The Last Word: Presidential Power and the Role of Signing Statements

Abstract

Signing statements have become an important device that both protects and enhances presidential power by signaling how legislation is to be implemented, offering a mechanism of electoral reward, and protecting presidential prerogatives. We offer a first cut at explaining signing statements by applying William Howell's theory of unilateral action. The evidence shows that presidents use signing statements under conditions of gridlock, such as divided government, which erode their influence in Congress. The findings also suggest a strategic element to signing statement behavior. Presidents issue significantly more signing statements on major legislation when the policy and political stakes are greatest. The results provide insight into the theory of unilateral action and demonstrate how signing statements complement rather than contradict the Richard Neustadt view of power.

Assessing the Rhetorical Side of Presidential Signing Statements

“…If the signing statement contained a challenge, it was considered constitutional; and if there was no challenge, it was considered rhetorical. The distribution of the rhetorical and constitutional signing statements closely parallel the frequencies found in Kelley and Marshall's analysis (). In the overall distribution there were 58.2% ( n = 566) rhetorical signing statements as compared to 41.2% ( n = 408) of the constitutional variety.…”

“…Clearly, our work is not the first to notice the many different roles of the signing statement (see Kelley ; Kelley and Marshall ). Conley's recent work is exceptional in this regard because he looks at the constitutional, policy, and rhetorical purposes behind the signing statement from Truman to Carter (2011).…”

“…Moreover, scholars have focused on the constitutional statement from the perspective of presidential unilateralism suggesting that such statements are designed to defend constitutional and traditional institutional powers or help presidents achieve policy ends (Ostrander and Sievert ). For example, work in this area suggests that presidents employ the constitutional signing statement to circumvent policy made by Congress, refuse to execute provisions the president deems unconstitutional, or use them to gain a last move advantage in bargaining with Congress (Cooper , ; Kelley and Marshall ). Berry's () work adds to the literature and finds that presidents will issue constitutional signing statements to defend their policy discretion against legislative veto provisions Congress has embedded in statutory legislation.…”

“…In addition, Reagan's Justice Department recognized valuable political opportunities in the signing statement, and so President Reagan elevated signing statement strategies to enhance his authority relative to Congress (Dellinger ). We follow the coding rules documented by Kelley and Marshall (). The primary criteria we used for distinguishing between rhetorical and constitutional types of statements are whether or not the signing statement contained a constitutional challenge.…”

The Purloined Letters

“…The first, focusing on unitary executive theory (Calabresi & Yoo, 2008;Moe & Howell, 1999), suggests that Presidents use signing statements to maintain the absolute authority they believe they have over the executive branch (Kelley & Marshall, 2008. There have been three primary rationales for the use of presidential signing statements identified in the literature.…”