PRESIDENTIAL SIGNING STATEMENTS UNDER THE BUSH ADMINISTRATION: A THREAT
TO CHECKS AND BALANCES AND THE RULE OF LAW?
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JANUARY 31, 2007
__________
Serial No. 110-6
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
ROBERT WEXLER, Florida DARRELL ISSA, California
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
[Vacant]
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
C O N T E N T S
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JANUARY 31, 2007
OPENING STATEMENT
Page
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
Judiciary...................................................... 1
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Ranking Member, Committee on the Judiciary. 2
Prepared Statement of the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York.......... 4
Prepared Statement of the Honorable Trent Franks, a
Representative in Congress from the State of Arizona........... 5
WITNESSES
Mr. John P. Elwood, Deputy Assistant Attorney General, Office of
Legal Counsel, United States Department of Justice
Oral Testimony................................................. 7
Prepared Statement............................................. 10
The Honorable Mickey Edwards, former Member of Congress from the
State of Oklahoma, Aspen Institute
Oral Testimony................................................. 26
Prepared Statement............................................. 27
Ms. Karen J. Mathis, President, American Bar Association
Oral Testimony................................................. 28
Prepared Statement............................................. 31
Mr. Nicholas Quinn Rosenkranz, Associate Professor of Law,
Georgetown University Law Center
Oral Testimony................................................. 43
Prepared Statement............................................. 45
Mr. Charles J. Ogletree, Jr., Jesse Climenko Professor of Law,
Harvard Law School
Oral Testimony................................................. 62
Prepared Statement............................................. 63
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 105
Prepared Statement of the Honorable Linda T. Sanchez, a
Representative in Congress from the State of California........ 107
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee........................ 107
Prepared Statement of the Honorable Luis V. Gutierrez, a
Representative in Congress from the State of Illinois.......... 107
Response to Post-Hearing Questions from John P. Elwood, Deputy
Assistant Attorney General, Office of Legal Counsel, United
States Department of Justice................................... 109
Response to Post-Hearing Questions from the Honorable Mickey
Edwards, former Member of Congress from the State of Oklahoma,
Aspen Institute 115
Response to Post-Hearing Questions from Karen J. Mathis,
President, American Bar Association 116
Response to Post-Hearing Questions from Nicholas Quinn
Rosenkranz, Associate Professor of Law, Georgetown University
Law Cente 118
Response to Post-Hearing Questions from Charles J. Ogletree, Jr.,
Jesse Climenko Professor of Law, Harvard Law School 122
Newspaper article entitled `` `Signing Statements' Are a Phantom
Target,'' by Laurence H. Tribe, August 9, 2006, The Boston
Globe, submitted by the Honorable F. James Sensenbrenner, Jr.,
a Representative in Congress from the State of Wisconsin....... 124
Newspaper article entitled ``Who's Afraid of Presidential Signing
Statements?'' by Stanley Fish, February 4, 2007, The New York
Times,......................................................... 128
Newspaper article entitled ``Guess who is opening, reading your
mail; OUR OPINION: CONGRESS MUST HOLD HEARINGS ON SIGNING
STATEMENTS,'' January 9, 2007, The Miami Herald................ 132
Newspaper article entitled ``ENDING BACK-DOOR VETOES,'' July 25,
2006, The Boston Globe......................................... 134
Newspaper article entitled ``Veto? Who Needs a Veto?'' May 5,
2006, The New York Times....................................... 135
PRESIDENTIAL SIGNING STATEMENTS UNDER THE BUSH ADMINISTRATION: A THREAT
TO CHECKS AND BALANCES AND THE RULE OF LAW?
----------
WEDNESDAY, JANUARY 31, 2007
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:22 p.m., in
Room 2142, Rayburn House Office Building, the Honorable John
Conyers, Jr. (Chairman of the Committee) presiding.
Mr. Conyers. Good morning. The Committee will come to
order.
Before we begin our hearing, many have heard that our
former colleague and friend, Father Robert Drinan, passed on
Sunday, January 28th, here in Washington. Father Drinan served
with us as a Member of the House and on this Judiciary
Committee from 1970 to 1981, later becoming a professor at
Georgetown University Law Center, and he was known as a
tireless advocate for civil rights and social justice in this
country and in the world. He was a passionate opponent of what
he believed was an immoral war we were fighting in Vietnam. His
principled stands earned him widespread admiration as well as a
prominent place on President Nixon's enemies' list. He was the
first and last Roman Catholic priest to hold a seat in Congress
while he wore the cloth, and although he enjoyed strong support
in his district and would undoubtedly have been reelected, he
resigned with ``regret and pain,'' in his words, after Pope
John Paul II issued a decree forbidding priests from holding
legislative offices.
His departure was a great loss to this body and to the
American people and as a friend and colleague who lived true to
his values, who answered the highest calling of government
service to direct its resources to improving people's lives and
correcting social wrongs. In honor of his distinguished career
and service, I ask unanimous consent that we hold a moment of
silence for Father Drinan.
[Moment of silence.]
Mr. Conyers. Thank you.
We are holding our first oversight hearing in the Judiciary
Committee of the 110th Congress. Many have joined me in
expressing concern about the growing abuse of power within the
executive branch. This President has tried to take unto himself
what has been termed absolute authority on issues such as
surveillance, privacy, torture, enemy combatants, and
rendition.
Today we are taking up the very important item of
Presidential signing statements, which supposedly give him the
power to ignore duly enacted laws he has negotiated with the
Congress and signed into law. All too often, the Administration
has engaged in these practices under a veil of secrecy. This is
a constitutional issue that no self-respecting Federal
legislature should tolerate, and so today we announce that, out
of this oversight hearing, we will begin an investigation of
the specific use and abuse of Presidential signing statements.
In particular, I intend to ask the Administration to
identify each statutory provision that they have not agreed
with in signing statements and to specify precisely what they
have done as a result.
Now, an example. If the President claims he is exempt from
the McCain amendment ban on torture, we need to know whether
and where he has permitted it. We want to know what he has done
to carry out his claims to be exempt from many other laws such
as oversight and reporting requirements under the PATRIOT Act,
numerous affirmative action obligations and the requirement
that the Government obtain a search warrant before opening the
mail of American citizens.
So I am going to ask my staff, along with that of my friend
the Ranking Member Lamar Smith's, staff--those two staffs--to
meet with the Department of Justice and the White House so we
can get to the bottom of this matter. And we will and we must
do this, and we are not going to take ``no'' for an answer. We
are a coequal branch of Government, and if our system of checks
and balances is going to operate, it is imperative that we
understand how the executive branch is enforcing or ignoring
the bills that are signed into law.
Last summer the American Bar Association appointed a
distinguished task force which carefully studied the problem.
They found out as of last year President Bush had challenged no
fewer than 800 legal provisions, far more than all previous
Presidents combined. This is in a total of 148 signing
statements that we have here for our Members' examination.
Republicans and Democrats alike have reached a unanimous
conclusion which was endorsed by the entire American Bar
Association House of Delegates: this use of signing statements
is ``contrary to the rule of law and our constitutional system
of separation of powers.''
Today, in an oversight hearing, we are here to explore that
conclusion and then to take action. We are talking about a
systematic extra-constitutional mode of conduct by the White
House. The conduct threatens to deprive the American people of
one of the basic rights of any democracy, the right to elect
Representatives who determine what the law is, subject only to
the President's veto. That does not mean having a President
sign those laws but then say that he is free to carry them out
or not as only he sees fit.
That concludes my opening statement. I am pleased now to
recognize the distinguished Ranking Member from Texas, Lamar
Smith, for his opening remarks.
You are recognized sir.
Mr. Smith. Thank you, Mr. Chairman.
Members of Congress have a right to say what they think of
a particular piece of legislation, and the President, too, has
the right to say what he thinks about a particular piece of
legislation. Whenever the views of a Member of Congress or the
President conflict with how a Federal court interprets a piece
of legislation, the courts will have the final say on what the
law means. The fact is that courts have rarely mentioned
Presidential signing statements, and when they have mentioned
them, they cite them only when such statements support the
interpretive view of the statute the court has already
embraced.
The Supreme Court explicitly agreed with the Presidential
signing statement for the first time in United States v.
Lovett. In that case, the courts held that a provision of the
Urgent Deficiency Appropriation Act of 1943 was
unconstitutional, and noted that President Roosevelt had
earlier reached the same conclusion in a signing statement.
Recently, lower courts have occasionally cited signing
statements, but only as affirmations of their own
interpretations of the statutes.
Presidential signing statements are a non-issue. Critics
have launched a massive fishing expedition, but they have
caught only the reddest of red herrings. To see why, one need
look no further than the Supreme Court's decision just last
year in Hamdan v. Rumsfeld. At the end of June 2006, that much-
awaited Supreme Court decision completely ignored a Bush
administration signing statement, asserting that the court
lacked jurisdiction over the case.
So this hearing only consists of a critique of a sideshow
that the courts themselves have barely glanced at. When a
Presidential signing statement does not support what courts
understand legislation to mean, the courts ignore the signing
statement altogether as the Supreme Court did last year.
A Congressional Research Service report to Congress issued
September 20th, 2006 concluded that, ``A bill that is signed by
the President retains its legal effect and character
irrespective of any pronouncements made in a signing statement,
and remains available for interpretation and application by the
courts.'' The same report concluded that, ``ultimately, it does
not appear that the courts have relied on signing statements in
any appreciably substantive fashion.''
Opponents of the use of signing statements claim the
President should veto bills if they contain any sections the
President thinks are unconstitutional, and that if the
President signs a bill, he has to implement the whole bill
until a court decides he does not have to. But that would mean,
for example, that the President would have to veto an entire
bill that funds the military, and thereby deny the troops the
support they deserve if the bill contained a single
unconstitutional provision. In such instances, there is no
reason the President should have to veto the whole bill rather
than simply state the constitutional objections to one small
portion of it.
If the President acts on his signing statement in an
unconstitutional way, his position can be challenged in court,
but the fact remains that this hearing is based entirely on a
hypothetical, since no one can cite a single instance in which
President Bush has ever failed to implement a law.
This hearing apparently is motivated by the alarm some feel
when a duly elected President says what he thinks a statute
means through a Presidential signing statement, even when
courts routinely ignore such statements or simply cite them
when they agree with their own statutory interpretation. Yet
the same critics have never expressed any alarm when the courts
on their own cite foreign law to interpret domestic statutes in
ways that are not supported by American voters and their duly
elected Representatives.
Yet, this hearing focuses not on courts and judges, but
rather on the President's simple opinion about the legislation
he is deciding to sign. One has the distinct feeling that this
is really a policy debate. If critics of signing statements
agreed with the President on policy, we simply would not be
here today.
Mr. Chairman, we have distinguished witnesses this morning,
and I look forward to hearing from them and yield back the
balance of my time.
Mr. Conyers. Thank you, Mr. Smith.
I now recognize the Chairman of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties, Mr. Jerry
Nadler of New York, for his opening statement.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, I think today's hearing is an important
milestone. For too long, this Administration has gotten a pass
when it comes to congressional oversight. Those days are over.
I want to commend you, Mr. Chairman, for taking this early
opportunity to resume the exercise of Congress' constitutional
duty to act as a check on the executive branch.
It is a core function established by the framers of our
Constitution to ensure that no President can exercise
unfettered power. The question of signing statements is an
important one. Article I, Section 7 of the Constitution
provides the President with the following options when
presented with a bill passed by Congress.
``If he approves, he shall sign it, but if not, he shall
return it with its objections to that house at which it shall
have originated.'' That strikes me as pretty clear.
The more critical concern I have about this President's
signing statements is their actual content. His broad and often
unfounded assertions of Presidential power and his repeated
attempts to reinterpret laws passed by Congress against the
obvious intent are the real dangers. The President gets a yea
or nay. He does not get to rewrite the bill or to try to
establish his own legislative history. Only the legislative
branch makes legislative history; hence, the name.
I would hope that the courts would not be tempted to look
to these statements as anything more than oratory. They have no
significance in terms of understanding and interpreting the
legislation. At most, some of these signing statements could be
considered due warning from the President that he intends to
violate a law he has just signed. That is something we and the
American people should take very seriously.
Of course, we have more than just signing statements to
demonstrate this Administration's contempt for the rule of law.
It is when the President acts on his declaration that the law
means something other than what Congress intended that he goes
from arrogance to lawlessness. In many cases, he has not even
been forthright enough to let us know that he intends to
violate the law. We have found out by reading the newspapers.
The President is not shy about publicly declaring that he
is not bound by the rule of law. His repeated assertions, for
example, that he does not need to obtain a warrant for the
Foreign Intelligence Surveillance Court, despite the fact that
the law specifically requires one, is just one outrageous
example. The fact that the President authorized warrantless
surveillance in violation of the law threatens our democracy.
I would also remind people that FISA is a criminal act and
says that it is a felony for anyone under the color of law,
meaning Government officials, to wiretap Americans in the
United States except under the provisions of that law. And I
would again remind people that the statute of limitations of
that law runs considerably beyond the lifetime of this
Administration.
I look forward to the testimony today, but I again want to
thank Chairman Conyers for beginning his chairmanship with this
important inquiry. It is an auspicious beginning to what I am
confident will be a productive Congress.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you very much.
Finally, I recognize the Ranking Minority Member of the
Subcommittee, Trent Franks of Arizona, for his opening remarks.
Mr. Franks. Thank you, Mr. Chairman.
Mr. Chairman and Members, given today's hearing focuses on
the proper function of the Executive under the U.S.
Constitution, it is appropriate that we look to the
Constitution itself to be our guide.
Article II, Section 1 mandates that the President take a
very specific oath of office, just as do Members of Congress
and Federal judges, and the oath is as follows: ``I do solemnly
swear that I will faithfully execute the Office of President of
the United States, and will to the best of my ability preserve,
protect, and defend the Constitution of the United States.''
The constitutional system of checks and balances among the
three branches of Government is fundamental to the American
system of Government, and most of us learned how it works in
basic high school civics class. So let us consider, if the
Congress passes an unconstitutional law, as it has sometimes
done in the past, according to even the Supreme Court
jurisprudence, then what is the President to do? Can anyone
seriously contend that the President has no choice but to
enforce the unconstitutional law upon the people? Could that
possibly be what the framers intended? And what of checks and
balances? Are the people to be oppressed by an unconstitutional
law unless it can be processed through the court system, or
does the President have the ability to exercise his judgment as
to the constitutionality of an act of Congress?
An honest reading of the Presidential oath allows us only
one conclusion: that the President has a duty to the people to
execute only that law which is constitutional. Conversely, he
has a duty to protect the people from the enforcement of an
unconstitutional law. Indeed, in the Marbury decision, Chief
Justice Marshall proclaimed, ``A legislative act contrary to
the Constitution is not law.''
Presidential signing statements are valuable tools used
since the early days of the Republic to explain the Executive's
understanding of a statute and, at times, to enable the
President to renounce his refusal to enforce a clearly
unconstitutional statute. According to the Office of Legal
Counsel under the Clinton administration, this practice is
consistent with the views of the framers, and Presidential
signing statements have been common in both the Bush and
Clinton administrations, with Mr. Clinton issuing approximately
391 signing statements. And for obvious reasons, Presidential
signing statements tend to be more common in times of war when
the President must exercise his role as Commander in Chief in
addition to his other roles.
Now, the Majority has stated in their preparatory
memorandum the signing statements may be used to invite
judicial review and to attempt to influence what a court sees
when examining the legislative history. However, this statement
is not proven out by our history. And I echo the thoughts of
Ranking Member Lamar Smith when he makes clear that the courts
have not substantively relied on Presidential signing
statements to inform their decisions. Even Laurence Tribe has
dismissed this supposed, ``threat'' of signing statements as
nothing more than a flourish on the part of the Chief
Executive.
Therefore, there seems to be no merit in the opposition's
arguments, and one must beg the question of why we are devoting
a hearing to this issue. If we are truly concerned about the
courts' relying upon sources of law other than U.S. statutes,
then we would immediately move our examination to a more
genuine threat to the Constitution today, and that is the U.S.
courts' increasing reliance upon foreign law, made by foreign
rulers who are not elected for the people or by the people of
the United States and who do not share our basic values.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you very much.
I invite the rest of our Members to submit their statements
for the record.
Mr. Issa. Mr. Chairman?
Mr. Conyers. Who seeks recognition? Yes, Mr. Issa.
Mr. Issa. A parliamentary inquiry.
Don't the rules allow us to make oral opening statements
unless granted by unanimous consent?
Mr. Conyers. No, sir. I am afraid----
Mr. Issa. So you are cutting off the opportunity for
opening statements to be on the record here in public hearing?
Mr. Conyers. Well, I am not cutting them off. I am
following the tradition for the last 40 years that I have been
on the Committee.
Mr. Issa. Thank you, Mr. Chairman.
Mr. Conyers. We have a distinguished panel of witnesses,
and I am grateful that they are here this morning to help us
consider this important subject.
