Ogletree Takes Aim at ‘Signing Statements’

Climenko Professor of Law Charles J. Ogletree, Jr. criticized President Bush’s use of signing statements, in which the president has claimed the right to disregard portions of laws, calling them a “unilateral and unchecked exercise of authority” in testimony before the Senate Judiciary Committee on Tuesday.

Since taking office, the president has issued signing statements challening more than 750 laws. In them he has claimed the right to ignore “military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ‘whistle-blower’ protections for nuclear regulatory officials, and safeguards against political interference in federally funded research,” according to the Boston Globe, which first reported on the practice in April.

In measured language, Ogletree expressed his concerns about the program, though he stuck more to asking rhetorical questions than making declarative statements. He urged the committee to further investigate the practice and gave committee members guidance on what issues they should look into and what questions they should ask.

Ogletree began his testimony by saying that the signing statements are often helpful “to clarify and address matters of constitutional significance,” and that they promote “transparency by signaling how the president plans to enforce or interpret the law.” Other presidents have employed the statements, he noted, “without much objection or controversy.”

According to the Globe, President Ronald Reagan began the practice in the mid-1980s in order to increase executive authority. Since courts often look at a statute’s history to divine Congressional intent, Reagan reasoned that noting his thoughts on the law’s meaning could increase presidential influence over court rulings.

But the practice has changed considerably under Bush, who has issued an “unusually high number of signing statements” during his tenure and “over a hundred [of which] raise significant constitutional questions.”

Ogletree suggested that the president has largely replaced vetoes with signing statements, pointing out that he has not vetoed one bill in over five years in office.

“The unprecedented juxtaposition of President Bush’s failure to exercise a single veto, yet issuing more than a hundred signing statements, has created considerable concern,” Ogletree said. “[I]s he using the signing statement as a way to declare a law non-binding, without having to face the public scrutiny that comes with a veto, or the possibility of a legislative override?”

And because the president has used signing statements—in which he sometimes states that he will not enforce laws—instead of vetoes, Ogletree said that Congress is left with no recourse.

“When the president refuses to enforce a law on constitutional grounds without interacting with the other branches of government,” Ogletree said in his most direct condemnation of the practice, “it is not only bad public policy, but also creates a unilateral and unchecked exercise of authority in one branch of government without the interaction and consideration of the others.”

He added that this imbalance “creates serious issues of constitutional magnitude, and requires a legislative response.”

He concluded by pointing out that the president’s signing statements have been concentrated in the realms of national security and foreign affairs, saying that these statements “require further probing” by the committee and “more detailed and persuasive explanations from the executive branch.”

Ogletree has been active in examining the role of signing statements over the past month, serving on the American Bar Association’s task-force that convened to investigate the issue. Other members of that committee include Yale Law School Dean Harold H. Koh ’75, who sits on the Harvard Board of Overseers, and Kathleen M. Sullivan, a former Harvard Law professor who was later dean at Stanford Law.

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.