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Unpublished Paper
The President as a Lawmaker: The Misuse of Presidential Signing Statements Under the Administration of George W. Bush
ExpressO (2011)
  • Steven Morris, New York University
Abstract

This Paper discusses the use and abuse of presidential signing statements from the time of the founding up to the present era. This Paper argues that although presidential signing statements are not constitutionally repugnant in and of themselves, the use of a certain type of presidential signing statement, known as a "constitutional objection" signing statement, is in clear violation of the sacrosanct doctrine of separation of powers since it effectively imbues the president with the power to make the law. Through the issuance of a "constitutional objection" signing statement, the president manifests his intention to nullify, modify, or completely disregard a particular statutory provision. This type of signing statement was rarely issued prior to middle of the 20th century, but became commonplace during the time of the Bush administration.

This Paper is divided into four parts. In Part I, this Paper examines the origins of separation of powers and identifies its place in the American constitutional system, with a special emphasis on what powers the president does and does not possess with respect to the lawmaking process laid out in Article I of the Constitution. Then in Part II, this Paper goes on to study the history of presidential signing statements, from the time President Monroe issued the first ever signing statement all the way up to the end of the Bush administration. In Part III, this Paper conducts a comprehensive legal analysis of "constitutional" objection signing statements along with their foundations in unitary executive theory, and concludes that the position that the president has the legal authority to unilaterally modify or decline to enforce acts of Congress that he believes to be unconstitutional is without basis in the Constitution's text, the intent of the Framers, and the most pertinent Supreme Court precedents in the area of separation of powers. Finally in Part IV, this Paper concludes by suggesting some recommendations designed to ensure that never again will an American president be permitted to exercise a modern day analog to the "royal prerogative" power, allowing him to nullify duly enacted statutory provisions that he personally disagrees with.

Keywords
  • separation of powers,
  • checks and balances,
  • presidential powers,
  • signing statements
Disciplines
Publication Date
May 21, 2011
Citation Information
Steven Morris. "The President as a Lawmaker: The Misuse of Presidential Signing Statements Under the Administration of George W. Bush" ExpressO (2011)
Available at: http://works.bepress.com/steven_morris/2/