A Comparative Look At The Constitutional Signing Statement

A Comparative Look at the Constitutional Signing Statement: The Case of Bush and Clinton Presented by: Christopher S. Kelley Department of Political Science Miami University Oxford, OH 45056 Please direct all inquiries to: [email protected]

Presented at the 61st Annual Meeting of the Midwest Political Science Association Chicago, IL April 3-6, 2003 Abstract: Presidential scholars studying interbranch relations with the Congress have long directed their attention to the presidential veto, veto threats, and veto bargaining in assessing how presidents get what they want out of legislation. What has not been studied is the use of the constitutional signing statement to tweak more out of the legislative process that is not gained in the formal process of veto threats and veto bargaining. This paper examines how Presidents Bush and Clinton used the constitutional signing statement to deal both with constitutionally suspect provisions in bills presented for their signature and to deal with legislation that they disagreed with politically and administratively. Keywords: President, Congress, Veto, Veto Bargaining, Separation of Powers

The presidential signing statement has long been the “black sheep” of presidential power tools. Presidential scholars have paid more attention lately to presidential proclamations, memoranda, and executive orders.1 In addition to the new focus on unusual presidential powers, the signing statement has also been overshadowed by the focus on the presidential veto and veto bargaining.2 As I will demonstrate, the presidential signing statement is not only a formidable power in its own right, but it also is highly useful for the president when he does not get all that he wishes in his negotiations with the Congress or to take advantage of a contentious debate within the Congress. And as some have commentated, the presidential signing statement often acts as an “iron-clad item veto”3 because it allows the president to excise items from a bill without any chance for the Congress to overrule the decision. The presidential signing statement has become particularly important in the last thirty years due to the persistence of highly partisan, divided government that makes it nearly impossible for a president to move his policies through the Congress. Additionally, since Watergate, there has been an assault on the “imperial” nature of the presidency and thus more reasons for presidents to protect the prerogatives of the office. The presidential signing statement has been extremely useful in allowing the president to gain advantage over policy, to speak to preferred constituency, and to protect the prerogatives of the office. In this paper, I will argue that political scientists need to begin to understand and consider the importance of the presidential signing statement, in particular for the focus of this conference, the constitutionallyoriented signing statement. It has been used deftly by Presidents Reagan through the current Bush administration to gain advantages lost in the legislative process or to work out losses in the process of veto bargaining, as I will discuss below with the signing statement and implementation of the Civil Rights Act of 1991.

The Presidential Signing Statement My own work has examined an understudied presidential device known as the signing statement. What little has been studied has been relegated to law students and in law journals, which often fails to appreciate the political importance of what they are, how they have developed, and what it does for institutional relations between the branches. What I have found is that the signing statement is a highly useful device for presidents to use to advance their policy preferences and to protect the prerogatives of the office. Further, the use of the signing statement has greatly increased in the Reagan-Clinton presidencies. In this section, I will provide the relevant background information regarding the signing statement before turning my attention in the next section to examining the use of the constitutional signing statement during the Bush and the Clinton presidencies. On the surface, the signing statement is an easy device to understand.4 They are nothing more than the statement that the president makes upon signing a piece of legislation into law. The president does not always make a statement. And the signing statement is usually not something that is done publicly. When the president does hold a formal signing statement ceremony, often times the remarks he makes publicly differ slightly or greatly from the written signing statement. And since 1986, the presidential signing statement has become part of the “Legislative History” section of the United States Congressional Code and Administrative News (USCCAN). In my research, I have broken the presidential signing statement into three separate categories: The “constitutional” signing statement, the “political” signing statement, and the “rhetorical” signing statement.

The Constitutional Signing Statement The constitutional signing statement points out constitutional defects in a piece of legislation the president has signed into law. More often than not, they recognize an encroachment onto presidential prerogatives, such as the president’s prerogative in the area of foreign policy, appointments, or recommendations of legislation. The president can use the signing statement to urge Congress to take corrective action, noting that it is a non-binding expression of congressional wishes, or he can go as far as excising the defect from the bill— normally by deeming it severable from the rest of the bill. Presidents also use the constitutional signing statement to note an unconstitutional violation of individual liberties or states’ rights. For example, in the “Departments of State, Justice, and Commerce, the Judiciary, and related agencies for fiscal year1978”5, an amendment6 was added that prohibited “the use of funds under this Act to carry out [President Carter’s] amnesty program [for the Vietnam War draft resisters].”7 When President Carter signed the law, he noted his objection to the amendment because it interfered with his pardon power, was an unconstitutional bill of attainder, and denied due process of the law.8 To carry out the pardon, President Carter would have to process all of the re-entry applications for those draft resisters that left the country. Even though the Justice Department announced that the restriction would prevent the re-entry of many of the draft resisters, in the end the Carter administration ignored the amendment and processed all of the applications.9 As Christopher May notes, By refusing to comply with this spending limitation, Carter effectively precluded judicial review of the limitation and of his action ignoring it. A suit to enjoin implementation of the pardon was dismissed for lack of standing. None of the plaintiffs—who included present and former military personnel, two military wives, the child of a prisoner of war, and two members of