The first witness is the Deputy Assistant Attorney General
with the Office of Legal Counsel at the United States
Department of Justice, Mr. John Elwood. He has previously held
positions in the Solicitor General's Office, the Criminal
Division and the U.S. Attorney's Office in Virginia. He clerked
for the late Judge Daniel Mahoney of the U.S. Courts of Appeal
for the Second Circuit and for Associate Justice Anthony M.
Kennedy.
Welcome, sir.
Then we have our former colleague, the Honorable Mickey
Edwards, a former Member of Congress from Oklahoma, who now
lectures at Princeton University's Woodrow Wilson School of
Public and International Affairs and directs a program on
political leadership for the Aspen Institute. He was a founding
trustee of the Heritage Foundation as well as chairman of the
American Conservative Union. Recently, he has served as a
member of the American Bar Association's task force on signing
statements.
Welcome, sir. Glad that you are back.
Following him, we have Ms. Karen Mathis, a partner in the
Denver office of McElroy, Deutsch, Mulvaney & Carpenter, and
the current president of the American Bar Association, one of
the many leadership roles that she has held in the ABA during
her professional career.
Welcome to the hearing.
Our fourth witness this morning will be Nicholas
Rosenkranz, Associate Professor of Law at Georgetown
University. Professor Rosenkranz clerked for Justice Anthony
Kennedy and was Attorney Advisor in the Justice Department's
Office of Legal Counsel. He also serves on the Council on
Foreign Relations.
Welcome, sir.
Finally, we have Charles Ogletree of Harvard Law School,
where he holds the Jesse Climenko Professorship. He is the
founding executive director of the school's Charles Hamilton
Houston Institute for Race and Justice. Professor Ogletree
began his legal career here in the District of Columbia in the
Public Defender Service.
Members of the panel, each of your written statements will
be made part of the record in its entirety. I ask that you
summarize your testimony in the usual 5 minutes or less. We
have a timing light that will assist you in that endeavor.
Let us begin with Mr. Elwood.
Welcome.
TESTIMONY OF JOHN P. ELWOOD, DEPUTY ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL COUNSEL, UNITED STATES DEPARTMENT OF JUSTICE
Mr. Elwood. Thank you, Chairman Conyers, Ranking Member
Smith and Members of the Committee. I appreciate the
opportunity to appear today to discuss the use and legality of
Presidential signing statements.
The subtitle of today's hearing asks whether the
President's use of such statements poses a threat to checks and
balances and the rule of law. The answer to that question, I
think, is clearly ``no'' for three reasons.
First, such signing statements are traditional, dating back
at least to 1821. Second, they are both lawful and appropriate.
And third, far from being a threat to checks and balances, they
are an essential part of a respectful constitutional dialogue--
--
Mr. Nadler. Mr. Chairman, would you ask the witness to
speak a little closer to the microphone, please?
Mr. Elwood. I would be happy to. I am sorry about that.
Certainly.
Third, far from being a threat to checks and balances, they
are an essential part of a respectful constitutional dialogue
among coequal branches of Government.
Let me be clear from the outset. Article I of the
Constitution gives Congress exclusive legislative power, a
clear and unequivocal mandate. These statements do not subvert
the authority of Congress nor do they arrogate to the executive
branch any authority with which it is not constitutionally
entrusted.
Beginning in the early days of the Republic under
Presidents Monroe and Jackson and continuing under Presidents
Lincoln and Wilson, Presidents have long used signing
statements to note constitutional issues raised by the law. The
use of such constitutional signing statements has greatly
increased in recent decades, and such statements have been
issued by every President since Franklin Roosevelt.
Traditionally, Presidents have used them to provide guidance to
executive branch employees about new laws they must implement
and to communicate the President's constitutional views to
Members of Congress and to the public.
As this long tradition reflects, signing statements are not
acts of Executive defiance of Congress, nor are they an
indication that the President will adhere to the laws
selectively as he wishes. While signing statements often seek
to preserve the Executive's role in our system of checks and
balances, the mere description of constitutional concerns about
a provision does not imply that the law will not be enforced as
written.
President Bush's signing statements are consistent with
those of his predecessors and give voice to views expressed by
Presidents of both parties, including Presidents Truman,
Eisenhower, Carter, and Clinton. In fact, after a detailed
study, the Congressional Research Service concluded that, ``It
is important to note that the substance of President Bush's
signing statements do not appear to differ substantively from
those issued by either Presidents Reagan or Clinton.''
Professors Curtis Bradley of Duke Law School and Eric
Posner of the University of Chicago noted that they were,
``almost identical in wording,'' to President Clinton's
statements.
Contrary to recent claims, the number of constitutional
signing statements the President has issued is comparable to
every President in a generation.
Second, this longstanding practice is clearly lawful, an
exercise of the President's obligation under Article II to take
care that the laws be faithfully executed and to preserve,
protect and defend the Constitution. In executing new laws, the
President must interpret their meaning both standing alone and
in light of supreme law, the Constitution. As the Supreme Court
held in Boucher v. Synar, ``Interpreting a law enacted by
Congress to implement the legislative mandate is the very
essence of execution of the law.'' Moreover, the Congressional
Research Service recently concluded that, ``No constitutional
or legal deficiencies adhere to the issuance of such
statements.''
During the Clinton administration, Assistant Attorney
General Walter Dellinger noted that such statements were,
``legitimate and defensible.'' And Harvard Law School Professor
Laurence Tribe recently said that such statements are,
``constitutionally unobjectionable,'' a judgment shared by
Professors Bradley and Posner.
Third, far from being a threat to the rule of law, these
statements promote comity by publicly informing coequal
branches of Government of the President's constitutional views
on the execution of new laws. Such statements do not seek to
alter the constitutional balance among the branches nor could
they under the Constitution. The legislative process and indeed
Government as a whole would suffer if the President withheld
his views about constitutional concerns until the moment of
enforcement or if his only option to express those views were
to veto needed legislation reflecting months or years of work
because of what are sometimes minor and redressable issues.
Signing statements seek to promote a dialogue between the
branches of Government to ensure that the President faithfully
executes the law while respecting Congress' exclusive authority
to make it.
I thank the Committee for allowing me to testify, and I
would be happy to answer any questions you may have.
Mr. Conyers. Thank you, sir.
[The prepared statement of Mr. Elwood follows:]
Prepared Statement of John P. Elwood
Mr. Conyers. The Honorable Mickey Edwards, welcome back
here.
TESTIMONY OF THE HONORABLE MICKEY EDWARDS, FORMER MEMBER OF
CONGRESS FROM THE STATE OF OKLAHOMA, ASPEN INSTITUTE
Mr. Edwards. Thank you, Mr. Chairman, Mr. Smith, Members of
the Committee. Thank you for having me back. It is a pleasure
to see so many old friends here.
I think it is important to establish one thing at the
outset. This is not about signing statements as we have known
them in the past. Presidents typically accompany their signing
of legislation with some comments expressing an opinion about
the bills they have just signed into law. The issue is not
whether or not Presidents have an equal right to be heard. It
is not about whether or not the courts should take a
Presidential opinion into account when considering the intent
of a law.
The question is far more fundamental and goes to the heart
of what the Congress of the United States is all about. The
question is whether or not the President of the United States
is above the law, because the moment he signs the legislation
that you have presented to him, it is not merely a proposal,
not a bill, not a statute; it is the law, and it is binding
upon every citizen of the United States, whether a street
sweeper or the President.
The powers of the President are clearly delineated in the
Constitution. No President is required to approve of an act of
Congress. No President is required to sign an act of Congress
into law. He may sign it, making it law, but he may refuse to
sign it. He may veto it. He may refuse, to have nothing to do
with that at all. But those are his only choices.
Under Article I, Section 7, a President who finds a piece
of a law unconstitutional has the authority, the right, the
obligation under the Constitution to veto it, and then the
Congress can reconsider what it wants to do about it at that
point. Presidents, like the rest of us, are free to say
whatever they want, whenever they want, but he may not choose
whether or not to be bound by the law.
Further, there is a view of the Presidency articulated by
the current President which considers the executive branch to
be a single unit under the sole direction of the President, and
according to this theory of the unitary Executive, the
legislative branch of Government may not instruct executive
branch agencies in the performance of their duties. So that
when a President declares that he is not bound by the bills he
signs into law, he is saying in effect that none of the
Executive agencies are bound either.
The Congress, you all, may require a Federal agency to
report on some matter, but at best that requirement simply
becomes a suggestion and probably one that will not be taken
too seriously.
It has been argued that some of the concerns that a few of
us have expressed are exaggerated. Defenders of these
Presidential assertions claim they know of no instance in which
the President, having declared himself not bound by a law, has
nonetheless refused to comply with it. There are two answers to
that.
First, if agencies refuse to inform the Congress, as the
Attorney General just did in regard to the Administration's
agreements with the FISA Court on Electronic Surveillance, how
can the Congress or the public know whether or not the law is
being complied with?
Second, and more important, any Presidential assertion of
the right to ignore the law must be challenged or it will
become precedent. Future Presidents may--Mr. Smith, I agree
with most of this President's policies. I may not agree with
the policies of the next President. And future Presidents can
rely on that unchallenged assertion to disobey future laws; and
if that happens, the Congress of the United States will become
irrelevant and the basic structure of American Government will
have been fundamentally changed. The voice of the people, as
expressed by their Representatives in Congress, will have been
considerably diminished.
One final point. There is much discussion about the
authority that is vested in the Congress or the powers vested
in Congress or the rights of the Congress, but this is not a
question of authority or powers or rights. It is a question of
duty and responsibility. Every Member of Congress took an oath,
and I stood beside some of you when you took that oath and I
took that oath. Every Member of Congress takes an oath to
fulfill very specific constitutional obligations. Under that
Constitution, it is the obligation of the Congress to determine
what shall be law and what shall not be law. It is the
obligation of Congress to act as a completely separate, a
completely independent, and a completely equal branch of
Government regardless of whether the President is of your party
or another party. It is your job to determine the law and to
ensure that the law is obeyed.
This Congress must block any attempt by any President of
any party to treat the people's Representatives with contempt.
This Congress must use its considerable powers to withhold
appropriations, to conduct hearings, to compel testimony under
oath, to grant itself standing before the courts to ensure that
the United States does not devolve into a system the founders
feared and worked so hard and so long to avoid.
Thank you, Mr. Chairman.
Mr. Conyers. Thank you, Mr. Edwards. You have become the
first person under my chairmanship to have exceeded your time,
by 7 seconds.
Mr. Edwards. Ah. Well, I am sorry, Mr. Chairman.
[The prepared statement of Mr. Edwards follows:]
Prepared Statement of the Honorable Mickey Edwards,
former Member of Congress
Mr. Chairman, Mr. Smith, Members of the Committee:
Thank you for inviting me. It is good to see so many old friends
here.
I think it's important to establish one very important point at the
outset. This is not really about presidential ``signing statements'' as
most of us have known them. Presidents typically accompany their
signing of legislation with some comments, written or spoken,
expressing an opinion about the bills they've just signed into law. The
issue here is not whether or not Presidents have an equal right to be
heard, and it's not really about whether or not the Courts should take
a presidential opinion into account when considering the intent of a
law, although I would think that to be a very iffy proposition and
would hope the Courts would continue to think so, too.
The question here is much more fundamental than those. The question
is whether or not the President of the United States is above the law.
Because the moment he signs the legislation that is presented to him,
it is not merely a proposal; it is the law, and it is binding upon
every citizen, whether a taxi driver, a street sweeper, or the
President of the United States, because when it comes to the law, we
are all equal and we are all equally bound.
The powers of the President are clearly delineated in the
Constitution. No President is required to approve of an act of
Congress. No President is required to sign an act of Congress into law.
He may sign it, making it law, but he may also refuse to sign it, to
veto it, to refuse to have anything to do with making it the law. But
those are his only choices, sign it (and be bound by it) or veto it,
and hope his veto will not be overridden. The objection I would put
before you is not to the use of presidential ``signing statements''--
Presidents, like the rest of us, are free to say whatever they want
whenever they want--but to assertions that the President may choose
whether or not to abide by the law.
Further, there is a view of the presidency, articulated by the
current holder of that office, which considers the entirety of the
Executive Branch of Government to be a single unit under the sole
direction of the President. According to this theory of the ``unitary
executive'', the legislative branch of government may not instruct
executive branch agencies in the performance of their duties. Thus,
when a President declares that he is not bound by the bills he signs
into law, he is saying, in effect, that none of the executive agencies
are bound, either. The Congress may require a federal agency to report
on some matter, but at best that requirement would become simply a
suggestion, and probably one that is not taken too seriously.
It has been argued that the concerns some of us have expressed are
exaggerated. Defenders of these presidential assertions claim that they
know of no instance in which the President, having declared himself not
bound by a law, has nonetheless refused to comply with it. To this
there are two responses.
The first is simple enough: if agencies refuse to inform the
Congress--as, indeed, the Attorney General has recently refused to do
in regard to the Administration's purported agreements with the FISA
court on the electronic surveillance of American citizens--how can the
Congress or the public know whether or not the law is being complied
with?
But the second is even more important: a presidential assertion of
the right to ignore the law must be challenged, and challenged
forcefully, or it will become precedent. If the current President
asserts that extra-constitutional authority, even though he may not
himself fail to comply with the law, future Presidents may rely on that
unchallenged assertion to disobey future laws. If that happens, the
Congress of the United States will become irrelevant and the basic
structure of American government will have been fundamentally changed.
The voice of the people, as expressed by their representatives in
Congress, will have been considerably diminished.
One final point: there is much discussion about the authority
vested in the Congress or the powers vested in the Congress or the
rights of the Congress. But this is not a question of authority or
powers or rights: it is a question of duty and of responsibility. Every
member of Congress took an oath to fulfill very specific constitutional
obligations. Under that Constitution, it is the obligation of the
Congress to determine what shall be law and what shall not. It is the
obligation of the Congress to act as a completely separate, completely
independent, and completely equal branch of government, determining the
law and ensuring that the law is obeyed.
This Congress must--must--block any attempt by any President to
treat the peoples' representatives with contempt. This Congress must
use its considerable powers--to withhold appropriations, to conduct
hearings and compel testimony under oath, to grant itself standing
before the Courts--to ensure that the United States does not devolve
into the system the Founders feared and worked so hard and so long to
avoid. Presidential signing statements may not sound like such a big
deal, but they are declarations of the right of a President to be above
the law, and that is a path that, once taken, will prove ultimately
fatal to our democracy.
Mr. Conyers. Ms. Mathis.
TESTIMONY OF KAREN J. MATHIS, PRESIDENT,
AMERICAN BAR ASSOCIATION
Ms. Mathis. Good morning, Mr. Chairman, Ranking Member
Smith, and Members of the Committee.
My name, as you know, is Karen Mathis. I am the president
of the American Bar Association. I practice law in Denver,
Colorado. It is a great honor to be here with you today and to
represent the policy of our 413,000 members.
The ABA Task Force on Presidential Signing Statements and
the Separation of Powers Doctrine was appointed last year to
examine the changing role of Presidential signing statements in
which United States Presidents articulate their views of
provisions in newly enacted laws and to consider such
statements in light of the Constitution and the law of the
land.
Members of the task force were composed of both
conservatives and liberals--Republicans and Democrats--
individuals who have had experience in Government in the
legislative and executive branch, the judiciary and in
constitutional law. A list of those committee members is
appended to my written testimony.
At the ABA's August 2006 meeting, our House of Delegates
adopted the unanimous recommendations of that task force as a
comprehensive policy reflecting the views of the ABA on the use
and potential misuse of Presidential signing statements.
Specifically, the policy, ``opposes as contrary to the rule of
law and our constitutional system of separation of powers the
misuse of Presidential signing statements,'' that claim in
those signing statements the authority or, I should say, an
intention to disregard or decline to enforce all or part of a
law the President has signed or to interpret such law in a
manner inconsistent with the clear intent of the Congress.
In reaching this conclusion, the task force expressed
concern that the practice of issuing Presidential signing
statements that raise challenges to provisions of law has grown
more and more common over the course of the last 25 years. The
potential for misuse in the issuance of Presidential signing
statements has reached a point where it poses a real threat to
our systems of checks and balances and the rule of law. The
Founding Fathers set forth in the Constitution a thoughtful
process for the enactment of laws as part of the delicate
system of checks and balances. The framers required that the
President either sign or veto a bill enacted by Congress in its
entirety. Presidential signing statements that express an
intent to disregard or that effectively rewrite laws are
inconsistent with this single, finely wrought, and exhaustively
considered process.
Any attempt to refuse to enforce provisions of duly enacted
laws or to reinterpret them contrary to their clear meaning can
be viewed as an attempt to achieve a line item veto by other
means. If Presidential signing statements nullify a provision
of the law without following constitutionally prescribed
procedures, that President is usurping the power of the
legislative branch by denying Congress the right to override a
veto of that law. In some instances, a signing statement that
declines enforcement of a provision on constitutional grounds
would also abrogate the power of the judicial branch to make
its own determination of constitutionality.
