Paul T. Stepnowsky · July 2010
78 GEO. WASH. L. REV. 1086 (2010)
After President Obama questioned the use and frequency with which President Bush relied on signing statements to challenge the constitutionality or vagueness of statutes, he has continued this trend to further his own Administration’s policy objectives. Both Presidents have used signing statements not only to interpret constitutional or vague provisions of statutes, but also to direct members of the executive branch to act in order to fulfill presidential prerogatives. As the prevalence of and focus on signing statements continue in the Obama Administration, this Essay maintains that at least some objections to presidential direction to the executive branch, including the use of signing statements, are misplaced. Instead, this Essay discusses what role signing statements might play in directing an agency to interpret an ambiguous statute.
This Essay argues that presidential signing statements should be given deference under Mead’s framework, on a case-by-case basis, provided that the signing statement directs an agency how to interpret an ambiguous statute and meets the Skidmore criteria. Judicial deference will also clarify what role signing statements should have in the administrative law context, will promote presidential leadership over agency decisionmaking, and will provide transparency in administrative law.
This Essay proceeds in three parts. Part I discusses the history of signing statements and their role in the political system. Part II investigates Skidmore and its progeny to analyze under what circumstances and to what degree courts defer to agency decisions. Part III applies the policies of judicial deference to agency findings to signing statements and proposes that courts should defer to signing statements, on a case-by-case basis, when the President directs an agency to interpret an ambiguous statute if the requirements of Skidmore are met.