Congress—was found to have suffered an injury sufficient to confer standing.10 The Political Signing Statement The political signing statement does not stress any infringement upon presidential prerogatives nor individual liberties. Rather, it is written in such a way that the target audience is the executive branch agencies who are to enforce the recently signed bill. The president, when issuing a politically-oriented signing statement is able to take advantage of a contentious issue in Congress that left a section of a bill ambiguous or undefined. When the president signs the bill, he is able to “breathe life” into the vague or undefined section of the bill. For example, when President Truman signed the Portal to Portal Act,11he took advantage of a highly contentious debate over the term “compensable labor” which was left undefined in the final act. He defined it in a way that advantaged a valuable constituency—organized labor—a definition that was subsequently used by the courts.12 The Rhetorical Signing Statement The rhetorical signing statement is the most common of all signing statements issued by presidents. Unlike the first two categories, the rhetorical signing statement is not making a blunt claim over constitutional issues or issues of policy. What it involves is the president’s “attempt to mobilize political support by means of public comments.”13 In the rhetorical signing statement, 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.”14 President Clinton was known for using the rhetorical signing statement largely for “hortatory” means.15 One example of a Clinton rhetorical signing statement was the use of the signing statement to appease a favored constituency, the environmental lobby. For example, environmentalists waged a fierce battle during the 104th Congress to defeat a rider to the “Omnibus Consolidated 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. History The conventional wisdom holds that Andrew Jackson was the first to issue a signing statement, when in reality the first use of the signing statement was done by President James Monroe. 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.18 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 officers.19 Andrew Jackson, who most scholars recognize as the first to use a signing statement simply because his “sparked a controversy” with the Congress.20 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.21 The House of Representatives sharply criticized

Jackson, noting that what he had done amounted to an “item veto” of the legislation.22Nonetheless, Jackson’s directive was implemented and the road did not extend beyond the Michigan Territory.23 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.24 The House of Representatives would have none of it. In a sharp and lengthy protest (authored by John Quincy Adams25), 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…26

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."27 Even though by the end of the nineteenth century the Supreme Court had recognized the right of the president to use a signing statement,28 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 1942.29 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 the bill that was a “protectionist measure for farmers”30 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.31 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.”32 The Congress yielded and the section was removed.33 The Supreme Court also looked to a Roosevelt signing statement in the case United States v Lovett.34 When Congress passed the Urgent Deficiency Appropriation Act, 194335, it attached a rider (section 304) that was aimed at punishing three particular federal employees, labeling them “irresponsible, unrepresentative, crackpot, radical bureaucrats.”36 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 judgment, binding on them.”37 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 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.38 The strategic use of the signing statement did not really happen until the Reagan administration. The Reagan administration seized upon the device as a way to not just protect the prerogatives of the presidency, but also as a means to push its preferred policies when those initiatives were lost in the Congress. In 1986, Attorney General Edwin Meese announced during a speech at the National Press Club: 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.39 The Reagan administration had slowly been testing the strength of the signing statement up to the announcement in 1986. They had successfully gotten the Supreme Court to use the signing statement when striking down the legislative veto40and the Comptroller-General provision of the “Balanced Budget and Emergency Deficit Control Act, 1985,” or more popularly known as “Gramm-Rudman.”41 Further, the administration tested the limits of the signing statement in the highly controversial showdown over the “Competition-in-Contracting Act,” which was a part of the

“Deficit Reduction Act of 1984.”42 In that instance, the Congress forced the administration to back down after it had refused to abide by a provision that allowed the Comptroller-General to sequester appropriated money in the event of a challenge to a government contract.43 Finally in the Supreme Court case Chevron USA v Natural Resources Defense Council ,44 the Court handed to the Reagan administration the ability to use the signing statement to put executive branch agencies onto the same page as the administration when interpreting statute. Chevron decided that when the legislative history of a section of a bill was unclear or ambiguous, the executive branch agency could apply “reasonable statutory interpretation” when implementing it. The Reagan administration had successfully used two executive orders45to reign in the bureaucratic agencies—Chevron proved to be the icing on the cake with respect to tying the signing statement to executive branch control. Doug Kmiec, who served in the Office of Legal Counsel (OLC) during the Reagan administration, 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.46 The Reagan administration successfully put the signing statement into the category of useful presidential tool. By adding it to the legislative history section of the USCCAN, they insured that the courts would at least pay attention to the president’s interpretation of a bill when the language was unclear and more importantly, that the executive branch agencies were made starkly aware over whose interpretation mattered when implementing vague sections of a law. The Bush and Clinton Administrations The Bush and Clinton administrations continued the trend of further developing the utility of the signing statement as a tool of strategic importance. In this next section I will examine how the Bush and the Clinton administrations used the constitutional signing statement

in ways that enhanced the president’s power during the legislative process when vetoing a bill became politically or administratively impossible. The Bush Administration The Bush administration was charged with the mandate to carry on the Reagan Revolution when it won office in 1988. President Bush, however, was not President Reagan. First, he did not enjoy the conservative support that the Reagan administration did and second he did not have the rhetorical appeal that President Reagan had. Nonetheless, his protections of the prerogatives of the presidency as well as the further development of the signing statement went beyond what the Reagan administration had managed to do. President Bush used far more constitutional signing statements than President Reagan did—146 to 71. With respect to the constitutional protection of the executive’s prerogatives, very little escaped the attention of the Bush administration. Most of the attention by the Bush administration was focused on foreign policy, which constituted over 34% of all the constitutionally-based signing statements.47 Such focus was given to the president’s prerogatives that Nelson Lund notes that the “Bush signing statements [were] 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.”48 At the outset of the Bush administration, President Bush’s Deputy-Attorney General William P. Barr wrote an OLC opinion49 outlining the ten types50 of legislative encroachments that the new administration had to be cautious of, and he urged the administration to handle those encroachments via the constitutional signing statement, often times even drafting the language to insert into certain types of bills.51

