Signing Statements, Gridlock, and Presidential Strategy

Abstract

During George W. Bush's second term, controversy emerged over president's perceived handling of hundreds of duly enacted congressional statutes. Phillip Cooper (2005) was among first to call attention to Bush's propensity for using signing statements as a way to construe intent of a bill he had just signed, and others quickly followed suit. Charlie Savage of Boston Globe reported in early 2006 that President Bush has quietly claimed authority to disobey more than 750 laws enacted since he took office, and a year later, American Bar Association (2006, 1) released a report decrying the misuse of presidential signing statements, urging a different course of action that would limit undue presidential influence. A surge in research on presidential signing statements followed in wake of controversy (Berry 2009; Conley 2011; Kelley and Marshall 2008, 2009, 2010; Korzi 2011; Ostrander and Sievert 2013; Sollenberger and Rozell 2011). The belief that Bush's usage of signing statements was unprecedented (Savage 2006) was significantly overstated, but nevertheless, focus among many presidential scholars, especially scholars of unilateral presidential power, began to shift to causes and consequences of signing statements. Signing statements are not new, but perception at least is that their use is consequential, prompting many to ponder when and why will use these statements. Extant research has advanced two theories about use of presidential signing statements. The first is a political perspective, which holds that signing statements are at least in part a reaction to ideological differences with Congress (Berry 2009; Kelley and Marshall 2008, 2010; Whitford 2012). The second view is a separation of powers perspective, which takes signing statement as a presidential reaction to infringement by Congress on powers of president (Evans 2011; Ostrander and Sievert 2012). This view holds that political considerations can be secondary to more fundamental presidential concerns about encroachment of Congress on president's prerogatives. As Ostrander and Sievert (2012, 10) write, presidents and Congress are interested not only in policy outcomes but also in their relative balance of power vis-a-vis one another. These two views are not mutually exclusive. Berry (2009) and Kelley and Marshall (2008) contend that institutional prerogatives matter to president when it comes to use of signing statements. Thus, signing statement is, as Ostrander and Sievert suggest, a story of multiple considerations, meeting together to shape presidential strategy. However, scholars have not adequately considered ideological differences between president and Congress as well as gridlock within Congress when developing models to test usage of signing statements. Principally, measures of separation between two branches have largely been dichotomized to represent differences between unified and divided government (Berry 2009; Kelley and Marshall 2008; Ostrander and Sievert 2012). When ideology is considered (Kelley and Marshall 2010), it is done independent of gridlock within Congress. This article argues that varying levels of legislative gridlock interact with nature of Congress's relationship to president (i.e., whether government is unified or divided) to change presidential motivations and use of signing statements. Gridlock and Presidential Strategy Gridlock and divided government, when visited in conjunction with study of legislative productivity and government action, received quite a beating in realm of public opinion and among scholars for years before David Mayhew's (1991) groundbreaking study. James Sundquist (1988, 629) captured conventional wisdom of time when he described divided government as both unhealthy and debilitating. However, with Mayhew (1991) came argument that divided government hampers legislative productivity (at least in face of important legislation) either not at all or not as much as is expected. …