clayton. Government Lawyers: The Federal Legal

Bureaucracy and Presidential Politics. Kansas: University Press of Kansas. 1995. pg. 221.


6

objected to individuals who were executive officers of a commission charged

with oversight of a variety of programs under the Act, yet were not

appointed by the president.4 Bush noted that only the president can appoint

executive officers, and instructed executive branch agencies and the

attorney-general to treat them “without legal force.”5 As Nelson Lund

argues, “[A]s long as the president refused to nominate candidates for the

commission, the congressionally mandated programs probably could not

have been administered.”6

The Congress quickly acted to correct the provision that President Bush

objected to by passing the National and Community Service Technical

Amendments Act of 19917 early in the next legislative session.

A second example of an aggressive use of the signing statement to

protect the prerogatives of the executive branch came as a result of signing

the Department of Interior and Related Agencies Appropriations Act for

1990.8

The objection was over section 119 of the act that restricted the

Interior Department’s ability to communicate with anyone, including the

4 Bush, George H. W. “Statement on Signing the ‘National and Community Service Act of

1990.” Weekly Compilation of Presidential Documents. pp. 1833-34. 11/16/90. 5 Ibid. pp. 1833-34. 6 Lund. pp. 223-24. 7 National and Community Service Technical Amendments Act of 1991, Pub. L. No. 102-10,

105 Stat. 29 (1991). 8 Department of the Interior and Related Agencies Appropriations Act, 1990, Pub. L. No.

101-121, § 318, 1989 U.S.C.C.A.N. (103 Stat.) 710, 745-50.


7

president, without informing the Congress.9 The president informed

Congress that this was an unconstitutional intrusion upon the constitutional

right of the president to receive unfettered information. The White House

noted that this might be the right time to test the president’s right to a line-

item veto, and Congress responded by amending section 119 so that it “was

effective for only one day—a Sunday three weeks before the bill was

passed.”10

The Bush administration did a great deal to enhance the power of the

signing statement. The Reagan administration, as demonstrated in Chapter

Four, was instrumental in placing the signing statement into the legislative

history of the acts signed into law. The Bush administration built upon this

power by aligning with fellow partisans in the Congress to create an

alternative legislative history to which the president could point to when

signing bills into law. The value of this was to win in those instances in

which the president’s position was not the majority position in Congress.

The Alternative Legislative History

The Bush administration had been dogged by President Bush’s role in

the Iran-Contra affair while he was vice-president in the Reagan

administration. The trial of Oliver North in 1989 renewed public attention to

9 Davies, Susan M. “Congressional Encroachment on Executive Branch Communications.”

University of Chicago Law Review. 57:129. Fall, 1990. 10 Ibid. pp. 1298.


8

the President’s role11, and during congressional debate over the “Foreign

Operations, Export Financing, and Related Programs Appropriations Act,”12

Representative David Obey (D-Wisconsin) had added an amendment that

“prohibited the sales of arms or aid to any foreign government to further

U.S. foreign policy objectives if the U.S. would be prohibited from the same

kind of influence.”13 This was similar to the Boland Amendment, the

amendment that prohibited U.S. official involvement in aid to the Contras,

and the amendment at the heart of the Iran-Contra controversy.

An earlier attempt to insert this amendment was vetoed by President

Bush14as an unconstitutional violation of the president’s power over foreign

policy as well as to control internal deliberations within the executive branch.

In addition to these objections, President Bush also objected to a provision

of the bill that mandated international family planning policies that included

contraceptives and abortion funding. A subsequent bill, the one the

president signed, had removed the family planning provisions but retained

the provisions contained in the Obey amendment in “a classic case of veto

bargaining.”15

11 Whiting, Alex. “Controlling Tin Cup Diplomacy.” Yale Law Journal. Volume 99. June

1990. 12 PL101-167. 13 Tiefer, Charles. The Semi-Sovereign Presidency: The Bush Administration’s Strategy for

Governing without Congress. Boulder: Westview Press. 1994. pg. 38. 14Bush, George H.W. “Message Returning to the House of Representatives without Approval

the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991.” 25 Weekly

Compilation of Presidential Documents. November 21, 1989. pp. 1806-1807. 15 Tiefer. pg. 38.


9

President Bush’s signing statement of the bill noted his “serious

misgivings as to the constitutionality” of many of its provisions and his intent

to “construe any constitutionally doubtful provisions in accordance with the

requirements of the Constitution.”16 One of the doubtful provisions was the

Obey Amendment. President Bush argued that his intent was to construe

this narrowly in accordance with the view expressed on the House and

Senate floor that the provision only applies to “quid pro quo” transactions—

“transactions in which U.S. funds are provided to a foreign nation on the

express condition that the foreign nation provide specific assistance to a

third country, which assistance U.S. officials are expressly prohibited from

providing by U.S. law.”17 Bush finds his interpretation of this section in an

“explanatory colloquy” between Senators (Robert) Kasten and (Warren)

Rudman.18 According to this “colloquy,” a quid pro quo arrangement is one

that

requires that both countries understand and agree

that the U.S. aid will not be provided if the foreign

government does not provide the specific assistance.

The Senate record also makes clear that neither the

criminal conspiracy statue, nor any other criminal penalty, will apply to any violation of this section.

My decision to sign this bill is predicated on these

understandings of Section 582.19

16 Bush, George H.W. “Statement on Signing the Foreign Operations, Export Financing, and

Related Programs Appropriations Act, 1990.” Weekly Compilation of Presidential

Documents. November 21, 1989. pg. 1811. 17 Ibid. pg. 1811. 18 Ibid. pg. 1811. 19 Ibid. pg. 1811.


10

According to Charles Tiefer, this was done for the sole purpose of

manipulating the legislative history.20 Tiefer claims that this was a strategy

worked out between the White House and Senator Bob Dole (R.Ka), then-

Senate Minority Leader. The Republicans in Congress planted an alternative

legislative history that would give an “alternative account of what Congress

was doing in passing the bill without the changes in the bill that Congress

would make.”21 The purpose was to supplant “congressional legislating on a

central and hotly contested issue.”22

Indeed, an examination of section 582 shows that the Congress took

care to point out that it excluded any “funds to governing governments ‘in

exchange’ for taking actions prohibited to the U.S. government,” and not

just the those with a quid pro quo agreement.23

This strategy would be particularly significant when the Bush

administration was forced, politically, to sign the Civil Rights Act of 1991

(discussed below). Planting an alternative legislative history to give force to

a signing statement was an important development to the power and

importance of the signing statement.

In Chapter Four I explained how the pieces of the Unitary Executive

came together in the Reagan administration. Both an aggressive stance

against assaults upon the prerogatives of the president as well as creative

20 Tiefer. pg. 40. 21 Ibid. pg. 40. 22 Ibid. pg. 40. 23 Ibid. pg. 38.


11

ways of moving policy left the Bush administration in a better position than

when President Reagan had taken office eight years before.

I will now turn to the further development of the Unitary Executive in

the Bush administration and how both the constitutional and political signing

statements were used in this development.

Evolution of the Unitary Executive: The Bush Administration

Common to the strategy to further develop the Unitary Executive and

the political and constitutional signing statements was the important role

White House Counsel C. Boyden Gray played. A 1991 “National Journal”

article proclaimed:

White House counsel C. Boyden Gray is the most

important person to hold that post in recent

memory. And Gray's lawyers are an all-star team of

unabashed conservatives with clout.24

Gray had used the post of White House Counsel to not only

aggressively protect the prerogatives of the president, but also to forcefully

push the president’s preferred policy positions through Congress, and when

that failed, through the bureaucracy. Gray had transformed the White

House Counsel position from one of legal bureaucrat to chief spear carrier for

the president in policy debates and chief defender of presidential

prerogatives—surpassing even that of the Department of Justice. As I will

discuss below, in both the strategic use of the constitutional signing

24 Moore, W. John. “The True Believers.” The National Journal. Volume 23, No. 33-34.

August 17, 1991. pg. 2018.


12

statement and the political signing statement, Gray was often behind both

moves.

The Quayle Council and the Political Signing Statement

The Heritage Foundation released a similar report to the incoming

Bush administration that it had in 1980 to the incoming Reagan

administration. Mandate for Leadership III urged the Bush administration to

continue with the same deregulatory zeal that the Reagan administration

had, and to revamp Executive Order 12,291 to “make presidential control

over executive branch regulators explicit.”25 The report further urged a

strategy that included:

a) defending the President’s assertion of control over

regulatory decision, b) challenging precedents that

prevent rational decision-making and weaken

presidential authority, and c) assuring that all significant filings by or on behalf of regulatory

agencies are consistent in asserting the President’s

authority and defending his objectives.26

When the Bush administration took over from the Reagan

administration, the regulatory oversight ability of the Office of Management

and Budget, in particular the Office of Information and Regulatory Affairs

(OIRA), had come under fire from the Democratically-controlled Congress

frustrated by years of policy manipulation by the Reagan administration. In

1989, the Congress inserted restrictive language into the reauthorization in

25 Cornell, Clayton. The Politics of Justice: The Attorney General and the Making of Legal

Policy. New York: M.E. Sharpe, Inc. 1992. pg. 233. 26 Ibid. pg. 233.


13

1989 of the Paperwork Reduction Act that involved “comprehensive ‘logging’

requirements for all OMB activities and communications relating to review,

the imposition of deadlines for the conduct of reviews, and a requirement for

OMB to explain in writing its reasons for suggesting changes in any proposed

regulation.”27The OMB worked out a compromise with the Congress which

was vetoed by the White House Counsel’s office as an unacceptable intrusion

upon executive branch prerogatives. In retaliation, the Congress

refused either to reauthorize OIRA or to confirm a presidential appointee to succeed Wendy Gramm,

who had departed as OIRA Administrator in 1989. As

a consequence, OIRA lacked an advice-and-consent

appointee to wield its authority over executive

agencies.28

To fill the void in the executive branch policymaking process, the

President’s Council on Competitiveness, or the “Quayle Council,” stepped in

monitor the regulatory process. The Council was set up in 1989 to protect

business from overly-burdensome federal regulations. It proved to be far

more effective than the OMB because it was not prohibited from having

direct conversations with industry nor was it influenced by congressional

budgetary pressures. A staff person in Congress contended that the council

would take “industry’s ‘suggestions’ to OMB and orders OMB to change

regulations,”29 which an EPA sourced noted that was effective “90 percent”

27 Shane, Peter. “Political Accountability in a System of Checks and Balances: The Case of

Presidential Review of Rulemaking.” Arkansas Law Review. 48:161. 1995. pg. 168. 28 Ibid. pg. 168. 29 “Putting a Freeze on Regulations; George Bush Moves against Excessive Government

Regulation.” Occupational Hazards. 54:10. October, 1992. pg. 81.


14

of the time.30The outcome was to lessen the “rule-making power of federal

agencies and tipped the outcome of these battles against those in Congress

who push for strict regulation.”31

The Quayle Council consisted of seven members32 as well as six

working groups33 and their meetings were both informal and rare.34 Further,

the Council “vigorously advocated a theory of the executive branch in which

the President's policy roles, even in domestic affairs, are (sic) broadly

discretionary, dischargeable in secret, relatively immune to congressional

scrutiny (at least as to process), and subject to judicial review only in rare

instances.”35

The first Director, Allan Hubbard, was a zealous believer in the free

market who ordered up a list from the OIRA of those agencies that were

perceived to be acting inefficiently when it came to slashing regulations on

business.36He would quite often call agency lawyers to inquire why the

particular agency was not deregulating, and when his phone call did not

work, he would ask Vice President Quayle to meet with the particular

Cabinet Secretary.37 This created an environment in which pressure could be

put upon those with policy responsibilities “while remaining within the White

30 Ibid. pg. 81. 31 Broder, David and Bob Woodward. “Quayle's Quest: Curb Rules, Leave 'No Fingerprints.”

The Washington Post. January 9, 1992. pg. A1. 32 Ibid. 33 Tiefer. pg. 72 34 Broder and Woodward. pg. A1. 35 Shane, pg. 163. 36 Broder and Woodward. pg. A1. 37 Ibid. pg. A1.


15

House framework assertedly immune from judicial review and congressional

oversight.38 According to Charles Tiefer, the “Quayle Council provided a

mechanism for the president to propitiate and to reward his industry

supporters without relying upon the president’s weak support in Congress.”39

Case Study: The Clean Air Act Amendments of 1990.

To illustrate how Boyden Gray, the Quayle Council, and the political

signing statement worked with pinpoint accuracy is the example of the

“Clean Air Act Amendments of 1990”. The president had several of his

proposals rejected by the Congress during deliberation over the “Clean Air

Act Amendments”, and the Congress felt free, in conference, to adopt

stronger controls than the president had advocated because of election year

pressures on the president not to veto the bill.40

When the president signed the bill, he chose to reinsert his proposals

that were rejected during deliberations over the bill. President Bush stated:

To address the serious concerns raised by the cost of

this legislation, I am directing Bill Reilly,

Administrator of the Environmental Protection

Agency, to implement this bill in the most cost-

effective manner possible. This means ensuring that plants can continue to use emission trading and

netting to the maximum extent allowed by law…and

that the permit program is phased in over time in an

orderly, nondisruptive manner.41

As Charles Tiefer argues,

38 Tiefer. pg. 72. 39 Ibid. pg. 72. 40 Ibid. pg. 71. 41 Bush, George H. W. “Statement on Signing the Bill Amending the Clean Air Act.” Weekly

Compilation of Presidential Documents. November 15, 1990. pg. 1825.


16

[T]he Quayle Council provided a mechanism for the

president to propitiate and to reward his industry

supporters without relying upon the president’s weak support in Congress. President Bush’s

pronouncements on the newly signed bill drafted by

the White House Counsel’s office prepared the way

for the second stage of having the other White House staff at the Quayle Council, complete the revision.42

The permit program was one of two things that deregulators in the

Bush White House set their sights on. Title V of the Clean Air Act

Amendments43 requires all major sources of air pollution to obtain a permit.

This permit is to “set out all emission limits and recordkeeping and

monitoring requirements that apply to the source under the act.”44A key

point of contention was when a state had to require public notices and public

hearings—only on major modifications or an all modifications, major and

minor. The section45 under questions requires

the state to provide adequate, streamlined, and

reasonable procedures for expeditiously determining

when applications are complete, for processing such applications, for public notice, including offering an

opportunity for public comment and a hearing, and

for expeditious review of permit actions, including

applications, renewals, or revisions, and including an

opportunity for judicial review in State court of the final permit action by the applicant, any other person

who could obtain judicial review of that action under

applicable law.46

42 Tiefer. pg. 72. 43 PL 101-549. 44 Herz, Michael. “Imposing Unified Executive Branch Statutory Interpretation.” Cardozo

Law Review. 15:1-2. October, 1993. pg. 231. 45 Section 502 (b)(6) 46 Herz. Pg. 232.