Examples In this next section I will discuss two different laws—“The Dayton Aviation Heritage Preservation Act” and the “National and Community Services Act of 1990—to illustrate the Bush administration’s use of the presidential signing statement over the appointment power will be instructive to see how powerful the signing statement can be. I will then turn my attention to the strategic development by the Bush administration of the constitutional signing statement by a discussion of the “Civil Rights Act of 1991.” The Dayton Aviation Heritage and Preservation Act In the first example, when President Bush signed the “Dayton Aviation Heritage Preservation Act of 1992,”52 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.53 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.”54 Gessel conveyed to me his surprise at the length the administration was willing to go to protect presidential prerogatives over what he deemed a minor defect in the bill.55 National and Community Services Act The second example comes over how people were appointed to a commission as part of the “National and Community Services Act of 1990.”56 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.57 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 legislation58 bringing the statute into conformity with the President's view of the Appointments Clause early in the next legislative session.”59 The Strategic Development of the Signing Statement: The Civil Rights Act of 1991 The Bush administration seized upon the addition of the signing statement to the “Legislative History” section of the USCCAN by developing a strategy of pre-planting a legislative history that it could point to in a signing statement. The president, along with co-partisans in the Congress, would create an alternative legislative history of a bill in those instances where the president’s position had lost out in the negotiations with the majority in Congress. Upon signing the bill, the president would specifically mention the alternative legislative history as the guiding interpretation for the legislation for the executive branch agencies to follow. For example, early into President Bush’s term, he was dogged by his role in the IranContra affair while he was vice-president in the Reagan administration. The trial of Oliver North in 1989 renewed public attention to the President’s role,60 and during congressional debate over the “Foreign Operations, Export Financing, and Related Programs Appropriations Act,”61 Representative David Obey (D-Wisconsin) 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.”62 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 Bush63as an unconstitutional violation of the president’s power over foreign policy and 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.”64 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.”65 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.”66 Bush finds his interpretation of this section in an “explanatory colloquy” between Senators (Robert) Kasten and (Warren) Rudman.67 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 582.68

According to Charles Tiefer, this was done for the sole purpose of manipulating the legislative history.69 Tiefer claims that this was a strategy worked out between the White House and Senator Bob Dole, 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.”70 The purpose was to supplant “congressional legislating on a central and hotly contested issue.”71 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.72 This strategy would pay huge dividends in 1991 when the president was “forced” to sign the Civil Rights Act of 1991. In 1990, the president had vetoed a civil rights bill because he deemed it to be a “quota bill” and the Congress failed to override the veto. A year later, however, the president signed a civil rights bill that largely resembled the one he vetoed a year earlier. There are two good reasons that the president signed the Civil Rights Act of 1991. . 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.”73 Wards Cove had changed the meaning of “disparate impact” that had been used since

197174 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 no discriminatory intent is alleged or proved.”75 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.”76 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 “disparateimpact plaintiff.”77 In the 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 Memorandum,” read: The terms "business necessity" and "job related" are intended to reflect the concepts enunciated by the 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).78 When President Bush signed the bill, he issued a statement that Charles Tiefer refers to as “the most controversial signing statement.”79 When the president signed the bill, he begun by

noting that the bill “codifies” rather than “overrules” the Supreme Court decision in Wards Cove.80 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.81 The Clinton Administration The institutional relationship reached the ultimate low point during the Clinton administration when in 1998 the House of Representatives voted for only the second time in US history to impeach the president. In 1999, the Senate tried and failed to convict President Bill Clinton. When Bill Clinton took office in 1993, the sense of a new direction in bipartisanship was in the air after more than a decade of hostilities between the Democrats in the Congress and the Reagan and Bush administrations. Bill Clinton came to the office with a mandate from the voters to change the direction of the country, and he was seemingly in a position to do this with a government that was under unified party control. But unified party control was no match for the institutional differences between the branches. Since the 1970s, with the trend toward highly polarized partisan politics between the branches, the presidency had looked within to protect its prerogatives and advance its

preferences. Even when President Clinton was facing his lowest moments of the presidency in 1998, he had amassed a number of institutional weapons to compensate for the terrible relations with the Congress. As Jeremy C. Taylor of the Cato Institute noted: “This President distinguishes himself from past Presidents by the aggressiveness with which he has expanded his authority without explicit Congressional approval.”82 Even though President Clinton was blessed with unified party control when he came to office, his staff in the OLC early on was busy defending unique presidential powers, particularly the signing statement. In November 1993, Walter Dellinger, who was an assistant-Attorney General in the OLC wrote a memorandum to White House Counselor Bernard Nussbaum outlining a constitutional defense for the presidential signing statement.83 The memo was in reality a defense of the constitutional signing statement and its place in legislative history. Dellinger argued that a president was within his rights to use the constitutional signing statement to declare some provisions of a law would be unconstitutional in certain circumstances, when it would be needed to construe sections to “save” it from unconstitutionality, or when a provision is unconstitutional “on its face.”84A year later he took the opportunity to further explore the right in a memorandum to Judge Abner Mikva, a counselor to President Clinton.85 Dellinger opens with the blunt statement that one area that there does not seem to be any controversy is the area in which some circumstances warrant a president to decline to enforce unconstitutional statutes.86 Most notably in his memo to Judge Mikva, Dellinger argues that the [P]resident has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that he court would disagree with his assessment…[I]f resolution in the

courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency. (emphasis added) 87 A look at the Clinton record of the use of the presidential signing statement shows that Clinton used the constitutional signing statement less than his predecessor (105 to 146), but still more than the Reagan administration (105 to 71).88 In using the constitutional signing statement, Clinton was similar to the Bush administration in issuing most in the area of foreign policy (52%),89 precisely where presidential power is at its zenith.90 But even where the power of the presidency is clearest, President Clinton was still willing to use the constitutional signing statement from the high profile to the mundane, often to achieve what could not be achieved after veto bargaining had taken place. And like the Bush administration, President Clinton in at least three separate instances91 asked the OLC to issue opinions either buttressing the president’s authority to decline to enforce provisions of a statute or to direct inferior officers on how to implement the terms of a constitutional signing statement, and in two additional cases, the OLC wrote highly expansive and detailed memorandum on the legal significance of the constitutionally-based signing statement.92 Examples In this next section, I will discuss three examples of how the Clinton administration successfully used the constitutional signing statement. The first example will discuss section 567 of the “National Defense Authorization Act for Fiscal Year 1996”, or the HIV provision. The second example will be a discussion involving the Government Printing Office in executive branch printing and duplicating which was part of the “Legislative Branch Appropriations Act of 1995”, and third was a loophole that allowed the Clinton administration to excise a legislative veto provision in the “Omnibus Consolidated and Appropriations Act of 1996”.

National Defense Authorization Act President Clinton signed the “National Defense Authorization Act of 1996”93in February, 1996. Three months earlier, he had vetoed a similar bill94 for, among other things, containing a provision that required “medically unwarranted discharge procedures for HIV-positive service members.”95 However, when the president was faced with a second bill that contained the same provision,96 he signed it due to the military’s need for the appropriated funds.97 As Dawn Johnsen argues, the president failed to couch his objection to the provision in constitutional terms at the time of the veto and the Congress failed to deal with the issue as it came up the second time as being a serious problem within the bill, and as such, the provision never received a hearing.98 When President Clinton signed the bill, he noted in his signing statement that section 567 of the act was unconstitutional and he directed the Attorney-General to not defend it if challenged.99Before the president would have had to make the decision whether to enforce the provision or not, he successfully worked with the Congress to have the section repealed,100 thus successfully using the signing statement to remedy an unconstitutional provision. Legislative Branch Appropriations Act President Clinton took over from previous presidents in his objection to Government Printing Office involvement in executive branch functions.101 In the 1995 Legislative Branch Appropriations Act, 102President 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.”103 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.”104 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.105 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 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.106 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.107 In Dellinger’s direction to Emily Hewitt, he wrote that due to the unconstitutional infringement upon executive branch prerogatives allowed executive branch agencies to disregard this section of the statute 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.108 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. Omnibus Consolidated Rescissions and Appropriations Act In the Spring of 1996, President Clinton signed the “Omnibus Consolidated Rescissions and Appropriations Act of 1996” largely to avoid another government shut down akin to the shutdown that occurred in the Fall of 1995. This omnibus bill was an amalgam of independent acts, many of which had been vetoed earlier, that covered a variety of programs, from education and law enforcement to environmental programs and national service. One bill in particular that dealt with the funding for the Interior was identified by President Clinton for being problematic. An earlier Interior appropriations bill109 had been vetoed by the President for a number of “wrong-headed choices with regard to the management and preservation of some of our most precious assets.” In the Omnibus act, the problematic sections of the Interior bill had been reinserted, even though they were heavily criticized by members of both parties’ in Congress, with some of the riders eventually either substantially altered or deleted.110

Even though the riders did get attached to the act, the administration had managed to work with members of the conference committee to allow the president to waive riders if he determined that “suspension was appropriate, based upon the public interest in sustainable environmental management or the protection of cultural, biological, or historic resources.”111 When President Clinton signed the act into law, he invoked his authority to suspend sections of the bill, and quickly went about suspending three riders seen as an affront to the environment in our national parks. However, in one section, he noted that …section 119(a) of the Department of the Interior and Related Agencies Appropriations Act, 1996, contains a legislative veto, which would be unconstitutional under INS v. Chadha (462 U.S. 919) (1983). However, because I am suspending section 119(a) pursuant to section 119(b), the constitutional problem will be avoided.112 Section 119 (a) of the act ordered the Secretary of the Interior to not take any action on how the Mojave National Preserve was managed until a final plan was submitted that “incorporated multiple uses of the region” and to obtain the approval of House and Senate Committees when spending any funds “in excess of $1,100,000 for the operation of the preserve.”113 Section 119 (b) allowed the president to suspend section a when “such suspension is appropriate based upon the public interest in sound environmental management, sustainable resource use, protection of national or locally-affected interests, or protection of any cultural, biological or historic resources.”114 Is a legislative veto an appropriate use of the suspension power? In the other instances of suspension in the act, the president outlined how the riders specifically presented a threat to the public interest.115Yet in section 119 (a) he is suspending the section because it encroached upon executive prerogatives and not because it threatened the public interest. There was no backlash for the president’s interpretation of the “public interest” probably because the riders generally

