Presidential action and the Supreme Court: The case of signing statements
| Date | 01 October 2019 |
| DOI | 10.1177/0951629819875519 |
| Published date | 01 October 2019 |
| Author | Sharece Thrower |
| Subject Matter | Articles |
Article
Journal of Theoretical Politics
2019, Vol.31(4) 677–698
ÓThe Author(s) 2019
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DOI: 10.1177/0951629819875519
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Presidential action and the
Supreme Court: The case
of signing statements
Sharece Thrower
Department of PoliticalScience, Vanderbilt University,Nashville, Tennessee, USA
Abstract
Recent attention to presidential actionrecognizes the legal and constitutional questions surround-
ing the controversial use of manyof these powers. Yet, scholarly researchon executive policymak-
ing tends to ignore the roleof the courts, instead focusing on presidential–congressionalrelations.
I develop a formal theory of the president’s decision to issue a signingstatement in the face of con-
straints from the Supreme Court. The model produces several novel predictions. First, I predict
that the president is more likely to issue a signing statement when he is ideologically aligned with
the Court. Second, contrary to previous literature, the president is more likely to issue a state-
ment when his preferences are alsoaligned with Congress. Finally, when reviewing legislation that
is constitutionally challenged, I predict that the Court is more likely to rule in favor of the presi-
dent’s positionwhen he has issued a signing statement.
Keywords
Executive politics; inter-branch policymaking; separation of powers
Fears of an ‘imperial’ president, acting beyond the limits of the Constitution, have
long persisted in the United States. The increased reliance on unilateral actions has
only continued to fuel fears of a president unconstrained in his ability to move pol-
icy without the approval of Congress. Signing statements, in particular, have
drawn public scrutiny, evidenced by the recent controversies surrounding George
W. Bush’s use of this tool. Because of the president’s ability to ignore or alter sec-
tions of the law, many view signing statements as unconstitutional encroachments
Corresponding author:
Sharece Thrower, VanderbiltUniversity, Department of PoliticalScience, 329 Commons Center, Nashville,
Tennessee, USA.
Email: sharece.d.thrower@vanderbilt.edu
upon Congress’s ability to make the law and the courts’ ability to interpret it. They
are often viewed as inconsistent with the fundamental principles of separation of
powers, by giving an advantage to one branch over the others. Consequently, scho-
lars and pundits alike fear the unbridled and unconstitutional use of these and
other presidential actions.
There is evidence, however, to suggest that the president is not completely
unconstrained in his actions. Scholars recognize that the executive can anticipate
the behavior of other political actors and moderate the use of policy actions
accordingly (Ferejohn and Shipan, 1990; Howell, 2003; Moe and Howell, 1999),
similar to Congress proposing bills based on the likelihood of a veto (Cameron,
2000; Krehbiel, 1998). While much of the literature considers how the president
contemplates the actions of Congress when deciding how to exercise his policy
tools, it largely fails to consider how the courts can also influence this decision-
making. This is surprising given the constitutional and legal concerns surrounding
many of these tools.
1
To address this gap in the literature, this paper considers how the president
anticipates the courts in policymaking by examining his use of signing statements.
This particular tool allows us to examine this question because the president writes
these statements in the hopes that the courts consider his interpretation of the law
(Alito, 1986; Cooper, 2002). Signing statements are published in legislative histories
and indeed there are cases in which the courts have relied on their interpretation
when reviewing legislation (e.g. Bowsher v. Synar 1986; U.S. v. Lopez 1995).
Because signing statements have the ability to influence policy outcomes through
court decisions, presidents may strategically consider the role of the courts when
deciding how to issue them. However, similar to much of the policymaking litera-
ture, the research on signing statements tends to exclusively focus on the president’s
interactions with Congress, while ignoring the role of the courts. Consequently, lit-
tle is known about how the courts may shape the way presidents use signing state-
ments. Moreover, a good deal of variation among presidents remains unexplained
even after accounting for presidential–congressional relations.
I seek to further our understanding of the courts’ influence on presidential
decision-making by presenting a formal model of signing statements that incorpo-
rates the Supreme Court and Congress. Unlike previous spatial models of inter-
branch policymaking, this one is the first to consider the use of signing statements
as a bargaining chip amongst all three branches of the government. Overall, the
model predicts that the president is more likely to issue a signing statement when
his views are ideologically consistent with those of the Court, since he expects the
Court is more likely to side with such a statement. Further, because the president
is able to anticipate judicial behavior in this way, the model predicts that the Court
is likely to rule in favor of the president’s position when legislation with a signing
statement is challenged. Finally, contrary to several arguments in the literature and
conventional wisdom, I find that the president is more likely to issue a signing
statement when his preferences are aligned with those of Congress. When faced
with an ideologically extreme president, it is often more beneficial for Congress not
to propose legislation in the first place in order to avoid drastic changes in policy
678 Journal of Theoretical Politics 31(4)
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