The Presidential Signing Statements Controversy

Strauss, Peter; Cass, Ronald A.

After all is said and done, the presidential signing statement clearly should be understood to be an appropriate, often helpful-and certainly constitutional-tool of presidential participation in the process of enacting and enforcing our laws. Although a smaller set of signing statements accompany actions that are not consistent with rule of law values, and others express interpretations of questionable validity, the signing statement itself is implicated as a problematic device only when it lowers the cost of the offending conduct. This occurs when the President signs a law that he believes, in its core provisions, so fundamentally violates the Constitution that he cannot with a straight face declare its constitutional merits outweigh its flaws. The problem is not that the President says too much too often about the laws he signs, but instead that he reduces the clarity and predictability of the law if he signs legislation that he is declaring wrong at its core-and wrong in ways that, as an independent constitutional actor, he has an obligation to confront. Ultimately, it is the very fact of his independent constitutional authority that makes a subset of signing statements problematic-not because the President oversteps his bounds in saying so much but because he falls short of his obligation to the Constitution to veto laws that he believes stand primarily as vehicles for violating our most fundamental legal charter.


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The William and Mary Bill of Rights Journal

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April 14, 2016