Presidential Signing Statements Are the Royal Dispensing Power Wearing a Suit

The presidential signing statement rarely makes headlines until a president signs a bill and then announces, almost as an afterthought, that he will not enforce part of it. When that happens, the familiar argument begins. One side calls it executive overreach. The other side calls it a mere statement of constitutional conscience. Both sides, I think, miss what is actually going on. The aggressive signing statement is not some modern procedural invention. It is the American revival of a power the English-speaking world rejected more than three centuries ago: the royal power to suspend or dispense with laws.

That is not a rhetorical flourish. It is the precise constitutional problem. When a president signs a bill into law and then declares that certain provisions will not be enforced, he is not interpreting the law. He is claiming the authority to decide which parts of the law bind the governed. That is exactly what the Stuart kings claimed, and the Founders wrote the Constitution to make certain no American president could do it.

The lesson of 1689

To understand how old this fight really is, start in 1689. After the Glorious Revolution, Parliament adopted the English Bill of Rights. One of its central complaints ran directly against the Crown's claimed power to suspend statutes or grant favored subjects exemptions from them. The text declared it illegal: "The pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal."

The "dispensing power" was the royal claim to set aside a law in particular cases. The "suspending power" was the broader claim to stop a law's operation altogether. Both were condemned. The settlement that followed rested on a simple principle: laws made by the legislature bind everyone, including the executive.

That principle crossed the Atlantic. The American Founders did not fight a revolution merely to replace a king in London with a king in Washington. They separated powers precisely so that no single person could make law, interpret law, and execute law all at once.

James Madison put the point in Federalist No. 47. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands," he wrote, "whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." A president who signs a bill into law and then declares that parts of it will not take effect has not formally accumulated all three powers. But he has done something just as dangerous: he has substituted his own will for the will of Congress on a selective basis, while keeping the credit for signing the law.

The Constitution already gave the president only two choices

The constitutional mechanics are nearly as clear as the history. Article I, Section 7 gives the president a binary choice when a bill reaches his desk. If he approves it, he signs it. If he does not approve it, he returns it with his objections.

That is the whole veto power. It is a qualified negative on the entire bill, not a line-item editorial pen. The president may reject a bill; he may not rewrite it. He may sign it; he may not sign parts and nullify others by memo.

Article II then imposes the duty that makes the non-enforcement signing statement constitutionally indefensible: "he shall take Care that the Laws be faithfully executed."

The word is faithfully. Not selectively. Not conditionally. Not "except where the president disagrees with a provision." The Take Care Clause is the American rejection of the royal suspending and dispensing powers. It is the executive's oath of fidelity to law made by others.

A signing statement that declares portions of a statute unconstitutional and directs the executive branch not to enforce them is a de facto amendatory veto. It is a line-item veto accomplished by memorandum.

We have already had this fight. In Clinton v. City of New York in 1998, the Supreme Court struck down the presidential line-item veto because the Constitution requires the president to accept or reject a bill as a whole. A signing statement cannot achieve by unilateral declaration what the Constitution forbids by statute.

To be fair, not every signing statement is a constitutional offense. A president may issue a statement praising a bill, explaining his interpretation to executive agencies, or laying out how he plans to implement ambiguous provisions. That is speech, and it is not the problem.

The problem begins when the statement directs non-enforcement. At that point the president is no longer commenting on the law. He is attempting to amend it.

The president is not a one-man Supreme Court

Some defenders of the aggressive signing statement point to the president's oath to preserve, protect, and defend the Constitution. Their argument runs like this: if a statutory provision is unconstitutional, the president cannot enforce it.

That objection deserves a fair answer.

The president does have an independent duty to assess constitutionality. But the remedy for a bill containing unconstitutional provisions is the veto. If the president believes a bill is unconstitutional, he should refuse to sign it and send it back to Congress. If Congress overrides, or if the provision is not clear enough to justify a veto, the president's job is faithful execution while the courts decide the constitutional question.

He does not get to sign the bill, claim credit for signing it, and then nullify the parts he dislikes. That is not constitutional judgment. That is the dispensing power wearing a new suit.

Hamilton made the point in Federalist No. 69 when he carefully distinguished the American president from the British king. The president, Hamilton stressed, has a limited veto, not an absolute negative. He can make treaties only with the Senate. He can appoint officers only with the Senate. He cannot declare war. And he cannot claim prerogatives not enumerated in the Constitution.

The king might claim the power to suspend laws. The president may not. Hamilton did not need to spell out every royal abuse because the entire architecture of Article II was designed to avoid them.

Courts should treat signing statements as what they are

Originalists and textualists should be especially clear on this point: a signing statement is not law. It is not enacted text. It is not part of any bicameral legislative process. It is a post-enactment press release issued by one person.

Justice Antonin Scalia spent much of his career warning against using unenacted intent to alter the meaning of enacted text. Legislative history was bad enough. A signing statement is worse: it is not even the statement of the body that made the law. It is one branch attempting to rewrite the meaning of another branch's work after the constitutional moment has passed.

Courts should ignore signing statements entirely. They add nothing to the original public meaning of the statute. They are executive commentary, not legislative text.

The Supreme Court made the executive's role plain in Youngstown Sheet & Tube Co. v. Sawyer, when it rejected Harry Truman's attempted seizure of the steel mills. As Justice Hugo Black put it, the president's duty to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.

A president who signs a bill and then announces which parts he will enforce is not executing law. He is governing by personal directive.

The temptation is structural, not partisan

Here is the honest and uncomfortable part: presidents of both parties have used signing statements. The modern executive branch loves this tool because it concentrates power. The temptation is structural, not personal.

James Monroe issued the first presidential signing statement in 1822, and for much of the nineteenth century the device remained largely ceremonial. By the late twentieth century, however, presidents from both parties had converted it into an executive nullification device. Some used it to challenge congressional reporting requirements. Others objected to provisions they considered intrusions on executive power. The target varies. The tool remains.

That is precisely why the Founders' warning still matters.

The Founders did not create a pure democracy. They created a constitutional republic, a government of laws, not of men. The separation of powers exists so that no single will can dominate the citizen. When a president signs a bill and then announces which parts he will enforce, he is no longer operating under the rule of law. He is operating under the rule of one person's opinion.

That is the logic of monarchy, and it ends the same way: first in convenience, then in habit, and finally in the conviction that the executive is entitled to revise the law whenever he thinks the legislature got it wrong.

The way back is constitutional discipline

The path back is not complicated. It requires three things.

Presidents should return to the discipline of the veto. If a bill is so flawed that the president cannot enforce it in good conscience, the answer is simple: do not sign it. If he signs it, he must execute it. That is what the word faithfully means.

Congress should refuse to tolerate selective enforcement. It holds the power of the purse, the power to hold hearings, and the power to impeach. A president who announces he will not enforce a statute should be forced to explain, on the record, why he believes the Constitution authorizes him to do what kings were once forbidden to do.

Courts should refuse to treat signing statements as interpretive authority. The text of the statute is the law. The president's after-the-fact commentary is not.

The ordinary citizen should understand what is at stake. If a president can decide which laws bind him and which laws do not, then the law is no longer a fixed rule. It becomes whatever the executive wills on a given Tuesday. That is not self-government. That is the slow return of a form of rule the English-speaking world fought a revolution to escape.

The signing statement may look like a technical device buried in the Federal Register. But at its worst, it is the royal dispensing power wearing a suit, and the Constitution was written to keep that power dead. The only question is whether we have the constitutional discipline to keep it buried.