17

In December of 1990, the EPA submitted a draft rule that allowed

input from industry, environmentalists, and other related experts.47 The

group recommended interpreting 502 (b)(6) in a way that allowed for

extensive public input into all permit changes. The National Environmental

Development Association (NEDA), a coalition of industry groups, went to

OMB and Boyden Gray a month later to express concerns over the draft

rule,48which leads to the Council on Competitiveness to place a

representative in at least six meetings through February.49

In March 1991, the EPA circulated another draft rule that continued to

draw the ire of the NEDA over public comment provisions on all plant

modifications, and it made clear its intent to take its objections to the

Council on Competitiveness, the OMB, the Council of Economic Advisors

(CEA), and the Energy Department50 and in early April 16 companies wrote

to White House Chief of Staff John Sununu objecting to the revised draft

rule.51

In April, the EPA again sent a proposed draft rule to the OMB that

meet with serious objections, which prompted the OMB to return the rule

completely rewritten in a way the removed the public comment provision.

According to Herz, “[t]he revisions were purportedly the work of the OIRA

within OMB, the [Office of Policy Development], and the White House

47 Ibid. pg. 236. 48 Ibid. pg. 237. 49 Ibid. pg. 237. 50 Ibid. pg. 237. 51 Ibid. pp. 237-38.


18

Counsel’s office— not the Competitiveness Council. Its involvement was

indirect, but powerful.”52 Representative Seth Waxman (D-CA.), Chair of the

House Subcommittee on Health and the Environment, was outraged when he

learned of the rule return by the OMB and ordered EPA Administrator Reilly

to come before his Committee in May.53 During this hearing, Representative

Waxman “blindsided”54 Reilly with a report titled “The Vice President’s

Initiative to Undermine the Clean Air Act”55 which allowed Democrats on the

Committee and environmentalists to “beat up on the EPA and the

administration.”56

Reilly went back to the EPA and by late summer had drafted a revised

rule that took into account the mandates issued from Waxman’s

Subcommittee hearings. The draft rule was released to the OMB a month

before the final rule was due, and it provided for “significantly increased

public involvement in minor permit revisions.”57 From November 1991 to

January 1992, the EPA was placed under enormous pressure from the OMB

and the Council on Competitiveness, and submitted a revised draft to permit

“fast track modification procedures’ while still requiring public notice over a

21 day period if the permitting authority deemed it appropriate.”58

52 Ibid. pp. 238-39. 53 Ibid. pg. 239. 54 Ibid. pg. 240. 55 House Subcommittee on Health and the Environment, “The Vice President's Initiative to

Undermine the Clean Air Act.” 102nd Cong., 1st sess, May 1, 1991 56 Herz. pg. 240. 57 Ibid. pg. 240. 58 Ibid. pg. 243.


19

By this time, the EPA was left with the unpleasant task of writing a

rule that simultaneously pleased the Congress and officials in the executive

branch. EPA administrator Henry Habicht was called into a meeting with

Boyden Gray, CEA Chair Michael Boskin, and Vice President Quayle’s Chief of

Staff William Kristol.59 All informed Habicht of their dissatisfaction with the

revised rule. To put additional pressure on the EPA, President Bush took the

opportunity to use his State of the Union address to place a 90 day

moratorium on all new regulations, ostensibly to respond to a severe

downturn in the economy.60

Reilly, who was finally pushed to his limits, wrote directly to the

President asking him to resolve the controversy between the EPA and the

Council on Competitiveness.61 In May 1992, the President sided with the

Council on Competitiveness, and the Attorney General released an opinion

that the “Act did not require public comment for minor permit

revisions,”62and on June 25, 1992, the EPA released the final rule that

excluded any public notification requirement.63 According to Herz, the

permit rule struggle can be seen as illustrating executive oversight as a tool for enforcing the

broader views of the generalists (those who had a

commitment to regulatory relief) over the narrower

agenda of the agency. The agency did not share the

59 Ibid. pp. 243-44. 60 Ibid. pp. 243-44. 61 Ibid. pp. 247-48. According to Herz, this marks the first and only time the EPA ever

went to the President to resolve an inter-agency dispute. 62 Ibid. pg. 248. 63 Ibid. pg. 248.


20

same priorities. It lost, as the model of the unitary

executive says it should.64

As the above case illustrates, the administration was able to use the

new tools of executive branch oversight to pressure an executive branch

agency to interpret a rule consistent with the president’s position on a

signing statement. In addition to the centralization of the executive branch

policymaking apparatus that was inherited from the Reagan administration,

the Bush administration also benefited from Supreme Court rulings that

aided executive branch oversight and rulemaking. I will focus on judicial

deference to the executive branch next.

Rust v Sullivan

As I discussed in Chapter Four, part of what brought together the

Unitary Executive in the Reagan administration was favorable court rulings

towards executive branch centralization. In the Supreme Court case

Chevron v Natural Resources Defense Council, 65the Court established a two-

part test to guide executive branch agencies when interpreting law. The

Court stated that in the absence of clear legislative intent over ambiguous

sections of a law, the agency may apply reasonable statutory interpretation.

This was significant to the Reagan administration in that when they began to

attach the signing statement to the “Legislative History” section of the

United States Code Congressional and Administrative News, the president’s

64 Ibid. pg. 249. 65 104 S.Ct. 2778, 467 U.S. 837, 81 L.Ed.2d 694(1984)


21

understanding of the bill was meant to serve as a guide to executive branch

agencies when they issued rules.

In the case of Rust v Sullivan,66 the Supreme Court dealt with the

issue of the Secretary of Health and Human Service’s reinterpretation of

section 1008 of the “Public Health Service Act.”67 Section 1008 originally

specified that “none of the federal funds appropriated under the Act's Title X

for family-planning services ‘shall be used in programs where abortion is a

method of family planning.”68 The Bush administration, in an effort to shore

up the conservative base of the Republican Party—an area in which the

president was politically weak—reinterpreted section 1008 so that Title X

prohibited “projects from engaging in counseling concerning, referrals for,

and activities advocating abortion as a method of family planning, and

require such projects to maintain an objective integrity and independence

from the prohibited abortion activities by the use of separate facilities,

personnel, and accounting records.”69 Before the new rule went into effect,

Title X grantee and those who supervise the allocation of funds filed suit,

claiming that the new interpretation thwarted the intent of the law.

In a five to four decision, Chief Justice William Rehnquist sided with

the Secretary of HHS, arguing that

[B]ecause 1008 is ambiguous in that it does not

speak directly to the issues of abortion counseling,

66 500 U.S. 173 (1991) 67 42 U.S.C. 254. 68 Ibid. 69 Rust v Sullivan.


22

referral, and advocacy, or to "program integrity," the

Secretary's construction must be accorded

substantial deference as the interpretation of the agency charged with administering the statute, and

may not be disturbed as an abuse of discretion if it

reflects a plausible construction of the statute's plain

language and does not otherwise conflict with Congress' expressed intent.70

Further, Chief Justice Rehnquist argued that “since the legislative history is

ambiguous as to Congress' intent on these issues, this Court will defer to the

Secretary's expertise.”

This decision significantly enhanced the Unitary Executive. Not only

can the executive branch interpret vague or ambiguous language in bills that

it receives from the Congress, but it also can reexamine statutes from

previous administrations. What is significant is the lack of recognition by the

Court given to previous administrations and how they interpreted Title X. In

the administrations prior to Bush,71Title X was interpreted to only apply to

abortions only, and not on abortion counseling.72 The Congress attempted to

override the Court’s interpretation of Title X but fell eleven votes short in the

House of Representatives of the necessary 2/3 needed to override a

presidential veto.73 The significance of this, as stated in a New York Times

70 Ibid. 71 These administrations spanned Nixon, Ford, Carter, and Reagan. 72 Clayton, Cornell W. The Politics of Justice: The Attorney General and the Making of Legal

Policy. New York: M.E. Sharpe, Inc. 1992. pg. 235. 73 Ibid. pg. 235.


23

article on the decision, is that it allows the executive “to make the law

backwards.”74

To answer the question of whether the Bush administration enhanced

the “Take Care” side of the Unitary Executive, the answer would have to be

a resounding “Yes!” As I have just demonstrated, the administration put in

place a centralized apparatus in the White House that very ably pressured

executive branch agencies to adopt the administration’s position on vague or

ambiguous language in statutes. Further, the Supreme Court greatly aided

the executive branch in its effort to take greater control not just over the

rulemaking process, but also on rules that had been issued in previous

administrations.

I will now turn to the “Oath” portion of the Unitary Executive and

demonstrate the great care the administration took in protecting the

prerogatives of the office.

The Oath Clause

As I have argued, a great deal of the protection that a president gets

comes from the bureaucrats working in the Office of Legal Counsel (OLC),

which resides in the Department of Justice. Since the early 1970s, the

functionaries of the OLC have taken as obligation the defense of presidential

prerogatives against congressional encroachment. The Bush White House

74 Ibid. pg. 236.


24

benefited enormously from the presidential activists in the OLC that had cut

their teeth during the contentious battles in the 1980s.

President Bush chose William P. Barr to head up the OLC when he took

office in January, 1989. Bill Barr, who would later become the Attorney

General, was a zealot when it came to protecting presidential prerogatives.

Barr, and White House Counsel C. Boyden Gray, would be instrumental in

outlining the defense of presidential prerogatives. In an OLC opinion75

shortly after taking office, Barr outlined ten types of legislative

encroachments76 into the prerogatives of the president. In outlining the ten,

he also suggested how the OLC should handle each, mostly by drafting

language to insert into a signing statement assuming the president did not

veto the law. For example, in outlining the attempts that Congress makes to

gain access to sensitive executive branch information, Barr suggested

language for a signing statement:

The Department objects to the breadth of this

amendment and its failure to recognize the

President's constitutional right and duty to withhold

from disclosure certain information. The President must retain the authority to withhold in the public

interest information whose disclosure might

75 William P. Barr. “Common Legislative Encroachments on Executive Branch Constitutional

Authority.” Opinion of the Office of Legal Counsel 1989 OLC LEXIS 28; 13 Op. O.L.C. 299

July 27, 1989. 76 Those ten are: interference with the appointment power, the creation of hybrid

commissions, attempts to constrain the removal power, micromanagement of the executive

branch, attempts to gain access to sensitive executive branch information, legislative

vetoes, requirements that legislation be submitted to congress, attempts to restrict the

president’s foreign affairs powers, and restrictions on the president’s power to make recess

appointments. Ibid.


25

significantly impair the conduct of foreign relations,

the national security, the deliberative processes of

the Executive Branch or the performance of its constitutional duties. Accordingly, the Department

recommends that the committees' right to obtain

such information be qualified by the phrase "to the

extent permitted by law.”77

The Bush Justice Department, along with White House Counselor Gray,

raised the levels of constitutional challenges to executive branch

encroachments to new levels. As I noted at the beginning of this chapter,

the Bush White House made more constitutionally-based signing statements

than any administration before and after. In fact, President Bush even went

so far as to having the OLC publicly issue four opinions in 1990 on the

constitutionality of provisions of bills that he regarded as an infringement

upon the prerogatives of the presidency.78 Much to the chagrin of the

Congress, Barr would issue the opinions and then deny the Congress the

justifications the OLC was using to deny enforcement.79To give Congress the

information, Barr reasoned, was an unconstitutional infringement upon the

77 Ibid. 78 Barr, William P. “Issues Raised by Foreign Relations Authorization Bill.” Opinion of the

Office of Legal Counsel. 1990 OLC LEXIS 51, *; 14 Op. O.L.C. 37; Luttig, J. Michael.

“Prohibitions and Penalties Under Section 582 of the 1990 Foreign Operations, Export

Financing, and Related Programs Appropriations Act.” Opinion of the Office of Legal

Counsel. 1990 OLC LEXIS 62, *; 14 Op. O.L.C. 84; Luttig, J. Michael. “Constitutionality of

Subsection 4117(b) of Enrolled Bill H.R. 5835, the ‘Omnibus Budget Reconciliation Act of

1990." Opinion of the Office of Legal Counsel. 1990 OLC LEXIS 46, *; 14 Op. O.L.C. 154;

and McGinnis, John O. “Appointment of Members of the Board of Directors of the

Commission on National and Community Service.” 1990 OLC LEXIS 58, *; 14 Op. O.L.C.

157. 79 See Klaidman, Daniel. “AG Nominee Is a Hawk on Presidential Powers.” The Recorder.

November 12, 1991. pg. 1


26

president’s prerogative to solicit advice from inferiors within the executive

branch.

In addition to the public challenges to the constitutionality of sections

of bills that the president was about to sign, Barr also filed suit to have a law

that was already in existence struck down because it was unconstitutional.

In the previous chapter, I discussed the high profile fight that the Reagan

administration had with the Congress over the “Competition in Contracting”

Act (CICA). Even though the courts ruled in favor of the Congress in

deciding that the actions of the Comptroller-General were appropriate, it had

never sat well with the Reagan administration and continued to bother the

Bush administration. In June of 1990, Barr directed Justice Department

lawyers to take the unprecedented step of filing suit in federal district court

to strike down the CICA as unconstitutional.80

And finally, in a throwback to the Reagan administration, the Bush

Justice Department continued to write signing statements that urged

executive branch agencies to treat as “unconstitutional” things that had been

upheld by the courts. For example, when President Bush signed the Energy

and Water Development Appropriations Act, 199281he declared that

government set-asides of 10% for groups of a “certain racial composition”

were constitutionally suspect and directed his Secretary of Energy to

80 Klaidman. pg. 1. The federal district court dismissed the case for lack of ripeness. See

United States v Instruments, S.A. Inc. 91-1574-LIFO. 81 PL102-104. August 17, 1991.


27

administer the program “in a constitutional manner.”82 As Phillip Cooper

aptly argues: “The bottom line was that the administration opposed

affirmative action and made its own determination that the program was

unconstitutional.”83

I will now show how the Bush administration used the signing

statement over the issue of the president’s prerogative over appointments.

In the first example, when President Bush signed the “Dayton Aviation

Heritage Preservation Act of 1992,”84 he objected to language in the bill that

directed the Secretary of Interior to make certain appointments to the

Heritage Commission, and then gave those appointees executive power

although they were never confirmed as executive officers of the United

States.85 According to Michael Gessel, the legislative aide for Congressman

Tony Hall (D. OH), the Bush administration refused to appoint anyone to the

Commission until remedial language was made to the law, which finally did

happen in 1995 as part of the “Omnibus Parks and Public Lands Management

Act of 1996.”86 Gessel conveyed to me his surprise at the length the

82 Bush, George H. W. “Statement on Signing the Energy and Water Development

Appropriations Act, 1992. PL102-104. Weekly Compilation of Presidential Documents. pg.

1143. October 17, 1991. 83 Cooper, Phillip J. By Order of the President: The Use and Abuse of Executive Direct

Action. Kansas: University of Kansas Press. 2002. pg. 206. 84 PL102-419. October 16, 1992. 85Bush, George H. W. “Statement on Signing the Dayton Aviation Heritage Preservation Act

of 1992.” Weekly Compilation of Presidential Documents. October 16, 1992. pg. 1966. 86 Public Law No. 104-333. November 12, 1995.