ABA policy goes beyond raising concerns about Presidential
signing statements, and it presents practical recommendations
designed to improve transparency in the process and to resolve
any separation of powers issues that may accompany the use of
Presidential signing statements in the manner I have discussed.
These recommendations are directed to the practices of
various Presidents, and they represent a call to all Presidents
to fully respect our constitutional system of separation of
powers. These recommendations urge the President to, number
one, communicate concerns about the constitutionality of any
pending bills in Congress before their passage and, number two,
to confine the content of signing statements to views regarding
the meaning, the purpose, and the significance of bills and to
veto a bill that he believes is unconstitutional.
Our four recommendations also urge Congress to enact
legislation that, number one, requires the President to submit
a report to Congress upon the issuance of signing statements
that express the intent to disregard or decline to enforce a
law that the President has signed, including an explanation of
those reasons for taking such a position, which report will be
made available in a database available to the public.
The last is to enable the Congress, the President, or other
individuals to seek appropriate judicial review when a
President has discussed and signed a signing statement
disregarding or declining to observe a law.
We hope these recommendations are of use to you, Mr. Chair,
and to your Committee as well as to Congress and the Executive
both. Thank you.
Mr. Conyers. Thank you so much.
[The prepared statement of Ms. Mathis follows:]
Prepared Statement of Karen J. Mathis
Mr. Conyers. Professor Rosenkranz.
TESTIMONY OF NICHOLAS QUINN ROSENKRANZ, ASSOCIATE PROFESSOR OF
LAW, GEORGETOWN UNIVERSITY LAW CENTER
Mr. Rosenkranz. Mr. Chairman, Mr. Smith, Members of the
Committee, I thank the Committee for the opportunity to express
my views about Presidential signing statements.
I largely agree with the position put forth by Principal
Deputy Assistant Attorney General John Elwood earlier this
morning. Rather than reiterate his testimony, I will just
briefly make two points.
First, I will explain that signing statements, including
those that mention constitutional provisions, are generally
nothing more than exercises of the uncontroversial power of the
President to interpret the law in the course of executing it.
Second, I will discuss the possibility of legislative
responses to this practice.
The most common, the most important, the most
uncontroversial function of Presidential signing statements is
to announce the President's interpretation of the law. As the
Supreme Court has explained, ``[i]nterpreting a law enacted by
Congress to implement the legislative mandate is the very
essence of `execution' of the law,'' and the President
interprets statutes in much the same way that courts do, with
the same panoply of interpretive tools.
One such tool is of particular interest today: the canon of
constitutional avoidance. This is the canon the President is
applying when he says in signing statements that he will
construe a particular provision to be consistent with a
particular constitutional command.
It is crucial to understand what these statements do and do
not say. These statements emphatically do not, ``reserve the
right to disobey the law.'' They do not declare that the
statutes enacted by Congress are unconstitutional. In fact,
they declare exactly the opposite.
As President Clinton's Office of Legal Counsel has
explained, these sorts of statements are, ``analogous to the
Supreme Court's practice of construing statutes, if possible,
to avoid holding them unconstitutional.'' in effect, these
statements say simply that if one possible meaning of a statute
would render it unconstitutional, then the President, out of
respect for Congress, will presume a different, constitutional
meaning. The clear and crucial implication of these statements
is that he will faithfully execute the laws as so interpreted.
Now, as you know, Representative Jackson Lee has introduced
a bill on this topic which is pending before the House
Committee on Oversight and Government Reform, and I gather that
other legislative proposals are under consideration. I shall,
therefore, address the balance of my testimony to the
constitutionality and the wisdom of such proposals.
Section 3(a) of the pending bill would forbid the President
to spend any money on signing statements. This provision is
arguably unconstitutional. Congress possesses broad power over
appropriations, of course, but for Congress to use its power of
the purse to impede a core Executive function would raise
serious constitutional concerns. If Congress lacks the power to
forbid the President from issuing signing statements
altogether, as it almost certainly does, then it arguably lacks
the power to achieve the same result with a cunningly crafted
spending restriction.
And while Section 3(b) would limit the force of this
provision to statements that are inconsistent with the intent
of Congress, this limitation actually creates more problems
than it solves. Even if Congress could refuse to fund a core
Executive function altogether, which is doubtful in itself, it
hardly follows that Congress may manipulate the President's use
of his discretion with conditional appropriation. If Congress
may not forbid the President from communicating his will to the
executive branch, still less may it forbid him for
communicating some thoughts but not others.
Section 4 of the bill is also constitutionally problematic.
It provides that Government entities shall not consider
Presidential signing statements when construing Federal
statutes. To the extent that this provision applies to
executive branch officials, it is almost certainly
unconstitutional for the simple reason that it is inconsistent
with the President's duty to take care that the laws be
faithfully executed because it would close the ears of the
executive branch to his interpretation of the law. For that
reason alone, it would be unconstitutional.
A more difficult question is whether Section 4 of the bill,
which again forbids governmental entities from relying on
Presidential signing statements, may constitutionally apply to
courts. The question here is whether Congress can tell courts
what tools and methods to use when interpreting Federal
statutes. I considered this question at length in the Harvard
Law Review 5 years ago, and I concluded that the answer is
generally yes, Congress does have power to tell courts what
methods to use when interpreting Federal statutes.
The only question remaining is whether this particular rule
of statutory interpretation would be wise. I have written that
Congress should exercise this power, but a crucial aspect of my
thesis is that it should be approached comprehensively. For
this reason, I think that any rule on the matter should ideally
be adopted as part of a coherent and cohesive code of statutory
interpretation.
In conclusion, the recent brouhaha over Presidential
signing statements is largely unwarranted. Signing statements
are an appropriate means by which the President fulfills his
constitutional duty to take care that the laws be faithfully
executed. However, I do applaud Congress' interest in the
proper judicial use of Presidential signing statements, and I
hope that this interest will blossom into a more comprehensive
and general initiative of Federal rules of statutory
interpretation.
Thank you.
Mr. Conyers. Thank you very much.
[The prepared statement of Mr. Rosenkranz follows:]
Prepared Statement of Nicholas Quinn Rosenkranz
Mr. Conyers. Professor Charles Ogletree.
TESTIMONY OF CHARLES J. OGLETREE, JR., JESSE CLIMENKO PROFESSOR
OF LAW, HARVARD LAW SCHOOL
Mr. Ogletree. Good morning, Congressman Conyers, and thank
you for inviting me to appear before the House Judiciary
Committee today.
Let me say at the beginning, and to start where you did in
expressing my condolences for Father Drinan. I actually have a
very fond memory of Thanksgiving, this past November, that he
arrived in Boston and I introduced him to my two
granddaughters, and it was amazing to see how their eyes lit up
watching this great man in his great service. He was still
teaching at Georgetown at the time, and was still a great
warrior. So I too share the loss of this great Massachusetts
legislator and this great scholar and member of the faith.
I wanted to first say that I think it is very important and
useful for this Committee to look very carefully at the bill
proposed by Congresswoman Sheila Jackson Lee and a comparable
bill in the Senate by Senator Arlen Specter. I think it shows
for the first time that Congress is taking very seriously the
exercise of executive power in using signing statements, and it
requires a much more careful analysis than I think has ever
happened before.
Presidential signing statements reflect an important and
necessary line of authority given to the executive branch to
clarify and address matters of constitutional magnitude. They
can promote transparency by signaling how the President plans
to enforce or to interpret the law. They can also allow the
President to more clearly define his perspective or
understanding of the law's parameters.
One of the reasons it is important to pursue this topic of
Presidential signing statements, however, is the unusual high
number of both challenges of laws that have been passed by
Congress and the exercise of signing statements. I think if you
would put the five of us in a room for a half an hour we could
give you accurate numbers, because the numbers that you have
heard are widely disproportionate and often misreported.
It is clear that President Bush has signed over 1,100
provisions challenging laws. At the same time, it is clear that
he has issued a total of 150 signing statements, even though
the number has often suggested that it is higher, but I think
our consensus, if we had the opportunity to give you the real
numbers, would be helpful.
Why is this important, and why should this Congress be
concerned about it? One of the important things is that there
is no question that every modern President--Reagan, Bush, and
Clinton--have used signing statements for the last 25 years,
but what is remarkable is when you put that in context of those
signing statements. According to several reports, President
Reagan used, in order to challenge Congress' authority, the
veto 78 times, 39 times the actual veto laws, and 39 times they
were pocket vetoes. President George H.W. Bush vetoed 44 bills,
with 15 of them being pocket vetoes. President Clinton in his
two terms vetoed 37 bills, including one pocket veto. President
Bush in the 6 years that he has been in the White House only
vetoed a single bill.
So one of the fundamental questions posed by these actions
is whether the President is using the signing statement in
order to expand the authority of the executive branch at the
expense of the legislative process. In other words, is he using
the signing statement as a way to declare a law nonbinding
without having to face the public scrutiny that comes with the
veto or the possibility of a legislative override?
And the essential issue is three quick examples that I want
to point out in the time I have left. I will take your
attention to one law passed in 2006, the Defense Appropriations
bill, where the signing statement by one scholar, ``reads like
a unilateral alteration of a legislative bargain.'' you may
recall that Senator John McCain made it clear that torture
should not be part of this, and yet, President Bush's signing
statement made it clear that he was not going to be bound by
what the law said in that provision.
One final example before my time runs out. This Congress
passed just this past year the Henry Hyde United States-India
Peaceful Atomic Energy Cooperation Act, a very important piece
of legislation, and, according to published reports in Indian
newspapers, the Indian Government considered the signing
statement that accompanied the law, announcing that the
Administration would treat certain sections as merely advisory,
as an indication of how the United States plans to interpret
these sections.
You have passed a law; it is the law. And we saw that great
ceremony here some months ago, but after that ceremony,
President Bush made it clear by pointing to provisions of this
law that they are merely advisory, what you had passed and
submitted to him for signature. What does that mean? It means
not only that will the Indian Government and other countries be
confused by what we mean by the law, but they will have to fear
that if someone else replaces President Bush in the White
House, that that new President with a new signing statement can
come up with a totally independent and unique interpretation of
what the law means.
One final area that has generated an enormous amount of
publicity is the issue of whether there is mail surveillance.
And I hope during the questions we will have a chance to talk
about how the President has interpreted that law to the
detriment of Congress' intent.
Thank you very much.
[The prepared statement of Mr. Ogletree follows:]
Prepared Statement of Professor Charles J. Ogletree, Jr.
Dear Congressman John Conyers and members of the United States
House Committee on the Judiciary:
My name is Charles J. Ogletree, Jr., and I am honored to have this
opportunity to discuss the topic of presidential signing statements.
I serve as the Jesse Climenko Professor of Law, and Executive
Director of the Charles Hamilton Houston Institute of Race and Justice,
at Harvard Law School. I have been a member of the Harvard Law School
faculty for over twenty years. Additionally, I have had the honor and
privilege of handling cases here in the District of Columbia during the
early stages of my career, having represented clients in adult and
juvenile proceedings in the local superior court and federal courts, as
well as the courts of appeals. I have also had the honor of arguing
cases before various state supreme courts and circuit courts, as well
as the United States Supreme Court. At Harvard Law School, I teach the
subjects of Criminal Law and Procedure, Professional Responsibility,
and a host of clinical courses involving trial practice. Moreover, I
have had the honor of providing testimony, writing articles and books,
and addressing matters of constitutional significance on a variety of
occasions.\1\
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\1\ A copy of my abbreviated biographical statement is attached.
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I am also honored to be a member of the American Bar Association
Task Force on Presidential Signing Statements and the Separation of
Powers Doctrine, a committee that was convened last year by Michael
Greco, immediate past President of the American Bar Association. The
ABA Task Force, a bipartisan group of lawyers and jurists, released a
report in July that was adopted by the American Bar Association at its
annual meeting in August 2006. ABA President Karen Mathis has already
discussed the Report and its approval.
In my written and oral remarks today, I am not speaking on behalf
of either the Harvard Law School or the ABA Task Force on Presidential
Signing Statements and the Separation of Powers Doctrine. I am speaking
in my individual capacity.
Presidential signing statements reflect an important and necessary
line of authority given to the executive branch to clarify and address
matters of constitutional significance. They can promote transparency
by signaling how the president plans to enforce or interpret the law.
They can also allow the president to more clearly define his
perspective or understanding of the law's parameters.\2\ Official
reports indicate that many former presidents have used signing
statements in a wide range of legislative areas, and have generally
done so without much objection or controversy.
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\2\ For a thorough discussion of the history of presidential
signing statements, see Phillip J. Cooper's By Order of The President:
The Use and Abuse of Executive Direct Action (2002).
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One of the reasons that it is important to examine this topic,
however, is the unusually high number of signing statements that have
been issued by President George W. Bush during his tenure in office. To
be sure, the use of signing statements has been a staple of many
presidents and reflects the Executive exercise of authority across
ideological lines. At the same time there is a discernable pattern
being employed by the current Administration and this pattern has
resulted in unusual, and bipartisan concern. While it is true that
former Presidents Reagan, Bush and Clinton relied upon presidential
signing statements during the course of the past 25 years, the nature
and extent of their use has been demonstrably greater under President
Bush.
At the same time, President Bush has declined to use the
traditional method employed when the president believes legislation is
unconstitutional, the veto. According to several estimates, President
Ronald Reagan vetoed 78 bills, including 39 actual vetoes and another
39 pocket vetoes. President George H. W. Bush vetoed 44 bills, with 15
of them being pocket vetoes. During his two terms, President Bill
Clinton vetoed 37 bills, including one pocket veto. In contrast, during
his six years in office, President George W. Bush, to date, has only
vetoed a single bill. The unprecedented juxtaposition of President
Bush's failure to exercise a single veto, yet issuing a substantial
number of signing statements, has created considerable concern, and
explains the broad and bipartisan response to his actions.
One of the fundamental questions posed by these actions is whether
the president is using the signing statement in order to expand the
authority of the executive branch at the expense of the legislative
branch. In other words, is he using the signing statement as a way to
declare a law non-binding, without having to face the public scrutiny
that comes with a veto, or the possibility of a legislative override?
In order to get a clearer sense of whether this is the case, it is
necessary to examine very carefully how the signing statements have
been used. On the other hand, there are numerous signing statements,
particularly in the past few years, which raise serious questions about
the exercise of executive authority, and serious issues of
constitutional magnitude.
The essential issue is whether a president, who objects to a law
being enacted by Congress through its constitutionally prescribed
procedures, should either veto that law, or find other ways to
challenge it. Using signing statements, rather than vetoes, calls into
question the President's willingness to enforce duly enacted
legislation, and it also denies the legislative branch any clear notice
of the executive branch's intent to not enforce the law, or to override
laws that could have been the subjects of vetoes.
It is hoped that the House Judiciary Committee will closely examine
these matters and examine these issues carefully. Among the matters to
be considered are the following:
A signing statement that suggests that all or part of a law is
unconstitutional raises serious legal considerations. It has been
exercised more recently in lieu of an actual veto. While the President
has considerable powers of constitutional interpretation, those powers
must be balanced with the authority granted to other branches of
government, including the legislative and judicial branches. When the
President refuses to enforce a law on constitutional grounds without
interacting with the other branches of government, it is not only bad
public policy, but also creates a unilateral and unchecked exercise of
authority in one branch of government without the interaction and
consideration of the others.
One scholar who has written in this area has noted that President
Bush's attachment of a signing statement to the 2006 Defense
Appropriations Bill ``reads like a unilateral alteration of the
legislative bargain.'' The signing statement announced that the
executive branch would construe provisions relating to detainees ``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,''
and thus read an ``implicit exception'' in the McCain Amendment's
prohibition on ``cruel, inhuman or degrading treatment or
punishnment.'' Trevor Morrison, an assistant professor of law at
Cornell, observed that the Administration had understood the aim of the
Amendment and had threatened to veto it, but had changed course and
decided to support the Amendment, ``partly because there were clearly
enough votes for Congress to overcome a veto, and partly because the
Administration had obtained a number of concessions on related matters,
including a set of provisions severely restricting the federal courts'
jurisdiction to review the detention of enemy combatants at Guantanamo
Bay.''
Of course, the deeper objection to the use of presidential signing
statements is to what extent any administration is taking a hostile
attitude with respect to how statutes should be interpreted. This
excessive exercise of executive power, coupled with the failure to use
the authorized veto power, creates serious issues of constitutional
magnitude, and requires a legislative response.
One example of the potential dangers in the use of Presidential
signing statements is the recent passage of the ``Henry Hyde United
States-India Peaceful Atomic Energy Cooperation Act. According to
reports published in Indian newspapers, the Indian government considers
the signing statement that accompanied the law, which announced that
the Administration would treat certain sections law as merely advisory,
as an indication of how the United States plans to interpret those
sections. Thus, even if signing statements are not enforceable, this
raises the concern that foreign countries might have expectations that
we will interpret laws as signing statements announces. Additionally,
there is a real concern that a country like India would worry that a
future president could choose to interpret the law differently.
