“Executive Discretion and the Rule of Law: A Positive Analysis of Presidential Signing Statements”

Dan Rodriguez, Edward Stiglitz, and Barry Weingast have posted this draft on SSRN.  Here is the abstract:

Executive discretion over policy outcomes is an inevitable feature of our political system. However, our commitment to separation of powers constrains this discretion; for example, through congressional instructions embedded in statutes and enforced by courts. In interpreting statutes, courts often look to extrinsic evidence of legislative intent, as embodied in sources of legislative history, to resolve ambiguities and to implement legislative intent. Such practices constrain executive discretion and can potentially thwart presidential ambition.

In recent years, the President has sought to expand his discretion through signing statements, statements that purport to have status in the interpretation of statutory meaning. Such efforts raise significant questions of executive power, with negative implications for the rule of law. Drawing on positive political theory, we develop a simple separation of powers model that studies the various ways in which courts might treat signing statements. We show how different treatment by courts raise different implications for the rule of law and the separation of powers. Major changes follow when courts grant these statements legal status, significantly enhancing the president’s power while limiting that of Congress. Our models also show that, in a wide range of cases, Congress prefers the status quo – that is, no legislation – to legislation followed by a presidential signing statement. These statements thus exacerbate gridlock. We conclude that courts should not in general endow signing statements with any legal status beyond that afforded to a presidential statement made in a memo or campaign speech.

 

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