28

administration was willing to go to protect presidential prerogatives over

what he deemed a minor defect in the bill.87

A second example of the aggressive assertion of presidential

prerogatives in the area of appointments came over an objection to

language inserted into a foreign relations authorization bill in 1990.88 This

bill contained language that included members of Congress in the

Conference on Security and Cooperation in Europe. The Bush administration

had the OLC issue an opinion on the constitutionality of this language, to

which the OLC concluded that this was an unconstitutional intrusion upon the

president’s foreign policy prerogatives and thus was severable from the

bill.89 In the president’s signing statement, Bush argues that only the

president has the authority over the foreign policy of the United States, and

he construes this section of the bill as non-binding.90 President Bush followed

the direction of his advisors in the OLC, and signed the bill but did not

appoint any legislative members to go to the Conference.91

87 This conversation took place in late November, 2002, when Gessel visited the Kettering

Foundation. It was mere happenstance that the conversation took place at all. Gessel was

visiting the Foundation looking into an employment opportunity with the Foundation, and he

and I spoke about the dissertation I was working on. He expressed his surprise that anyone

else knew about the signing statement and what it was capable of doing. I had a follow up

email interview with Gessel on December 20, 2002. 88 Foreign Relations Authorization Act, Fiscal Year 1990 and 1991. PL 101-246. 89 Barr, William P. “Issues Raised by Foreign Relations Authorization Bill.” Opinion of the

Office of Legal Counsel. 1990 OLC LEXIS 51, *; 14 Op. O.L.C. 37. 90 Bush, George H. W. Statement on Signing the Foreign Relations Authorization Act, FY 90

and 91. PL101-246. Weekly Compilation of Presidential Documents. February 16, 1990.

pp. 266-68. 91 Barr, William P. “Attorney General’s Remarks, Benjamin N. Cardozo School of Law,

November 15, 1992. Cardozo Law Review. 15:1-2. October, 1993.


29

A third and final example came with a commission that was

established as part of the “National and Community Services Act of 1990.”92

In Bush’s signing statement, he argued that the Commission on National and

Community Service had members that were appointed by the Speaker of the

House and the Senate Majority Leader and were given executive functions in

violation of the Appointments Clause of the Constitution.93 Bush regarded

this section as having no legal force and he refused to nominate anyone to

the Commission until the section was remedied. According to Nelson Lund,

“[I]n a burst of speed that would otherwise be mystifying, Congress passed

remedial legislation94 bringing the statute into conformity with the

President's view of the Appointments Clause early in the next legislative

session.”95

Civil Rights Act Amendments, 1991

In an earlier discussion above, I noted how the Bush administration

strategically used partisans in the Senate to create an alternative legislative

history for the “Foreign Operations, Export Financing, and Related Programs

Appropriations Act, 1990.” This strategy became especially important during

the debate and passage of the “Civil Rights Act of 1991”.

92 Public Law 101-610. November 16, 1990. 93 Bush, George H.W. “ Statement on Signing the National and Community Service Act of

1990.” PL101-610. Weekly Compilation of Presidential Documents. November 16, 1990.

pp. 1833-34 94 National and Community Service Technical Amendments Act of 1991, Public Law 102-10.

1991. 95 Lund, Nelson. “Lawyers and the Defense of the Presidency.” Brigham Young University

Law Review Number 17. 1995. pg. 48.


30

The president had vetoed an earlier bill the year before because it

included unconstitutional quotas and that it would be a burden on

business.96 However, in the course of a year, a great deal had changed in

the political landscape that would force the administration to accept a similar

Civil Rights bill. First, David Duke, a renowned white supremacist in

Louisiana would rise to national prominence using the language the Bush

administration had used in its veto message in 1990 as a justification for a

separation of the races. And second, the Clarence Thomas/Anita Hill

controversy made it extremely difficult for the president to defend the

rhetorical assault that the administration was anti-civil rights. So rather

than veto the bill, the administration did what it could to shape the outcome

in a way that was acceptable to the administration.

The Civil Rights Act of 1991 was a result of number of Supreme Court

decisions handed down in 1989, among the most controversial was the

decision in “Wards Cove Packing Co. v. Atonio.”97 Wards Cove had changed

the meaning of “disparate impact” that had been used since 197198 to help

guide businesses in their hiring practices. The disparate impact definition

held that if “an employment practice has a disparate impact on members of

minority groups and there is no proven ‘business necessity’ for the practice,

that suffices as a violation of Title VII of the Civil Rights Act of 1964 even if

96 Bush, George H. W. “Veto message on S. 2104 entitled ‘Civil Rights Act of 1990.”

Congressional Record. Vol. 136 No. 147. October 24, 1990. pg. S16562. 97 490 U.S. 642. 1989. 98 Griggs v. Duke Power. 401 US 424. 1971.


31

no discriminatory intent is alleged or proved.”99 The sense was that this

definition raised the possibility that an employer would hire by quota rather

than by other measures.

In Wards Cove, which was a narrow decision, the Court sought to

relieve the pressure to hire by quota. As Roger Clegg explains, “for

purposes of showing a disparate impact, the ‘proper basis for the initial

inquiry’ is ‘between the racial composition of the qualified persons in the

labor market and the persons holding at-issue jobs’ rather than between one

part of the employer's work force and another.”100 To help the lower courts,

the Supreme Court put forth guidelines that emphasized the shift of the

burden of proof from the employer to the “disparate-impact plaintiff.”101 In

both the 1990 and 1991 acts, the Congress sought to restore the original

definition of “disparate impact.” In 1991, as I stated above, the White

House was politically cornered and thus relented in the fall and signed the

act.

The Congress had made clear what it wanted “disparate impact” to

mean. It inserted language into the Congressional Record pointing to the

“exclusive” legislative history of the act. The statement, known as the

“Danforth Memoradum,” read:

The terms "business necessity" and "job related" are

intended to reflect the concepts enunciated by the

99 Clegg, Roger. “A Brief Legislative History of the Civil Rights Act of 1991.” Louisiana Law

Review. 54:1459. July, 1994. pg. 1460. 100 Clegg. pg. 1460. 101 Ibid. pg. 1460.


32

Supreme Court in Griggs v. Duke Power Co., 401

U.S. 424 (1971), and in the other Supreme Court

decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).102

When President Bush signed the bill, he issued a statement that

Charles Tiefer refers to as “the most controversial signing statement.”103

When the president signed the bill, he begun by noting that the bill “codifies”

rather than “overrules” the Supreme Court decision in Wards Cove.104 But

even more important, the president took control of the language in the bill.

As I discussed above, the Congress was very careful to note in the

Congressional Record what the authoritative definition of disparate impact

was to be. The Danforth Memorandum, which was a compromise between

the administration and the Congress, reverted the definition to the one the

Court held in Griggs. President Bush, however, pointed to the Congressional

Record entries of Senator Bob Dole and others as the interpretive guidance—

the legislative history—of the Civil Rights Act. Executive branch agencies

were then ordered to follow the guidance of the Dole legislative history when

interpreting the meaning of disparate impact—a legislative history that

suggested the bill affirmed the ruling in Wards Cove.105

Conclusion

102 “The Civil Rights Act of 1991.” The Congressional Record. Vol. 137 No. 155. October

25, 1991. pg. S.15273. 103 Tiefer. pg. 56. 104 Ibid. pg. 57. 105 LaFraniere, Sharon. “Civil Rights Act Focus Turns to Enforcement; Debate Over Standard

for Business Continues.” The Washington Post. November 26, 1991. Pg. A19.


33

The Bush administration took over where the Reagan administration

had left off. The Reagan administration began to assemble the building

blocks to the Unitary Executive, and the Bush administration continued with

that assembly.

The Bush administration, through the Quayle Council, was able to

exercise a degree of administrative control not realized in the Reagan

administration. Additionally, William Barr and C. Boyden Gray continued

with the defense of the president’s prerogatives in the face of a hostile

Congress and a hostile political environment.

One of the more important points to direct attention regarding the use

of the signing statement was how the Bush administration built upon the use

of legislative history that the Reagan administration had found significant in

1986. The Bush administration used the signing statement to point to an

alternative legislative history when they lost a policy battle in the Congress.

This is an interesting and important development in the use of the signing

statement that we did not see in earlier presidencies.

The next chapter will explore how the Clinton administration changed

strategies yet continued to perfect the evolving practices in the Unitary

Executive. Even though members of the Clinton administration denied that

what they did had anything to do with the notion of a Unitary Executive, I

think by the end of the administration, as I will show next, they had become

“Unitarians.

Chapter Six Draft—The Unitary Executive and the Clinton Administration

1

Chapter 6

The Unitary Executive and the Clinton Administration “Stroke of the Pen, law of the land. Kind of cool.”

White House aide Paul Begala1

Introduction

In the aftermath of the Monica Lewinsky controversy, when the

survival of the Clinton administration was at stake, presidential advisor Paul

Begala made the comment that introduces this chapter. The comment was

more of a statement declaring what the Clinton administration could not

accomplish legislatively—and most were deeply pessimistic that they could

accomplish anything legislatively—would be pursued administratively to

insure that the Clinton policy agenda would emerge intact by years end.

When the Clinton administration came to office after beating

incumbent president George H.W. Bush, there was a great deal of hope that

the bitter stalemate that defined the previous twelve years, known in

common parlance as gridlock, would come to an end. For the first time in

over a decade, there would be unified party government. However, as I

have argued in previous chapters, as has Charles O. Jones, “[i]nstitutional

competition is an expected outcome of the constitutional arrangements”2

that divide the legislative from the executive branch of government. As I

will demonstrate below, the Clinton administration came into office and

1 Bennet, James. “True to Form, Clinton Shifts Energies Back To U.S. Focus.” The New York

Times. Section 1, pg. 10. July 5, 1998. 2 Jones, Charles O. The Presidency in a Separated System. Washington D.C.: The Brookings Institution.1994. pg. 18.


2

immediately began laying the ground work to protect the prerogatives of the

office and to centralize control over policy.

In this chapter I will explain how the Clinton administration further

perfected the evolution of the Unitary Executive and defended and used the

signing statement as an aid in the institutional battles with the Congress and

as a rhetorical device to aid key constituencies. I will restate the key

principles of the Unitary Executive before explaining how the Clinton

administration used the signing statement in total. From there I will focus in

on the two key areas of the Unitary Executive—the “Oath” Clause and the

“Take Care” clause—that best explain why the president uses the

constitutional and political signing statements.

The Unitary Executive

I have argued in previous chapters that the Unitary Executive rests

upon the notions of coordinancy and accountability, and you can see these

principles come forth in the statements of officials who work in the executive

branch.

Coordinancy, it was suggested, originated in Federalist 49 where

James Madison argued that each branch is given coordinate power that is for

that branch alone. This is the basis of power checking power. It also has

served as the basis of the argument in which each branch of government is

responsible for deciding the constitutionality of legislation on its own—no one


3

branch, it is argued, should be able interpret for another branch of

government the meaning of the constitution.

You can see officials within the Clinton administration defending the

coordinate power of the president in a battle the administration had in the

late 1990s with the Congress over the placement of a semi-autonomous

agency (discussed in greater detail below) within the Department of Energy.

The Congress placed the agency there after security lapses became public in

1998 at several weapons laboratories. Secretary of Energy Bill Richardson

refused to appoint anyone to this new agency because he claimed that it

undermined his authority. When he appeared before the House Armed

Services Committee and was asked whether he was obligated to follow the

intent of the law, he proclaimed that he did not. His rationale was that the

semi-autonomous agency was an unconstitutional violation of the separation

of powers doctrine.3

The second key foundation of the Unitary Executive is accountability.

Because the president is the only nationally elected official, it is his

responsibility to insure that the way in which the laws are implemented are

in line with his views of public policy and not the views of an unaccountable

bureaucrat.

3 “NNSA Starts Up as Richardson and Congress Clash.” Science and Technology in

Congress. http://www.aaas.org/spp/cstc/bulletin/articles/3-00/nnsa.htm. Accessed March 24, 2002.


4

Elena Kagan, a domestic policy advisor in the Clinton administration,

argued that “[W]hen Congress delegates discretionary authority to an

agency official, because that official is a subordinate of the President, it is so

granting discretionary authority (unless otherwise specified) to the

President.”4

I have argued in previous chapters that the Unitary Executive is really

a product of the political hydraulics of the last thirty to thirty-five years.

Two notable events gave rise to the Unitary Executive. The first is the

attention that has been given to the vast administrative state, beginning first

with President Nixon and then with every subsequent president. The second

is the effect that Vietnam and then Watergate5 had on the political system—

a popular desire to muzzle the power of the presidency.

Further, and what I think to be the most important, is the persistence

of highly partisan, divided government that created within the presidency a

perceptual barrier in interacting with the external political environment.6

4 Kagan, Elena. “Presidential Administration.” Harvard Law Review. 114:8 June 2001. pg.2327. 5 The number of political scholars pointing out the effect that Vietnam and Watergate had on

the political system are too numerous to mention. Among some of the finer arguments are: Putnam, Robert. Bowling Alone: The Collapse and Revival of American Community. New York: Simon and Shuster. 2000; King, Anthony. Running Scared: Why America’s Politicians Campaign too much and Govern too Little. New York: Martin Kessler Books. 1997; Patterson, Thomas. Out of Order. New York: Knopf. 1993; Cappella, Joseph and Kathleen Hall Jamieson. The Spiral of Cynicism: The Press and the Public Good. New York: Oxford University Press. 1997.

6 The argument over what affect, if any, the presence of divided government has upon the president’s ability to move policy is well-covered. See, for example, Mayhew, David. Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990. Connecticut: Yale University Press. 1991; Krehbiel, Keith. Pivotal Politics: A Theory of U.S. Lawmaking. Chicago: University of Chicago Press. 1998; Brady, David W., and


5

This was particularly acute to the Clinton presidency. In 1994, President

Clinton was stunned with the loss of both Houses of Congress to the

Republican Party. And it was not just a loss of party control that was

problematic for the Clinton administration, but rather it was a loss to an

ideologically-cohesive group of Republicans who had no desire to cooperate

with the president. This particular group of Republicans—particularly the

House Republicans—had been schooled over the course of a decade in

guerilla warfare. As congressional scholar Richard Fenno has argued,7 the

Republicans that came to power in 1994 were confrontational partisans

rather than institutional partisans. Beginning in the early 1980s, Newt

Gingrich and other backbench Republicans formed the Conservative

Opportunity Society who had a mission to gain control of the House of

Representatives in a short period of time. They did this by driving out the

Republicans who were prone to compromise with the Democrats—the so-

called institutional partisans—and then turned their attention towards

dragging the Democrats down by blaming any institutional failure on the

Democrats who controlled the House of Representatives. Thus, by the time

Craig Volden. Revolving Gridlock. Colorado: Westview Press. 1998. My contention is that presidents, after their initial honeymoon, view a political system that seems almost paralyzing and stifling. Rather than looking at what effect divided government had on the ability to govern, my argument is what affect divided, highly partisan government has at the time the president is attempting to govern.

7 See Fenno, Richard. Learning to Govern: An Institutional View of the 104th Congress. Washington, D.C.: Brookings Press. 1997.


6

the Republicans won control in 1994, they were a rabid lot bent on making

the Congress the center of the political universe.8

The Clinton administration, then, was marred by a prolonged period of

a bitter relationship with the Congress after the 1994 Midterm election,

certainly culminating in the high point of acrimony—the successful 1998

impeachment and the failed 1999 trial for removal of President Clinton.