did not receive widespread congressional support and because the riders were set to expire on September 30, 1996. Nonetheless, the lack of a congressional challenge to the president’s signing statement gives the president the authority to decide the outcome of contentious debates within the Congress to the advantage of the executive. Conclusion This paper has been an effort to shed light on a highly potent, yet little studied, presidential power. The presidential signing statement enjoys an historic lineage that dates back to the Monroe administration, yet has only been used strategically since the Reagan administration. The focus of this paper was on one specific type of signing statement—the constitutional signing statement—and how it was both developed and used during the Bush and the Clinton administrations. In my effort, I demonstrated that the constitutional signing statement was useful for both presidencies when they either were unable get what they wanted in their negotiations with the Congress or to resolve disputes over contentious legislation that was unresolved by the Congress. For the Bush administration, it was able to use the signing statement to protect the presidential prerogatives of appointment and to attempt to control a highly controversial piece of legislation—the Civil Rights Act of 1991—when it was clear that a second veto was politically impossible. For the Clinton administration, the signing statement was an important cornerstone of presidential power, as outlined by Walter Dellinger in his 1993 OLC memo. It would become particularly important after the 1994 midterm elections when the Congress became Republican and more polarized. Clinton used the signing statement to control Omnibus legislation, for instance, that he had vetoed earlier but was pressed to sign to fund governmental programs.

This paper was meant to draw the attention of those who study the relationship of the Congress and the President to a key power—demonstrated in the examples above—that give the president an added bonus in the negotiation of legislation. Our attention has too often been directed towards the veto and veto bargaining without any recognition of resources employed by the president to give him enhanced veto power, which is what the constitutional signing statement does.

Endnotes 1

See Cooper, Phillip J. By Order of the President: The Use and Abuse of Executive Direct Action. Kansas: University of Kansas Press. 2002; Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton: Princeton University Press. 2002. 2 See Cameron, Charles M. Veto Bargaining: Presidents and the Politics of Negative Power. UK: Cambridge University Press. 2000. 3 See Garber, Marc N. and Kurt A. Wimmer. “Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power.” 1987 Harvard Journal on Legislation. 24:363-395. 4 For an especially instructive overview of the signing statement, see Dellinger, Walter. “The Legal Significance of the Presidential Signing Statement.” Opinion of the Office of Legal Counsel. 1993 OLC Lexis 34. November 3, 1993. 5 Public Law 95-86 (1977). Available at http://thomas.loc.gov. Accessed July 11, 2002. 6 House Amendment 358. Available at http://thomas.loc.gov. Accessed July 11, 2002. 7 Ibid. 8 Carter, James E. “Statement on Signing an Appropriations Bill.” Weekly Compilation of Presidential Documents Vol13. 1977. August 3, 1977. pp.1163-64. 9 May, Christopher. Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative. Connecticut: Greenwood Press. 1998. pg. 112. 10 Ibid. pg. 112. 11 61 Stat. 84 12 See 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). 13 Zernicke, Paul Haskell. “Presidential Roles and Rhetoric.” Political Communication and Persuasion. Volume 7. 1990. pg.231. 14 Killenbeck, Mark R. A Matter of Mere Approval? The Role of the President in the Creation of Legislative History.” Arkansas Law Review 48 1995. pp. 273-74. 15 Phone interview with Jim Yokes, representative in the Legislative Reference Division of the Office of Management and Budget. May 24, 2002. 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. 18 May, Christopher. pg.116. 19 Ibid. pg. 116. 20 Most scholars, when they begin with the Jackson administration, refer to Louis Fisher. See Fisher, Louis. Constitutional Conflicts between Congress and the President. Kansas: University of Kansas Press. 1991. pg. 128. 21 Waites, Bradley. “Let Me Tell You what You Mean: An Analysis of Presidential Signing Statements.” Georgia Law Review. 21:755. Winter, 1987. pg.777. 22 Fisher. pg. 128. 23 May notes that after Jackson had left office that the road did extended beyond the Michigan Territory, into Indiana. May, pp. 84-85. 24 Richardson, James D. Messages and Papers of the Presidents. Bureau of Natural Literature and Art. Volume 2. 1903. pg. 159. 25 McGreal, Paul E. "Unconstitutional Politics." Notre Dame Law Review. 76:519. January, 2001. 26 H.R. Rep. No. 909, 27th Congress, 2d Session. 1842. 27 Ibid. 28 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.” 29 56 Stat. 26, January 30, 1942. 30 Monaghan, Henry P. "The Protective Power of the Presidency." Columbia Law Review. 93:1, January 1993. pg. 29.

