Congressional Record: July 24, 2006 (Senate)
Page S8122-S8124
PRESIDENTIAL SIGNING STATEMENTS
Mr. SPECTER. Mr. President, the American Bar Association issued a
release today summarizing a report by a blue ribbon task force which
concluded that President Bush's signing statements are in violation of
and undermine the important doctrine of separation of powers. As it has
been widely recorded, President Bush has undertaken a practice of
issuing a signing statement at the time he signs congressional action
into law. The task force said its recommendations ``are intended to
underscore the importance of the doctrine of separation of powers and,
therefore, represent a call to the President and to all his successors
to fully respect the rule of law and our constitutional system of
separation of powers and checks and balances.''
Noting that the Constitution is silent about Presidential signing
statements, the task force found that while several Presidents have
used them, the frequency of signing statements that challenge laws has
escalated substantially, and their purpose has changed dramatically,
during the administration of President Bush. According to a press
release issued today by the ABA, the task force report notes:
From the inception of the Republic until 2000, Presidents
produced fewer than 600 signing statements taking issue with
the bills they signed. According to the most recent update,
in his one-and-a-half terms so far, President George Walker
Bush . . . has produced more than 800.
The report found that President Bush's signing statements are
``ritualistic, mechanical, and generally carry no citation of authority
or detailed explanation.'' Even when ``[a] frustrated Congress finally
enacted a law requiring the Attorney General to submit to Congress a
report of any instance in which that official or any officer of the
Department of Justice established or pursued a policy of refraining
from enforcing any provision of any federal statute, . . . this, too,
was subjected to a ritual signing statement, insisting on the
President's authority to withhold information whenever he deemed
necessary.''
This request raises serious concerns on the proceedings for
separation of powers. The ABA states that its report goes on to say:
If left unchecked, the president's practice does grave harm
to the separation of powers doctrine and the system of checks
and balances that have sustained our democracy for more than
two centuries.
The Senate Judiciary Committee held a hearing on this subject and
found that this practice does threaten the separation of powers
doctrine. The hearing showed that the Constitution is clear, that when
both Houses of Congress pass legislation and submit that legislation to
the President, the Constitution calls either for the President to sign
the legislation, to engage in what could be called a pocket veto, or to
veto the legislation and send it back to Congress. If there is a
constitutional issue and the President concludes that portions of the
statute are unconstitutional, he has an oath to uphold the
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Constitution. And the way to fulfill that oath is to return the
legislation to the Congress with a veto message noting the
unconstitutionality of the provision and giving Congress the option of
altering the legislation to satisfy the President's request, passing it
over the President's veto, or declining to act further.
Additionally, the task force has urged the Congress to enact
legislation to require the President to submit a report to the Congress
of any such signing statement and has urged the Congress to enact
legislation. During the course of the hearing before the Judiciary
Committee, in my capacity as chairman, I made the request to Bruce
Fein, who had been a lawyer in the Department of Justice during the
Reagan administration, to take the lead and prepare legislation on the
subject. Mr. Fein and my staff have been working on legislation. It is
my expectation that, before the weekend, we will submit legislation to
the Senate which will give the Congress standing to seek relief in the
Federal courts in situations where the President has issued such
signing statements and which will authorize the Congress to undertake
judicial review of those signing statements, with the view to having
the President's acts declared unconstitutional. That is our view as to
the appropriate status of these signing statements.
It is worth noting that the task force members include a very
distinguished array of former public servants, including former CIA
Director William Sessions; former Republican House Member Mickey
Edwards; Court of Appeals Judge Patricia M. Wald, and others.
At this point, I ask unanimous consent that the full text of the news
release from the American Bar Association be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From American Bar Association, News Release, July 24, 2006]
Blue-Ribbon Task Force Finds President Bush's Signing Statements
Undermine Separation of Powers
Washington, DC.--Presidential signing statements that
assert President Bush's authority to disregard or decline to
enforce laws adopted by Congress undermine the rule of law
and our constitutional system of separation of powers,
according to a report released today by a blue-ribbon
American Bar Association task force.
To address these concerns, the task force urges Congress to
adopt legislation enabling its members to seek court review
of signing statements that assert the President's right to
ignore or not enforce laws passed by Congress, and urges the
President to veto bills he feels are not constitutional.
The Task Force on Presidential Signing Statements and the
Separation of Powers Doctrine was created by ABA President
Michael S. Greco with the approval of the ABA Board of
Governors in June, to examine the changing role of
presidential signing statements after the Boston Globe on
April 30 revealed an exclusive reliance on presidential
signing statements, in lieu of vetoes, by the Bush
Administration.
In appointing the special task force Greco said, ``The use
of presidential signing statements raises serious issues
relating to the constitutional doctrine of separation of
powers. I have appointed the Task Force to take a balanced,
scholarly look at the use and implications of signing
statements, and to propose appropriate ABA policy consistent
with our Association's commitment to safeguarding the rule of
law and the separation of powers in our system of
government.''
The task force report and recommendations will be presented
to the ABA's policymaking House of Delegates for adoption at
its upcoming Annual Meeting Aug. 7-8. Until the ABA House has
taken formal action, the report and recommendations represent
only the views of the task force.
The bipartisan task force, composed of constitutional
scholars, former presidential advisers, and legal and
judicial experts, noted that President George W. Bush is not
the first president to use signing statements, but said, ``It
was the number and nature of the current President's signing
statements which . . . compelled our recommendations.''