Finally, the means to which the Unitary Executive is put into practice is

the expansive reading given to the “Take Care” Clause and the “Oath”

Clause of the Constitution. As I have argued in previous chapters, the “Take

Care” Clause has been used by the executive branch to centralize control

over the policy process and the “Oath” clause has given the executive

branch the authority to protect the prerogatives of the Office of the

Presidency. In practical purposes, this has meant that the Office of

Management and Budget and the Department of Justice—particularly the

Office of Legal Counsel (OLC)—have become highly politicized and used to

enforce the “Take Care” and “Oath” clauses of the Constitution. I will

address this issue in greater detail below when I discuss exactly how the

Clinton administration utilized the Unitary Executive. But before I do that, I

want to give a brief discussion of how the President Clinton used the signing

statement.

8 David Brock also notes that during the Clinton presidency, ideologically-oriented conservative organizations funded a number of media outlets whose sole purpose was to tear down the Clinton administration. See Brock, David. Blinded by the Right: The Conscience of an Ex-Conservative. New York: Crown Publishers. 2002.


7

The Clinton Administration and the Signing Statement—An Overview.

President Clinton issued a total of 391 signing statements, which was

consistent with the trend since the Reagan administration of each

administration relying more on the signing statement than the previous

administration. It speaks to an institutionalization of the signing statement

as well as an institutionalization of a particular presidential power, and is

consistent with the kind of evidence that others have found when studying

the development of presidential power tools.9

Signing Statements—Comparisons

Table 6.1 Comparison of Signing Statements—Bush-Clinton

As Table 6.1 shows, President Clinton issued more constitutional

signing statements as a whole than President Reagan, but as a percent of

the total, was in line with the use of the constitutional signing statement by

the Reagan administration. Similarly, the use of the political signing

statement by the Clinton administration was very similar to its use by the

Reagan administration. In both the constitutional signing statement and the

political signing statement, the Bush administration issued more in total

numbers and as a percent than the Clinton administration. One could

9 See, for example, Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton: Princeton University Press. 2001.

President Constitutional Political Rhetorical Total

Reagan 71 (26%) 23 (.08%) 94 (34%) 276 Bush 146 (68%) 30 (14%) 38 (18%) 214

Clinton 105 (27%) 21 (.06%) 265 (68%) 394


8

surmise that the Bush administration relied on both types of signing

statements more than the Clinton administration simply because the Bush

administration inherited from the Reagan administration the deep political

divisions with the more liberal Congress, and thus was forced to look inside

and use both types more. This was certainly true, as I argued in the

previous chapter, with the constitutional signing statement, which the Bush

administration seemed to have conditioned itself after eight years of the

Reagan administration to protect presidential prerogatives at all cost.

However, if you take away the number of rhetorical signing statements

issued by the Clinton administration, you can see that those in the Clinton

administration were just as concerned with the protection of the president’s

prerogatives as those in the Bush administration.10 This is clearly indicative

of the institutionalization of the process within the Office of Legal Counsel—

in fact, President Clinton’s head of the OLC, Walter Dellinger, was also a

deputy in the OLC in the Bush administration.

But why didn’t the Clinton administration issue as many political

signing statements as the Bush administration had issued? Again, taking

away the number of rhetorical signing statement issued in both

administrations, you can see that both, as a percent, issued about the same

percent of political signing statements when you combine the constitutional

10 If you take away the number of rhetorical signing statements issued by the Clinton administration, you can see that 83% of all signing statements were constitutionally-oriented statements. If you do the same for the Bush administration, the percentage of constitutional signing statements issued are exactly the same (83%).


9

and political signing statements together.11 There is also a more interesting

reason why the total of political signing statements in the Clinton

administration was not higher than previous administrations. It is no

mystery that the Clinton administration prided itself as staffed with policy

wonks, and when the administration lost the Congress in 1994, insuring the

administration’s policy objectives became all the more difficult. It would

seem, if my argument is correct, that the number of political signing

statements should be more than what it was.

The Clinton administration was very creative in using a number of

different tools to insure that their policy goals were realized. The Clinton

administration, more so than previous administrations, made heavy use of

executive orders, memoranda, presidential decision directives (PDD), and

presidential proclamations, all with the single goal of accomplishing

administratively what could not be accomplished legislatively.12 As Robert

Pear argued in his article responding to those who felt the President was

weakened after the 1994 Midterm election, unilaterally President Clinton:

• Tapped a special Treasury fund to bail out Mexico in 1995; • Barred Federal agencies from signing contracts with companies that

permanently replaced striking workers; • Appointed 18% of executive positions to temporary appointees to skirt

the Senate confirmation process; and

11 Clinton issued 16% and President Bush issued 17%. 12 Elena Kagan argues that the use of presidential directives “accelerated dramatically” after the 1994 Midterm Election, increasing almost “fourfold” in the span of one year. pp. 2312-13.


10

• Designated 1.7 million acres of land in Utah as a national monument, much to the chagrin of members of Congress.13

This certainly was something not overlooked by scholars and critics

alike.14 While it is not a subject of this study, it would prove fruitful to

examine the complete picture of the variety of administrative actions that

the Clinton administration could and did use in an effort to control public

policy and to throw-off congressional investigators and other watch dogs

who would have picked up on a trend had any one been systematically used

over time.

Where the Clinton administration is consistent with the use of the

signing statement is the number of rhetorical signing statements issued,

which is more than any administration had used before, and consistent with

the Clinton administration’s emphasis on political rhetoric both as a rail

against the Congress and as a way to reward political supporters.

As I argued earlier, the Clinton administration was known for using the

rhetorical signing statement largely for “hortatory” means. 15 One example

was the use of the signing statement to appease a favored constituency, the

environmental lobby. Environmentalists waged a fierce battle during the

104th Congress to defeat a rider to the “Omnibus Consolidated

13 Pear, Robert. “The Presidential Pen is Still Mighty.” The New York Times. Sunday, June 28, 1998. Section 4, Page 3. 14 See, for example, Cooper, Phillip J. "Power Tools for an Effective and Responsible Presidency." Administration and Society. 29:5. November, 1997; Also Gaziano, Todd F. “The Use and Abuse of Executive Orders and Other Presidential Directives.” Texas Law

Review. 5: 267. Spring, 2001. 15 Phone interview with Jim Yokes, representative in the Legislative Reference Division of

the Office of Management and Budget. May 24, 2002.


11

Appropriations Act, 1997” 16 that amended the Endangered Species Act and

the National Environmental Policy Act. When they failed to win in the

Congress, they were pleased17 to have obtained a paragraph in the bill

signing statement by the President.

The Unitary Executive—Take Care and Oath Clauses

Take Care and Administrative Control

It has been my contention that for the president to insure

accountability, which is one of the key pieces of the Unitary Executive, it has

meant for more centralized, administrative control over executive branch

policymaking within the White House and by the White House staff, who are

political appointees and not career civil service.

As we have seen, administrative control has largely been done by

politicizing the Office of Management and Budget, which through a series of

Executive Orders, it developed into the policy clearinghouse for the White

House. For a rule to be written after legislation had been signed, that rule

first had to be vetted through political aides within the OMB, mostly located

in the Office of Information and Regulatory Affairs (OIRA).

The political signing statement only became significant after the

Reagan administration had centralized policymaking within the White House,

16 Public Law No. 104-208. (1995). 17 A statement on the Defenders of Wildlife webpage announcing the concession read:

“GREEN, Defenders of Wildlife and the Endangered Species Coalition mounted a fierce battle to stop the waiver that failed, but elicited a paragraph in the President’s signing statement regretting that the provision remained in the bill.” http://198.240.72.81/104th.html. Accessed June 19, 2002.


12

which enabled the Reagan administration to add the signing statement to

the United States Code, Congressional and Administrative News (USCCAN)

as a way to signal to bureaucrats the president’s understanding of the law.

The Bush administration built upon the work of the Reagan

administration and used the Council on Competitiveness, or the “Quayle

Council,” as a way to insure executive branch policymaking, as seen in the

short study of the “Clean Air Act Amendments” of 1990. In that instance,

the business community, along with staff within the White House, forced the

EPA into adopting the policy goals of the White House, and not of the

specialized interests or the wishes of the Congress when issuing a final rule

on when public hearing had to be held.

The Clinton administration would continue to centralize policymaking

within the executive branch, but with a twist. Rather than trying to reign in

the bureaucracy and remove discretion from the bureaucrat, the Clinton

administration sought to use the bureaucracy to achieve policy goals. Elena

Kagan argues that this new strategy came to be known as “presidential

administration.” She notes:

The Clinton OMB continued to manage a regulatory review process, but with certain variations from the Reagan and Bush model. At the front end of the regulatory process, Clinton regularly issued formal directives18 to the heads of executive agencies to set the terms of administrative action and prevent

18 Elena Kagan notes that once the directive was issued, the White House paid close attention to the agency to make sure that the “agency officials complied in a timely and effective way with the directive’s terms and exercised any discretion left to them consistently with its objectives.” pg. 2298.


13

deviation from his proposed course. And at the back end of the process (which could not but affect prior stages as well), Clinton personally appropriated significant regulatory action through communicative strategies that presented regulations and other agency work product, to both the public and other governmental actors, as his own, in a way new to the annals of administrative process.19

The shift in style was subtle yet significant. In the Reagan and Bush

administrations, the executive branch worked as a blunt object to review all

regulations developed by the bureaucratic agencies where the Clinton

administration, while continuing the review process, “relied principally on the

issuance of directives to these agencies and the later appropriation of their

regulatory action.”20Presidents Reagan and Bush sought to suppress

bureaucratic decisionmaking while President Clinton encouraged it.21This

difference in style was important because the Reagan and Bush

administrations, while making significant strides toward executive branch

centralization of policymaking, developed two tiers—those that “controlled”

the policy and thus were political appointees within the White House and

those who “administered” those decisions once final control was exercised—

those who staffed the executive branch agencies. This difference in tiers

created acrimony within the executive branch. The Clinton approach, with

its emphasis upon the bureaucracy, “moved control of the agencies closer

than it had been to the Oval Office. [Clinton’s staff involved in the process]

19 Kagan. pg. 2249. 20 Ibid. pg. 2315. 21 Ibid. pg. 2315.


14

came mostly from the White House policy councils, units even smaller than

OIRA which were based in the West Wing and consisted entirely of political

appointees.”22 In essence, President Clinton co-opted the bureaucracy.

President Clinton came to office with centralization over policymaking

as a key objective. For President Clinton, he would have to mold an

executive branch that had been staffed and directed by twelve years of

Republican presidents.

President Clinton ran on the premise that he would be a “New

Democrat” that would be attentive to cutting bureaucratic red tape and

shrinking the government, which was essentially a modification of the

platform that President Reagan first ran on in 1980 to get “government” off

the backs of the people.

President Clinton’s plan was drawn from a think tank called the

“Progressive Policy Institute” which in practice would become the “National

Performance Review” (NPR) that was chaired by Vice-President Al Gore.23The

objective of NPR was:

1. Cutting red tape—the aim was to achieve results; 2. Putting customers first—the approach treated the bureaucracy as if it were a marketplace; 3. Empowering Employees to get results—the goal was to decentralize decision making to allow those bureaucrats on the “front lines” freedom to act; and 4. Cutting back to basics—this goal was meant to focus on those policies that were effective and

22 Ibid. pg. 2317. 23 Campbell, Colin and Bert A. Rockman. The Clinton Presidency: First Appraisals. New Jersey: Chatham House Publishers. 1996. pg. 179.


15

achieved the best results, and to trim away those that were obsolete or acted as barriers to change.24

The key objective of NPR, as I will show below, was to allow the

President and his staff to coordinate executive branch policymaking. This

can be seen in four key directives the President issued his first year in office.

Two were in the form of memoranda and two were in the form of Executive

Orders.

On his first day in office, President Clinton moved quickly to control

executive branch decision making.25 He issued a memorandum to the OMB

and executive branch agencies that terminated the Quayle Council and

subjected all regulations to the approval of “an agency head or the designee

of an agency head who, in either case, is a person appointed by me and

confirmed by the Senate.”26 Soon thereafter, President Clinton issued

Executive Order 12,83527, which was meant to centralize and coordinate

economic policy on behalf of the United States within a Council made up

entirely of political appointees.28 To see how the Executive Order was meant

24 Ibid. pg. 179. 25 Moreno, Angel. “Presidential Coordination of the Independent Regulatory Process.” Administrative Law Journal. Vol. 8, No. 461. Fall, 1994. pp. 504-05. 26 Clinton, William J. “Memorandum on Review of Regulations.” Weekly Compilation of

Presidential Documents. Vol. 29, No. 4. January 21, 1993. pg. 93. 27 Clinton, William J. “Executive Order 12,835—Establishment of the National Economic Council.” Federal Register. Vol.58, No. 16. January 27, 1993. pp. 6189-90. 28 The Council was comprised of the following: (a) President, who shall serve as Chairman of the Council; (b) Vice President; (c) Secretary of State; (d) Secretary of the Treasury; (e) Secretary of Agriculture; (f) Secretary of Commerce;


16

to lay the groundwork for centralization of policy within the White House,

one need only look at the functions of the Council:

(1) to coordinate the economic policy-making process with respect to domestic and international economic issues; (2) to coordinate economic policy advice to the President; (3) to ensure that economic policy decisions and programs are consistent with the President's stated goals, and to ensure that those goals are being effectively pursued; and (4) to monitor implementation of the President's economic policy agenda. The Assistant may take such actions, including drafting a Charter, as may be necessary or appropriate to implement such functions.

In September of 1993, President Clinton issued the other two key

pieces of the groundwork towards executive branch policymaking. On

September 11, 1993, President Clinton issued a memorandum to all

department and agency heads that was designed to “streamline” the

(g) Secretary of Labor; (h) Secretary of Housing and Urban Development; (i) Secretary of Transportation; (j) Secretary of Energy; (k) Administrator of the Environmental Protection Agency; (l) Chair of the Council of Economic Advisers; (m) Director of the Office of Management and Budget; (n) United States Trade Representative; (o) Assistant to the President for Economic Policy; (p) Assistant to the President for Domestic Policy; (q) National Security Adviser; (r) Assistant to the President for Science and Technology Policy; and (s) Such other officials of executive departments and agencies as the President may, from time to time, designate. Ibid. pg. 6189.


17

bureaucracy, but in practicality, it was meant to more directly connect

agency and department heads to presidential policymaking.29

In addition, President Clinton also made a point to broaden the circle of who

the memorandum applied to, emphasizing the inclusion of the independent

regulatory agencies as well as the executive branch agencies under White

House control. This is significant in so far as the independent regulatory

agencies have largely enjoyed freedom from executive branch pressure.

