In the American system, Congress
passes laws, the president signs and carries
them out, and the courts interpret them or
determine if they’re constitutional,
right? It turns out it’s not quite that
simple. Thanks to signing
statements, presidents may put their thumbs on the scale and say more
about what a law means, in practice, than does Congress.
President
Trump exerted that kind of presidential primacy in connection with a key
portion of the $2.2 trillion economic stimulus
package aimed at helping the nation through the current coronavirus
pandemic. Congress
passed that legislation
March 27
and Trump signed it the same day. Hours
later he released a signing statement indicating he doesn’t intend on complying
with all the provisions of the law that would assure transparency in the $500
billion part of the legislation aimed at helping corporations. So, what’s a
signing statement and can Trump do what he said he’d do?
A Tradition from
Nowhere
Signing statements express a
president’s view of the constitutionality of specific legislation or how his interpretation
of the legislation will guide enforcement of it or its
anticipated impact. They
date back to James
Monroe’s presidency. Ronald
Reagan rapidly expanded its use in the 1980s. The Gipper issued 250 of them. In only one term, his
successor, George H.W.
Bush, issued 228. Bill
Clinton
Despite this history, the federal constitution does not
include a signing statement provision. They’ve just sort of become part of the
legislative process. Members of Congress and others have challenged the actions
presidents have taken through signing statements. Such challenges assert the
president acted in a way at odds with the intent of Congress in passing the law
at issue. The challenges have a mixed record, with the outcome of the cases
turning on whether the court concluded the president did or did not enforce the
law as Congress intended. Courts have not, however, declared the practice of
issuing and using signing statements unconstitutional.
Trump and the Stimulus
Legislation
Trump said his administration
wouldn’t treat the stimulus legislation as permitting the inspector general
provided for in the bill (also known as the SIGPR)
to issue reports to Congress without his approval. In other words, the special
inspector general couldn’t give Congress potentially damaging information about
how the $500 billion corporate relief part of the package is being
spent unless
Trump personally approved. Congressional Democrats and watchdog groups fear
much of the $500 billion will get used by corporations for things like stock buybacks
and executive bonus payments, not worker salaries as Congress intended.
Trump’s signing statement flies in
the face of
the transparency congressional Democrats, in particular, fought for in passing the bill. Many in Congress don’t trust that Trump and his Treasury
Secretary, Steve Mnuchin, will make sure the money benefits workers, not corporate executives as occurred with TARP money during the Great Recession of 2008.
Secretary, Steve Mnuchin, will make sure the money benefits workers, not corporate executives as occurred with TARP money during the Great Recession of 2008.
Certainly, presidents have used signing statements for reasons
that don’t suggest evil. These include telling the public what the president
expects as a likely effect of the legislation or guiding subordinates in
carrying out the legislative purpose. Presidents have also used signing
statements in advising the public he views some part of the bill as
unconstitutional and expects a court challenge. Trump, however, suggested none
of these things in his statement. He just made clear the public will find out
only what he wants it to find out about the $500 billion.
What to Do
When someone with dishonest motives
occupies the White House, the temptation
arises to say that the courts or Congress or someone
should get rid of signing statements. After all, they have no textual
foundation in the constitution and Congress has never enacted a statue
providing for them.
History, though, shows that
presidents in both parties use them, perhaps for good reason.
Signing
statements may, under certain circumstances, function as part of our system of checks and balances. Congress, for example, could go off the deep end
with ill-advised legislation a president prefers not vetoing
because it contains provisions
addressing a serious national need.
A signing statement, and subsequent presidential action, limiting the negative
impact of the bad parts of the legislation may represent the best course for
the country. Perhaps signing statements aren’t all bad. We believe the country can take some
comfort in knowing that
the courts remain the final arbiter of any action the president takes pursuant
to the execution of any signing statement.
The presence of signing statements in
our system illustrates the power of the presidency
and emphasizes
the importance of getting right who occupies that office. In November
the voters weigh in on who can issue signing statements the next four
years. As we’ve said before, we can’t mess this up.
