Earlier this month, when President Trump signed into law a bill to fund the government through the end of September, he issued a statement identifying nearly 100 provisions he found constitutionally objectionable.
One of those he pointed to was a provision that would include low-cost funding enabling historically black colleges and universities (HBCUs) to repair, renovate and build facilities. A brouhaha ensued. Facing a backlash from educators and legislators, the president had to affirm his “unwavering support” for the schools.
But neither the HBCU challenge nor Trump’s taking exception to dozens of provisions is new. Many presidents issue signing statements. If Trump’s statement is different from his predecessors’ in any way, it’s that he’s returning to a pattern set by President George W. Bush that had been set aside by President Barack Obama.
What is a signing statement and why do presidents issue them?
Since as far back as the Monroe administration, but with much more consistency from President John Kennedy forward, presidents have issued these statements when they sign bills into law, including constitutional challenges to various sections. Presidents are often saying that if push comes to shove during implementation of the law, the administration will side with its own view of the Constitution. Critics of signing statements, like the American Bar Association, argue that presidents are ignoring the intent of Congress and should simply veto the bill if it is constitutionally problematic.
- get the attention of the press and the public,
- shape views about legislative accomplishments and who deserves credit,
- influence the courts by offering the president’s interpretation and understanding of various provisions,
- instruct and guide bureaucrats, and
- highlight provisions the president feels are constitutionally problematic.
Trump’s challenges are similar to those raised by predecessors
Similarities in presidential signing statements remind us of the importance of the Justice Department’s Office of Legal Counsel (OLC), created in the early 1950s. The OLC drafts challenges that appear in signing statements. As a former head of the OLC stated, lawyers in the OLC “are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch’s legal positions.” In other words, executive branch legal precedent matters.
Here are three examples of how that precedent is revealed in Trump’s first signing statement:
HBCU controversy: Trump says that his administration:
shall treat provisions that allocate benefits on the basis of race, ethnicity, and gender … in a manner consistent with the requirement to afford equal protection of the laws under the Due Process Clause of the Constitution’s Fifth Amendment.
The language of this challenge is almost identical to the way Bush challenged the 2005 Consolidated Appropriations Act, as you can see here:
Several provisions of CAA relate to race, ethnicity, or gender. The executive branch shall construe such provisions in a manner consistent with the requirements that the Federal Government afford equal protection of the laws under the Due Process Clause of the Fifth Amendment to the Constitution.
Although the Bush challenge did not specifically mention the HBCU provision and left the objection vague (referring only to “several provisions” without identifying them), the HBCU provision is definitely in the appropriations bill.
Detainee transfers: Trump highlights various sections of the law that “restrict the transfer of Guantánamo detainees.” The president notes that he will treat these provisions “consistently with constitutional authority as Commander in Chief.” These are exactly the kinds of provisions that President Obama consistently objected to throughout his presidency.
Legislative vetoes: Trump also challenges legislative vetoes when he says, “numerous provisions authorize congressional committees to veto a particular use of appropriated funds,” which he considers “impermissible forms of congressional aggrandizement” (and the Supreme Court agrees).
Presidents Dwight Eisenhower, Lyndon Johnson and Richard Nixon all challenged these kinds of provisions too. Johnson even called these provisions “repugnant to the Constitution” and claimed that “enactment … will not commit the executive branch to participate in the procedure.”
But there are differences in degree
To see how Trump’s first signing statement stacked up against those of his two immediate predecessors, we looked at similar spending bills that were challenged in presidential signing statements. Our search from 2001-2017 yielded five comparable laws.
You can see the average number of challenges per 100 pages of law. Trump and Bush are running about even, with more than 12 challenges per 100 pages of law. Obama’s challenge rate was much lower, at less than five challenges per 100 pages of law — a slow trickle by comparison.
What’s more, Bush’s challenges were dramatically more frequent than any of the presidents before him. Although there are different ways to count up the significance of signing statements, it is generally accepted that Bush’s challenged more sections of law than all of his predecessors put together.
Will Trump continue issuing challenges at a rate comparable to that of Bush? So far, the administration has signaled that it will attempt to maintain and push out the boundaries of institutional power by aggressively documenting every possible congressional offense against the Constitution, whether real or perceived.
Kevin Evans is assistant professor and director of undergraduate studies in the department of politics and international relations at Florida International University. Find him on Twitter @kevinevans22.
Bryan Marshall is professor and assistant chair of the department of political science at Miami University. Marshall and Bruce Wolpe are completing a book, “The Committee,” that is forthcoming at University of Michigan Press.