President Clinton’s most significant action, however, came when he

issued Executive Order 12,866.30 Executive Order 12,866 replaced President

Reagan’s Executive Orders 12,291 and 12,498, while not completely doing

away with some of the key provisions of those orders. The key provisions

that were retained were a significant regulatory oversight role for the OMB,

an annual regulatory planning process that was a key part of EO 12,49831

29 Clinton, William J. “Memorandum on Streamlining the Bureaucracy.” Weekly Compilation

of Presidential Documents. Vol. 29, No. 37. Washington D.C.: Government Printing Office September 11, 1993. pg. 1738-39 30 Clinton, William J. “Executive Order 12,866—Regulatory Planning and Review.” Federal

Register. Vol. 58, 190. Washington D.C.: Government Printing Office. October 4, 1993. pp. 51735-51744. 31 According to the Executive Order, at the beginning of each year’s planning cycle, the Vice President and all the agency heads would “seek a common understanding of priorities” and would work to “coordinate regulatory efforts to be accomplished in the upcoming year.” Each agency was to submit a plan of all significant regulatory actions (for a definition of “significant regulatory action, see footnote 33) for approval by the agency head. The plan contained, at a minimum:

(A) A statement of the agency's regulatory objectives and priorities and how they relate to the President's priorities; (B) A summary of each planned significant regulatory action including, to the extent possible, alternatives to be considered and preliminary estimates of the anticipated costs and benefits; (C) A summary of the legal basis for each such action, including whether any aspect of the action is required by statute or court order;


18

and cost-benefit analysis to “serve as the basic criterion in assessing

regulatory decisions.”32 Further, OIRA was still allowed to block any

regulatory action that fell into a couple of key categories and could allow

OIRA to block any regulatory action from proceeding if OIRA felt it warranted

further consideration.33 This allowed OIRA, and the OMB, to remain as a

major impediment to autonomous agency decisionmaking.

The difference in the Reagan Executive Orders is a reflection, as I

noted above, in the role for the bureaucracy. Where the Reagan and Bush

administrations saw the bureaucracy as a negative, President Clinton saw it

as a positive. First, the Executive Order limited the time that was available

for OMB review the rule once it was submitted by the executive branch

(D) A statement of the need for each such action and, if applicable, how the action will reduce risks to public health, safety, or the environment, as well as how the magnitude of the risk addressed by the action relates to other risks within the jurisdiction of the agency; (E) The agency's schedule for action, including a statement of any applicable statutory or judicial deadlines; and (F) The name, address, and telephone number of a person the public may contact for additional information about the planned regulatory action. pp. 51738-39

32 Kagan. pp. 2285-86 33 The categories, labeled as those with rules involving significant regulatory action:

(1) Have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order. pg. 51738.


19

agency to forty-five days, to be extended only one time for an additional

thirty days if OIRA requested it.34 During the Reagan and Bush

administrations, it was common for the OMB to delay as a way to pressure

an agency to revise its proposed rules.35

Second, the Executive Order made the rulemaking process more

transparent than in the Reagan and Bush administrations. Section 6(4)(A-

D) provides for an elaborate process that makes the rulemaking process

public.36For example, access to the OMB is limited to the Administrator of

OIRA (or a designee) by outside interest groups, and during this meeting, a

representative of the agency under question is invited to attend. Further, a

log and transcript of the complete meeting and all communications is made

public by OIRA after the action has been published in the Federal Register.

Note the difference in this approach versus the case study in the preceding

chapter regarding the “Clean Air Act Amendments” rulemaking process,

where outside industry maintained private contacts with staff in the Quayle

Council as well as the White House, without any input from the EPA.

Third, the Executive Order did not simply rely upon cost-benefit

analysis as the basis for issuing regulations. As I noted above, the Clinton

Executive Order shared with the Reagan Executive Orders a basis for cost-

benefit analysis, but the Clinton Order veered to also include such qualitative

34 Ibid. Section 6, (F)(2)(B)&(C). pg. 51742. 35 Kagan. pg. 2286. 36 Executive Order 12,866. pg. 51742-73.


20

measures as health, safety, and the environment.37 This benefited each

agency, because the heads of the various agencies were supposed to utilize

the mixed approach as a way to increase innovation and flexibility. In

actuality, this was a deliberate move away from the rigid market-based

pressures placed upon the executive branch agencies during the Reagan and

Bush administrations and toward one that used political incentives to move

agency heads into line with the president’s preferred policy positions.38

Fourth, and finally, the Executive Order made it a deliberate effort to

include the independent regulatory agencies in the planning process,

something that the Reagan Executive Orders specifically did not. In Section

4(b&c), the Executive Order involves the independent regulatory agencies in

the planning process described above that includes the Vice-President and

the heads of the executive branch agencies.39 The result was to reflect a

“strong commitment to presidential oversight of administration…”40

As James Blumstein, the nominee as Bush’s director of OIRA41has

observed, “[t]he Clinton administration not only accepted, but also extended

37 Ibid. Section 4(C)(D). pg. 51739. 38 See Seidenfeld, Mark. “A Big Picture Approach to Presidential Influence on Agency Policymaking.” Iowa Law Review. Vol. 80, No. 1. October, 1994. 39 Executive Order 12,866. pg. 51738. 40 Blumstein, James F. “Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues.” Duke Law Journal. Vol. 51, No. 851. December, 2001. pg. 868. 41 Professor Blumstein, who now is on the faculty at Vanderbilt Law School, had the distinction of being the last nominee to the post of OIRA early in the Bush administration. The Senate never acted on the confirmation of Professor Blumstein, and thereafter a battle ensued between the Congress and the president over the role the OIRA had played during the Reagan administration. The Congress wanted the process to be more transparent, and


21

the Unitarian premises of the Reagan and Bush administrations.”42In reading

the exhaustive article by domestic policy advisor for the Clinton

administration Elena Kagan, Blumstein, and I, can arguably conclude that

what the Clinton administration did was to perfect a process that began

imperfectly twelve years before when the Reagan administration took office.

Blumstein notes that when he proposed bringing the independent regulatory

agencies under the umbrella of the OIRA, as the Clinton administration had

done, it was nothing less than a major controversy. Blumstein notes:

Although Kagan does not characterize her position as Unitarian, once one pierces to the substance there is remarkable accord. This post-Clinton administration consensus surely was not a consensus a decade ago during my OIRA administrator confirmation process, when these issues were controversial and the distinctions, for purposes of centralized presidential regulatory review, between independent agencies and other executive agencies were not fully understood or accepted.43

Thus, in the first leg of the Unitary Executive, the Clinton

administration was able to build upon the legacy of the Reagan and Bush

administrations, and master, largely because the political environment in

1993 was different, what the Reagan and Bush administrations were not

able to do—that is extending executive branch centralization to include the

independent regulatory agencies along with the traditional agencies under

the Bush administration resisted. The Congress then withheld funding to the OIRA, and President Bush shifted OIRA authority to the Quayle Council. 42 Blumstein. pg. 874. 43 Ibid. pg. 878.


22

executive branch control. What is clear in Executive Order 12,866 is the

“primacy of the president’s priorities in agency decisionmaking…”44

The Political Signing Statement

The use of the political signing statement, as I have suggested, is used

by president’s to insure that policy, when possible, is bent towards the

president’s preferences or it is used in instances where the president

rewards preferred constituents. This is more than the simple rhetorical

signing statement, where the president merely mentions the preferred

constituent as a reward for support. In the political signing statement, the

president actually directs executive branch agencies to side with his

supporters in a battle that he is having with political opponents. Only

because of the rise of the Unitary Executive can a direction to executive

branch agencies be seen as successful as it has been.

As I have shown, the Reagan administration used the political signing

statement to successfully interpret vague language in politically contentious

legislation, and as I will show below, the Clinton administration used the

political signing statement to respond to and advance his election year

positioning. I will look at two issues—abortion and HIV—as how President

Clinton rewarded two powerful constituencies—pro-choice activists and

homosexual activists—with the political signing statement.

Abortion

44 Ibid. pg. 853.


23

In 1996, the Congress passed the most massive reconstruction of the

telecommunications industry since the Federal Communications Act of 1934

was passed to regulate the newly created radio, telegraph, and telephone

industries.

While the more significant portions of the act largely went

uncovered,45what did receive a tremendous degree of coverage was the

highly controversial Communications Decency Act (CDA). The CDA was

added to the Telecommunications Act as an attempt to regulate pornography

and obscenity on the Internet. While Section 50246 of the Act received a

great deal of attention, what was largely overlooked was an amendment that

revised the Comstock Act of 1934.47

Section 50748 of the Act was actually an amendment slipped into the

Act at the last minute as a Managers Amendment extending the Comstock

45 The most significant portions dealing with media consolidation, ownership of the new digital spectrum, and the increase in the upper limits of radio and television ownership by any one media outlet received minimal coverage yet had the greatest effect on most Americans. For more information, see McChesney, Robert. Rich Media, Poor Democracy. Communication Politics in Dubious Times. Illinois: University of Illinois Press. 1999. 46 Section 502 prohibits the use of any interactive computer service to "display in a manner available to a person under 18 years of age" any indecent information "whether or not the user of such service placed the call or initiated the communication." Corn-Revere, Robert. “New Age Comstockery.” Commlaw Conspectus. Vol. 4, No. 173. Summer, 1996. pg. 173. 47 The Comstock Act of 1934 was named for Anthony Comstock, the Secretary of the Committee for the Suppression of Vice, and was aimed at, among other things, the suppression of information regarding contraception as the dissemination of obscene material. Herndon, Sheryl L. “The Communications Decency Act: Aborting the First Amendment?” Richmond Journal of Law and Technology. Vol. 3, No. 2. 1997. http://www.richmond.edu/~jolt/v3i1/herndon.html Accessed 5/28/03. 48 The Amendment read:

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or <interactive computer


24

Act to the dissemination of abortion information over the Internet. The

Amendment was the product of Representative Henry Hyde (R. Il), and a

long time opponent of abortion.

Even though many members of Congress complained that they did not

know the Amendment was added to the bill when they voted on it, the

Telecommunications Act passed with section 507 intact. When President

Clinton signed the Act, he noted:

I do object to the provision in the Act concerning the transmittal of abortion-related speech and information. Current law, 18 U.S.C. 1462, prohibits transmittal of this information by certain means, and the Act would extend that law to cover transmittal by interactive computer services. The Department of Justice has advised me of its long-standing policy that this and related abortion provisions in current law are unconstitutional and will not be enforced because they violate the First Amendment. The Department has reviewed this provision of S. 652 and advises me that it provides no basis for altering that policy.

service (as defined in § 230 (e)(2) of the Communications Act of 1934>], for carriage in interstate or foreign commerce - . . . (C) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or Whoever knowingly takes <or receives>, from such express company or other common carrier <or interactive computer service (as defined in § 230(e)(2) of the Communications Act of 1934)> any matter or thing the carriage <or importation> of which is herein made unlawful - Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter. Herndon, Sheryl L.


25

Therefore, the Department will continue to decline to enforce that provision of current law, amended by this legislation, as applied to abortion-related speech.49

Restrictions on abortion information, as President Clinton notes, are

valid by law. In the 1970s, Henry Hyde had successfully cut off funding for

federal money to pay for abortions, and in 1989, the Supreme Court decided

that reasonable restrictions could be placed on abortion and abortion-related

information.50 Additionally, a point of contention in the Rust decision

described in Chapter Five was a Bush interpretation of Title X of the “Public

Health Service Act”51to include the prohibition of federal funds not just for

abortions but also for abortion-counseling.

Thus the Clinton administration was using the signing statement for

purely political, rather than constitutional reasons. As Sheryl Herndon

suggests, there is no reason to believe that the Supreme Court would come

to the same conclusion as the Clinton administration.52 She notes that the

Court has never had a general theory of First Amendment issues and tends

to decide them on a case by case basis. Further:

In addition to the Court's "difficulties and sharp differences of opinion in deciding the precise boundaries dividing what is constitutionally permissible and impermissible in [the First Amendment] field", a constitutional analysis of § 507 is further complicated by two issues. First, the

49 Clinton, William J. “Statement on Signing the Telecommunications Act of 1996.” Weekly

Compilation of Presidential Documents. Vol. 32, No. 6. February 12, 1996. pg. 219. 50 Webster v. Reproductive Health Services. 492 U.S. 490 (1989) 51 42 U.S.C. 254. 52 Herndon, Sheryl L.


26

Internet is a new medium with rapid developments and little well-defined First Amendment interpretation. Second, the Court has invoked a unique standard in cases involving abortion regulations under which it is "painfully clear that no legal rule or doctrine is safe from ad hoc nullification . . . when an occasion for its application arises in a case involving . . . abortion." These factors create significant uncertainty in what should otherwise be a predictable ruling whether from the current or a future Court.53

Before the Clinton administration could test whether the signing

statement would stand or not, the courts decided in ACLU v Reno54that the

CDA was unconstitutional while not addressing whether the Hyde

Amendment was also unconstitutional. The Clinton administration, however,

had already prepared the interest groups who favored abortion by informing

them that if the law remained in place, “the government would not

prosecute people who discussed abortion on-line."55

HIV

Another election year signing statement that addressed a different

community of interests—the homosexual community—was issued when

President Clinton signed the “National Defense Authorization Act for Fiscal

Year 1996”.56

53 Ibid. 54 No. 96-511. June 26, 1996. Both the Court of Appeals and the U.S. Supreme Court upheld the lower court ruling. 55 Herndon. 56 P.L. 104-106.


27

President Clinton cited as problematic a section57 of the bill that dealt

with the discharge of those military personnel who were HIV-positive. In an

57 Section 567. It read as follows:

SEC. 567. DISCHARGE OF MEMBERS OF THE ARMED FORCES WHO HAVE THE HIV-1 VIRUS. (a) IN GENERAL- (1) Section 1177 of title 10, United States Code, is amended to read as follows: `Sec. 1177. Members infected with HIV-1 virus: mandatory discharge or retirement `(a) MANDATORY SEPARATION- A member of the armed forces who is HIV-positive shall be separated. Such separation shall be made on a date determined by the Secretary concerned, which shall be as soon as practicable after the date on which the determination is made that the member is HIV-positive and not later than the last day of the sixth month beginning after such date. `(b) FORM OF SEPARATION- If a member to be separated under this section is eligible to retire under any provision of law or to be transferred to the Fleet Reserve or Fleet Marine Corps Reserve, the member shall be so retired or so transferred. Otherwise, the member shall be discharged. The characterization of the service of the member shall be determined without regard to the determination that the member is HIV-positive. `(c) DEFERRAL OF SEPARATION FOR MEMBERS IN 18-YEAR RETIREMENT SANCTUARY- In the case of a member to be discharged under this section who on the date on which the member is to be discharged is within two years of qualifying for retirement under any provision of law, or of qualifying for transfer to the Fleet Reserve or Fleet Marine Corps Reserve under section 6330 of this title, the member may, as determined by the Secretary concerned, be retained on active duty until the member is qualified for retirement or transfer to the Fleet Reserve or Fleet Marine Corps Reserve, as the case may be, and then be so retired or transferred, unless the member is sooner retired or discharged under any other provision of law. `(d) SEPARATION TO BE CONSIDERED INVOLUNTARY- A separation under this section shall be considered to be an involuntary separation for purposes of any other provision of law.