31

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. 32 Monaghan, Henry P. pg. 29. 33 Ibid. pg. 29. 34 238 US 303, 1946. 35 57 Stat. 431, 450. 36 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 . . . ." 37 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. 38 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. 39 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. 40 In footnote 13 of “INS v Chadha” 462 U.S. 919 (1983), the Supreme Court noted 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.” 41 Public Law 99-177. In Footnote One of the decision Bowsher v Synar, 478 U.S. 714 (1986), the Court relied upon President Reagan’s signing statement and the objections he made regarding the unconstitutional violation of the separation of powers doctrine. 42 PL 98-369 (1984) 43 See Schoenbrod, David. “Presidential Lawmaking Powers: Vetoes, Line Item Vetoes, Signing Statements, Executive Orders, and Delegations of Rulemaking Authority.” Washington University Law Quarterly. 68:533-560 1990; Kmiec, Douglas. “OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive.” 15 Cardozo Law Review. 337, October 1993; and Paulsen, Michael Stokes. “The Most Dangerous Branch: The Executive Power to Say what the Law is.” Georgetown Law Review 83: 217. December 1994. 44 467 U.S. 837 (1984) 45 Executive Order 12,291, 46 Federal Register 131937 (1981) and Executive Order 12,498, 50 Federal Register 1036 (1985). 46 Email interview with Douglas Kmiec, April 23, 2001. 47 The categories that I have placed the constitutional signing statements are: Internal Deliberations (30), Legislative Veto (13), Appointment (32), Foreign Policy (49), Recommendations (15), Presentment (3), and Federalism (2). 48 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. 49 Barr, William P.. “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. 50 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. 51 For example, in outlining the attempts that congress makes to gain access to sensitive executive branch internal discussions, Barr suggested 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 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. 52 PL102-419. October 16, 1992. 53 Bush, George H. W. “Statement on Signing the Dayton Aviation Heritage Preservation Act of 1992.” Weekly Compilation of Presidential Documents. October 16, 1992. pg. 1966. 54 Public Law No. 104-333. November 12, 1995. 55 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. 56 Public Law 101-610. November 16, 1990. 57 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 58 National and Community Service Technical Amendments Act of 1991, Public Law 102-10. 1991. 59 Lund, Nelson. “Lawyers and the Defense of the Presidency.” Brigham Young University Law Review Number 17. 1995. pg. 48. 60 Whiting, Alex. “Controlling Tin Cup Diplomacy.” Yale Law Journal. Volume 99. June 1990. 61 PL101-167. 62 Tiefer, Charles. The Semi-Sovereign Presidency: The Bush Administration’s Strategy for Governing without Congress. Boulder: Westview Press. 1994. pg. 38. 63 Bush, 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. 64 Tiefer. pg. 38. 65 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. 66 Ibid. pg. 1811. 67 Ibid. pg. 1811. 68 Ibid. pg. 1811. 69 Tiefer. pg. 40. 70 Ibid. pg. 40. 71 Ibid. pg. 40. 72 Ibid. pg. 38. 73 490 U.S. 642. 1989. 74 Griggs v. Duke Power. 401 US 424. 1971. 75 Clegg, Roger. “A Brief Legislative History of the Civil Rights Act of 1991.” Louisiana Law Review. 54:1459. July, 1994. pg. 1460. 76 Clegg. pg. 1460. 77 Ibid. pg. 1460. 78 “The Civil Rights Act of 1991.” The Congressional Record. Vol. 137 No. 155. October 25, 1991. pg. S.15273. 79 Tiefer. pg. 56. 80 Ibid. pg. 57. 81 LaFraniere, Sharon. “Civil Rights Act Focus Turns to Enforcement; Debate Over Standard for Business Continues.” The Washington Post. November 26, 1991. Pg. A19. 82 Pear, Robert. “The Presidential Pen is Still Mighty.” The New York Times. Section Four, Page Three. June 28, 1998. 83 Dellinger, Walter. “The Legal Significance of the Presidential Signing Statement.” Opinion of the Office of Legal Counsel. 1993 OLC Lexis 34. November 3, 1993. 84 Ibid. pp. 6-7.

85

Dellinger, Walter. “Presidential Authority to Decline to Execute Unconstitutional Statutes.” Opinion of the Office of Legal Counsel. 18 Op. O.L.C. 199. November 2, 1994. 86 Ibid. pg. 1. 87 Ibid. pp. 5-6. 88 Clinton actually concentrated most of his attention toward the rhetorical power of the signing statement, issuing 265 or 68% of all signing statements. This coincides with the rhetorical nature of the Clinton administration. 89 The categories that I classified for constitutional signing statements are: Foreign Policy (55), Legislative Veto (14), Individual Rights (4), Appointment (19), Internal Deliberation (17), and Recommendations (11). 90 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. 91 Dellinger, Walter. “Deployment of the Armed Forces into Haiti.” Opinion of the Office of Legal Counsel. 1994 OLC LEXIS 42. September 27, 1994 (Memorandum for the signing statement to the “Department of Defense Appropriations Act, 1994” November 11, 1993); 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); and Shiffrin, Richard L. “Severability and Duration of Appropriations Rider Concerning Frozen Poultry Regulations.” Opinion of the Office of Legal Counsel. 1996 OLC Lexis 47. June 4, 1996. (Memorandum to James S. Gilliland, General Counsel, U.S. Department of Agriculture on how to implement the terms of the signing statement to the “Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 1996. Public Law 104-37). 92 Dellinger, Walter. “The Legal Significance of the Presidential Signing Statement.” Opinion of the Office of Legal Counsel. 1993 OLC Lexis 34. November 3, 1993 and Dellinger, Walter. “Presidential Authority to Decline to Execute Unconstitutional Statutes.” Opinion of the Office of Legal Counsel. 18 Op. O.L.C. 199. November 2, 1994. 93 Public Law No. 104-106. 94 The “National Defense Authorization Act for Fiscal Year 1996” (H.R. 1530) was vetoed on December 28, 1995. 95 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. Volume 31, Number 52. December 28, 1995. pp. 2233-2235. President Clinton had received advice from the military that the HIV-infected service personnel would not impinge upon unit readiness, contrary to the amendment’s supporters who claimed that HIV-infected personnel “require reassignment and continued restrictions on future assignments because of health related concerns.” Further, as potential blood donors, they would detract from “available resources” because they could not be called upon to give blood. See remarks by Congressman Ron Packard, Congressional Record Volume 141, Number 98. June 15, 1995. pg. H6007. 96 Section 567 97 Johnsen, Dawn E. “Presidential Non-Enforcement of Constitutionally Objectionable Statutes.” Law and Contemporary Problems. Volume 63, Number 7. Winter/Spring 2000. pg. 7. 98 Ibid. pg. 58. 99 Clinton, William J. “Statement on Signing the National Defense Authorization Act for Fiscal Year 1996.” Weekly Compilation of Presidential Documents. Volume 32, Number 7. February 10, 1996. pg. 260. 100 Repealed in the Omnibus Consolidated Rescissions and Appropriations Act of 1996. Public Law 104-134. Approved April 26, 1996. 101 For an exhaustive overview, see 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. 102 Public Law 103-283. 103 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. 104 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. 105 Ibid.