There are important lessons to be learned from these efforts and,
at the same time a need for transparency, in the relationship between
the complimentary branches of government. One of the critical issues
that this committee must consider is whether and to what extent the
President's exercise of signing statements is influenced by the war on
terrorism or other matters of national security. That certainly seems
to be the case when one examines the application of signing statements
on issues like the USA Patriot Act, or other provisions having to do
with the detention of suspected terrorists for long periods of time
without any form of judicial review. In fact, according to one
analysis, the President has used signing statements to challenge the
constitutionality of more than 1,000 provisions of bills adopted by
Congress. On hundreds of occasions he has object on the grounds that
provisions have interfered with his ``power to supervise the unitary
executive,'' or with his ``exclusive power over foreign affairs,'' or
with his ``authority to determine and impose national security
classifications and withhold information.'' \3\ Such examples require
further probing by the Senate Committee on the Judiciary, and more
detailed and persuasive explanations from the executive branch.
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\3\ Christopher Kelley, The Unitary Executive and the Presidential
Signing Statement 8 (June 1, 2006), available at http://
www.users.muohio.edu/kelleycs/conproject.pdf. See also Kelley, Do You
Wish to Keep Tabs on the Bush Administration's Use of the Bill Signing
Statement? (January 12, 2007), available at http://
www.users.muohio.edu/kelleycs/
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What is clear, in going forward, is the reaction of large segments
of the media, across the country, to the suggestion that the Bush
administration has sought authority to examine the mail of America's
citizens. While the White House has declared their efforts as simply to
``clarify existing law'', the media have found this argument
unpersuasive. Among a sampling of the responses are the following:
Several major newspapers have published editorials opposing the
signing statement and any new it might grant the administration to
review mail without a warrant. Many of these editorials argue that if,
as the Bush administration contends, the signing statement only
restates current law, the administration need not have issued it. These
editorials reflect a growing public wariness of any signing statement
issued by the administration as an attempt to expand executive power.
See, e.g., ``Mail Privacy; Bush Signing Statement Raises Questions,''
SUN SENTINEL, (Ft. Lauderdale, Fl), January 24, 2007 (``The
Constitution and the law are very clear: except in an emergency, a
warrant is required before any government agent can open first-class
mail. Such clarity requires nothing further from the president, and the
president shouldn't have to be told to respect the law.''); ``Don't
Open Personal Mail,'' HARTFORD COURANT, January 19, 2007 (``Congress
should move quickly to remove any potential for overreaching on the
part of the White House. If the administration's intentions were pure,
there would have been no need to issue a signing statement.'');
``Privacy and National Security,'' DENVER POST, January 16, 2007
(``Remember, this is the same reasoning that saw no problem with
warrantless wiretapping of domestic phone lines. And President Bush
just last month issued one of his notorious signing statements,
attempting to nullify the intent of legislation by saying federal
officials could open U.S. mail without a warrant. Once you've issued a
signing statement to undermine anti-torture legislation, as the
president did last summer, the next ones come too easy); ``Signing
Statements: Pushing the Envelope,'' MILWALKIE JOURNAL SENTINAL, January
16, 2007 (The Constitution requires a warrant for a reason: to provide
a judicial check against despotism, in which the authorities can search
your belongings willy-nilly. Congress must stop Bush's apparent attempt
to erode this check); ``Postal Inspector Bush?,'' CLEVELAND PLAIN
DEALER, January 16, 2007 (If President Bush really means nothing new by
his signing statement, he should withdraw it--and provide Congress
credible assurances that he was merely asserting a right to open mail,
not already exercising it'').
While it may be that the public concern in that area may be
premature, it is also true that Congress should exercise its
legislative function and at a minimum, consider devising a arrangement
that requires the administration to issue annual reports on how often
it opens mail without a warrant. This process has been suggested in
recent public discussions and seems like a modest, but important, step
forward.
Given the seriousness of these endeavors, the controversy that they
have created, and the need for clarity and direction going forward, I
am pleased that the House Judiciary Committee has decided to examine
these matters, and to exercise its legislative mandate to review the
use of this important and often invisible exercise of Executive
authority.
Ultimately, it is an important moment in history for Congress to
not only review the use and application of presidential signing
authority, but to as well determine its own role and responsibility in
carrying out the legislation mandate as authorized by the Constitution.
Mr. Conyers. I thank all of the witnesses for an excellent
discussion, and I yield myself 5 minutes.
Mr. Elwood, in the signing statement on last year's PATRIOT
Act reauthorization, the President claimed he could withhold
information from Congress that the Justice Department is
required to provide by the law if he decides that the
disclosure would impair foreign relations or the deliberative
process of the Executive.
Has the Administration withheld any information based on
this signing statement?
Mr. Elwood. Chairman Conyers, the answer is no, it has not.
I think this is an excellent example of how signing statements
are not an indication that the law will not be enforced fully.
The Administration has complied fully, or the Department of
Justice has been cooperating fully with the Inspector General's
investigation there of the use of national security letters.
The purpose of this signing statement was--it was a
traditional one that has been made by Presidents Eisenhower and
Clinton. It is just simply to note, as the Supreme Court held
in the Department of the Navy v. Egan, that the President has
authority over the classification of national security
information, and he has a responsibility to make sure that it
is safeguarded, and it is simply his way of saying, ``Look, I
anticipate that this is not going to be implicated here, and I
understand you are legislating in light of that.''
Mr. Conyers. Thank you very much.
Now, we are not having hearings on any of the bills that
deal with signing statements today. This is merely an oversight
hearing.
Professor Ogletree, what really are the fundamental
dangers, as you see them, posed by this more aggressive use of
signing statements by the current Bush administration?
Mr. Ogletree. Well, there are a number.
First, it makes the idea of a veto, the normal legislative
process, null and void when the President does not really bring
to Congress' attention specific substantial objections to laws
that are approved by Congress.
Number two, right now, no Member of this Congress has any
idea where, when, and to what extent the President modifies a
law that you have passed. There is not a ceremony. There is not
a report back to you. If you look on the White House database
of laws passed or anywhere else, you will have the version that
you passed, but you will not necessarily have the signing
statement--you have to search for it--and the idea that there
is no reporting authority that requires the executive branch to
let you know where there is some modification, expansion or
substantive change. To make a law advisory is a monumental
change, and it has a public and, now we see, an international
impact. Those are two areas where it is of grave concern.
The third, the final area, I would say is that it really
frustrates Congress' intent--and I think Senator McCain in
particular, being a prisoner of war, being someone very
concerned about war, someone who is even supporting the idea of
more troops in Iraq, has still said torture should not be
countenanced. And yet if you look at the signing statement and
the reaction to the law passed by this Congress, President
Bush's signing statement undermines that intent which was
clearly expressed by Senator McCain and, I assume, supported by
the Members of Congress.
It is those three areas where I think there are grave
concerns that require Congress as a nonpartisan body to examine
whether or not its legislative authority is being respected or
undermined.
Mr. Conyers. Thank you.
My final question to you and Ms. Mathis and Mr. Edwards is
any recommendations that you have for the House Judiciary
Committee to proceed on this.
I have talked with Mr. Smith about our staffs going over to
try to pull together the 148 signing statements that have
already issued and the hundreds of laws that have been
impacted, but where do we go from here? Quickly.
Ms. Mathis. Mr. Chairman, the Task Force of the ABA adopted
their recommendations and suggested that Congress do two
things: that it enact legislation that requires the President
to submit a report to Congress, upon the issuance of statements
that express the intent to disregard a law or decline to
enforce, that includes an explanation for the reasons, and that
come to Congress so that Congress knows, as Professor Ogletree
has just said, what those objections are.
The second thing that we have suggested is that there be
legislation that would allow both the President and Congress
and perhaps third-party entities to have an expedited judicial
review in the event that you have signing statements.
Mr. Conyers. Any final comment?
Mr. Ogletree. Yes, Congressman Conyers. I served on the ABA
Task Force and was happy to do so. There is a slippery slope
even in our recommendations that you have to consider very
carefully. We did say, and it was adopted by the ABA, that to
require the President to submit a report to Congress upon the
issuance of statements that expressed the intent to disregard
or decline to enforce a law.
Now, the President can say and will say, ``I intend to
enforce the law, but under my terms.'' So my sense is that
there needs to be a sense of transparency that goes beyond the
literal language, because even our language, which was broad in
nature, the President can in good faith say, ``I am following
the law, but I am doing it as I have interpreted it, given my
executive authority.''
I would ask that you be a little bit more exacting, if that
is the process that you decide to pursue.
Mr. Conyers. Thank you so much.
Ranking Member Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
Professor Rosenkranz, let me address my first question to
you. Have signing statements ever had any impact in court? Are
they ever given any weight in law, or are we really just
spending time on much to do about nothing?
Mr. Rosenkranz. To this point, Presidential signing
statements have been cited in a very small number of cases, a
few Supreme Court cases, a few ninth circuit cases, and there
is no indication that the signing statements changed the result
in any of those cases. So, thus far, it is quite a limited
phenomenon in Federal court.
Mr. Smith. Thank you.
Professor Ogletree, first of all, let me thank you for your
written statement. I thought it was restrained, reasoned,
nuanced and not strident, and for those reasons I appreciated
it.
Mr. Ogletree. Thank you.
Mr. Smith. For example, you used a couple of phrases in
your statement that I thought were revealing. One was you said,
``Even if signing statements are not enforceable,'' and later
on you said, ``While it may be that the public concern in that
case may be premature.'' so I am hoping that you see both sides
of the question.
A colleague of yours, who, like you, is well-respected and
well-known, is Professor Tribe. He had this to say about
Presidential signing statements, including President Bush's.
``it has never been the case that anyone has taken a signing
statement as anything more than a flourish on the part of the
Chief Executive's rhetoric. It is a symbolic rhetorical
announcement of the view the President intends to take.''
Do you think that Professor Tribe is wrong, or is it
possible he may be right?
Mr. Ogletree. Well, I disagree with Professor Tribe, and we
have discussed this extensively. In fact, I think when he
learned that I was on the ABA Task Force, that generated the
tremendous interest in his later positions. But at the same
time, if you look at the complete record of what Professor
Tribe has said, he has drawn a distinction between what he saw
going on with prior Presidents and his concern of the exercise
of authority by President Bush.
So he has been critical in other areas and thinks that
these are serious transgressions, even though the idea of
signing statements as a matter of law he does not find
objectionable, and he certainly has disagreed publicly with the
ABA report.
Mr. Smith. Maybe like a lot of good lawyers, he can argue
both sides as well.
Mr. Ogletree. He has done that well.
Mr. Smith. Thank you.
Ms. Mathis, let me ask you a question, and this is in
regard to the ABA Task Force on Presidential signing
statements. The task force did not find any cases in which a
court relied on a Presidential signing statement.
Do you have any evidence that you can tell us about to
today that a Presidential signing statement has affected
judicial decisions?
Ms. Mathis. Congressman Smith, the task force was not
charged with looking at that specific issue that you have just
raised.
Mr. Smith. Do you have any evidence that Presidential
signing statements have affected any judicial decisions
yourself or as a result of the task force or as a result of any
source whatsoever?
Ms. Mathis. No, I don't personally. The task force did not
look at it.
Mr. Smith. The Congressional Research Service report said
that a bill that is signed by the President retains its legal
effect and character, irrespective of any pronouncements made
in a signing statement.
Do you agree or disagree with that Congressional Research
Service report?
Ms. Mathis. Again, the task force gave its reports prior to
that report. Our task force did not look at this. However, I
would say----
Mr. Smith. Well, I didn't ask whether you looked at it. I
asked you whether you agreed with it.
Ms. Mathis. I am here, as I understand, in a representative
capacity. Let me make that clear, if I may, that I am
testifying regarding our task force and the policy of the ABA.
So the policy of the ABA does not deal with that particular
point.
Mr. Smith. And you do not have an opinion on whether you
agree or disagree with that report?
Ms. Mathis. I do not have a representative opinion, no.
Mr. Smith. Thank you, Mr. Chairman.
Mr. Conyers. Mr. Jerry Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
I must say this is a very troubling topic, and it is not
just the signing statements, it is what is behind them.
Professor Ogletree, you said that when the President
refuses to enforce the law on constitutional grounds without
interacting with the other branches of Government, it is not
only bad public policy, but also creates unilateral and
unchecked exercise of authority in one branch of Government
without the interaction and consideration of the others.
Signing statements aside, with or without a signing
statement, doesn't the President have an oath under the
Constitution, and if there is a law he feels unconstitutional,
how can he possibly enforce it?
Mr. Ogletree. Well, you are right, he does take an oath and
has an obligation. I think this President, and I would say more
so than recent Presidents, has determined what he believes the
law allows him to do. I think, as you can see from my
statement, it is not clouded. The exercise of Presidential
signing statements in the last several years, I would say, is
impacted by the events of September 11, 2001.
Mr. Nadler. And by secrecy.
Mr. Ogletree. Exactly. That explains it, but it doesn't
justify the idea of not having a bipartisan effort between
Congress and the executive branch to decide what the law will
be.
The biggest concern I have is since there really is no
transparency, you don't know. You don't know if you pass a law
today and it is signed, you don't know what the ultimate law
will be--you know what the law will be, what it says, but you
don't know how it will be interpreted in ways that will have an
impact.
Mr. Nadler. But that is true regardless of signing
statements. We pass a law today, President Smith 10 years from
now could decide in some circumstance that we cannot foresee
that his enforcement of that law would be unconstitutional, and
it would be his duty, I think, not to enforce that law. What
could we do to make that not just unilateral?
Mr. Ogletree. I think you have to have a reporting
requirement so that each signing statement is available in a
prompt and responsible, comprehensive way to Congress.
Mr. Nadler. Thank you.
Now, Ms. Mathis, you said in your testimony that the ABA
recommends that the Congress enact legislation that enables the
President and Congress and other entities or individuals to
seek appropriate judicial review when the President expresses
the intent in a signing statement to disregard or decline to
enforce a law.
How do you square that with the case in controversy
requirement of the Constitution? In other words, is that asking
the Supreme Court for an advisory opinion?
Ms. Mathis. Two things, Congressman. The first thing we are
suggesting is that under Article I, Section 7, the proper use
of Presidential authority is to veto an unconstitutional bill.
Secondly, if he chooses not to do that and allow the Congress
to decide whether to override or not that veto, then we believe
that there does have to be some type of expedited hearing.
Certainly Congress needs to work with the executive branch
to determine that it is not an unconstitutional review. The
case in controversy issue raised, as well as standing, as well
as ripeness, are all issues which would require careful thought
and review to craft legislation which would allow such a
review.
Mr. Nadler. I agree with you on that. Congress could deal
legislatively to some extent with the ripeness and standing
provisions, but I am not sure that we could deal, short of
constitutional amendment, with the case in controversy
requirement.
Ms. Mathis. I think that the issue would become whether or
not there is, in fact, de facto a case in controversy once
there had been a signing statement as opposed to a veto.
Mr. Nadler. Very good.
Let me ask you one other question. Several people have said
there ought to be reports on these. The United States Code,
Section 28 U.S.C 530D says the Attorney General shall submit to
the Congress a report of any instance in which the Attorney
General or any officer of the Department of Justice establishes
or implements a formal or informal policy to refrain from
enforcing, applying or administering any provision of any
Federal statute, rule,'' et cetera, et cetera, ``on the grounds
that such provision is unconstitutional.''
Mr. Elwood, has the Attorney General been issuing such
statements with regard to every Presidential signing statement,
saying we have used this and have, in fact, not enforced this
law or this provision because it is unconstitutional? Have we
been getting those reports?
Mr. Elwood. Congressman, two things. First of all, the
Department of Justice recently reported to the Senate Judiciary
Committee that it had complied fully with the terms of 530D. It
hasn't issued anything with respect to signing statements
because, as I said earlier, a signing statement is not a policy
of nonenforcement.
Mr. Nadler. Okay. Let me ask my last question, because I
see I have the yellow light.
In view of this Administration's penchant for secrecy, how
can Congress and the American people challenge violations of
law when they occur? If the President declines to enforce a
provision of law on the grounds it is unconstitutional, but
nobody knows about it, how is this other than untrammeled
executive power that is unreviewable and unchallengeable, and
that would be completely contrary to separation of powers and
our general situation with limited government?
In other words, how do you square the President's ability
or asserted ability not to enforce certain provisions of the
law on the grounds that it is unconstitutional with the
secrecy?
Let me ask you, let me be more specific: Should the
President, if he thinks that something is unconstitutional, be
mandated to tell Congress that before he declines to enforce
it, despite whatever he thinks about the classification of
secrecy or national security? And if the answer is no, how do
we prevent tyranny?