28

earlier version of the authorization bill, President Clinton vetoed it for

`(e) ENTITLEMENT TO HEALTH CARE- A member separated under this section shall be entitled to medical and dental care under chapter 55 of this title to the same extent and under the same conditions as a person who is entitled to such care under section 1074(b) of this title. `(f) COUNSELING ABOUT AVAILABLE MEDICAL CARE- A member to be separated under this section shall be provided information, in writing, before such separation of the available medical care (through the Department of Veterans Affairs and otherwise) to treat the member's condition. Such information shall include identification of specific medical locations near the member's home of record or point of discharge at which the member may seek necessary medical care. `(g) HIV-POSITIVE MEMBERS- A member shall be considered to be HIV-positive for purposes of this section if there is serologic evidence that the member is infected with the virus known as Human Immunodeficiency Virus-1 (HIV-1), the virus most commonly associated with the acquired immune deficiency syndrome (AIDS) in the United States. Such serologic evidence shall be considered to exist if there is a reactive result given by an enzyme-linked immunosorbent assay (ELISA) serologic test that is confirmed by a reactive and diagnostic immunoelectrophoresis test (Western blot) on two separate samples. Any such serologic test must be one that is approved by the Food and Drug Administration.'. (2) The item relating to such section in the table of sections at the beginning of chapter 59 of such title is amended to read as follows: `1177. Members infected with HIV-1 virus: mandatory discharge or retirement.'. (b) EFFECTIVE DATE- Section 1177 of title 10, United States Code, as amended by subsection (a), applies with respect to members of the Armed Forces determined to be HIV-positive before, on, or after the date of the enactment of this Act. In the case of a member of the Armed Forces determined to be HIV-positive before such date, the deadline for separation of the member under subsection (a) of such section, as so amended, shall be determined from the date of the enactment of this Act (rather than from the date of such determination). http://thomas.loc.gov/cgi-bin/query/F?c104:4:./temp/~c104U5rgwY:e503398: Accessed April 12, 2002.


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containing, among other things, the HIV provision.58 The section had been

placed into the bill by Representative Robert Dornan (R. Ca.), who was

running for President of the United States.

In President Clinton’s signing statement, he noted that neither the

Secretary of Defense nor the Chair of the Joint Chiefs of Staff found this

policy to be wise—that it would waste government resources spent on

training and would do nothing to improve the defenses of the United

States.59 Thus, President Clinton not only directed the Department of Justice

to not defend this provision if and when it is challenged, he further

instructed the executive branch agencies that would have jurisdiction in this

area to give those service members and their families affected by the

provision the “full benefits to which they are entitled…”60 Further, the

Clinton administration took the unprecedented action of sending White

House lawyer Jack Quinn and Assistant-Attorney General Walter Dellinger

before the press to very publicly show the commitment the administration

had made toward those service personnel afflicted with the HIV virus. Jack

Quinn told a reporter during the press conference that if the provision was

not struck down by the courts, then the president was willing to use a

presidential directive to insure that the thousands of military personnel

58 See Clinton, William J. “Message to the House of Representatives Returning Without Approval the National Defense Authorization Act for Fiscal Year 1996.” Weekly Compilation

of Presidential Documents. Vol. 31, No. 2233. December 28, 1995. 59 Clinton, William J. “Statement on Signing the National Defense Authorization Act of 1996.” Weekly Compilation of Presidential Documents. Vol. 32, No. 7. Washington D.C. : Government Printing Office. February 10, 1996. pp. 260-62. 60 Ibid. pg. 261


30

affected by the section would receive the full benefits “above and beyond

what any honorably discharged member of the service” would receive.61

President Clinton could not veto this bill since it was passed by “veto-proof

margins” and contained “many items, including a military pay raise, that the

Pentagon” badly wanted.62

Both Representative Dornan and other commentators noted that this

was posturing toward the homosexual community during an election year.

Representative Dornan argued that President Clinton “continues to ignore

the needs and requirements of the military while deferring to the wishes of a

vocal minority who donate heavily to his presidential campaign.”63 Mr.

Dornan further suggested that there was a snowball’s chance in hell” that

the section would be repealed and that he “welcomed the court challenge.”64

The act would not take effect until six months after it was signed.

However, the Clinton administration successfully worked for its repeal65 just

two months after he had signed the bill into law, thus never giving the

administration the chance to test whether the president would successfully

61 “Press Briefing by Counsel to President Jack Quinn and Assistant Attorney General Walter Dellingers.” M2 Presswire. February 12, 1996. Lexis-Nexis database, Newsfile, All. Accessed May 20, 2003. 62 Strobel, Warren P. “Clinton: Constitution Blocks HIV Discharges; But He’ll Sign Defense Bill with Provision. The Washington Times. Saturday, February 10, 1996. Part A; Pg. A1. 63 Lewis, Kathy. “Clinton Blasts HIV Provision; But He Says He Will Sign Military Bill. The

Dallas Morning News. Saturday, February 10, 1996. Pg. 1A. 64 Strobel. 65 See section 2702 (Repeals provisions relating to the mandatory discharge or retirement of members of the armed forces who are infected with the HIV-1 virus.), “Making Appropriations for Fiscal Year 1996 to Make a Further Downpayment Toward a Balanced Budget, and for Other Purposes.” P.L. 104-134. April 26, 1996.


31

direct the executive branch agencies to work in defiance of the wishes of

Congress.

The use of the political signing statement to deliberately aid key

constituencies was a common strategy of the Clinton administration, as the

two examples provided above help to illustrate. The political signing

statement in these instances should not be confused with the rhetorical

signing statement, because they are very similar. In issuing a political

signing statement, the administration is willing to go further than simply

adding a statement to a bill being signed into law—it outlines a strategy that

the administration is willing to take in order to obtain the political benefits

that it seeks. In the instances that I addressed above, the issue was

resolved before it got to that point.

The Oath Clause and Protection of Prerogatives

The Clinton administration was very aggressive in asserting the

coordinate power of the president to not defend or enforce those laws that

was determined to be unconstitutional. A key part of not defending or

enforcing laws deemed unconstitutional was the use of the constitutional

signing statement.

The Clinton administration had not been in office a year when Walter

Dellinger, Assistant-Attorney General in the Office of Legal Counsel wrote a

memorandum to Bernard Nussbaum, Counsel to the President, on the “Legal


32

Significance of the Presidential Signing Statement.”66 In this memorandum,

Dellinger argues that the president may use the signing statement to

“declare that the legislation (or relevant provisions) would be

unconstitutional in certain applications; statements that purport to construe

the legislation in a manner that would ‘save’ it from unconstitutionality; and

statements that state flatly that the legislation is unconstitutional on its

face.”67

Dellinger argued that when a president declares a law to be

unconstitutional, and then even announces that he will not enforce it, it is

akin to the Supreme Court declaring sections of a piece of legislation to be

unconstitutional.68 True to the role that the OLC had played through the

Reagan and Bush years, Dellinger notes that the president must be

aggressive in protecting the prerogatives of the office:

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.69

66 Dellinger, Walter. “The Legal Significance of Presidential Signing Statements.” Memorandum, Office of Legal Counsel. November 3, 1993. http://www.usdoj.gov/olc/signing.htm. Accessed November 12, 2001 67 Ibid. 68 Ibid. 69 Ibid.


33

Nearly a year later, after the White House Counsels Office continued to

question Dellinger on the authority the president has to decline to enforce

sections of legislation he decides is unconstitutional, he followed up with a

second memorandum, and probably the most lucid thinking of the

president’s coordinate power, outlining how and why a president has this

authority.

In a memorandum to White House Counselor Abner J. Mikva, Dellinger

argues that the president has “enhanced responsibility to resist

unconstitutional provisions that encroach upon the constitutional powers of

the Presidency.”70 Dellinger suggests that the president has independent

power to determine the constitutional validity of the legislation he is signing

into law that goes beyond his veto power. The president should consider if a

piece of legislation would likely be struck down by the Court, and if he thinks

so, then he should not enforce it. However, even if he cannot make a

determination of whether the Court would uphold or strike down the section

of legislation, the president is constitutionally obliged to “act in accordance

with the laws—including the Constitution, which takes precedence over other

forms of law. This obligation is reflected in the Take Care Clause and

in the President’s oath of office (emphasis added).”71

70 Dellinger, Walter. “Presidential Authority to Decline to Execute Unconstitutional Statutes.” Memorandum for the Honorable Abner J. Mikva, Counsel to the President. http://www.usdoj.gov/olc/nonexcut.htm. November 2, 1994. Accessed November 12, 2001. 71 Ibid.


34

The OLC continued to issue opinions72 throughout the Clinton

administration upholding this enhanced responsibility of the president to

independently determine the constitutional veracity of sections of legislation

that he had signed into law, even taking the unique step of offering a

constitutional construction of a piece of legislation four years after the

Clinton administration had signed it.73

Constitutional Signing Statements

As I noted above, President Clinton did not issue as many

constitutionally-oriented signing statements as President Bush did, but the

pattern of signing statements was very similar to President Bush’s (show

graph). President Clinton issued most of his constitutional signing

statements in the area that dealt with foreign affairs, precisely where

presidential power is at its zenith.74

72 See, for example, Dellinger, Walter. “Deployment of United States Armed Forces into Haiti.” Letter to Senators Robert Dole, Alan K. Simpson, Strom Thurmond, and William S. Cohen. http://www.usdoj.gov/olc/haiti.htm. September 27, 1994. Accessed 1/24/03; Dellinger, Walter. “Involvement of the Government Printing Office in Executive Branch Printing and Duplicating.” July 23, 1996. http://www.usdoj.gov/olc/gporecn.htm Accessed 1/24/03; Shiffrin, Richard. “Severability and Duration of Appropriations Rider Concerning Frozen Poultry Regulations.” Memorandum for James S. Gilliland, General Counsel, U.S. Department of Agriculture. http://www.usdoj.gov/olc/chadusda.2.htm June 4, 1996. Accessed 1/24/03; Moss, Randolph. “Delegation of the President’s Power to Appoint Members of the National Ocean Research Leadership Council.” Memorandum Opinion for the General Counsel, Department of the Navy. http://www.usdoj.gov/olc/nolc.htm January 29, 1997. Accessed 1/24/03. 73 Moss, Randolph. “Memorandum for the General Counsel Immigration and Naturalization Service.” Opinion of the Office of Legal Counsel. http://www.usdoj.gov/olc/ina235Anew.htm October 23, 2000. Accessed 1/24/03. 74 Louis Fisher noted that “in the realm of foreign affairs and national security, Mr. Clinton takes ‘an expansive view of Presidential power…” Pear, Robert. “The Presidential Pen is Still Mighty.” The New York Times. Section Four, Page Three. June 28, 1998.


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In addition to using the constitutional statement in areas of foreign

affairs, the Clinton administration was also willing to use the signing

statement in areas that attracted a lot of public attention to areas that

seemed highly mundane. For example, in 1998, the Congress passed

legislation to commemorate the centennial of flight celebrations that would

occur in 2003. The “Centennial of Flight Commemoration Act”75 authorized

the Centennial of Flight Commission to devise any “logo, emblem, seal, or

descriptive or designating mark that is required to carry out its duties or that

it determines is appropriate for use in connection with the commemoration

of the centennial of powered flight” as well as to refuse or allow the use of

the logos, emblems, seals, or other designated marks.76

When President Clinton signed the act into law, he noted that this

particular authorization to the Commission violated the Appointments Clause

and the Commission could not perform this function as it is written.77So

before the Commission could fully perform its duties, the Congress was

forced to pass remedial legislation to correct the objectionable provision,

now having the Commission provide input to the NASA administrator, who

would make the final decisions.78

75 P.L. 105-139. November 13, 1998. 76 Section 9, P.L. 105-139. 77 Clinton, William J. “Statement on Signing The Centennial of Flight Commemoration Act—S.1397.” Weekly Compilation of Presidential Documents. Vol. 34, No. 16. November 13, 1998. pp. 2310-11. 78 P.L 106-68


36

In an example of how the protection of presidential prerogatives is

institutionalized within the OLC, we find the objections President Clinton took

to the role of the Government Printing Office (GPO) in utilizing executive

functions. In the 1995 “Legislative Branch Appropriations Act”, 79President

Clinton objected to a more broad intervention into executive branch

functions and noted that the offending section would be implemented in a

way to “minimize the potential constitutional deficiencies.”80 In a

memorandum from acting-OMB director Alice Rivlin to executive branch

agency heads, an accommodation had been reached with the Congress to fix

the offending section and until such time to “maintain the status quo

regarding present printing and duplicating arrangements during Fiscal Year

1995 to allow this initiative to go forward.”81

In the aftermath of the 1994 midterm election and the president’s

party losing power in Congress, all arrangements between the president and

leaders in Congress were off.82 To insure that the administration’s position

was firm and clear, the Office of Legal Counsel issued an opinion in the form

of a memorandum to Emily C. Hewitt, General Counsel for the General

Services Administration, which in forthright terms claimed that the

79 Public Law 103-283. 80 Clinton, William J. “Statement on Signing the Legislative Branch Appropriations Act of 1995.” Weekly Compilation of Presidential Documents. Volume 30, Number 30. July 22, 1994. pp. 1541-42. 81 Relyea, Harold C. “Public Printing Reform: Issues and Actions.” Congressional Research

Service Report for Congress. 98-687. April 5, 2001. http://www.cnie.org/nle/crsreports/government/gov-36.cfm. Accessed April 3, 2002. 82 Ibid.


37

Government Printing Office (GPO) was a legislative agent and therefore in

violation of the separation of powers doctrine in its effort to control

executive branch printing.83 In a lengthy treatise that outlines the history of

the government printing regime, Dellinger argues that the GPO was

intentionally made a congressional entity, and where it has attempted to

direct executive branch officials regarding their responsibilities with

government documents, the president has consistently noted that this is in

violation of the separation of powers doctrine.

In the current act, where the conflict between the executive and

legislative branches had been intensifying over who controlled executive

branch printing, the Congress insured that the president comply with GPO

orders by inserting the following language into the legislation:

None of the funds appropriated for any fiscal year may be obligated or expended by any entity of the executive branch for the procurement of any printing related to the production of Government publications (including printed forms), unless such procurement is by or through the Government Printing Office.84

In Dellinger’s direction to Emily Hewitt, he wrote that due to the

unconstitutional infringement upon executive branch prerogatives, he

allowed executive branch agencies to disregard this section of the statute

83 Dellinger, Walter. “Involvement of the Government Printing Office in Executive Branch Printing and Duplicating.” Opinion of the Office of Legal Counsel. 1996 OLC LEXIS 16. May 31, 1996. (Memorandum for Emily C. Hewitt, General Counsel, General Services Administration on how to implement the terms of the signing statement to the “Legislative Branch Appropriations Act of 1995.” Public Law 103-283) 84 “Legislative Branch Appropriations Act of 1995.” Public Law 103-283.


38

and to do so without any fear of criminal or civil prosecution. Dellinger

wrote:

It appears that, except for qui tam suits,…, the only entity that could bring a civil or criminal action against a certifying official in court would be the executive branch, and more specifically the Department of Justice. Any actions considered by the Department of Justice would necessarily be in accord with the constitutional views expressed by the President in his signing statement and the opinions of this Office. Consequently, we see little risk to an officer who acts consistently with our interpretation.85

After the Republicans took over control of the Congress, efforts were

made to decentralize control rather than centralize control of government

printing, which worked to the advantage of the administration. The

president was never forced to test the challenge laid forth by the OLC to

disregard a section of law, and as such, the precedent and the OLC opinion

remains intact.