The task force said its report and recommendations ``are
intended to underscore the importance of the doctrine of
separation of powers. They therefore represent a call to this
President and to all his successors to fully respect the rule
of law and our constitutional system of separation of powers
and checks and balances.''
The task force determined that signing statements that
signal the president's intent to disregard laws adopted by
Congress undermine the separation of powers by depriving
Congress of the opportunity to override a veto, and by
shutting off policy debate between the two branches of
government. According to the task force, they operate as a
``line item veto,'' which the U.S. Supreme Court has ruled
unconstitutional.
Noting that the Constitution is silent about presidential
signing statements, the task force found that, while several
recent presidents have used them, the frequency of signing
statements that challenge laws has escalated substantially,
and their purpose has changed dramatically, during the Bush
Administration.
The task force report states, ``From the inception of the
Republic until 2000, Presidents produced fewer than 600
signing statements taking issue with the bills they signed.
According to the most recent update, in his one-and-a-half
terms so far, President George Walker Bush . . . has produced
more than 800.''
The report found that President Bush's signing statements
are ``ritualistic, mechanical an generally carry no citation
of authority or detailed explanation.'' Even when ``[a]
frustrated Congress finally enacted a law requiring the
Attorney General to submit to Congress a report of any
instance in which that official or any officer of the
Department of Justice established or pursued a policy of
refraining from enforcing any provision of any federal
statute . . . this too was subjected to a ritual signing
statement insisting on the President's authority to withhold
information whenever he deemed it necessary.''
``This report raises serious concerns crucial to the
survival of our democracy,'' said Greco. ``If left unchecked,
the president's practice does grave harm to the separation of
powers doctrine, and the system of checks and balances, that
have sustained our democracy for more than two centuries.
Immediate action is required to address this threat to the
Constitution and to the rule of law in our country.''
Greco said that the task force's report ``constructively
offers procedures that consider the prerogatives both of the
president and of the Congress, while protecting the
public's right to know what legislation is adopted by
Congress and if and how the president intends to enforce
it. This transparency is essential if the American people
are to have confidence that the rule of law is being
respected by both citizens and government leaders.''
The bipartisan and independent task force is chaired by
Miami lawyer Neal Sonnett, a former Assistant U.S. Attorney
and Chief of the Criminal Division for the Southern District
of Florida. He is past chair of the ABA Criminal Justice
Section, chair of the ABA Task Force on Domestic Surveillance
and the ABA Task Force on Treatment of Enemy Combatants; and
president-elect of the American Judicature Society.
``Abuse of presidential signing statements poses a threat
to the rule of law,'' said Sonnett. ``Whenever actions
threaten to weaken our system of checks and balances and the
separation of powers, the American Bar Association has a
profound responsibility to speak out forcefully to protect
those lynchpins of democracy.''
The other task force members, whose brief background
information follows, are William S. Sessions, Patricia M.
Wald, Mickey Edwards, Bruce Fein, Harold Hongju Kho, Charles
Ogletree, Stephen A. Saltzburg, Kathleen M. Sullivan, Mark
Agrast, Tom Susman, and adviser Alan Rothstein.
The task force recommendations urge Congress to adopt
legislation to permit the president, Congress or other
entities to seek court review any time the president claims
he has the authority, or states his intention, to disregard
or decline to enforce all or part of a law he has signed, or
when he interprets the law in a manner inconsistent with the
intent of Congress. Currently, Congress lacks legal authority
to seek judicial review in those circumstances.
The task force also urges the president to use his veto
power, as all prior presidents have done, instead of a
signing statement when he believes all or part of a bill is
unconstitutional, in keeping with the Constitution's
requirement that the president either approve or disapprove
in their entirety laws presented to him by Congress.
If the president believes a bill pending before Congress
would be unconstitutional if enacted, he should communicate
his concerns to Congress before the bill is passed, according
to the task force.
Additionally, the task force urges Congress to enact
legislation requiring the president promptly to submit to
Congress an official copy of every signing statement he
issues. Any time the president claims authority or states his
intention to disregard or decline to enforce all or part of a
law he has signed, the legislation should require him to
submit a report to Congress, available in a public database,
setting forth in full the reasons and legal basis for his
position, said the task force.
Presidential signing statements are not new, according to
the task force, which notes that ``Presidents have issued
statements elaborating on their views of the laws they sign
since the time of President James Monroe.'' But under
President Ronald Reagan, ``For the first time, signing
statements were viewed as a strategic weapon in a campaign to
influence the way legislation was interpreted by the courts
and Executive agencies as well as their more traditional use
to preserve Presidential prerogatives.'' The report also
notes that President Clinton, like his predecessors, used
signing statements, but to a significantly lesser degree, and
different purpose.
Among President Bush's signing statements, the task force
noted refusals to carry out laws involving ``Congressional
requirements to report back to Congress on the use
[[Page S8124]]
of Patriot Act authority to secretly search homes and seize
private papers, [and] the McCain amendment forbidding any
U.S. officials to use torture or cruel and inhumane treatment
on prisoners.''
Where legislation has mandated reports to Congress on
special matters, such as the Intelligence Authorization Act
of 2002, the signing statement treated the requirement as
only advisory, said the task force. The task force said
President Bush's signing statements are ``particularly
adamant about preventing any of his subordinates from
reporting directly to Congress.''
With more than 410,000 members, the American Bar
Association is the largest voluntary professional membership
organization in the world. As the national voice of the legal
profession, the ABA works to improve the administration of
justice, promotes programs that assist lawyers and judges in
their work, accredits law schools, provides continuing legal
education, and works to build public understanding around the
world of the importance of the rule oflaw in a democratic
society.
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