Does the President get the last word in the legislative process when he issues a signing statement? Those angry about President Bush's December 2005 signing statement on the Detainee Treatment Act thought he did just that. Implying that the statute's prohibitions on cruel, inhuman, or degrading treatment would not apply in certain circumstances, President Bush's statement provoked an outcry. Critics claimed that the President did not have the political muscle to defeat the statute, so he instead announced that he would sometimes ignore it. Having the last word has its advantages.
But so does having the first word. Signing statements come at the end of the legislative process, but they also come at the beginning of the life of a law. President Bush's signing statement was controversial not only because it was the last word, but because his words mattered. In the absence of a definitive judicial interpretation of the statute, the signing statement would guide those in the executive branch who were bound to follow the law.
This Article, using signing statements as one example, analyzes the various tools available to Presidents to exert influence over actors in the executive branch. Signing statements are notable because they permit the President to instruct subordinates ex ante. They are, that is, the "first word"--the first step in the process of turning laws into on-the-ground reality. But they are just one of many instruments Presidents can rely on to manage, direct, and supervise subordinate officials.
The Article identifies a variety of circumstances in which Presidents might worry about the actions of subordinates and examines presidential responses in order to assess their efficacy. The President can appoint key personnel; he can provide ex ante instructions; and he can review major agency actions ex post. These strategies are not equally effective. As this Article will show, the effectiveness of a given strategy depends both on the task assigned to the subordinate official and the nature of that official's potential drift away from the White House. An important lesson of the analysis is that ex ante instructions, like signing statements, have some distinct advantages over ex post review in controlling certain kinds of discretionary actions by subordinates. In particular, ex ante methods of control could allow the White House to control exercises of discretion by subordinate actors that are difficult to control through ex post means. Some of the exercises of discretion that may be most effectively controlled by ex ante mechanisms are also generally immune from judicial review. In the absence of judicial control of these administrative actions, the President may be able to exercise particularly strong control over an agency.
government, executive branch, separation of powers, constitutional law
William & Mary Bill of Rights Journal
Magill, Elizabeth, "The First Word" (2007). Faculty Scholarship at Penn Carey Law. 2858.