106

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) 107 “Legislative Branch Appropriations Act of 1995.” Public Law 103-283. 108 Dellinger, Walter. “Involvement of the Government Printing Office in Executive Branch Printing and Duplicating.” pp. 39-40. 109 Clinton, William J. “Message to the House of Representatives Returning Without Approval the Department of the Interior and Related Agencies Appropriations Act, 1996.” Weekly Compilation of Presidential Documents. Volume 31, Number 51. December 18, 1995. pp. 2198-99. 110 Zellmer, Sandra Beth. “Sacrificing Legislative Integrity at the Altar of Appropriations Riders: A Constitutional Crisis.” The Harvard Environmental Law Review. Volume 21. pg. 492. 111 Ibid. pg. 493. 112 Clinton, William J. “Statement on Signing the Omnibus Consolidated Rescissions and Appropriations Act of 1996.” Weekly Compilation of Presidential Documents. Volume 32, Number 17. April 26, 1996. pg. 729. 113 “Omnibus Consolidated Rescissions and Appropriations Act of 1996.” Public Law 104-134. 114 Ibid. 115 In his signing statement for the act, President Clinton specifically states that: If I had not suspended these riders, they would have: overridden existing environmental laws and led to unsustainable levels of timber cutting in Alaska's Tongass National Forest; drastically undermined the level of protection provided to the Mojave National Preserve by the 1994 California Desert Protection Act; and prohibited proposed or final listing actions by the Departments of the Interior and Commerce under the Endangered Species Act, which could have resulted in a greater risk of extinction of some of the over 400 species that are currently either proposed for listing or for which proposed listings are awaiting evaluation. pg. 727.

Bibliography Author Index Barr, William P. “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. Bush, George H. W. “Statement on Signing the Dayton Aviation Heritage Preservation Act of 1992.” Weekly Compilation of Presidential Documents. October 16, 1992. ----------. . “Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990.” Weekly Compilation of Presidential Documents. November 21, 1989. ----------.“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. ----------. “ Statement on Signing the National and Community Service Act of 1990.” PL101-610. Weekly Compilation of Presidential Documents. November 16, 1990. Cameron, Charles M. Veto Bargaining: Presidents and the Politics of Negative Power. UK: Cambridge University Press. 2000. Carter, James E. “Statement on Signing an Appropriations Bill.” Weekly Compilation of Presidential Documents Vol13. 1977. August 3, 1977. Clegg, Roger. “A Brief Legislative History of the Civil Rights Act of 1991.” Louisiana Law Review. 54:1459. July, 1994. Clinton, William J. “Message to the House of Representatives Returning Without Approval the Department of the Interior and Related Agencies Appropriations Act, 1996.” Weekly Compilation of Presidential Documents. Volume 31, Number 51. December 18, 1995. ----------. “Message to the House of Representatives Returning Without Approval the National Defense Authorization Act for Fiscal Year 1996.” Weekly Compilation of Presidential Documents. Volume 31, Number 52. December 28, 1995. ----------. “Statement on Signing the Legislative Branch Appropriations Act of 1995.” Weekly Compilation of Presidential Documents. Volume 30, Number 30. July 22, 1994. ----------.“Statement on Signing the National Defense Authorization Act for Fiscal Year 1996.” Weekly Compilation of Presidential Documents. Volume 32, Number 7. ----------. “Statement on Signing the Omnibus Consolidated Rescissions and Appropriations Act of 1996.” Weekly Compilation of Presidential Documents. Volume 32, Number 17. April 26, 1996. Cooper, Phillip J. By Order of the President: The Use and Abuse of Executive Direct Action. Kansas: University of Kansas Press. 2002 Dellinger, Walter. Deployment of the Armed Forces into Haiti.” Opinion of the Office of Legal Counsel. 1994 OLC LEXIS 42. September 27, 1994 ----------. “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.

