Hiding in Plain Sight

Not since the George W. Bush administration a decade ago has the presidential signing statement received the type of media coverage it is currently receiving.

The signing statement traditionally was a more arcane device that was not really understood, or known, by academics, the press, and the public.  And it was in this fuzziness where the signing statement was most valuable.  That is to say, if no one is watching and monitoring, then it gives the administration latitude to stretch the language of the law or to refuse enforcement of those provisions which it does not like.  But with the Bush administration--and in particular in the second term--that the signing statement became something that everyone, including members of the press, became an expert on. There has been an increase in the number of articles published in academic journals, as well as an increase in the number of scholars who have carved out a slice of the device to study, to both positive and negative effects.  Because of the increase in the number of eyes tracking the use of the signing statement, it all but disappeared in the Obama administration (leading one recent paper I reviewed to claim the death of the presidential signing statement).  But in comes the Trump administration, and with it, the renewed media interest in the signing statement.

The Trump administration--like everything else it has done to date--has been clumsy in its approach to the presidency and presidential power.  I think Trump, if his behavior does not change, will be the first president to break the Reagan administration axiom to leave the power of the presidency in better shape than you found it.  This axiom has united all presidents--Reagan through Obama. But not Trump.  President Trump has little care for norms and traditions, and really wants the presidency to serve his interests and not vice versa.  And if Congress could get its act  together, it could reserve a hundred years of power flowing from the legislative branch to the executive branch. That of course is a big IF (I will speak more about Trump and presidential power in a future post).

So as I tuned in to the media coverage of yesterday's signing statement--including yesterday's press briefing with Sarah Huckabee Sanders--I was taken by the effectiveness of using one statement to obscure the other statement.  But before I write about this, let me focus a minute on the two statements.  I considered both statements as signing statements, something that seems to trip up other interested individuals simply because of administration nomenclature. Yesterday, during the live press briefing, one reporter asked the press secretary:

Sarah, can you clear up some confusion?  There were almost simultaneously two signing statements that went out.  They had slightly different language.  Did you intend to send both out, or was that a mistake?

The press secretary responded:

It was actually one signing statement and one press statement, so that's the difference.  One is more of a legal document that goes with the executive secretary, and the other one is a press document.  So that's the difference.

 This distinction makes no sense whatsoever.  A presidential signing statement is a statement by the president that describes the bill he has signed, what it does and doesn't do, who should or should not get credit and/or praise, and how the president intends to deal with provisions that are not clear and/or unconstitutional.  What Press Secretary Sanders did was to deliver make believe to the White House press corps.   A statement by the president carries the force of the presidency--even if that statement is 140 characters long--and thus should be taken more seriously than, say a White House press release from the Office of the Press Secretary.  A press release on the bill President Trump signed yesterday would have likely been written in the passive voice, 3d person:

On Wednesday, August 2, 2017, the President signed into law:
H.R. 3364, the "Countering America's Adversaries Through Sanctions Act," which strengthens and expands statutory sanctions on Iran, Russia, and North Korea, and for other purposes.

How do we know this?  Because this was the "press document" actually released by the press secretary to the public and the press noting Trump's signing the bill.

The statement that Sanders refers to as a "press document" and the statement regarded as the signing statement begin exactly the same way: "Today, I have signed into law H.R. 3364, the 'Countering America's Adversaries Through Sanctions Act.'" Both are written in the first person. And, if you look at the White House webpage listing the three documents: the press release and the two signing statements reads as follows:

* President Donald J. Trump Signs H.R. 3364 into Law (press release)
* Statement by President Donald J. Trump on the Signing of H.R. 3364 (signing statement #1)--emphasis added
* Statement by President Donald J. Trump on Signing the "Countering America's Adversaries Through Sanctions Act." (signing statement #2)--emphasis added

Explain to me how or why the second and third bullet point should be considered as different things?  The fact is, they are not different.  The "Daily Compilation of Presidential Documents has not yet caught up to August, but I guess that when it gets to August 2, it will list statements 2 & 3 above under "Bill Signings" and statement 1 under press releases. 

Kudos to the reporter who tried to get the difference out of Sanders, and given how arcane all of this is, I understand why he, or anyone else, decided not to follow up on it.

But two different signing statements on the same bill--with or without a public signing ceremony--is not unusual.  I have argued that presidents release two different statements in an effort to misdirect the press, and it is here that I give the administration the nod on the misdirection.

The administration I am sure knew the grief they would receive in issuing the signing statement that downplays the harsh sanctions directed at Russia, and for that understood this statement would receive more scrutiny than any other statement.  So that administration issued, as I argued yesterday, a rhetorical signing statement that was highly unusual, comparatively speaking.  The rhetorical statement mentioned the failed fight over the "skinny repeal", which had nothing to do with this bill, and it appeared to fluff Trump's ego.  I think the administration was betting by throwing these things into the bill, the press would bite, and focus on one, for example, whether the Senate Republicans had anything to say about Trump's personal criticism and two, on Trump's success as a businessman.

So far, in reading and watching the coverage of the signing statement, I have not been disappointed.  In today's "Wall Street Journal", page A1, Natalie Andrews and Rebecca Ballhaus quote liberally from the rhetorical signing statement, noting the final line of the statement: "I built a truly great company worth many billions of dollars...As President, I can make far better deals with foreign countries than Congress."   In fact, it isn't until deep into the jump that the other statement, with the constitutional challenges, is even mentioned. 

