The First Word

Abstract

Does the President get the last in the legislative process when he issues a signing statement? Those angry about President Bush's December 2005 signing statement on the Detainee Treatment Act thought he did just that. Implying that the statute's prohibitions on cruel, inhuman, or degrading treatment would not apply in certain circumstances,1 President Bush's statement provoked an outcry.2 Critics claimed that the President did not have the political muscle to defeat the statute, so he instead announced that he would sometimes ignore it. Having the last has its advantages. But so does having the word. Signing statements come at the end of the legislative process, but they also come at the beginning of the life of a law. President Bush's signing statement was controversial not only because it was the last word, but because his words mattered.3 In the absence of a definitive judicial interpretation of the statute, the signing statement would guide those in the executive branch who were bound to follow the law. This Article, using signing statements as one example, analyzes the various tools available to Presidents to exert influence over actors in the executive branch. Signing statements are notable because they permit the President to instruct subordinates ex ante. They are, that is, the first word - the step in the process of turning laws into on-the-ground reality. But they are just one of many instruments Presidents can rely on to manage, direct, and supervise subordinate officials. To assert their will, Presidents can rely on the appointment power to place like-minded officials in key positions, conduct White House review of important proposed actions of subordinates, and, as signing statements illustrate, provide ex ante guidance to executive branch actors about how they should exercise their authority. Whether these tools permit the White House to effectively control the bureaucracy is of interest in many quarters. It is of intense interest to Presidents and their staffs. They face a vast executive branch staffed by people who will not always do as the President would wish. Increasing presidential control over the bureaucracy is also the subject of intense debate among observers of the executive. Many have documented the fact of increased White House direction of the bureaucracy.4 Critics disagree over the wisdom of this development. Advocates of accountability applaud increased presidential efforts to control the executive branch.5 Critics fear that such accountability will displace agency professionalism and expertise with politics.6 For a politician to have a strategy for White House control, or for a critic to have a view about the wisdom of such control, it would be useful to know as a positive matter, which presidential tools are the most effective and which are least effective in achieving presidential wishes. This Article takes up that positive question. The agenda here is not normative; the Article takes no position on whether further Presidential control of subordinates is a good or bad thing. Instead, the Article takes the perspective of a White House seeking to effectuate its will and assesses the strengths and weaknesses of each of the strategies available to the President to assert control over the executive branch. To do so, the Article identifies a variety of circumstances in which Presidents might worry about the actions of subordinates and examines presidential responses in order to assess their efficacy. The President can appoint key personnel; he can provide ex ante instructions; and he can review major agency actions ex post. These strategies are not equally effective. As this Article will show, the effectiveness of a given strategy depends both on the task assigned to the subordinate official and the nature of that official's potential drift away from the White House. An important lesson of the analysis is that ex ante instructions, like signing statements, have some distinct advantages over ex post review in controlling certain kinds of discretionary actions by subordinates. …