Mr. Elwood. Congressman, I think that 28 U.S.C 530D
provides sort of an effective notification mechanism, because
anytime whatever agency would implement it, they would have an
obligation under that provision.
Mr. Nadler. Well, given what the President has just done,
or the Attorney General rather----
Mr. Conyers. Excuse me, the gentleman's time has expired.
Mr. Nadler. May I have 1 additional second?
Mr. Conyers. No, sir.
Jim Sensenbrenner.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman. I
will stay within the 5 minutes.
First of all, let me say that I don't think Presidential
signing statements are any big deal. They are
extraconstitutional, but so are Committee reports that a
majority of Committees in Congress submit on behalf of
legislation trying to further clarify it. Those Committee
reports are not voted on by the House of Representatives. They
are not presented to the President, should a bill be enacted
into law for his approval or veto. It is simply an opinion. And
I think the President is entitled to his opinion just as much
as every one of us are and every United States Senator is as
well.
I also noted with great interest the op-ed piece that
appeared in the Boston Globe on August 9th from Professor
Lawrence Tribe, whom we all know is no conservative and
definitely no strict constructionist of the Constitution, that
says that the ABA Task Force report opposing the signing
statements barks up a constitutionally barren tree.
I would like to ask unanimous consent to include this
article in the record at this point.
Mr. Conyers. Without objection, so ordered.
[The information referred to can be found in the Appendix.]
Mr. Sensenbrenner. Now, Ms. Mathis, in the very first
sentence of the ABA report on this issue, it approvingly quotes
an article from the Boston Globe that states, ``President Bush
has quietly claimed authority to disobey more than 750 laws
enacted since he took office.''
But that statement by the Boston Globe reporter is false.
In fact, on May 4, 2006, a full 3 months prior to the ABA's
issuing the report, the Boston Globe itself issued a correction
in which it stated, ``Due to an editing error, the story
misstated the number of bills in which Bush has challenged
provisions.''
Now, can you explain why in the editorial judgment of the
ABA it was deemed appropriate to lead in its report with an
approving quotation of a statement in the Boston Globe which
the Globe itself had admitted was in error 3 months earlier?
Ms. Mathis. Let me address your question, Congressman, by
using the words of Professor Ogletree. Many of us would
disagree about how you calculate the number of signing
statements and also the provisions of law. The most recent data
that I have is that there have been a total of 150 signing
statements issued, and that the total number of provisions are
over 1,100. I cannot specifically state to you, because I was
not on the task force, why we lead with that.
Mr. Sensenbrenner. Well, let me observe, in the words of
law professors that I heard, when you use a quotation that has
been retracted by the author, that is unlawyerlike, and I think
that the American Bar Association was unlawyerlike because the
retraction by the Boston Globe of the number in its article
occurred 3 months before the task force issued its report.
I would hope that the next time the ABA comes before this
Committee, they would be more accurate in the sources that they
use to quote in support of their positions.
I yield the balance of my time to the Ranking Member from
Texas Mr. Smith.
Mr. Smith. Thank you for yielding time.
Ms. Mathis, let me follow up on a couple of questions here.
First of all, going back to the task force, while you mentioned
that it was bipartisan, Republicans, Democrats, conservatives,
liberals, there doesn't seem to be much diversity when it comes
to philosophy, and, as I understand it, every member or almost
every member of the task force had previously expressed
disapproval of President Bush's signing statements.
You are welcome to counter that if you want to, but more
specifically, Walter Dellinger, who was President Clinton's
legal advisor and who is considered an expert on such subjects,
was he invited to join the task force?
Ms. Mathis. I can't tell you, Congressman, if he was or
not. I did not appoint the task force. I do note that one of
the task force members is with us today, and that is the
Honorable Mickey Edwards, who, as you will recall, served in
this Congress as a Republican, and he stated himself that he
agrees with this.
Mr. Smith. My point was the membership of the task force
seemed to all be opposed to the President's signing statements,
and, therefore, you only heard perhaps one side of the issue.
Do you have any evidence that members of the task force--or can
you name any individuals of the task force who did not already
oppose publicly the President's signing statements?
Ms. Mathis. I am not prepared to do that today. What I can
tell you, Congressman, is there was open, free and significant
discussion. There were no decisions made before the task force
went through that process.
Mr. Smith. Perhaps later on you can get back to me with the
names of anyone who hadn't already showed a bias.
Mr. Ogletree. I can tell you that I didn't, because I had
not made any judgments or written anything about signing
statements when I was appointed to the Committee, and I can
tell you as well even though our deliberations were
confidential or private, they were intensely debated across
theological points of view.
Let me just finish my point. The concern was not just
President Bush, but President Clinton, President Reagan. It was
across ideological points of view, and it included members who
had served in those Administrations and wanted to defend it.
But I think there was a very different range of perspectives
offered.
Mr. Smith. Maybe you were the exception, but maybe you
didn't become the exception on the basis of your testimony
today. But my time is up.
Mr. Conyers. Mr. Robert Scott.
Mr. Scott. Thank you, Mr. Chairman. I want to thank all of
our witnesses. Let me just go through a couple of questions to
see where we are.
If a bill is presented to the President, it is a large bill
and has a small provision in it that is unconstitutional, and
the President wants to sign the bill, but says that provision
is unconstitutional, and everybody knows it, should he be
expected to enforce that provision because it is technically in
the code?
If everybody knows it is unconstitutional and, it is in
fact unconstitutional, should he enforce it, or should he not
enforce that position?
Ms. Mathis. Representative Scott, the report of the
American Bar Association would say in that instance the system
will work appropriately if, number one, the President expresses
his views that a portion of a bill is unconstitutional, sends
it to Congress, and asks Congress to remedy that before the
bill is sent to the White House for signing. In the event
Congress fails to do that, Article I, Section 7 says the
President has the right and certainly perhaps he would feel the
duty to veto that bill.
Mr. Scott. He signs it and says it is unconstitutional.
Should he enforce that unconstitutional provision of the law?
Ms. Mathis. He shouldn't sign it. He should veto it.
Mr. Scott. Well, if he signs it. Sometimes you don't have
that option. If it is a big, huge omnibus bill, sometimes just
the politics of it is such, Congress has adjourned and gone
home, he can sign it or veto it, and he signs it, and it
includes the welfare reform and a little charitable choice
provision that President Clinton talked about. That was just
almost an afterthought in terms of the overall bill.
Should he enforce that part? He signed it. Should he
enforce that unconstitutional part of the law? The better
practice is to veto the bill, but he signed it. Now what? Does
anybody think he ought to enforce an unconstitutional provision
in the law?
Mr. Edwards. May I address that?
Mr. Scott, he will have violated his oath of office if he
signs it believing it to be unconstitutional. I served in this
body a long time, and the practice is, the reality is that if a
President finds a part of the bill to be unconstitutional, he
may tell the Congress in advance that if you pass this bill in
its present form, I will veto it, and most of the time that
will result in the offending provision being removed.
Mr. Scott. You have been a legislator long enough to know
what a poison pill is. You can stick some very popular
unconstitutional stuff in a bill and expect the President is
not going to veto it because you stuck something in there.
Does anybody think if he does sign it, whether he violated
his oath or not, he signed it, now, should he do something that
everybody knows is unconstitutional?
Mr. Edwards. Mr. Scott, he will have violated his oath, and
he will be violating the law--he will violate his oath if he
signs it. If he signs it and does not enforce it, he will be
violating the law.
There is no bill that is going to come before this Congress
that is so urgent that it cannot wait a couple of days, whether
it is water projects or veterans benefits, if it cannot wait
long enough for the process of reconsideration to take place.
Mr. Scott. We must be doing things different around here
than they were doing when you were here.
Mr. Edwards. That is obviously true.
Mr. Scott. So everybody expects if he has signed the bill,
he is expected to enforce unconstitutional provisions of that
bill?
Ms. Mathis. I will say the next point that we made in our
task force, Congressman, let's say the President or someone
missed something that was clearly unconstitutional, then under
our recommendation that should have the right to go to an
immediate judicial review, and it should not be enforced.
Mr. Scott. If it is constitutional, but he just didn't like
it, does his declaration in a signing statement have any impact
on the ascertainment of whether or not the provision is
constitutional?
Ms. Mathis. Well, there are two issues there. The first is
whether or not the unitary executive is going to enforce an
allegedly unconstitutional provision or perhaps he won't and
then the executive branch will not.
The second issue is the transparency, and that is whether
the coequal parts of our Government, namely this Congress, have
the right to have a report, and, secondly, whether our
judiciary branch has the right to ultimately determine
constitutionality. So you have a number of issues.
Mr. Scott. But if the President's statement does not help
ascertain whether or not the provision is constitutional, the
courts have not put any weight on the President's declaration
that in his opinion it is unconstitutional?
Ms. Mathis. We don't see it being that issue, we see it
being the issue of the coequal branch of Government, the
legislative branch, not knowing what the executive is not
enforcing. It is very difficult to prove something which is not
happening.
Mr. Scott. Well, that is the next step.
Let me just ask a follow-up, since I just have a couple of
seconds. Ms. Mathis said that the case in controversy would
exist at the signing statement. Does anybody disagree with
that, in terms of getting judicial review?
Mr. Rosenkranz. Yes, sir. I think it would be very
difficult for Congress to create a case or controversy
surrounding just the legality of a signing statement. I think a
case or controversy wouldn't exist until the President acted in
some way.
Mr. Conyers. The gentleman's time has expired.
Members of the Committee, we have four votes, one 15-
minute, three 5-minute. So the Committee will stand in recess
until 12:30 p.m.
[Recess.]
Mr. Conyers. I thank the Committee and the witnesses for
their patience. We were called back on an unscheduled vote.
The Committee will come to order. The Chair recognizes Mr.
Coble of North Carolina.
Mr. Coble. Thank you, Mr. Chairman.
It is good to have you all with us today.
Folks, what I am about to say is subject to personal
interpretation, but it is my belief that courts either ignore
or rely upon signing statements in a very unsubstantial way,
and therefore it is my further belief that signing statements
probably do not alter the law's legal effect.
Now, Professor Rosenkranz, let me ask you this: What legal
value--strike that. First of all, do you agree with my
interpretation?
Mr. Rosenkranz. I agree with you, sir, that courts have
thus far relied on signing statements very little.
Mr. Coble. What legal value then, Professor, do
Presidential signing statements provide?
Mr. Rosenkranz. Well, one function of Presidential signing
statements is to instruct the executive branch in the
President's interpretation of the law, and that can be a
valuable and important function of the signing statement.
Mr. Coble. I thank you.
Mr. Edwards, I want to ask you a question, but I want to
first say to Ms. Mathis, I want to associate with Mr.
Sensenbrenner's remarks about the inaccurate article that
appeared under the title of the ABA Task Force. I think, Ms.
Mathis, the ABA could and should have done better. I think
there is no substitute for accuracy and truth, for what that is
worth.
Ms. Mathis. Congressman, thank you for bringing that up,
because I hoped to put on the record the fact that I did some
research during the recess, and, in fact, the April 30th
language that we quoted is accurate, sir.
It was actually a later article in which an editor at the
Boston Globe changed the term from ``laws'' to ``bills,'' and
it was that later article, not the April 30th, which was
clarified and corrected on May 4th.
So the ABA does, in fact, sir, stand by the quote. It was
accurate. It never did change.
Mr. Coble. Thank you.
Mr. Edwards, good to have you back on the Hill, by the way,
and the rest of you as well.
In your criticism of the President's use of signing
statements, Mr. Edwards, you argued that Congress has a
constitutional duty and responsibility to ensure what shall be
law and shall not.
Do you agree and argue that the judiciary also has a
similar constitutional duty and responsibility?
Mr. Edwards. Certainly. Certainly. However, the judiciary--
the justice--well, may I first go back to a point you made just
an a moment ago, and then I will answer your question. It is
true that a signing statement does not alter----
Mr. Coble. Unlike the Professor, you are not going to agree
with me, right, Mickey? But go ahead.
Mr. Edwards. A signing statement does not change whether or
not what was enacted into law is, in fact, law. The signing
statement doesn't change it. The signing statement only goes to
the point of whether or not the President intends to comply
with the law. That is what the issue is.
The questions keep coming back to the issue of how the
courts are going to interpret this. This isn't a matter of the
courts, it is a matter of whether or not the Congress of the
United States decides, after deliberation, debate, discussion,
hearings, to make something the law, and whether or not the
President is then bound to comply with that.
Mr. Coble. With that, Mr. Chairman, I yield the balance of
my time to the distinguished Ranking Member, if he wants to
take the time.
Mr. Smith. I thank the gentleman for yielding. Mr.
Chairman, I have more questions I would like to squeeze in
before I know we have to go vote.
Professor Rosenkranz, I wanted to follow up on some points
that other witnesses have made earlier this morning. There has
been a lot of talk about numbers. President Bush has had, I
think, 150 signing statements. President Clinton had 107 or
thereabouts. When you look at the percentage of overall bills,
they are about the same.
But are numbers really relevant to the point, to the larger
point, which is to say they are not binding; it doesn't matter
what number, how many there are; it doesn't matter what they
say; they still have no legally binding effect? Would you want
to comment on the question of numbers and whether they are
significant or not?
Mr. Rosenkranz. Yes, sir. There has been quite a bit of
confusion about the numbers, but you are quite right that the
broader point is these statements are entirely proper and
legitimate. So the President has every right and every
obligation to announce his interpretation of the law that he is
signing, and that is the central function of a Presidential
signing statement, which this President has used, and which
prior Presidents have used.
Mr. Smith. Mr. Elwood, do you have anything to add to that?
Mr. Elwood. On the numbers issue, I think part of the
confusion stems from the fact that the Boston Globe article,
the first time it appeared, referred to 750 laws. I think it
might be more accurate to say 750 provisions of law, since
ERISA--it is one law.
Mr. Smith. Is the number important or relevant at all
anyway?
Mr. Elwood. I think the numbers--to begin with, I think
they are entirely proper, so I don't think it matters whether
there are 105 or 125, and I think that all of them are also
close enough within the ballpark so that the current
President's practice doesn't depart from the historical
practice.
Mr. Smith. Thank you.
Thank you, Mr. Coble.
Mr. Coble. I yield back, Mr. Chairman.
Mr. Conyers. Thank you.
Ladies and gentlemen, yet another vote has been called. We
have on our side of the aisle Mr. Schiff, Mr. Davis, Mr. Watt
and, of course, Ms. Jackson Lee, and Mr. Feeney. I would leave
it to you five to determine whether we can share the rest of
the time among you, or would any of you want to come back to
get your questions in? What is your pleasure?
Mr. Davis. Mr. Chairman, can I ask one question of the
Chair? Has the vote actually been called, or is it about to be
called?
Mr. Conyers. I have been told it has been called.
Ms. Jackson Lee. No, it hasn't been called.
Mr. Davis. The bells aren't on. It literally hasn't been
called at this point.
Mr. Conyers. Can someone check to see where we are on the
vote?
The next person then is Mr. Mel Watt of North Carolina.
Mr. Watt. Thank you, Mr. Chairman. I will try to be brief.
It should come as no surprise that since Representative
Coble and I are both from North Carolina, we probably have been
drinking out of the same well. As a legal matter, we might be
closer together than people might think. As a legal matter. As
a practical matter, though, I have some concerns about the way
these signing statements have been employed by this
Administration, and it is there that I start to raise
questions.
If the President has decided that he is going to be the
final arbiter of the constitutionality of an issue, and he is
going to act accordingly, two questions arise. Number one, what
happens immediately after that? And on that, I would like Mr.
Elwood to tell me what, if anything, the President or the
Administration has done. You don't necessarily have to tell me
right now, but if you can send this information to us, what did
the President do after he signed the signing statement in the
aftermath of the Intelligence Reform and Terrorism Prevention
Act of 2004, where Congress required the National Intelligence
Director to recruit and train women even and minorities in
order to diversify the Intelligence Community?
I don't argue with the President's ability to sign a
signing statement saying, I am going to interpret this in
accordance with the Constitution, or whatever amendment of the
Constitution he is relying on. What I want to know is what he
did after he signed the signing statement. Has the
Administration, in fact, done anything to diversify the
Intelligence Community in terms of women and minorities? If you
can provide that answer to us, you can do it in writing, and I
won't take up any more time.
So, that is kind of the concern I have. It is not so much--
and I am not even sure I agree that--I am kind of where
Representative Scott was. How does one, once the President
takes an action or doesn't take an action that is clearly
inconsistent with the intent of Congress, how do we expedite
getting that considered by the court so that there can be a
resolution of that? That would be the second thing that I would
ask maybe the other witnesses to address.
With that, I think I will maybe yield back the balance of
my time.
You are here as a legal counsel for the U.S. Department of
Justice, so you can speak for the Administration and find out
what they did after this signing order, I take it?
Mr. Elwood. Yes. I will definitely take a look into that,
but if I could address some of the other points?
Mr. Watt. Unless you know the answer to that question, I
would rather have a researched answer than a surmise about what
they did or did not do.