Department of Energy and the National Nuclear Security Administration

An illustrative case of the lengths the Clinton administration would go

to defend the prerogatives of the Office of the Presidency was in the

breaches at the nuclear laboratories in the United States that set off a panic

that a foreign government—in this case the Chinese—had successfully stolen

the United States’ nuclear secrets.

85 Dellinger, Walter. “Involvement of the Government Printing Office in Executive Branch Printing and Duplicating.” pp. 39-40.


39

In early 1999, a series of reports, most of which appeared in The New

York Times, seemed to indicate that employees at the Los Alamos National

Laboratory in New Mexico provided the Chinese with classified information.

Soon thereafter, President Clinton asked his Presidential Foreign Intelligence

Advisory Board (PFIAB) to “undertake a review of the security threat at the

Department of Energy’s (DOE) weapons labs and the adequacy of measures

that have been taken to address it.”86

The PFIAB released its report, known as the Rudman Report, on June

15, 1999. The report was titled “Science at its Best, Security at its Worst: A

Report on Security Problems at the U.S. Department of Energy.”87The report

found that the DOE was a bureaucracy that could not be fixed, and instead it

needed to be reorganized to make it more accountable. It was the

recommendation of the report that the weapons program at DOE be put in

an entity known as the “Agency for Nuclear Stewardship.” The Director of

the ANS would be “dual-hatted” as an Under Secretary of Energy, and the

new agency would “oversee all nuclear weapons–related matters previously

housed in DOE, including Defense Programs and Nuclear Nonproliferation; it

also will oversee all functions of the National Weapons labs. (If Congress

opts to create a totally independent agency, the Director should report

86 Clinton, William J. “Statement by the President.” Office of the Press Secretary. http://www.fas.org/irp/news/1999/06/990615-prc-wh1.htm June 15, 1999. Accessed 4/15/03. 87 Rudman, Warren. “Science at its Best, Security at its Worst: A Report on the Security Problems at the U.S. Department of Energy.” President’s Foreign Intelligence Advisory

Board. June 15, 1999. http://www.fas.org/sgp/library/pfiab/ Accessed 4/15/03.


40

directly to the President.)”88The concept of “dual-hatting” meant that the

Director would be both the head of the ANS as well as responsible directly to

the Secretary of Energy.

In 1999, there were five separate bills89 that attempted to rectify the

problems with the DOE, some of which restructured the agency and some of

which completely abolished it. The bill that finally emerged was the

“National Defense Authorization Act for Fiscal Year 2000.”90 The Clinton

administration had supported another bill, the “Intelligence Authorization Act

for Fiscal Year 2000”91 that contained the Agency for Nuclear Stewardship.92

That bill never made it out of Congress with the ANS intact.

However, in the “National Defense Authorization Act”, the conference

committee snuck in a new agency that the administration bitterly opposed.

That agency became known as the “National Nuclear Security

Administration,” whose director enjoyed semi-autonomy to care for “the

safety, reliability, and effectiveness of the U.S. nuclear weapons stockpile,

88 Ibid. 89 Those bills were: S.896, “The Department of Energy Abolishment Act”; HR 1649, “The Department of Energy Abolishment Act”; S. 1059, “The National Defense Authorization Act for FY 2000”; HR 2032, “A bill to amend the DOE Organization Act to establish a Nuclear Security Administration and an Office of Under Secretary for National Security in DOE”; and S.1009, “the Intelligence Authorization Act for FY 2000”. 90 P.L. 106-65. October 5, 1999. 91 P.L. 106-120. December 3, 2000. 92 In the “Statement of Administrative Policy” regarding the “Intelligence Authorization Act,” the Clinton administration noted: “Any reorganization of the Department's activities needs to include comprehensive Presidential and Secretarial authority over the operation and management of the Agency for Nuclear Stewardship.” See “S. 1009 - Intelligence Authorization Act for Fiscal Year 2000.” Statement of Administration Policy. Office of Management and Budget. http://clinton2.nara.gov/OMB/legislative/sap/S1009-s.html July 20, 1999. Accessed June 1, 2003.


41

nuclear non-proliferation, and naval nuclear reactors” while the Secretary of

Energy would “ultimately remain responsible for formulation of policies and

oversight of NNSA operations, and he will have the staff and authority to do

that job.”93

When President Clinton signed the bill, he noted his disappointment

with the last minute switch to a provision that the administration had clearly

signaled to the Congress that it opposed, and that this new agency would

“limit the Secretary’s ability to employ his authorities to direct—both

personally and through subordinates of his own choosing—the activities and

personnel of the NNSA. Unaddressed, these deficiencies of the Act would

impair effective health and safety oversight and program direction of the

Department’s nuclear defense complex.”94 President Clinton then bluntly

stated:

1. Until further notice, the Secretary of Energy shall perform all duties and functions of the Under Secretary for Nuclear Security. 2. The Secretary is instructed to guide and direct all personnel of the National Nuclear Security Administration by using his authority, to the extent permissible by law, to assign any Departmental officer or employee to a concurrent office within the NNSA. 3. The Secretary is further directed to carry out the foregoing instructions in a manner that assures

93 Spence, Floyd D. “Statement of Chairman Floyd Spence, Full Committee Hearing on National Nuclear Security Administration.” March 2, 2000. http://www.house.gov/hasc/openingstatementsandpressreleases/106thcongress/00-03-02spence.pdf Accessed 4/15/03. 94 Clinton, William J. “Statement on Signing the National Defense Authorization Act for Fiscal Year 2000.” Weekly Compilation of Presidential Documents. Vol. 35, No. 40. October 5, 1999. pg. 1928.


42

the Act is not asserted as having altered the environmental compliance requirements, both procedural and substantive, previously imposed by Federal law on all the Department's activities. 4. In carrying out these instructions, the Secretary shall, to the extent permissible under law, mitigate the risks to clear chain of command presented by the Act's establishment of other redundant functions by the NNSA. He shall also carry out these instructions to enable research entities, other than those of the Department's nuclear defense complex that fund research by the weapons laboratories, to continue to govern conduct of the research they have commissioned. 5. I direct the Director of the Office of Personnel Management to work expeditiously with the Secretary of Energy to facilitate any administrative actions that may be necessary to enable the Secretary to carry out the instructions in this Statement.95

Members of Congress were furious with the President’s statement.

First, they were upset that the President instructed the Secretary of Energy

to assume the role of the new Director of the NNSA, to which Secretary Bill

Richardson and several other DOE employees served concurrently, and

second, that the Director, if and when appointed, would be “dual-hatted”

when the law specifically gave him or her a degree of autonomy. When

Secretary Richardson appeared before Congress the day after President

Clinton signed the law, he told the House Armed Services Committee that he

did not feel obligated to follow the intent of the law because the version that

the Clinton administration had told the Congress they supported was

95 Ibid. pp. 1928-1929.


43

stripped out and in secret this new agency was inserted in its place.96When

Secretary Richardson was directed to testimony given by the General

Accounting Office and the Congressional Research Service that the actions

by the Clinton administration undermined the United States’ national

security, Secretary Richardson responded: “I have yet to find the GAO to say

something positive about anything.”97

The Clinton administration did appoint a Director of the NNSA98 in the

spring of 2000, and by that time the Congress passed two pieces of

legislation making it clear the responsibilities of the Director of the NNSA. In

the first law99, Congress specified that the “exclusive reasons for removal

from office as Under Secretary for Nuclear Security of the person (appointed

and confirmed as Director) shall be inefficiency, neglect of duty, or

malfeasance in office.”100 In President Clinton’s signing statement, he

objected to the specification for reasons of dismissal, and then defined

96 “NNSA Starts Up as Richardson and Congress Clash.” Science & Technology in Congress. http://www.aaas.org/spp/cstc/bulletin/articles/3-00/nnsa.htm. 97 Ibid. 98 John Gordon was appointed and confirmed as the first Director of the NNSA amid controversy that throughout the confirmation process, Secretary Richardson was trying to sabotage his confirmation. 99 “Making appropriations for the Departments of Veterans Affairs and Housing and Urban Development,and for sundry independent agencies, boards, commissions, corporations, and offices for the fiscal year ending September 30, 2001, and for other purposes.” P.L. 106-377. October 27, 2000. 100 Ibid. Section 313(b).


44

“neglect of duty” to mean “among other things, a failure to comply with the

lawful directives of policies of the President.”101

In the second bill102, signed three days after the bill just discussed

above, the Congress, to make a deliberate point, included the exact

language found in the earlier bill. In the latter bill, the language states:

“The exclusive reasons for removal from office as Under Secretary for

Nuclear Security of the person described in subsection (a) shall be

inefficiency, neglect of duty, or malfeasance in office.”103

In President Clinton’s signing statement, 104he again noted his problem

with the stipulations on removal and noted that he understood the “phrase

‘neglect of duty’ to include, among other things, a failure to comply with the

lawful directives or policies of the President.”105

In the end, the Clinton administration would never get to see this

battle to its end. By the time that President Clinton had signed the last

piece of legislation, he would have a little less than three months left in

office. Nonetheless, this case provides an ideal example of the lengths to

which the administration was willing to challenge a provision of law that it

felt infringed upon executive prerogatives.

101 Clinton, William J. “Statement on Signing the Fiscal Year 2001 Appropriations Legislation—H.R. 4635.” Weekly Compilation of Presidential Documents. Vol. 36, No. 44. November 6, 2000. pg. 2660. 102 “Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001—H.R. 4205.” P.L. 106-398. October 30, 2000. 103 Ibid. Section 3151(b). 104 Clinton, William J. “Statement on Signing the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001—H.R. 4205.” Weekly Compilation of Presidential

Documents. Vol. 36, No. 44. October 30, 2000. pp. 2651-2760. 105 Ibid. pg. 2691.


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Conclusion

The Clinton administration was a natural progression of the Unitary

Executive. It continued with the evolution that began, for the most part, in

the Reagan administration and in many ways perfected what the Reagan

administration began.

The Clinton administration, via the memoranda and especially

Executive Order 12,866, saw to use the bureaucracy and importantly, the

independent regulatory agencies, in a positive way to insure that its policies

were realized whenever possible.

Further, the Clinton Justice Department had been institutionalized in

such a way to begin at the outset of the Clinton administration to defend the

constitutional right of the president to not defend or enforce legislation that

the president independently decides is unconstitutional—something referred

to as enhanced responsibility. Thus the Clinton Justice Department, in

particular the OLC, issued a number of opinions that echoed this theme.

The political and the constitutional signing statements reflect the strategy to

which the Clinton administration would take to insure the laws were faithfully

executed as well as the constitution was adequately defended. The political

signing statements were chosen to illustrate how the Clinton administration

used this tool to obtain benefits for a preferred constituency—in this instance

the pro-choice and the homosexual communities. The constitutional signing

statements were chosen to illustrate the variety of ways in which the


46

president sought to defend the prerogatives of his office.

Chapter Seven

Conclusion

President George W. Bush came to office amid one of the more hostile

political situations in American history. Bush was elected to the presidency

only after the Supreme Court stepped into the 2000 election and cleared the

way for him to received the Florida electoral votes. Further, in the spring of

2001, Republican Senator Jim Jeffords (Ve.) switched to an Independent,

thus giving Senate control to the Democrats—a situation which would last

until January 2003.

George W. Bush, then, inherited the political environment that had

plagued his predecessors. Thus, President Bush from the outset continued

to utilize and perfect the Unitary Executive, both in centralizing and

controlling the administrative state, as well as to defend the prerogatives of

his office.1 For example, in signing a defense authorization act,2 President

Bush notes his objections to a requirement that executive branch officials

submit recommendations to Congress, rather than the president, will be

construed “in a manner consistent with the President’s constitutional

authority to supervise the unitary executive branch.”3

1 In fact, an examination of this signing statements show that he is issuing them consistent

with past administrations and his emphasis, like his father’s, is on the protection of

presidential prerogatives. 2 “The Bob Stump National Defense Authorization Act for Fiscal Year 2003.” P.L. 107-314. 3 Bush, George W. “Statement on Singing the Bob Stump National Defense Authorization

Act for Fiscal Year 2003.” Weekly Compilation of Presidential Documents.

http://frwebgate3.access.gpo.gov/ December 2, 2002. Accessed 5/30/03.

A look at both the Bush’s regulatory efforts as well as the efforts by his

Justice Department to protect the prerogatives of the office indicates that

the Unitary Executive has become institutionalized.

This dissertation has been both an effort to offer a theory of

presidential power and an effort to show how that theory explains the

strategic use of a particular presidential power tool. I think that it has

satisfied both of these objectives.

In Chapter Two, I discussed and fleshed out the theory of the Unitary

Executive. The Unitary Executive rests upon two key principles—

coordinancy and accountability. Coordinancy involves the president

unilaterally interpreting the Constitution to insure that the laws, and all of

the laws component parts, are constitutionally valid. Coordinate power is a

power unto each of the Constitutional branches. It means that each branch

is a power in and of itself—that no other branch can demand the other

branch to do its bidding. Coordinate power forms the basis of our system of

checks and balances.

Even though he Reagan administration gets a great deal of credit for

pushing this principle of coordinancy, it is a concept that is hardly novel. As

I discussed, President Jefferson’s Attorney-General argued that the president

may ignore Supreme Court orders because the Court was not seen as the

final arbiter of the Constitution. President Lincoln is perhaps the more

famous of our presidents who pushed the principle of coordinancy during the

Civil War when he frequently flouted orders by the Supreme Court

commanding him to something.

The second key principle that the Unitary Executive rests upon is the

principle of accountability. Accountability holds that the president is the only

nationally elected official which makes him accountable for how laws are

executed. Therefore, the president is best situated to coordinate agency

activities and by virtue of his accountability and central position, he can

bring energy to the administrative process that agency officials cannot

muster by themselves.

As I take great pains to point out, the Unitary Executive can trace its

roots back to the Constitution, however my contention is that it really is a

creature of the last thirty years. Not that it is not important to understand

what the Founding Fathers meant when they were breathing life into the

executive, my argument is that it does nothing to dispel what has been

taking place since the late 1960s and early 1970s.

It is out of the political hydraulics of this period of time that the

Unitary Executive is born. Presidents since the Nixon administration found it

to their advantages to try to gain control over the vast administrative state

in an effort to gain some semblance of control over the policies that they

campaigned upon. Further, since the Nixon administration, and in particular

the effect that Vietnam and Watergate had on the political system, there

was an openly hostile environment for presidents to operate in. The

Congress, the public, the media, and the academic community all argued for

the need to reign in the power of the presidency. Thus there was an assault

upon presidential prerogatives, and presidents then were forced to develop

the methods to counter these assaults.

The state of politics then became defined as a period of divided, highly

partisan government. As I discussed in Chapter Two, there has been a great

deal of ink spilled on whether divided or unified government matters in the

ability for the president to govern. These studies look at legislation passed

after the president has left office. My argument takes place during the

president’s time in office. As such, if the president perceives the

environment to be hostile, and there is a great deal of evidence from their

memoirs that they do, then they will attempt whatever means possible to

achieve policy advantages and to defend the prerogatives of the office.

To put the Unitary Executive into practice, the president turns to the

Constitution, in particular the “Take Care” and “Oath” clauses of the

Constitution.

