In Marbury v. Madison (1803), best known as the first case in which the U.S. Supreme Court exercised the power of judicial review to hold unconstitutional a section of the Judiciary Act of 1789, Chief Justice John Marshall drew a distinction between discretionary and ministerial powers. Marshall recognized that the President is vested with “certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience.” To assist the President in the performance of those duties, “he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders.” In such cases, “their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive . . . . The acts of such an officer, as an officer, can never be examinable by the courts.”
On various occasions, as Marshall explained, officers must conform to the will of the President. On others, Congress may enact a statute that directs an officer to perform specified ministerial acts. Marshall emphasized the point: “But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amendable to the laws for his conduct; and cannot, at his discretion sport away the vested rights of others.” When an officer is an “officer of the law,” he is required to perform ministerial duties, as the law provides, and is subject to judicial enforcement.
The origins of the distinction between ministerial duties and discretionary choices lay in English legal history, when common law courts concluded that they could compel the King’s officers to perform ministerial duties, but not discretionary opportunities. In Marbury v. Madison, the Court adopted this distinction and established the fundamental nature and scope of judicial control over executive action. William Marbury, whose commission to become a justice of the peace, had not been delivered to him by Secretary of State James Madison, brought a suit in the Supreme Court, asking the Justices to issue a writ of mandamus to compel Madison to deliver Marbury’s commission, in accordance with his statutory duties. Marshall held that the Court could issue the mandamus since the statute imposed upon the Secretary of State a clear duty to deliver the commission. In the end, however, the Court did not order Madison to deliver the commission since it decided it lacked jurisdiction over the case. The Court underscored the point that it could not order the Secretary to develop a particular foreign policy since that was a discretionary matter in which he acted for the President.
While U.S. courts have employed the ministerial-discretionary distinction since Marbury, presidential decisions, for a variety of reasons, usually avoid depictions as ministerial acts. For one, the President enjoys independent constitutional powers, the scope of which requires respect. For another, statutes often delegate broad powers to the President. For another, statutes often vest functions of a clerical nature in subordinates. Finally, courts are reluctant to reverse a presidential decision, particularly when Presidents maintain that an action is necessary, leading courts to conclude that the action is political in nature and thus not reviewable in court.
There is an expectation that a President will comply with judicial rulings, as part of the duty under the Take Care Clause to faithfully execute the laws. Thus the Court, in United States v. Nixon (1974), ordered President Nixon to turn over the Watergate Tapes, which he did, though somewhat reluctantly given his view that the President possessed an absolute executive privilege. Earlier, President Truman complied with the Court’s decision in the Steel Seizure Case (1952), when it held unconstitutional his executive order to the Secretary of Commerce to take control of the steel industry to keep it open and operating.
The Court, however, has not ordered the President to make a substantive decision in a particular way. Thus the Court, in Mississippi v. Johnson (1867), dismissed an attempt by the state of Mississippi to enjoin President Johnson from enforcing Reconstruction legislation. In that case, the Court reasoned that the President was not fulfilling a ministerial duty, which it defined as one leaving nothing to discretion. The President’s duty to assign military commanders under Reconstruction, and defining their duties, was not ministerial, but “executive and political.” The Court said that any judicial interference to bar the President’s performance of those duties, would be “an absurd extravagance.”
The President’s discretionary choices are reflected in several constitutional clauses, including the power to grant pardons, veto legislation, seek opinions in writing from subordinates, and conduct war, although that is subject to congressional directions and instructions. The growth of executive power, as seen in aggrandizement of congressional powers in the area of foreign affairs and national security, has also contribute d to discretionary executive judgments. As we have seen, presidents increasingly engage in unilateral presidential war making, which has become discretionary, despite its lack of constitutional foundation. However, there is no accounting for a characterization that would attribute to the President a degree of legal discretion through the usurpation of power.
Presidential signing statements, used since the 19th Century, are highly discretionary and, in recent practice, represent an increased role for the executive in the lawmaking process. When bills passed by Congress are presented to the President for final approval under Article 1, Section 7—the Presentment Clause—it is common for Presidents to issue messages to explain their decisions. Presidents are required by the Constitution to provide written explanations accompanying vetoed bills that they return to Congress. While pocket vetoes are not returned to Congress, Presidents typically issue a memorandum of disapproval explaining their objections. When Presidents approve bills, they are required only to sign the bill into law. But when Presidents have signed major legislation into law, they have often attached signing statements as a means of publicizing, explaining and justifying their decisions. These signing statements reflect the executive’s thoughts about the relative merits of the bill, including remarks about the constitutionality of the measure, and how they intend to enforce—or not enforce—provisions of the legislation. Some of these statements can be constructive; others amount to an item veto and, critics point out, an inappropriate intrusion into the exclusive congressional power to assign meaning to the legislation that it has drafted.
Presidential resort to signing statements gave rise to occasional controversy in the 19th Century. In 1830, President Andrew Jackson issued a signing statement that the restricted the reach of a statute. In 1842, a House report raised objections about Jackson’s statement, declaring that it constituted an item veto. That same year, President John Tyler signed a bill into law, but stated objections about the constitutionality of the statute. A House committee complained that the President was limited by the Constitution to three kinds of responses when presented with a bill passed by Congress: sign it, veto it, or issue a pocket veto if a congressional recess prevents return of the veto. The committee objected to Tyler’s action: to sign a bill and add extraneous matter in a separate document could be regarded as a “defacement of the public records and archives.”
Those controversies became a commonplace in the 1980s, when the legal significance of presidential signing statements became a major subject of debate. Under President Ronald Reagan, a systematic effort was undertaken to impose the President’s interpretation of a statute. The Reagan Administration argued that signing statements should serve as a basis for statutory interpretation. Attorney General Ed Meese was successful in having the President’s signing statements entered in the U.S. Code Congressional and Administrative News, which helped to elevate the status of such statements. The inclusion of what Meese described as “presidential intent,” generated debate about whose intentions mattered when interpreting a statute, particularly because courts take into account legislative history when construing statutes. Critics of the administration’s position pointed out that Congress, alone, has the authority to assign meaning to the bills that it drafts and passes. Presidents, on the other hand, do not have “intent,” but rather “understanding” of the meaning of a bill. A signing statement, issued on that basis, can explain presidential understanding of the bill and how it will be enforced. But to attribute legal or constitutional significance to a signing statement would represent an illicit substitution of presidential judgment for that of Congress and permit the executive to rewrite legislation after its passage, an exercise in usurpation.
Defenders of signing statements deny that they constitute an item veto. When the President issues a statement, they contend, he is not blocking enactment of a law, which is what occurs with a veto. After issuing a statement, the statute is still on the book. That is true, of course, but the real question surrounds the way in which Presidents enforce the law. Through signing statements, the President often engages in a reinterpretation of a statute. President Reagan issued a signing statement when he signed into law the Safe Drinking Water Act of 1986. In his statement, he claimed that the Environmental Protection Agency was not required to enforce the statute, even though he was.
Another example of executive reinterpretation of a statute occurred in 2005, when Congress passed a bill to prohibit torture. The bill declared that no one in the custody of the U.S. government, “regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.” American policy against torture had been long-settled, as manifested in statutes and treaties. When President Bush signed the bill into law, he said he would interpret it “in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in chief and consistent with the constitutional limitations on the judicial power.” Although Bush had the responsibility to “Take Care that the Laws be faithfully executed,” he decided that he could rewrite legislation to fit his conception of the President’s constitutional powers.