Mr. Elwood. But if I could, just to make a couple of points
about other things you said, the President does not mean--we
don't attempt through the signing statements----
Mr. Watt. I have heard that, Mr. Elwood. I take you at your
word on that. In this particular case, I would like to know did
he follow through and start to diversify, or did he use his
interpretation of affirmative action and its constitutionality
to refuse to do what Congress said? That is really more
important to me than some general notion about whether the
President does or does not intend to comply with the
Constitution. I kind of start with the assumption that all of
us have that obligation.
So, I am not trying to cut you off, I am just trying to
make it convenient for my other colleagues not to keep you all
here until after another vote.
With that, I yield back the balance of my time.
Mr. Conyers. I thank the gentleman.
Former speaker of the house of Florida, Mr. Feeney.
Mr. Feeney. I used to be somebody, Mr. Chairman.
I will be brief, because I know we have two or three
colleagues that would like to get in.
I would like to ask Ms. Mathis from the ABA, isn't the
issue of Presidential signing statements really a bogeyman
here? Isn't what you are really concerned about is the
President not enforcing part of a law, basically cherry-picking
what he or she likes and doesn't like? I know, Mr. Edwards,
that is what I understood your point to be. Isn't that your
main concern? And even if you did away with signing statements,
couldn't Presidents just continue to ignore portions of laws
they didn't want to enforce?
Ms. Mathis. The concern of the task force and also of the
ABA by the vote of its 546 members of the House of Delegates is
much broader than that. The concern is the constitutional
checks and balances because the Constitution clearly calls upon
the President to veto a bill that he believes is
unconstitutional.
Mr. Feeney. Let me ask you, because I want to follow up on
that right there, suppose a portion of a bill is
unconstitutional? Does everybody agree the President has an
obligation to veto the entire bill if one portion is
unconstitutional?
Ms. Mathis. First in our report we say the President should
send his concerns to Congress and ask Congress to fix it. But
if, in fact----
Mr. Feeney. Well, the President doesn't have the time to
deal with----
Ms. Mathis. But if, in fact, that flawed bill gets to the
White House for signature, yes, he should veto it.
Mr. Feeney. Professor Rosenkranz, do you agree with that?
If a small portion of the bill is unconstitutional, does the
President have an obligation to veto the entire bill?
Mr. Rosenkranz. Well, I think it is a difficult question as
a matter of first principles, but it certainly has been the
executive branch practice and the executive branch position for
many, many years.
Mr. Feeney. At least since President Jackson, who famously
vetoed a bill that the Supreme Court had already said was
constitutional on the grounds he thought it was
unconstitutional.
Mr. Rosenkranz. That is true. But Presidents have, for
many, many years, signed omnibus bills while also noting their
constitutional objection to small portions of it. That has been
long, long-standing executive practice.
Mr. Feeney. Ms. Mathis, because Mr. Edwards is not
concerned about this Presidential signature or statement having
any impact on the courts, but the bar is partly concerned about
that; is that right?
Ms. Mathis. The issue that we have is the constitutional
separation of checks and balances between the co-equal branches
so that if a President signs, number one, a bill into law in
which he believes part of it is unconstitutional, then, under
the signing statements, we believe that, in fact, he is
directing the executive branch to enforce a law in conjunction
with his view of it.
Mr. Feeney. I understand that.
Are you concerned at all on the impact the signing
statement has on judicial interpretations?
Ms. Mathis. Well, it does abrogate the right of a court to
look at it quickly, which is the third or fourth point that I
made earlier.
Mr. Feeney. Mr. Edwards?
Mr. Edwards. I am concerned about that. The intent of a
piece of legislation is determined by the people who passed the
legislation. My point earlier is the courts don't seem to be
giving much weight to whatever a President's signing statement
says.
Mr. Feeney. I want to ask you real quickly, Mr. Edwards,
because we have got three different positions on judicial
interpretation. One is represented by, for example, Judge Bork,
who agrees with what you said, the intent----
Mr. Edwards. That would be the only time that Judge Bork
and I have ever agreed on anything.
Mr. Feeney [continuing]. The intent of the Congress. But
then you have Scalia. He is a textualist. He doesn't care what
the intent of Congress was. If we said 60 days, but then 90, he
doesn't care what we meant. Then you have the other; we have
transnationalist judiciary and people citing foreign law, and
it is the ``other'' that concerns me. I can understand the
intent faction and the textual faction.
I will finish with this. Mr. Elwood, because we are all
concerned, we are Congress, we are jealous of our party, we are
the republican branch, small r. We are all concerned with any
President cherry-picking what parts of a given piece of
legislation he or she wants to enforce. Whether they refuse to
enforce it because of a signing statement or they secretly
refuse to enforce, the impact is the same. They have undermined
our will.
What is the remedy that Congress or a citizen has if a
President chooses to enforce certain provisions of a law, but
deliberately refuses to enforce other provisions? And after you
are done, I will yield back my time.
Mr. Elwood. The remedy that a citizen would have is there
may be circumstances where a citizen would be able to file suit
because of enforcement or non enforcement. But I want to hasten
to add that we do not view signing statements as cherry-picking
the law. Simply expressing views about the constitutionality of
a provision is not an indication that we won't enforce it
fully. And that is a point I really want to make sure that
everyone appreciates today.
Mr. Feeney. Don't you have the ability--I mean, in the
first place, who asked you, I guess is one question? I know
Presidents have been doing this forever, but if there is a real
case in controversy, don't you have the ability at all times to
file an amicus brief stating your opinion when it really
matters?
Mr. Elwood. I am not sure I understand the question. I
mean, if the constitutionality of a provision of law is before
a court, that is true, the President and the executive branch
can always file an amicus brief on that behalf.
One other point I wanted to make, though, in response to
Ms. Mathis, who has said repeatedly about how we should be
providing our views beforehand, I just wanted to point out that
that is something that we routinely do. A significant portion
of the Office of Legal Counsel is devoted principally to
providing views letters on the constitutionality of various
provisions of law, which we provide both in the form of views
letters and SAPs. So although signing statements are part of
the constitutional dialogue between the branches, they are not
the only part, and we do plenty before the law is actually
enacted, too, to let Congress know about the views of the
executive branch.
Mr. Conyers. The gentleman's time has expired.
I yield now to the gentlelady from Texas, Ms. Sheila
Jackson Lee. I leave to the discretion of my two distinguished
colleagues whether we should try to get all of our time in so
that we can cast our ballot, or shall we come back. I leave
that to your considered judgment, because this is a very
important subject.
Mr. Schiff. Mr. Chairman, is the panel able to stay?
Mr. Conyers. We will come back. Let's go with the
gentlelady from Texas. We can get those 5 minutes in.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. I think
this is a very important hearing.
Let me indicate that I think the testimony of the witnesses
has been extremely thoughtful; however, I think it is key that
we recognize the responsibility of the United States Congress,
and as our beloved constituent has just said, has
responsibility to protect the Constitution.
I would like to simply say that many of you know I have
authored H.R. 264, and I might say to the president of the ABA,
I am quite interested in the language that you have utilized in
your report, because I think the more thoughtful we can be and
the more that we can expand the legislation and make it
responsible, the better off the constitutional premise of three
branches of Government would be protected.
I will say this, that the Constitution makes no such
provision for signing statements. They do protect veto
messages. And we are literally blocked from that constitutional
act by a signing statement. I want to refresh the memory of the
panelists to know that it was then legal advisor Alito who
thought creatively under the Reagan administration to make the
signing statements a little bit more stronger.
The sense of concern under this present Administration, and
it shouldn't be a Republican or Democratic, is that in addition
to the signing statements, there have been 800 constitutional
challenges. One of the most, I think, serious ones was the
provision by McCain regarding torture and the plain statement
of the administration by the President that ``I am not going to
adhere to it.'' that is a dangerous precedent. So I raise these
questions.
I would also like to note that pursuant to my legislation
and talks about appropriations, if the Congress has a
constitutional authority to cut funds for a war, such as the
Vietnam War, and some are contemplating even the Iraq war, then
I would argue that there is not anything constitutionally frail
in my legislation as it relates to the appropriations process.
We might look at it in a different direction, but, frankly, I
think it is worth discussing.
What I would raise with the president of the ABA is the
fact that you didn't appoint them, but you had a task force,
and I assume that scholarly lawyers and practicing lawyers,
those that practice before the Supreme Court, those that have a
consciousness about the Constitution, thought it was a serious
enough concern to organize a task force. Is that my
understanding?
Ms. Mathis. That is correct. The task force was authorized
by the Board of Governors of the American Bar Association,
about 38 people representing all areas of the United States and
certain specialty practices.
Ms. Jackson Lee. They could have concluded that they would
do nothing, meaning that they could have concluded--their
report could have said it is not sufficient for us to offer
suggestions, but in actuality they have offered
recommendations; is that not correct?
Ms. Mathis. It is, Congresswoman. I think it is important
to note also that regardless of the individuals, and you did
properly state both conservatives, Republicans and Democrats,
liberals and scholars who are on that, that their report went
to a 546-person House of Delegates, and there is every
political stripe and some who have no stripes in that house.
And it was adopted. It is now the official policy of the
American Bar Association, not just the task force.
Ms. Jackson Lee. To be challenged, to suggest there was a
bias, what you are saying is ultimately that report was adopted
by a very diverse group of lawyers and members of the House of
Delegates.
Ms. Mathis. It was, after vigorous debate.
Ms. Jackson Lee. Professor, may I have a yes or no answer
on this? Would you welcome the suggestions and legislative fix
that has been suggested by the president of the ABA? Yes or no?
Mr. Rosenkranz. Is that directed to me?
Ms. Jackson Lee. Yes. Yes or no. Would you welcome the
legislative fixes or fix that have been offered by the ABA?
Mr. Rosenkranz. No, I don't think that is positive.
Ms. Jackson Lee. Thank you.
Congressman Edwards, time is short, and I am sort of
speeding through this, and I think the professor has been
thoughtful, but I think his position is no legislative fix
whatsoever, and that is not helpful to us as a Committee.
Would you be able to expand on your agreement or
disagreement with the suggested fixes by the ABA, or your
parameters, and I think you said them before, of how we should
look at this in the next step? Because I don't want this to be,
as you represent, another party, but this is not a partisan
issue. It is, I think, a constitutional issue.
Mr. Edwards. I strongly support the suggestions of the task
force and of the entire American Bar Association, which did
adopt this.
If there is a dispute between the legislative branch and
the executive branch over the constitutionality of a provision,
and the President asserts that he will decide whether or not
constitutionally it is viable, and the Congress does nothing,
we have essentially made the executive the final arbiter of
what is and what is not constitutionality, and the Congress
might as well go home.
Ms. Jackson Lee. I look forward to working with these
various panelists, Mr. Chairman, and I hope that H.R. 264 can
be expanded and revised and that we move forward. I thank the
Chairman very much.
I yield back.
Mr. Conyers. Ladies and gentlemen, we apologize. This is
very rarely occurring in the House, where successive roll call
votes occur. I don't know if it is because it is this subject
matter the Committee is entertaining here in the Judiciary room
or some other reason, but we do have two very distinguished
Members, maybe three now, that wish to be heard. So for this
last vote, we will have to stand in recess one additional time.
I apologize for this inconvenience.
[1:40 p.m.]
Mr. Conyers. The Committee will come to order.
The Chair recognizes the gentleman from California, Mr.
Lungren.
Mr. Lungren. Oh, thank you very much, Mr. Chairman. I
appreciate that.
In the past couple of years, it has been a privilege for me
to work with the ABA and the ACLU on matters where I thought we
needed to refine some decisions made by the Administration--the
Thompson memo, which was a continuation of something that had
begun in an earlier Administration; and decisions, apparently
eminent decisions, by the Sentencing Commission with respect
to, in both cases, attorney-client privilege and attorney work
product, where basically I thought that the actions put a
chilling effect on the relationship of attorneys and clients
that was not helpful in that regard or, frankly, for the better
public policy of encouraging corporations to consult with
attorneys to make sure they were doing the proper thing.
But here, I must say that I think we are making more out of
it than there is here.
There has been the suggestion--and I have been one of those
who has even told the President, himself, that I thought he
ought to exercise the veto pen a little more often. But the
suggestion has been made that the only option he has is to
exercise the veto when confronted with a bill that is presented
to him that is multifaceted; and it seems to me that at least
in the statements that you make, Ms. Mathis, about the
President should just go ahead and veto things--assume
something that some States have, which is the Single Subject
Rule.
We are not confined to a Single Subject Rule here in the
Congress. We often present the President with a bill that is
huge and may be 99.9 percent clean, so to speak, with things
that are very important to the rest of the Nation and some
Committee or Subcommittee of the House or the Senate has put
something in which is arguably unconstitutional.
And I have heard it on the floor where Members have said--
and I know Mickey has heard this, too--where Members have said,
``Gee, there is a problem with this. It may be
unconstitutional,'' and another Member says, ``Well, we will
let the courts decide that,'' which I always thought was the
easy way out.
And we were probably a little lazy in doing that sort of
thing, but I do not think the President compromises his
constitutional obligation by signing a bill that he thinks is
needed and finding some parts of it that may be
unconstitutional and gives us notice that he believes that is
the case. This is actually the reverse of some of the comments
that I heard early on, which were that somehow this is hidden--
well, with all due respect to the Chairman, talking about the
continuation of the secrecy of the Administration.
What is secret about stating what your problems are, and
isn't it something that you would like to have? I think the ABA
recommendation was that somehow it be put on some database. As
I understand it, they are immediately available at the White
House Web site, which is available to anybody who wants to look
at it.
So, from the ABA's perspective, don't you see a problem
with the way that the President is confronted with something--
if he has something, as I say, which is 99.9 percent pure?
Ms. Mathis. First, Congressman, let me state how much I
appreciate--and I know the legal profession does--all of the
work that you have done with our organization and many others
on attorney-client privilege, and I want to thank you
sincerely.
With regard to your question--I think there were four or
five, and I may miss one, so please----
Mr. Lungren. I sometimes do that.
Ms. Mathis. That is quite all right, and we are not in a
court of law, so I will try to answer all of them.
The first issue is on the 98 percent good, 2 percent, we
are not sure. I would just suggest that the United States
Supreme Court held that a line-item veto was unconstitutional
in Clinton v. New York in 1998, and so the reverse of the
comment is that if you have a signing statement which, in fact,
purports to state that a certain part of that law--2 percent--
is not right and then directs the executive branch not to
enforce it, that is the essential equivalent of a line-item
veto, and that a cleaner--our suggestion is that a cleaner way
to do that is, number one, do what Mr. Elwood earlier
suggested, and that is, continue to tell Congress what might be
wrong with the proposed legislation; but if it does get to the
White House for signature and it is 2 percent wrong, indeed,
yes, veto it.
We also had a case in point with the last session where
there would be cases that the veto would come back to Congress
very quickly with a message, and Congress would, within days,
decide if it was going to override or not. So the first----
Mr. Lungren. I am just going to interrupt for a second and
ask, what about the canon of constitutional avoidance?
Ms. Mathis. Well, that is a canon that we look at when we
have got it at the Judiciary, and I will respectfully suggest
to you that there are actually three different places we have
to look. And many of the questions today have concentrated on
the judicial branch, and in responding to your question right
now, I am dealing with the constitutional right and
responsibility of the executive branch, and that is to veto.
The second branch, I would suggest honorably to you, is the
legislative branch, and then finally, the third is the judicial
branch. And everyone could believe that something is
constitutional; it does not abrogate the third branch's
entitlement to decide that 2 percent of a law is, in fact,
unconstitutional.
The issue becomes, if the veto is not used, Congress does
not have the right to override; and that is taking away a
constitutionally mandated right of Congress.
If, instead, you have a signing statement which then goes
out to the executive branch agencies and says, ``We believe
that this is unconstitutional, and we have no intention of
following it because of the constitutional requirements,'' it
is our suggestion that this is stripping from Congress its
rights.
Mr. Lungren. Doesn't that set up the case in controversy
that you need to----
Mr. Conyers. The gentleman's time has, unfortunately,
expired.
The gentleman from California, Mr. Howard Berman.
Mr. Berman. Well, it is a fascinating subject.
I do not have any questions. I just have to comment that my
friend from California talked about Members of Congress who
say, ``Ah, let the court decide this constitutional question,''
and he remarked that it seemed a rather lazy way of doing it.
How would you describe the Congress Member who says, ``Let
the court decide it,'' and then when the court decides it,
attacks the courts for judicial activism?
Mr. Lungren. Would the gentleman yield?
Mr. Berman. I would be happy to.
Mr. Lungren. I think that is the ultimate in legislative
laziness. I think we ought to be sharper than that. I do not
like to ascribe motivations to Members, but I do think that is
the case.
Would the gentleman yield for a moment?
Mr. Berman. Sure.
