This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. The widespread acceptance of the President’s power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. If these fairly uncontroversial forms of executive review are permissible, the arguments against signing statements amount to nothing more than objections to the form in which constitutional review is exercised. Indeed, when the objections are constitutional in nature, the signing statement does little work itself, as it is the Constitution itself rather than the signing statement that invalidates the statute, and there are clear benefits to announcing the constitutional interpretation that will be applied to the statute at the time of enactment.
Volume 164 Issue 7 2016 Article