http://www.usdoj.gov/olc/signing.htm - The Diigo Meta page

• 17 Apr 07
  

  Bill H

  signing statements

  • We believe that such statements may on appropriate occasions perform useful and  legally significant functions. These functions include (1) explaining to the  public, and particularly to constituencies interested in the bill, what the  President believes to be the likely effects of its adoption, (2) directing  subordinate officers within the Executive Branch how to interpret or administer  the enactment, and (3) informing Congress and the public that the Executive  believes that a particular provision would be unconstitutional in certain of its  applications, or that it is unconstitutional on its face, and that the provision  will not be given effect by the Executive Branch to the extent that such  enforcement would create an unconstitutional condition
  • These functions must be carefully distinguished from a much more controversial  -- and apparently recent -- use of Presidential signing statements, i.e.,  to create legislative history to which the courts are expected to give some  weight when construing the enactment. In what follows, we outline the rationales  for the first three functions, and then consider arguments for and against the  fourth function.⁽²⁾ The Appendix to the  memorandum surveys the use of signing statements by earlier Presidents and  provides examples of such statements that were intended to have legal  significance or effects.
  • A third function, more controversial than either of the two considered above, is  the use of signing statements to announce the President's view of the  constitutionality of the legislation he is signing. This category embraces at  least three species: statements that declare that the legislation (or relevant  provisions) would be unconstitutional in certain applications; statements that  purport to construe the legislation in a manner that would "save" it from  unconstitutionality; and statements that state flatly that the legislation is  unconstitutional on its face. Each of these species of statement may include a  declaration as to how -- or whether -- the legislation will be enforced
  • If the President may properly decline to enforce a law, at least when it  unconstitutionally encroaches on his powers, then it arguably follows that he  may properly announce to Congress and to the public that he will not  enforce a provision of an enactment he is signing. If so, then a signing  statement that challenges what the President determines to be an  unconstitutional encroachment on his power, or that announces the President's  unwillingness to enforce (or willingness to litigate) such a provision, can be a  valid and reasonable exercise of Presidential authority.
  • The contrary view -- that it is the President's constitutional duty not  to sign legislation that he believes is unconstitutional -- has been advanced on  occasion
  • Many Presidents have used signing statements to make substantive legal,  constitutional or administrative pronouncements on the bill being signed.  Although the recent practice of issuing signing statements to create  "legislative history" remains controversial, the other uses of Presidential  signing statements generally serve legitimate and defensible purposes.

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