Mr. Lungren. One of the concerns I have in the way that we
have looked at this is that, in the case where they were
talking about what the proper relationship in enacting a law
is, they talked about three parts--they talked about
bicameralism, they talked about presentment, and they talked
about execution. And here, it seems to me the President has a
legitimate role in the execution part, which unless you want to
call it not ``execution'' but ``post-presentment,'' where he
makes the decision as to whether or not to sign the bill and it
becomes law that way or else he vetoes it, and then you
override the veto.
In his decision to sign the bill or not to sign the bill
and make it law--I would not call it ``quasi-legislative''; let
us just call it ``post-presentment.''
At that point in time, why should not the President have
the ability to give his interpretation, for whatever it is
worth, as we do when we have both Committee reports
accompanying it and engage in colloquies on the floor of the
House to give our reading, our sense of it?
I know Justice Scalia has said, Look, if it is not within
the four corners of the document we call the law, we ought not
to consider it; and frankly, I happen to think he is right on
that. But the fact of the matter is, why is this so different
from what we do?
Mr. Berman. Would the gentleman----
Mr. Lungren. I am yielding back my time to you, yes.
Mr. Berman. What if through that interpretation that he is
giving, that legislators do all the time, he is also signaling
to the agencies charged with enforcing the law that his
interpretation, rather than the legislative history, the plain
reading of the statute, the Committee reports, is the correct
interpretation?
Mr. Lungren. Well, if the gentleman would yield.
Mr. Berman. Sure.
Mr. Lungren. My point would be--I mean, if on its face what
the President says absolutely contradicts the clear meaning of
the law and/or does not appear to be a constitutional
impediment to it, frankly, he would be exposed for that; but my
point is, this is out in the open. It is better to have that as
part of a signing statement than it is people whispering in the
corridors of HUD or someplace else.
I mean, that is what I do not understand. It is either you
are worried about secrecy or you are worried about something
else. I mean, here he is being up front about how he thinks
this is.
Mr. Berman. I do not know if I have a minute left, but, Mr.
Edwards, would you like to get into this since you have a
perspective here?
Mr. Edwards. Thank you, Congressman.
You know, when the President--the signing statements, who
cares? Who cares about the signing statements? The signing
statements, if they are a statement by the President of ``here
is my opinion about this bill,'' nobody cares. The President
has the right to do that.
If the President is saying, you know, that he and his
executive branch--his executive branch, unitary executive--does
not intend to comply with this, does not believe it is
appropriate, if he uses the veto, he will probably prevail,
because he will come back to the Congress, and it would take
two-thirds of each House, you know, to override the President's
veto.
But otherwise, you are saying--you are not saying both of
you have a say in what is constitutional. The Congress says,
``We think this is constitutional.'' the President says, ``I
think it is not.'' there is no response. He is the final word.
He has trumped the legislative branch. He has trumped the
judicial branch. He is the final word if Congress does not do
something to enforce its will.
Mr. Conyers. The gentleman yields back his time.
The gentleman from Virginia, Mr. Forbes.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Davis. Could I ask a question of the Chair before Mr.
Forbes proceeds? I have a quick question of the Chair.
Given that there is apparently some possibility that there
will be continuing procedural votes in the afternoon, and given
that Mr. Schiff and I, I think, have come back four different
times to ask questions, could I make a request of the Chair
that after Mr. Forbes' questions we suspend seniority and
proceed with Mr. Schiff and then myself?
Mr. Conyers. We will take it under consideration----
Mr. Davis. Thank you, Mr. Chairman.
Mr. Conyers. Mr. Forbes.
Mr. Conyers [continuing]. If there is no objection, of
course.
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Chairman, I want to first congratulate you on this
being your first hearing that you are presiding over as
Chairman, and it is unfortunate that this hearing really seems
to be more about politics than policy because, as I have
listened to all of the testimony, there does not seem to be a
big quarrel about signing statements. It is just you do not
like what the President has to say, and I still cannot see much
difference in the President's putting it in a signing statement
versus his coming out in a press conference and saying the
exact same thing.
But be that as it may, I know Mr. Ogletree is gone now, but
I wrote down the quote he made in response to Mr. Nadler's
question at 11:25 where he says, ``This President, more than
others, has interpreted what the law allows him to do.''
I think that is what we want the Presidents to do. I do not
think we want them to walk around in the dark not knowing what
they believe the law allows them to do and does not allow them
to do.
Ms. Mathis, as I look at your coming here today as
President of the ABA--basically all three witnesses are a
product of the ABA--the task force you are representing in
coming here, and I know you testified earlier in response to
Mr. Sensenbrenner and his concern about basing comments on
articles in the newspaper that may be not particularly
accurate, but one of the things you also mentioned was that you
did not appoint this task force.
But in point of fact, according to one of those articles,
which may or may not be accurate, in the Miami Daily Business
Review, Michael S. Greco was the President at the time of the
American Bar Association, who did the appoint this task force;
and within 2 weeks of appointing the task force, he said that
he was on a mission and basically equated President Bush to
becoming another King George III.
So I think he was prejudiced a little bit at the time that
he was appointing this task force as to maybe what his
intentions were, especially given the fact in these same
articles it points out that for the last 16 years, your members
have been the largest contributors to the Democratic Party, and
at no time in that period of time were less than 70 percent of
your contributions going there.
But my question to you today, as President of the American
Bar Association now, would be, President Clinton issued 105
signing statements. Can you give me the dates of any special
task forces or committees that were designated to look at any
of the signing statements during his term in office?
Ms. Mathis. Congressman, I believe you were out of the
hearing room when I clarified the record, and if I may, sir,
that--in fact, the first statement in the task force report is
accurate. The April 30th report in the Globe was never changed.
It was a later article in which a Globe editor changed the word
``law'' to ``bills,'' which was, in fact, corrected on May 4th.
So we do stand by the report. I had the opportunity to
check during the recess, sir.
Secondly, I do not disavow in any way, shape or form the
task force despite the fact it was my predecessor who appointed
them.
I believe you also missed the point that I was able to make
a little earlier that that task force went to the full 546-
person board of--excuse me--House of Delegates, which is a very
broad group of lawyers throughout the United States. It
includes Republicans; it includes Democrats; it includes
Independents; it includes people who have no political
persuasion. It was vigorously debated, and it became the policy
of the ABA.
Prior to that action in August of 2006, it was just a task
force report. There are many task force reports of the ABA that
never become policy. Some do; some do not.
With regard to your earlier statement, let me say that the
task force and the ABA have looked at the signing statements as
they have been used in the last 25 years, beginning with
President Reagan, and in fact, this report is very specifically
not aimed at a particular President. It is aimed at all
Presidents.
Mr. Forbes. Ms. Mathis, I would love--and we can chat a
little bit later. Can you just answer my question on whether or
not any task force was appointed to look at President Clinton's
signing statements when he made those?
Ms. Mathis. Not only was it not done then, but it has been
reported in the task force itself, and there are specific
examples in the task force of where President Clinton misused
signing statements.
Mr. Forbes. But you did not appoint any during his
Presidential term----
Ms. Mathis. I did not appoint any, and I still have not.
Mr. Forbes [continuing]. Nor did any of your predecessors?
Ms. Mathis. No.
Mr. Forbes. Good.
The last question----
[Disruption in Committee room.]
Mr. Conyers. Let us have order, please.
Excuse me. Could I ask the officers to please escort our
visitor from the Committee room so that we may continue our
hearing?
Ms. Mathis. I apologize, Mr. Forbes. Could you repeat your
question?
Mr. Forbes. It would have been difficult for you to hear.
Mr. Chairman, may I follow up with the last question?
Mr. Conyers. Yes, please.
Mr. Forbes. Mr. Chairman, I just have one question because
I know my time is about out.
You know, I hear a lot about this statement, he could make
a statement, and nobody can come back, but couldn't he also do
that at a press conference? You have not really addressed the
difference between his coming out and making a written
statement somewhere else.
What is the difference between his doing that or--for
example, you know, you heard Mr. Sensenbrenner talk about
putting in Committee reports. What about a Member who goes down
to the floor and puts in a statement to the Congressional
Record?
Can you differentiate those for me, please?
Ms. Mathis. I will try, and I think I can.
I believe that the task force is very clear on this, that
the President has the same first amendment right that you do,
Congressman, and I do, and may say whatever he chooses to.
The effect, however, of a specific set of language in a
signing statement in a unitary President theory is that, when
he says there are certain aspects of this bill which we believe
are unconstitutional and we intend not to enforce them and that
is then sent or is available for the executive branch, then
that is an issue.
It is an issue about which we have some concern, and we
think it creates the potential for an unbalancing of the checks
and powers. We think that the four recommendations we have made
are there to help with transparency. As an earlier Member said,
you can go to the White House daily information, and that is
true, but then it gets lost; there is no public database unless
you know what the law is you are looking for that has a signing
statement.
So the four things we have recommended are: Send your
objections to Congress; do it in a timely manner. I understand
from our representative from the Office of Legal Counsel that
is happening. If a bill gets to you and you find 2 percent of
it is unconstitutional----
Mr. Forbes. Ms. Mathis, I would love to hear it, but my
time is out.
So, Mr. Chairman, thank you.
Mr. Conyers. I thank the gentleman.
And I now turn to the gentleman from Georgia, whom we
welcome as a new Member to the Committee, and ask if he will
yield to Mr. Adam Schiff, the gentleman from California.
Mr. Johnson. Well, I am tempted to ask for what purpose. I
have got another Committee meeting to get to myself, so I will
be brief. How is that?
Mr. Conyers. The gentleman is recognized.
Mr. Johnson. All right. Thank you.
I do not mean to be obstinate in any way, but at any rate,
I just simply want to state that, you know, this is my first
Committee hearing. I am a new Member of Congress. I believe
that one of the reasons I am here is that Americans across the
board want their Congress to be more proactive, exercise their
authority to provide oversight and investigations when
necessary, and I believe that is what we are doing today, Mr.
Chairman, is exercising our power to oversee the President's
use--and some may say misuse--of the Presidential signing
statement.
Without characterizing it either way, I will say that
certainly these witnesses who have appeared here today
particularly, or in particular, the ABA should not be accused
of any bad motives in making their appearance. I assume
everyone here today is here for the protection of our
Government, the protection of the three branches of Government
and the balance of power amongst them, and so I want to laud
everyone for coming.
I will say that the ABA recommendations as to some kind of
statement by the executive branch when it uses this signing
statement to instruct its branches as to how to interpret
statutory law, I think are eminently reasonable, that the
President report in detail to the Congress whenever he so
instructs his departments; and also, I believe that there
should be some judicial avenue of preclearance, if you will,
for any presidential construction of statutes.
With that having been said, I will yield the balance of my
time.
Mr. Conyers. Mr. Franks, the gentleman from Arizona.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, we live in an era when 60 days before an
election some of our campaign laws say that we cannot even
mention a candidate's name in a political advertisement, and it
seems like we are doing a great deal to thwart political speech
as it is.
I wonder if it is wise for us to begin then to thwart the
political free speech of the one person who is elected by all
of the people in this country, and I certainly think that that
is one of the issues that is here today.
The second issue is that just by a cursory glance at
history, we find that at some point one of the major branches
of Government has been wrong, obviously. You know, the Supreme
Court at one time in their Dred Scott decision rendered an
entire race of people outside the scope of humanity.
And that was a wrong decision, and if it had not been for
the fact that the other branches pulled against that, then the
Constitution itself could have been abrogated in the most
serious way. And of course, because they did, our country ended
what was the practice of slavery for 6,000 years in human
existence.
And so, as we really begin to look at our three branches of
Government here, we have to necessarily realize that there is
going to be some overlap and some gray areas, and the tendons
that hold those three branches together are sometimes going to
be pulled and stressed. And it occurs to me that that is
precisely where we are here today, where we are doing
everything that we can to allow the different branches of
Government to express their commitment to the Constitution. And
if, indeed, the President is held by the Constitution to
faithfully execute the laws of the land, it should be
remembered that the Constitution is the ultimate law of the
land, and when he looks at one particular statute and says,
``Well, you know, this is against the Constitution,'' isn't he,
as a matter of constitutional principle, required to
subordinate himself to the higher authority, which is the
Constitution itself?
I will let the gentleman that raised his hand here answer
the question.
Mr. Edwards. Congressman, thank you.
Unfortunately, because--you have to have shorthand. If you
are saying that you are having a hearing about something, you
have to put a label on it, and so this hearing is about,
``Signing Statements,'' but that is not what this hearing is
about. That is a label.
This hearing is about Presidential assertions of the right
not to comply with the law. That is what the hearing is about,
a President asserting--whether it is in a signing statement or
in a speech or anywhere else that as the President, he will be
the final determiner of whether something is constitutional,
not the Congress; you know, he will decide whether it is
constitutional, and he will decide whether or not to comply
with it. That is the problem.
To go to the point you are making, the problem you have
here is that there is no recourse. If there is a veto, there is
recourse. If the President says, ``I do not believe we should
comply with this, the unitary executive branch does not have to
comply with this,'' you know, there is no veto. That is it. He
is the final word. So what do you do?
Mr. Franks. I appreciate the gentleman's point.
The challenge is that the President many times is dealing
with laws that come into place not necessarily by his veto or
lack thereof, or perhaps even by someone overriding his veto.
Sometimes those things happen outside his scope, and as a
matter of just common reality, sometimes a President is forced
to make a decision between which law to obey, and sometimes he
is forced to look at the Constitution as the higher law. And I
know----
Mr. Edwards. Is he the final word?
Mr. Franks [continuing]. It is a challenging situation, but
regarding the recourse, if I could ask any member of the panel,
do you not think that there is some recourse in the courts and
otherwise if, indeed, the President--if it is believed that he
has overstepped his bounds?
Yes, sir.
Mr. Rosenkranz. I think there often is some recourse. Many
of these questions will find their way into court ultimately.
I would just like to say, in response to this
characterization of the President's signing statements as
declarations that parts of statutes are unconstitutional, I
think it is a serious mischaracterization of what the huge
majority of this President's signing statements actually say.
Mr. Franks. No doubt.
Mr. Rosenkranz. The huge bulk of this President's signing
statements, the huge bulk of every President's signing
statements, are about interpretation of the law, interpretation
of the statute. Not ``I think this provision is
unconstitutional,'' but rather, ``I am giving you my
understanding of what these words mean; and given that
understanding, I am going to enforce that understanding of
those words.''
Mr. Franks. Mr. Chairman, I would just want to, in closing
here, emphasize this gentleman's point that the President
oftentimes is doing what he truly believes is right under the
Constitution, to enforce and interpret the Constitution the way
he sees fit. Anything else would be malfeasance on his part.
Mr. Conyers. I thank the gentleman.
Mr. Franks. Thank you.
Mr. Conyers. I recognize now Mr. Adam Schiff, the gentleman
from California.
Mr. Schiff. I thank the Chairman. I thank you for your
efforts to get us in earlier as well.
I want to ask Mr. Elwood a question, actually one specific
and one more general, and it has to do with the PATRIOT bill.
We recently, I guess last year, had the reauthorization of
the PATRIOT bill signed into law. Many of us worked on that and
felt that it made important improvements both in security and
in oversight. It was not a perfect bill, and there is more that
could be done, but many of us on this Committee pushed for
oversight provisions that would give us greater confidence that
we were not intruding on people's civil liberties with a
measurable improvement to public safety and that we were doing
so well within constitutional guidelines.
A couple of the sections in that bill, 106(a) and 119, were
part of the bill months before the negotiations began or
remained unchanged throughout the negotiations over the
reauthorization. I am not aware of any objection that was made
to those provisions, and in fact, the Attorney General
testified ad nauseam how important oversight was in terms of
the reauthorization of the PATRIOT bill.
Nonetheless, we get the signing statement in which the
President states that the executive branch will construe the
provisions of this bill calling for furnishing information to
entities outside of the executive branch such as these Sections
106(a) and 119 in a manner consistent with the President's
constitutional authority to supervise the unitary executive
branch and to withhold information, the disclosure of which--
blah, blah, blah.
The President also dismissed section 756(e)(2), which
requires the Attorney General to submit to Congress
recommendations for further legislation, using similar
language, the President essentially stating that he will
withhold the information requested by Congress when he decides
unilaterally that he will do so, regardless of the express
requirements of the law that he was signing.
My two questions are this, and if you cannot answer it
today--and I do not expect that you will--I will ask that we
have you submit to the Committee an answer to the question.
Has the President, has the executive branch, withheld the
information called for by Congress under the PATRIOT bill under
a claim of this signing statement that, under his unitary
authority, he is not required to submit fully the information
Congress required? That is my first question.
Second, how is Congress to know? How are we to uphold our
constitutional responsibility if the executive unilaterally
decides the scope of the laws that we pass? How are we to know
if you are not providing us the information that we called for
under the PATRIOT bill? How are we to know if you are getting
that call wrong?
Mr. Davis and I were both part of the Justice Department.
