Executive Opportunism, Presidential Signing Statements, and the Separation of Powers

Abstract

Executive discretion over policy outcomes is an inevitable feature of our political system. However, in recent years, the President has sought to expand his discretion using a variety of controversial and legally questionable tactics. Through a series of simple separation of powers models, we study one such tactic, employed by both Democratic and Republican presidents: the use of signing statements, which purport to have status in the interpretation of statutory meaning. Our models also show that signing statements upset the constitutional vision of lawmaking and, in a wide range of cases, exacerbate legislative gridlock. We argue that courts should not legally credit signing statements; we conclude by discussing executive opportunism broadly.

Defending Aggregated Legislative Intent

“…20 As an example of work addressing this, Rodriguez and Weingast posit that intentions can still be ascertained from the statements of pivotal legislators. 21 'Pivotal legislators' are key legislators who endorse moderate rather than strong versions of a bill. 22 Because pivotal legislators neither want the bill to fail nor want the strongest version of the bill, they have a strong incentive to articulate arguments for the moderate position and in doing so also articulate how other coalitions view the bill.…”