A lot of crazy stuff tends to happen on New Year's Eve. It's amusing to analyze, say, the Lady Gaga–Mayor Bloomberg midnight kiss, but you've also probably heard about another buzzworthy, albeit less TMZ-worthy, event: President Obama's signing of the National Defense Authorization Act (NDAA).
The move was controversial primarily because the NDAA will allow the military to indefinitely detain, without trial, American citizens suspected of terrorism. But people have also been talking about the statement—technically called a presidential signing statement—that Obama included with his signing of the bill, in which he stated that he would interpret several sections of the bill differently. Here's all you need to know about presidential signing statements and how they apply to the NDAA.
What is a presidential signing statement?
It’s a written pronouncement occasionally issued by the president when he signs a bill into law.
What is the purpose of a signing statement?
The purpose of the signing statement varies. The three most common purposes (as identified in this report) are:
Rhetorical: To point out positive or negative aspects of the bill and how they fit in with the administration’s views
Political: To define or clarify what the president views as ambiguous aspects of the bill
Constitutional: To announce the president’s view of the constitutionality of certain aspects of the bill
How often are signing statements used?
The first president to issue a signing statement was James Monroe. Between Monroe’s time and the 1980s, only about a dozen signing statements were issued. Then in 1981 Ronald Reagan ushered in an era of prolific proclaiming. It depends on whether you count the number of statements made and the number of legislative statutes challenged, but it’s safe to say that Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush have all challenged about 100 statutes of laws they have signed. Barack Obama has continued this modern tradition by issuing about 20 signing statements.
If the president says in a signing statement that part of a bill is unconstitutional, why doesn’t he just veto the bill?
It certainly varies. Often the president will argue that the good of the bill outweighed the bad. For example, in President Obama's signing statement for the NDAA, he explained a few reasons why he chose to sign the bill (it authorizes funding for important national defense programs, etc.), then went on to point out a few sections of the bill that he viewed as unconstitutional. He then stated, "My Administration will interpret them [some of the disputed sections] to avoid the constitutional conflict."
Are presidential signing statements constitutional or not?
The Constitution doesn't say anything about presidential signing statements. It neither permits nor prohibits them. Here's what the Constitution does say about presidential power: the president has the power to veto any bill passed by Congress (Article 1, section 7) and the authority to confirm that the laws are faithfully executed (Article 2, section 3).
Some people have expressed concern that using a signing statement to declare an aspect of a particular bill unconstitutional is equivalent to initiating a line-item veto, which is unconstitutional (see Clinton v. City of New York). A panel of the American Bar Association has censured the use of signing statements for this purpose.
However, others argue that a signing statement has no legal effect, so it doesn't really matter, constitutionally speaking, what the statement says. A federal district court held that no executive statement "denying efficacy to the legislation could have either validity or effect" (see DaCosta v. Nixon).
So what's the big fuss about President Obama's signing statement for the NDAA?
The NDAA was a big issue to begin with because one section of it allows the military to indefinitely detain, without trial, American citizens suspected of terrorism. However, Obama stated: "Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens."
A lot of people are concerned that the aforementioned section conflicts with Americans' right to a fair trial and protection against unreasonable search and seizure. Thus, they're concerned that Obama's signing statement will not do enough to prevent the NDAA from infringing on citizens' rights.
Are presidential signing statements usually this controversial?
Not always. As mentioned above, sometimes presidential signing statements are simply used for political or rhetorical reasons. However, when a president says that he believes a part of the law is unconstitutional or that he'll interpret it differently, it gets tricky. When the statement basically says, "I signed this bill into law, but I plan on ignoring parts of it," there's probably going to be some debate. In the case of the NDAA signing statement, it has also come up that Obama initially criticized George W. Bush for using signing statements yet has issued 20 of his own.
Holly Munson works in Public Programs at the National Constitution Center.