So it seems to me that the White House, at least on this particular issue, has understood the value of hiding (potentially) aggressive presidential action out in the open.  Whether this learning sticks, as we have seen so far, remains to be seen.

Trump and Signing Statements

Donald Trump is actually engaging in behavior that seems contradictory: He has managed to get very little legislative business done--most of the bills sent to him have originated in Congress and not in the White House--while at the same time issuing more signing statements in his first 6 months than most of his predecessors--particularly given the number of bills signed/the number of signing statements issued!

What makes this even more puzzling is his use of constitutional challenges in his signing statements.  What past research on the use of the constitutional signing statement (as opposed to the rhetorical signing statement) is the use of constitutional challenges normally go up when:

* Presidents face divided government, and in particular polarized divided government;
* Presidents lose support among the public;
*Presidents who are later in their terms--and in particular in the second term;
* Presidents who are facing an election--midterm or presidential

President Trump of course came into office with a united government that seemingly was in agreement on getting big things done: ending Obamacare, tax reform, immigration reform (if building a wall is reform), and so forth.  Working against Trump of course is losing the popular vote after a very contentious election (even more so than the 2000 election) and staying stuck in neutral as a result of some spectacular fumbles in getting their agenda moving.  Because of this, President Trump has blown his honeymoon, and now faces unusually low public approval numbers so soon in a new presidency and the loss of support among co-partisans in Congress. 

This of course explains why President Trump has preferred unilateralism, which does not make him different from  his predecessors.  A presidency boxed in by a hostile public, Congress, and press will see unilateralism over the normal procedures of governing.  On top of this is this president's thin experience with politics and his life as a CEO who is used to getting his way.

If we compare President Trump with President Bush--two presidents who came to office under comparable periods--we see that President Bush ended up issuing 24 bill signing statements in 2001, 11 that contained constitutional challenges with a total of 19 challenges.  His first constitutional signing statement came in March 2001, with the rest coming as the rush of spending bills came to the White House in late summer/fall.  President Trump has now issued three signing statements--all containing constitutional challenges. His first signing statement, issued in May, contained more than 89 separate and distinct challenges. His second signing statement, issued in June, contained one. And now this third statement, issued today, August 2, contains at least 12 challenges, though some are written using such vague language that it is not clear whether or not it is really a challenge. Given that the administration decided to dedicate a paragraph--vague or not--I decided to believe they are sincere in pushing back against congressional interference mostly in the foreign policy powers of the president.

A second bonus is the administration issued two signing statements to the same bill--something previous presidents have done--in order to obscure the constitutional challenges contained in the constitutional signing statement. In the signing statement picked up by many reporters, they refer to "Statement by President Donald J. Trump on Signing the 'Countering America's Adversaries through Sanctions Act.'" Their is a second signing statement that is simply titled: "Statement by President Donald J. Trump on the Signing of H.R. 3364." Thus if you are under deadline, or later on, doing research on the sanctions bill, your search is more likely to hit the first statement and not the second.

The two signing statements are also interesting in their style when compared to previous presidents.  First, the public statement that leaves out the constitutional challenges. This particular signing statement reflects the president's personal style more than I have seen in any previous public statement.  In all previous rhetorical statements, while the president would often use the word "I", reading the statement gave you the impression that a crew of staff wrote it.  In President Trump's statement, he brings up a totally separate bill and political fight and mentions it in this statement.  Referencing the failed Senate health care bill, Trump writes:

Still, the bill remains seriously flawed – particularly because it encroaches on the executive branch’s authority to negotiate.  Congress could not even negotiate a healthcare bill after seven years of talking...

Wow!

It would not be typical for a president to mention a failed political fight unless it was a fight that led to the passage of the bill he is signing. Furthermore, the President also brings up a political fight that underscores the failure of his party to pass a bill, which does nothing to help his relationship with Senate Republicans.

And finally, at the end of the statement, it contains a paragraph that does nothing but fluff the ego of the president, another thing that you would not normally see in a signing statement.  President Trump writes:

I built a truly great company worth many billions of dollars.  That is a big part of the reason I was elected.  As President, I can make far better deals with foreign countries than Congress.

To me, this either suggests that his staff are going overboard to flatter the president, or more likely, the president took an interest in reviewing, and possibly editorializing, this statement.


His constitutional signing statement--simply referred to the bill number--is boilerplate for the type of challenges you would normally see from the Office of Legal Counsel's review and remarks on the bill. The tipoff is the use of Supreme Court opinions to bolster the challenges.  For instance, President Trump objects to sections 253 and 257 because it interferes with the president's ability to recognize foreign governments in line with the Supreme Court opinion Zivotofsky v Kerry (the case regarding the recognition of Jerusalem as part of Israel).   In a separate challenge to the use of the legislative veto, the administration refers to the Supreme Court case INS v Chadha, which held that the legislative veto violated the Presentments Clause of the Constitution. Even though the case was decided early in the Reagan administration, the Congress continues to use the device and president's continue to object, and Trump is no different.  In the statement, after explaining that section 216 contains an unconstitutional legislative veto, his statement reads: "I nevertheless expect to honor the bill's extended waiting periods to ensure that the Congress will have a full opportunity to avail itself of the bill's review procedures."  Why accept something the Supreme Court has held is unconstitutional? Because back in the Reagan administration, when they tried to refuse recognition of the legislative veto, congressional committees began cutting appropriations to key departments and agencies until the administration complied, as has been the case with every administration that tried to test the legislative veto.