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:

kelleycs@muohio.edu

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 constitutionally-

oriented 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 Iran-

Contra 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 “disparate-

impact 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.

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