The “Oath” Clause allows the president to defend from encroachments

upon executive prerogatives as well as to protect the constitutional rights of

individuals. The “Take Care” Clause allows the president to “interpret”

legislation in a manner that maximizes executive branch policy preferences.

To enforce the “Oath” clause, the president relies upon the Justice

Department, which has taken its duty to mean that the president will not

defend or enforce those sections of law that are “clearly unconstitutional”

nor will it defend or enforce those sections of law that infringe upon the

president’s prerogatives. In essence, the Justice Department, particularly

the Office of Legal Counsel, acts as the president’s “shield.”

The “Take Care” clause allows the president to solicit the opinions of

the principle officers of the various executive branch agencies to help him to

take care that the laws are faithfully executed.

It is the job of the Office of Management and Budget to insure

executive branch centralization and to insure that the laws are “faithfully”

executed. As I noted in Chapter Two, the important role that OMB plays is

as a “point of central clearance for all executive branch budgetary requests”

to reduce “the ability of individual agencies to make an end run around the

president and request more money from Congress.”4

As I concluded Chapter Two, I set up my theory of the Unitary

Executive as an alternative to the more dominant Modern President or

Neustadt Paradigm that has been used for so many years to explain the

basis of presidential power.

Rather than focus on the more subtle aspect of the office, my theory is

a blunt instrument that allows the president to strategically and methodically

use a wide array of tools to push his legislative preferences forward and to

protect his office or the constitutional liberties of individuals.

4 Golden, Marissa Martino. What Motivates Bureaucrats? Politics and Administration during

the Reagan Years. New York: Columbia University Press. 2000. pg.7.

It was important to first establish what theory I will be working from,

and important for my work was to find a theory that best suited what I

would be focusing on. I think that the Unitary Executive is such a theory.

In Chapter Three, I looked specifically at the signing statement. In

that chapter, I asked: What is meant by a presidential signing statement?

How many signing statements have been issued from Washington to

Clinton? Who issued the first signing statement? Are there any patterns in

the use of the signing statement? Does the frequency vary with a

president’s political situation? These were the same questions that Kenneth

Mayer asked of the Executive Order in his prize winning book, With the

Stroke of a Pen: Executive Orders and Presidential Power (Princeton:

Princeton University Press. 2001).

As I noted, this dissertation will make an important contribution to the

literature on the signing statement simply because what has been written is

grossly incomplete and often times dramatically inaccurate.

I broke the signing statement down into three major categories: the

“Constitutional” signing statement, the “Political” signing statement, and the

“Rhetorical” signing statement.

Constitutional signing statements are those statements that address

constitutional defects in a section or sections of legislation. In it, the

president can do a number of things. He can identify the problematic

section and ask Congress to correct. More important to this study are the

instances in which the president instructs the Justice Department to either

not defend the faulty section or to sever it from the bill, thus instructing the

Justice Department along with the executive branch agencies to simply not

enforce it.

Political signing statements differ from constitutional signing

statements in that the focus is not legal, although the statement may be

structured that way. Political signing statements are meant as directives to

the executive branch agencies in a way to bring the bureaucracy in line with

the president’s policy preferences. They can either take advantage of vague

or undefined sections of legislation that are left that way as a result of a

contentious battle in Congress, or they can signal to important constituents

of the president the willingness to move policy toward their positions.

The rhetorical signing statement generally does not make a legal or

constitutional claim, nor is it intended to be a directive to executive branch

agencies, even though it is largely done for political reasons. The rhetorical

strategy involves the president’s “attempt to mobilize political support by

means of public comments.”5

I then placed the presidential signing statement into the growing body

of literature on presidential “power tools.” The signing statement, as I

described it, has been the black sheep of all the power tools, mostly

overshadowed by the more high profile executive order, pocket veto, line-

5 Zernicke, Paul Haskell. “Presidential Roles and Rhetoric.” Political Communication and

Persuasion. Volume 7. 1990. pg.231.

item veto, and presidential directives and memoranda. Nonetheless, what it

shares with this literature is a greater utility by presidents in the last thirty

years, a reason I explain is connected to the rise of the Unitary Executive.

I demonstrated that the signing statement enjoys a long history that

reaches all the way back to the Monroe administration, not the Jackson

administration as most scholars note.

Since the first signing statement, there have been a total of 2175

signing statements through the Clinton administration. Most of the signing

statements issued are rhetorical, but important to this study was that the

number of constitutional and political signing statements issued between the

Reagan administration through the Clinton administration. As I

demonstrated in Chapters Four through Six, this was no coincidence. This

was part of a coordinated strategy to centralize control over policy and

protections of presidential prerogatives that forms the basis of the Unitary

Executive.

I then turned my attention to a more empirical analysis of what

impacts the use of the signing statement. First, I looked at the effect that

elections had on the use of the signing statement. My argument was that

during an election year, the president would be more inclined to use a

signing statement than during an off-election year. Looking at the period

1932-2001, I found that there was statistical significance in support of my

argument.

Next I looked at what affect presidential approval had on the signing

statement. When I looked at a more expansive time, 1945-2000, I found

that my results were statistically insignificant. However, when I restricted

the time to 1968-2000, which I justified as reasonable considering it was

during this time that the president became more boxed in politically and

constitutionally, I found that the results for the constitutional and political

statements were both significant, although insignificant for the rhetorical

statement. As I noted, the reason why the rhetorical signing statement was

insignificant was due to the hostile political environment that the president

found himself in during most of this period, in which it made it difficult to

reach out and move opinion in his preferred direction.

Finally, just looking at the trend in the use of the political and

constitutional signing statements from FDR to Clinton, it is easy to see that

there is a dramatic increase in the use of both from Reagan through Clinton,

which is a stepping off point that leads to the next chapter. It highlights

what is the crux of my argument—the Unitary Executive came together in

the Reagan administration, and was further developed in every

administration after it. This was directly correlated with the rise in the

number of both constitutional and political signing statements.

In Chapter Four, I then move to wed the Unitary Executive with the

signing statement, and in so doing I answer the question that no one who

has studied the signing statement has yet answered—why was the Reagan

administration important to the strategic development of the signing

statement?

I gave credit to the Ford and Carter administrations for laying the

groundwork to which the Reagan administration built the Unitary Executive

upon. It was those administrations that began to seek out ways to gain

executive control, albeit with no success, over the administrative agencies

and it was those administrations that dealt with the assault upon executive

branch prerogatives following Watergate.

But the real story was the Reagan administration. A number of events

converged to produce the Unitary Executive. First, the Reagan

administration used two powerful executive orders6to place the Office of

Management and Budget into the middle of agency rulemaking. It, along

with the Office of Information and Regulatory Affairs, made sure that the

executive branch agencies implemented legislation in line with the

president’s preferences. Second, the Justice Department became very

aggressive in protecting presidential prerogatives, obtaining from the

Supreme Court the recognition of the presidential signing statement as a

legitimate presidential tool. Third, the Supreme Court also sided with the

Reagan administration in a couple of crucial opinions, most notably the

Chevron decision in which they gave a nod to presidential interpretation of

vague or ill-defined sections of legislation in the absence of a clear

6 Executive Order 12,291 and Executive Order 12,498.

congressional intent. And then fourth, the decision in 1986 to add the

signing statement to the “Legislative History” section of the United States

Code, Congressional and Administrative News meant that the president was

using the signing statement to “announce” to the Congress, the courts, and

the executive branch agencies his intent with respect to a particular piece of

legislation.

In Chapter Five, I turned my attention to the Bush administration and

how it further pushed the Unitary Executive and the presidential signing

statement.

I demonstrated that the Bush administration continued with the work

of the Reagan administration. President Bush, while not as comfortable with

the rhetorical style that defined the Reagan presidency, certainly was very

aggressive in defending the prerogatives of the office as well as exercising

administrative control over the bureaucracy, even beyond what was possible

during the Reagan administration.

The Bush administration had continued with the move to centralize the

administrative process that had begun when President Reagan issued the

two important executive orders discussed above. When the Congress tried

to block the ability of the Bush regulators to influence the administrative

process by refusing to fund the OIRA or confirm a Director in 1989, the Bush

administration simply worked around this roadblock by establishing the

President’s Council on Competitiveness. The Council, also named the

“Quayle Council,” was even less accountable to Congress than OIRA was. So

in an effort for Congress to try to establish some oversights of the regulatory

process, the Unitary Executive responded as it should—that when push

comes to shove, the president, not the Congress, is accountable for the

faithful execution of the laws.

The case study of the “Clean Air Act Amendments” demonstrates the

effectiveness of the Quayle Council working from instructions received in the

President’s signing statement for the Act. In that case study we can see the

degree of influence exercised by White House political appointees over the

executive branch agencies, ostensibly working to keep the president

“accountable” to the public. As Michael Herz noted, the parochial views of

the EPA lost out to the general views of the White House as the model of the

unitary executive says it should.7

The Bush administration also took the defense of presidential

prerogatives very seriously. As I noted, upon taking office, the OLC in the

Bush administration carefully outlined for the president and the executive

branch agencies the variety of ways that the Congress will attempt to

intrude upon executive branch prerogatives, and how the White House can

fight back. The OLC was also very public in protecting those prerogatives,

even issuing a number of opinions declaring sections of law to void because

of their interference with executive branch powers.

7 Herz, Michael. “Imposing Unified Executive Branch Statutory Interpretation.” Cardozo Law

Review. 15:1-2. October, 1993. pg. 249.

Like the Reagan administration, the Bush administration also received

a great degree of assistance from the Supreme Court in aiding its attempt to

control policy.

In the Rust decision, the Supreme Court opened the doors for the

president to interpret sections of legislation that had been decided in

previous administrations, in effect, as one article quipped, allow the

president to “to make the law backwards.”8

One important strategy that the Bush administration employed, which

had not been used prior nor after the administration, was to use the signing

statement to point to an alternative legislative history in those instances in

which the president lost a policy battle in the Congress.

In two cases—one dealing with legislation resulting from the Iran-

Contra debacle of the Reagan administration and the other from civil rights

legislation that the administration disagreed with—the Bush administration

teamed up with fellow partisans in the Congress to create an alternative

history that defined highly contentious terms in the legislation. In the case of

the “Civil Rights Act of 1991,” the Bush administration took great pains to

contradict definitions that it had worked out with the Congress and were

spelled quite specifically in the Congressional Record. This strategy,

8 Clayton, Cornell W. The Politics of Justice: The Attorney General and the Making of Legal

Policy. New York: M.E. Sharpe, Inc. 1992. pg. 236.

according to an interview I had with Nelson Lund, proved to be unsuccessful

when it was challenged in the Courts.9

In Chapter Six, I first pointed out that even though President Clinton

was a Democrat, his practices followed the trends began by the Reagan

administration and continued through the Bush administration.

His use of the signing statement fell in line with the previous

administrations, with more emphasis on the rhetorical signing statement

than either the Reagan or the Bush administrations. This is consistent with

the Clinton style of governing.

The Clinton administration, upon taking office, rescinded the two key

executive orders of the Reagan administration and abolished the Quayle

Council, all of which were important to insuring executive branch

centralization. But rather than hurt the advancements made for executive

control, the Clinton administration put in place a number of memoranda and

a key executive order which reasserted executive branch control over the

administrative state, even extending pressure out to the independent

regulatory agencies, something not accomplished by the previous two

administrations.

The only key difference between Clinton administration and the

Reagan/Bush administrations was an emphasis on the role of the

bureaucracy. For President Clinton, he sought to use the bureaucracy to

9 Interview with Nelson Lund. December 20, 2002.

carry out his political agenda where the Reagan and Bush administrations

sought to control it. Either way, the goal of all the administrations, which

makes it consistent with the Unitary Executive, was to control the

administrative agencies.

If the Clinton administration differed in its approach towards the

executive branch from the Reagan and Bush administrations, it was very

similar in its approach towards the defense of executive branch prerogatives.

A year had not even passed after the 1992 election when Assistant

Attorney General Walter Dellinger issued a very public defense of the “Oath”

clause and the presidential signing statement. In a follow-up memorandum,

Dellinger argues that the president has enhanced responsibility to resist

encroachments upon the prerogatives of the office. 10 Dellinger further

spoke in the truest form for coordinate power—that the president has an

independent obligation despite the opinions of the other branches to decide

the constitutional structure of bills that he signs into law.

As I showed in Chapter Six, the Clinton administration was willing to

use the political signing statement to extend benefits to preferred

constituencies and was more than willing to aggressively assert its

prerogatives in the face of congressional will.

10 Dellinger, Walter. “Presidential Authority to Decline to Execute Unconstitutional

Statutes.” Memorandum for the Honorable Abner J. Mikva, Counsel to the President.

http://www.usdoj.gov/olc/nonexcut.htm. November 2, 1994. Accessed November 12,

2001.

When I began my research, my main interest was on the presidential

signing statement. I wanted to find out what they were, how long they had

been in existence, and why there were used. This research has lead me into

an exploration of the roots of presidential power, in addition to adding to the

scholarly effort another chunk of explaining presidential power and

institutional differences.

The theory of the Unitary Executive is clearly a theory about

institutionalism. I have shown that beginning with the Nixon administration

and extending on through the Clinton administration, it was the staff within

the executive branch who had been trained during periods of bitter

institutional differences who came up with the novel uses of the signing

statement and with constitutional explanation for presidential power.

I would hope that both my work and the work of others continue to

flesh out the key principles of the Unitary Executive. It has been

unfortunate that the theory was the product of the Federalist Society, not to

borrow a line for Jerry Seinfeld, that “there is anything wrong with that.”

Because the Federalist Society comes with political baggage, there has been

a great deal of resistance among scholars, particularly those writing in the

law journals, to embrace and develop the theory. I think that the resistance

that Professor Kagan shows to admitting that what the Clinton

administration was doing was “Unitarian” speaks to this. And since many

political scientists fail to read law journals, the theory has been put on the

shelf to gain dust. It is time to take it down, blow off the dust, and test

whether there is anything to it. This research offers an initial effort.

I have offered an exploration of the signing statement, but I hope that

mine is not the last statement on it. There needs to be more work to better

examine the use of the signing statements in all the administrations that

have ever used them, because this work was not an effort at the individual

level. Certainly there needs to be more systematic testing of my categories

to make sure that I have placed the signing statement in the proper

categories. Precision is key to analysis.

There is certainly a great deal of work that lies ahead. In the future, I

want to understand what happens to those messages sent by the Justice

Department to the Congress announcing the non-defense or non-

enforcement of sections of legislation that president has signed into law. Do

members of Congress recognize this is being done? Are these messages

logged?

I want to also examine the reasons why the president will issue two

separate signing statements over the same bill, one public and one private.

In the public address, the president largely speaks to the positives of the

bill, how it supports his priorities, and so forth. In the private statement, the

president will carefully outline his objections/interpretations, and what he

intends to do about them.

I certainly want to continue to log how the signing statements are

used in subsequent administrations, to see how it is developed, whether

presidents continue to rely upon them (I don’t forsee any reason why they

would not), and what nuances they place upon them.

In the end, it is my strong desire that one day, political scientists

speak about the signing statement in the same way we speak about the

executive order, the presidential directive, the pocket and line-item vetoes,

and the presidential proclamation.

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