Presidential action and the Supreme Court: The case of signing statements

Abstract

Recent attention to presidential action recognizes the legal and constitutional questions surrounding the controversial use of many of these powers. Yet, scholarly research on executive policymaking tends to ignore the role of the courts, instead focusing on presidential–congressional relations. I develop a formal theory of the president’s decision to issue a signing statement in the face of constraints from the Supreme Court. The model produces several novel predictions. First, I predict that the president is more likely to issue a signing statement when he is ideologically aligned with the Court. Second, contrary to previous literature, the president is more likely to issue a statement when his preferences are also aligned with Congress. Finally, when reviewing legislation that is constitutionally challenged, I predict that the Court is more likely to rule in favor of the president’s position when he has issued a signing statement.

Policy Making in the Shadow of Executive Action

“…Thus, these statements are now formally attached to statutes when sent to political actors tasked with the enforcement of law. While signing statements do not technically have the force of law, they are an institutionalized way for the president to influence the judicial interpretation and bureaucratic treatment of laws (Kelley and Marshall ; Rodriguez, Stiglitz, and Weingast ; Thrower ; n.d.). In this way, the constitutional signing statement gives the president more control over policy outcomes than does simply signing a bill.…”

“…In examining several pieces of legislation that received statements, the GAO found that many of the provisions singled out by the president were not implemented by federal agencies as specified by Congress, suggesting that signing statements can serve as effective bureaucratic directives (Kepplinger ). Further, there is evidence that the Supreme Court is more likely to rule in favor of the president on matters upon which the president has issued signing statements (Thrower ).…”

“…However, with these statements, the president can alter how a statute is implemented. Bureaucratic directives are important tools for shaping the law, and signing statements often lay the groundwork for future interpretation of legislation (Evans ; Kelley and Marshall ; Rodriguez, Stiglitz, and Weingast ; Thrower , n.d.). While much of the extant literature on bargaining between the branches assumes the president has a take‐it‐or‐leave‐it choice on legislation that has passed both chambers of Congress, the signing statement allows the president to manipulate policy outcomes after legislators have already agreed to a bargain.…”