One aspect of Zivotofsky that the Bush, and Obama Administrations would have us forget, is that this law was signed by the President. If it was unconstitutional, why was it not vetoed? The answer, is that President Bush signed it, and added a signing statement explaining why he would not comply with it.

For those of us with memories that extend beyond 2009, you may recall that signing statements were once viewed as a grave and existential threat to the separation of powers. But all that changed, apparently. In 2014, President Obama is not only issuing his own signing statements (in the rare cases he actually signs a bill into law), but he is now defending President Bush’s 2002 signing statement concerning foreign affairs.

Should the fact that the President issued a signing statement in any way affect the constitutional calculus of the fact that the President didn’t veto the bill. This exact issue came up during oral arguments in Zivotofsky.

Chief Justice Roberts baited the SG:

CHIEF JUSTICE ROBERTS: If it had ­­ if it were such a big deal, why did the Chief Executive at the  time sign it?

GENERAL VERRILLI: Well, the Chief Executive issued a signing statement which really was, in effect,  a disclaimer, in 2002. President Bush’s statement said  in 2002, this does not change our official recognition policy and we’re going to treat it as advisory, and that  did not have the effect of ­­

 

Roberts then asked whether the signing statement has any “consequence at all”?

CHIEF JUSTICE ROBERTS: So we should give no weight to the fact that the Chief Executive signed the  law that he is now saying has such a dramatic ­­ that  his successor, but I gather the position is the same ­­ is now saying has such deleterious effects on American  foreign policy? Well, as a general matter, does that  have any consequence at all?

GENERAL VERRILLI: No. I mean, I think this  Court held in Myers that the fact that one President ­­ signed a  law that violated separation of powers doesn’t have any  effect.

 

I think the Solicitor General is referring to Myers v. United States–the removal case–but that case is not cited anywhere in the government’s brief. I’m afraid I don’t know where it says that in Myers. What law was signed in Myers? It involved the removal of an officer? I’ve read the case a number of times, but can’t recall. If you know, please add a citation to the comments.

Later the Court returned to the signing statement issue. In response to a question from Justice Kennedy, SG Verrilli said that providing a disclaimer in the pasports about Israel would call into question the credibility of the “President’s representation of our recognition position.” The Chief shot back:

CHIEF JUSTICE ROBERTS:But just like the signing statement.

GENERAL VERRILLI:  Excuse me, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Just like the signing statement, which said precisely what Justice Kennedy suggested, that the Executive could do at this point.

GENERAL VERRILLI: Right. And it did not have and I ­­ but I think that’s the point. The assigning statement was in the nature of a disclaimer and it did not prevent the damage to the credibility of  the United States.

As an aside, I only found the phrase “signing statement” in four other Supreme Court transcripts.

In United States v. Windsor (2013), Justice Kennedy suggested that it deferring to signing statements would be “troubling” becuase it would “encourage that questionable practice.”

JUSTICE KENNEDY: But let me ask you, suppose that constitutional scholars have grave doubts about the practice of the President signing a bill, but saying that he thinks it’s, unconstitutional — what do you call it, signing statements or something like that. It seems to me that if we adopt your position that that would ratify and confirm and encourage that questionable practice because if the President thinks the law is unconstitutional he shouldn’t sign it, according to some views. And that’s a lot like what you’re arguing here. It’s very troubling.

The only other substantive remark was by Chief Justice Rehnquist in Williams v. Taylor (1999)

CHIEF JUSTICE REHNQUIST: What deference do we give to signing statements by the President?

MR. GIBBONS: Well, Your Honor, considering the amount of time and space that this Court has devoted to the Presentment Clause, it seems–it would seem to me to be surprising not to treat a presidential signing statement as a significant piece of legislative history. The President was a participant in the legislative process.

CHIEF JUSTICE REHNQUIST: Do any of our cases speak to that at all, one way or the other?

MR. GIBBONS: No, not–well, I take that back. I think I could probably refer you to a law review article that collects some case law, but I cannot refer you to a case where this Court has specifically addressed–

Justice Souter made a joke about signing statements in Pleasant Grove City v. Summum (2008), but that’s about it. I don’t think the Court has ever passed on signing statements.

Update: Will Baude connects it:

I think it’s this passage, from page 170 of Chief Justice William Howard Taft’s opinion in Myers:

In spite of the foregoing Presidential declarations, it is contended that, since the passage of the Tenure of Office Act, there has been general acquiescence by the Executive in the power of Congress to forbid the President alone to remove executive officers — an acquiescence which has changed any formerly accepted constitutional construction to the contrary.Instances are cited of the signed approval by President Grant and other Presidents of legislation in derogation of such construction. We think these are all to be explained not by acquiescence therein, but by reason of the otherwise valuable effect of the legislation approved. Such is doubtless the explanation of the executive approval of the Act of 1876, which we are considering, for it was an appropriation act on which the section here in question was imposed as a rider.