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Zivotofsky v. Kerry (2015) highlighted, the constitutional tension surrounding the use of executive signing statements, especially with regard to the president's power to conduct foreign affairs. Critics contend that signing statements come perilously close to having the effect of line-item vetoes, which the Supreme Court declared unconstitutional in Clinton v. City of New York. I suggest that signing statements are simply written manifestations of practices that naturally occur in a system of checks and balances and in a system where executive branch officials may and must interpret the text of legislation. While signing statements may raise the specter of a president who ignores the express will of Congress, this also is a manifestation of the workings of a constitutional system in which Congress and the president share lawmaking power.
Keywords: signing statement, executive power, presidential power, separation of powers, U.S. Constitution
On August 2, 2017, President Trump signed the "Countering America's Adversaries Through Sanctions Act" into law. In so doing, he included a signing statement in which he asserted that the bill was severely flawed because "it encroaches on the executive branch's authority to negotiate." Making the controversial statement that "[t]he Framers of our Constitution put foreign affairs in the hands of the President," Trump also asserted that parts of the bill were clearly unconstitutional and, therefore, that he would either ignore or qualify them. (White House, August 2, 2017).
The president's claims in the signing statement precipitated a small storm of media discussion about the scope and definition of executive power in the constitutional system (particularly with regard to foreign affairs) and the constitutionality of the signing statement (Savage 2017). Nonetheless, it is important to note that presidential use of signing statements is a long-standing practice that dates back to the tenure of James Monroe (Garvey 2012, 1). Their use over time has been particularly controversial as presidents have employed them not simply to put an interpretive gloss on legislation but also, according to a 2012 report by the Congressional Research Service (CRS), as justifications for "an expansive conception of presidential authority, coupled with a willingness to utilize fully mechanisms that will aid in furthering and buttressing that philosophy" (Garvey 2012, 26). Under the George W. Bush and Barack Obama administrations, this has...