Presidential action and the Supreme Court: The case of signing statements

Recent attention to presidential action recognizes the legal and constitutional questions surrounding the controversial use of many of these powers. Yet, scholarly research on executive policymaking tends to ignore the role of the courts, instead focusing on presidential–congressional relations. I develop a formal theory of the president’s decision to issue a signing statement in the face of constraints from the Supreme Court. The model produces several novel predictions. First, I predict that the president is more likely to issue a signing statement when he is ideologically aligned with the Court. Second, contrary to previous literature, the president is more likely to issue a statement when his preferences are also aligned with Congress. Finally, when reviewing legislation that is constitutionally challenged, I predict that the Court is more likely to rule in favor of the president’s position when he has issued a signing statement.

Presidential Signing Statements and the Rule of Law as an “Unstructured Institution"

The George W. Bush administration's use of signing statements embodied a disturbingly thin and formalist view of the rule of law that goes hand-in-hand with its vision of the separation of powers. Its signing statement practice was notable both for the extremity of the constitutional vision that these statements typically asserted—especially with regard to the so-called "unitary executive”—and with regard to their sheer volume, unmatched in the entire history of the executive. To understand the latter phenomenon, the Bush signing statements need to be understood not just as an expression of a constitutional philosophy, but also as an effort to institutionalize through faux law a highly presidential ethos as a fundamental element of the spirit with which the government conducts business.

The Great Repudiator and Immigration Reform: Ronald Reagan and the Immigration Reform and Control Act of 1986

In 1981, Ronald Reagan created a task force intended to gain the initiative on immigration reform. But immigration reform presented obstacles to his political stance in repudiation of his Democratic predecessors. After four years of wrangling, internally as well as with Congress, many on the Reagan team viewed the immigration task force as having shackled the president to an unwinnable issue. Frustrated politically, Reagan aides shifted focus to an emerging presidential tactic—the signing statement. This allowed the president to sign the Immigration Reform and Control Act while setting important precedents for his larger conservative agenda. The trajectory from presidential task force to presidential signing statement on immigration reform reveals the challenges Reagan faced on policy issues outside his core priorities, and also the development of a tactic to maneuver through the challenges. Immigration reform became less about immigration than about serving the administration’s larger core priorities.