----------. “The Legal Significance of the Presidential Signing Statement.” Opinion of the Office of Legal Counsel. 1993 OLC Lexis 34. November 3, 1993. ----------.“Presidential Authority to Decline to Execute Unconstitutional Statutes.” Opinion of the Office of Legal Counsel. 18 Op. O.L.C. 199. November 2, 1994. Fisher, Louis. Constitutional Conflicts between Congress and the President. Kansas: University of Kansas Press. 1991 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. 1987. Johnsen, Dawn E. “Presidential Non-Enforcement of Constitutionally Objectionable Statutes.” Law and Contemporary Problems. Volume 63, Number 7. Winter/Spring 2000. Killenback, Mark R. “A Matter of Mere Approval? The Role of the President in the Creation of Legislative History.” Arkansas Law Review 48 1995. Kmiec, Douglas. “OLC’s Opinion Writing Function: The Legal Adhesive for a Unitary Executive.” Cardozo Law Review. 15:337, October 1993 LaFraniere, Sharon. “Civil Rights Act Focus Turns to Enforcement; Debate Over Standard for Business Continues.” The Washington Post. November 26, 1991. Pg. A19. 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. ----------.“Lawyers and the Defense of the Presidency.” Brigham Young University Law Review Number 17. 1995. May, Christopher N. Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative. Connecticut: Greenwood Press. 1998. Mayer, Kenneth R. With the Stroke of a Pen: Executive Orders and Presidential Power. Princeton: Princeton University Press. 2002. McGreal, Paul E. "Unconstitutional Politics." Notre Dame Law Review. 76:519. January, 2001 Monaghan, Henry P. "The Protective Power of the Presidency." Columbia Law Review. 93:1, January 1993. Paulsen, Michael Stokes. “The Most Dangerous Branch: The Executive Power to Say what the Law is.” Georgetown Law Review 83: 217. December 1994. Pear, Robert. “The Presidential Pen is Still Mighty.” The New York Times. Section Four, Page Three. June 28, 1998.

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/gov36.cfm. Accessed April 3, 2002. Richardson, James D. Messages and Papers of the Presidents. Bureau of Natural Literature and Art. Volume 2. 1903. 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. ----------. “Statement on Signing the Urgent Deficiency Appropriation Act, 1943.” The Public Papers and Addresses of Franklin Delano Roosevelt. New York: Harper Brothers Publishing. 1943. Schoenbrod, David. “Presidential Lawmaking Powers: Vetoes, Line Item Vetoes, Signing Statements, Executive Orders, and Delegations of Rulemaking Authority.” Washington University Law Quarterly. 68:533-560 1990 Shiffrin, Richard L. “Severability and Duration of Appropriations Rider Concerning Frozen Poultry Regulations.” Opinion of the Office of Legal Counsel. 1996 OLC Lexis 47. June 4, 1996. Tiefer, Charles. The Semi-Sovereign Presidency: The Bush Administration’s Strategy for Governing without Congress. Boulder: Westview Press. 1994. Waites, Bradley. “Let Me Tell You what You Mean: An Analysis of Presidential Signing Statements.” Georgia Law Review. 21:755. Winter, 1987. Whiting, Alex. “Controlling Tin Cup Diplomacy.” Yale Law Journal. Volume 99. June 1990. Zellmer, Sandra Beth. “Sacrificing Legislative Integrity at the Altar of Appropriations Riders: A Constitutional Crisis.” The Harvard Environmental Law Review. Volume 21. Zernicke, Paul Haskell. “Presidential Roles and Rhetoric.” Political Communication and Persuasion. Volume 7. 1990. Bills, Resolutions, Executive Orders and Public Laws “Balanced Budget and Emergency Deficit Control Act, 1985.” Public Law 99-177 The Civil Rights Act of 1991.” The Congressional Record. Vol. 137 No. 155. “Dayton Aviation Heritage Preservation Act of 1992.” PL102-419. “Deficit Reduction Act of 1984. PL 98-369 (1984). “Emergency Price Control Act of 1942.” 56 Stat. 26. Executive Order 12,291, 46 Federal Register 131937 (1981)

Executive Order 12,498, 50 Federal Register 1036 (1985). “Foreign Operations, Export Financing, and Related Programs Appropriations Act.” PL101-167 H.R. Rep. No. 909, 27th Congress, 2d Session. 1842. “Legislative Branch Appropriations Act of 1995.” Public Law 103-283. “National and Community Services Act of 1990.” Public Law 101-610. National and Community Service Technical Amendments Act of 1991, Public Law 102-10. “National Defense Authorization Act of 1996.” Public Law 104-106. “Omnibus Consolidated Rescissions and Appropriations Act of 1996.” Public Law 104-134 “Omnibus Parks and Public Lands Management Act of 1996.” Public Law 104-333. “Urgent Deficiency Appropriation Act, 1943.” 57 Stat. 431, 450. Court Cases Bowsher v Synar, 478 U.S. 714 (1986) Chevron USA v Natural Resources Defense Council. 467 U.S. 837 (1984) Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969); Cole v. Farm Fresh Poultry, Inc., 824 F.2d 923, 928 (11th Cir. 1987). EEOC v. Home Ins. Co., 672 F.2d 252, 264-65 (2d Cir. 1982) Griggs v. Duke Power. 401 US 424. 1971. INS v Chadha 462 U.S. 919 (1983), La Abra Silver Mining Co. v United States (175 US 423) 1899 United States v Lovett. 238 US 303, 1946.