We both recognized that the attorneys there are hardworking and
diligent and doing the best they can, but we also recognized
they are not infallible, because we were there, and Mr. Davis
knows he was not infallible when he was there. I was the only
infallible attorney there, and I am no longer there.
So how are we to do our job if you arrogate yourself the
power to decide when the scope of what we have asked you
intrudes upon your authority?
Mr. Elwood. I think that this is an excellent example of
something I have been trying to illustrate today, which is,
simply because the President states sort of constitutional
views on an area of the law, it does not mean that we are not
going to comply fully. And it is my understanding, I
specifically inquired----
Mr. Schiff. It does not necessarily mean that, but it could
mean that.
Mr. Elwood. No. But the point I want to make is that the
President--simply because he is announcing his views, it does
not mean that he is not going to comply fully.
As it happens, I have inquired, and the Department of
Justice is complying with those provisions; it is cooperating
in the Inspector General's investigation.
Mr. Schiff. Can you tell us then that there is no part of
the information Congress has sought under this provision of the
PATRIOT bill that the executive has withheld because it
believes that it would compromise national security, that it
would violate principles of unitary executive branching?
Mr. Elwood. That is my understanding, and I want to make a
point here, which is that President Eisenhower and President
Clinton made precisely identical signing statements, which is
not to say we are not going to comply. We are saying that we
are----
Mr. Schiff. I just want to pin this down though.
So you can say here with confidence that the executive
branch has withheld nothing that is within the plain language
of that statute under claim of this signing statement?
Mr. Elwood. My understanding is that the Government, the
Department of Justice, is cooperating fully with those
provisions. That is correct.
Mr. Schiff. That does not answer my question.
Mr. Elwood. That is my understanding, yes, Congressman.
Mr. Schiff. Has the Administration withheld anything under
that provision? Under that signing statement language, have
they withheld anything?
Mr. Elwood. It is my understanding that they have not,
Congressman.
Mr. Schiff. And how would the Congress find out if they
were?
Mr. Elwood. I think through oversight. I think that in a
case like that, when the President says that he is going to----
Mr. Schiff. Does the Administration feel any obligation to
notify Congress that we are making a claim of executive
privilege, of national security, and we are not turning over
information called for under this legislation?
Mr. Elwood. Yes, I think that they would notify you if they
were not going to share it with everyone; and I think they
would say that there are certain things we are holding back.
And I also do not know that they would say, we are not
withholding it at all; I think they would just put special
procedures on any information that was subject to--that it was
classified and subject to additional sorts of constraints in
its handling.
Mr. Conyers. The gentleman's time has expired, and I
recognize the gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Mr. Chairman, thank you very much. I
appreciate your holding this hearing. I am pleased that you are
engaged in oversight, but I am, quite frankly, surprised that
this was the topic of the first hearing as well.
This is an interesting academic discussion. I listened
intently this morning to the testimony of all of the witnesses,
and it was not until we got to Professor Ogletree, who
mentioned two signing statements where he called into question
whether the actions of the President were appropriate. Until
then, I had heard nothing that contradicted the long history of
the use of signing statements for very appropriate purposes, as
Professor Rosenkranz has aptly stated, ``to elucidate the
President's understanding of the law that has been passed by
the Congress.''
We have seen an increase in the number of signing
statements over the years. I would say that is entirely because
the amount and complexity of legislation passed by the Congress
has increased over the years, and signing statements by
Republican and Democratic Presidents have increased
correspondingly.
In a moment, I will give Professor Rosenkranz an
opportunity--oh, actually, Mr. Elwood an opportunity to talk
about those two issues--the torture legislation and the
legislation regarding nuclear controls, the nuclear agreement
with India.
But, first, I would like to call your attention to what
former Assistant Attorney General Dellinger in the Clinton
administration noted about signing statements. He said, ``One
of the most controversial purposes of Presidential signing
statements is to create legislative history in an attempt to
guide the courts when they interpret the legislative intent
behind statutes.'' however, as Congressman Smith has pointed
out, the courts have rarely, if ever, given any credence to
these signing statements, and increasingly, they give less and
less credence to our own version of signing statements, which
Mr. Sensenbrenner correctly pointed out are our own legislative
histories. Instead, they have looked to the actual statutes and
interpreted those, as they appropriately should.
Much more troubling to me is the inclination of the courts
to cite foreign law and trends when interpreting statutes.
Foreign laws were passed by foreign officials who were never
elected by U.S. citizens. At least the President is elected by
the American citizens and is examining these laws in the
framework of the U.S. Constitution.
I find it troubling that the new majority would prioritize
oversight on Presidential signing statements above examining
the practice of the courts, including the Supreme Court's
increasingly citing foreign laws and regulations when
interpreting statutes enacted by the Congress.
So I would like to ask Professor Rosenkranz if you find
this prioritization troubling as well. Do you believe that the
Supreme Court's citation of foreign precedence is at least, if
not more, detrimental to U.S. sovereignty than Presidential
signing statements?
Mr. Rosenkranz. I do agree with you, sir.
I think that that issue--I think the citation to foreign
law and foreign judgments raises an issue of democratic self-
governance that this issue really does not. So the American
people are, of course, quite interested in the distribution of
powers between the three branches of this Government, but far
more so, they are interested in being governed by one of these
three branches rather than by foreign governments.
Mr. Goodlatte. And increasingly the courts, including the
Supreme Court, have turned to foreign judicial precedence in
interpreting the meaning of our own Constitution, which I and
Justice Scalia and a number of other members of the bench have
found to be a very disturbing practice.
Let me ask Mr. Elwood if he wants to add anything to that
and also if he would care to comment on the two points that
Professor Ogletree raised about the nuclear agreement with
India and about the torture issue.
Mr. Elwood. I agree with Professor Rosenkranz. This is
something the Attorney General has spoken about and feels very
strongly about.
On the McCain amendment and the Hyde Act, I wanted to say
about the McCain amendment that I think this is another
excellent example of how just because the President states his
constitutional views does not mean he is not going to enforce
it.
He said both before and after signing the McCain Act that
he agreed with it, that it was good legislation and that he
intended to implement it fully. In fact, he said, shortly after
making the signing statement, the McCain amendment is an
amendment we strongly support, and we will make sure it is
fully effective. They asked him, well, why did you make the
signing statement then, and he said that the reason I make
signing statements like that in the foreign affairs area and
the war powers area is just to say that conducting war is the
responsibility of the executive branch, not of the legislative
branch.
So it is just a general statement. Look, these are matters
that are very important to the executive. So, you know, keep
that in mind. These are areas where we have special importance,
special prerogatives.
I also wanted to point out that President Clinton in the
Cuban Liberty and Democratic Solidarity Act, even though he
supported that legislation, issued a very similar signing
statement there saying that the President's authority also in
foreign affairs was very powerful.
As for the Hyde Act, if I might be allowed, it is a very,
very technical point. The legislation adopted by Congress said
that any transfers of nuclear material had to be consistent
with guidelines of this nuclear producer's group.
The Government consistently has complied with these
guidelines throughout history, and the basic point was a
technical one, which is that if you make the legality of the
transfer turn on what these guidelines say, at some point in
the future it is ceding legislative power to foreign bodies,
and that was it. It was just a technical point, but the
Government consistently has only transferred in compliance with
those guidelines throughout history, and we are a member of
that group, in fact.
Mr. Conyers. The gentleman's time has expired.
The Chair recognizes the gentleman from Alabama, Mr. Artur
Davis.
Mr. Davis. Thank you, Mr. Chairman.
Ms. Mathis, you made the correct point several times that
the broad focus of this hearing is obviously not whether or not
the President can make an oral statement. He can make any oral
statement he wants and any written statement he wants. The
broad question is the scope of the President's interpretive
power, his power to interpret the Constitution, and I want to
direct my questions along that angle.
Mr. Elwood, you made an assertion that I think is somewhat
remarkable, and I want to go back to it. When my colleague from
California was asking you his line of questions, he was making
the point that sometimes the President's interpretation of the
Constitution or his interpretation of a statute could lead him
to shield information or to withhold information from Congress
or from the public domain that could prevent a case of
controversy from ever being generated. So I want to go back to
that line of questions.
In the context of the authorization that this Congress
provided after 9/11, the use-of-force authorization against
Afghanistan, we know that several times the President has
said--and I do not know if he has done it in the context of a
signing, statement, but several times he has said orally, and
members of your administration have made the representation in
an amicus brief--that that was a broad delegation of authority
to the President; and among the instances of that broad
delegation would be FISA, or not necessarily following certain
provisions of FISA, among--another instance of the broad
delegation the President claims has to do with the detention of
individuals at Guantanamo.
The point that I think Mr. Schiff was making is that if the
President interprets a statute, or even the Constitution, in a
manner that leads him to act and leads him to prevent the
information from being released into the public domain, that
itself is problematic. The only reason that we know and now
have the potential for a case in controversy around the FISA
statute is because of the New York Times, frankly, not because
someone could go out and file a lawsuit, and not because
Congress exercises oversight authority.
You referred to the oversight authority. It is darned near
impossible to exercise it when the President does not share
with us when he is exceeding the scope of the statute. So that
is the point he was making.
The second observation--Mr. Elwood, this is a question to
you. Is it your position, is it your administration's position
that if the President of the United States believes that a
statute is unconstitutional that he is within his
constitutional prerogative not to follow it? Is that your
position?
Mr. Elwood. You have made two points.
Mr. Davis. Well, I would like you to respond to that one,
though, first.
Mr. Elwood. Okay. It is the position of the Administration
and it is the position consistently of executive branches as
long as I can remember that if an act of Congress is--the first
thing you do is, if it is capable----
Mr. Davis. Be quick because our time is running.
Mr. Elwood. If there is any construction you can give it to
make it constitutional, you do that first.
Mr. Davis. But if, for whatever reason, the President finds
it unconstitutional and cannot find a save in construction, is
it your position the President is not following the statute?
Mr. Elwood. Yes. The Attorney General----
Mr. Davis. Now let me ask you--it is my time. You have
said, ``yes''; let me follow up on that.
We had a governor of Alabama named George Wallace back in
the 1960's. Perhaps you have heard of him. This Congress passed
a Voting Rights Act and passed a Civil Rights Act, and the
governor of my State stated that he felt that both were
unconstitutional, and he informed the people of Alabama that he
would not enforce provisions of the Civil Rights Act and the
Voting Rights Act, that Alabama was a separate sovereign State,
and as the sovereign of Alabama, that he was not going to
follow an unconstitutional law or provision.
Tell me how that is different from the President's
position.
Mr. Elwood. I think that the position is--I mean, for one
thing, I want to emphasize that any time when the President or
a member of the executive branch decides not to enforce a law
because they think it is unconstitutional they have to report
that to Congress under 28 U.S.C. 530D, and I think that, as a
matter of principle, it is different.
To begin with, this President has made every effort,
whenever there is any sort of construction you can give it that
is constitutional, to fully implement it.
Mr. Davis. That is not my question.
As a matter of constitutional doctrine, what is the
difference--and forget Alabama. Any State.
What if the governor of Arizona decides she does not like a
new immigration bill that Congress may pass and decides, ``I
think it is not constitutional. I am not going to follow it''?
Mr. Elwood. I would say that the one difference is that the
governor of any State is subject, under the supremacy of the
law, to Federal law; and it is----
Mr. Davis. Is the executive branch not subject to the
notion of a law having a certain supremacy that would control
executive interpretation? I thought the Judiciary was the
interpretive body in our tripartite structure.
Mr. Elwood. Every branch of Government is responsible for
interpreting. Congress interprets the Constitution when it
passes laws, and that is the reason why----
Mr. Davis. If the Supreme Court makes an interpretation,
can the President challenge that interpretation?
Mr. Elwood. If the Supreme Court has interpreted a law or
has interpreted the Constitution, then that is binding on
Congress and the President in both of those instances. And I
would just simply say that that is the--the difference is that
the Constitution specifically charges every branch of
Government.
Mr. Davis. Why would a President's interpretive power
exceed the legislative branch's interpretive power?
Mr. Elwood. It does not. Every branch of Government is
expected to adhere to the Constitution. All of the members of
the three branches take an oath of office, and all of them are
expected to, independently, if the court has----
Mr. Davis. Ms. Mathis, would you like to comment on any of
that?
Mr. Conyers. The gentleman is advised that his time has
expired.
Mr. Davis. I apologize, Mr. Chairman.
Mr. Conyers. That is quite all right.
The gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. I very much
appreciate the time.
These signing statements, from the testimony, from what I
am reading, seem to indicate that you have an executive branch
that says what they believe a law means how it will be carried
out, and of course, one of the alternatives is if we allow
unelected, unaccountable bureaucrats sitting in some office
somewhere to come up with regulations of their own
interpretation without guidance from the President. So I can
see how it might have merit.
Now, we do know some Administrations enforce some laws.
Some ignore them. I know Chuck Colson--for example, I
understand he went to prison back in 1970's for having one FBI
file in the White House. And yet, during the Clinton
administration, there were 1,000 or so files, FBI files, in the
White House; and that Department of Justice under President
Clinton chose not to enforce those laws.
So, instead of someone going to prison or people going to
prison for thousands of years, nobody had anything happen to
them for those gross violations of the law.
But anyway, in my remaining time, there are some signing
statements signed by the President that have disturbed me, and
I wanted to just read some of them into the record.
``Several provisions in the act, specifically Section 603
and 605 and 302(b) could be taken to direct how the Nation's
foreign affairs should be conducted. The Constitution, however,
vests the President with special authority to conduct the
Nation's foreign affairs.
``My constitutional authority over foreign affairs
necessarily entails discretion over these matters. Accordingly,
I shall construe these provisions to be advisory and direct all
executive branch officials to do likewise.''
Oh, well, that was President Clinton.
``Section 1104 of this bill raises a constitutional concern
insofar as it could be read to interfere with my constitutional
authority to determine when and whether to recommend
legislation to Congress. I will, therefore, treat it as
precatory, which, as I understand the meaning, just means
'wishful thinking.''
Oh, that was President Clinton.
``Section 313 of the Legislative Branch Appropriations Act
will establish in the legislative branch a Center For Russian
Leadership Development. The Department of Justice advises me,
however, that, because the program is not administered by the
executive branch, it is unconstitutional.''
The President just called it ``unconstitutional.'' oh, that
was President Clinton.
``I would interpret this provision consistent with my
constitutional authority to conduct the foreign relations of
the United States and my responsibilities as commander in
chief.''
Gee, that was President Clinton also on a different--each
of these is a different signing statement.
Here is one.
``to the extent that this provision can be read to direct
the Secretary of State to take certain positions in
communications with foreign governments, it interferes with my
sole constitutional authority over the conduct of diplomatic
negotiations. Therefore, the provision will be treated as
precatory, or wishful thinking.''
Oh, that was President Clinton, too. Here is another one.
``there are a number of provisions in the act that may
raise constitutional issues. These provisions will be treated
in a manner that is consistent with the Constitution.''
That was President Clinton, too.
This, unlike the others, is in the same signing statement.
``this provision unconstitutionally constrains the President's
authority with respect to the conduct of diplomacy, and I will
apply this provision consistent with my constitutional
responsibilities.''
That President said it was just unconstitutional. Can you
believe that? Isn't that something? That was a rhetorical
question.
``I shall interpret and implement Section 8115 consistent
with my constitutional authority to conduct the foreign
relations of the United States and as commander in chief and
chief executive and not in a manner that would encumber my
constitutional authority.''
That was President Clinton.
Another: ``So that this provision cannot be construed to
detract from my constitutional authority and responsibility to
protect national security and other privileged information as I
determine necessary, and so''--the arrogance from this
President, for goodness sakes--``. . . and so that the
provision does not require the release of information that is
properly classified, I direct it be interpreted consistent with
my constitutional authority.''
That was President Clinton, too.
Another: ``I am also concerned that Section 8117 of the act
contains certain reporting requirements that could interfere
materially with or impede this country's ability to provide
necessary support to another nation or international
organization. In connection with peacekeeping or humanitarian
assistance activities otherwise authorized by law, I will
interpret this----''
Mr. Conyers. The gentleman's time has expired.
Mr. Gohmert. Okay. Thank you, Mr. Chairman.
I do have a stack of these, and I appreciate the
opportunity to read those into the record. Thank you.
Mr. Conyers. You are welcome.
I recognize now the gentlelady from Florida, Ms. Wasserman
Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
You know, Mr. Chairman, I note that it is not surprising,
given the Republican leadership when they ran this institution
and given their total abdication of our constitutional role of
oversight and exercising our constitutional right on the system
of checks and balances in that oversight, that while President
Clinton was in office, the Judiciary Committee did not have any
hearings on signing statements or ask the Administration at the
time why they were exceeding their authority. And I think it is
important to note, as former Congressman Edwards pointed out,
that this is not a partisan issue.
I would take as much issue with President Clinton's signing
statements as I do with President Bush's, and I think that to a
person on this Committee that has concern over it that that
would be the case.
My question for Mr. Elwood is, I am one of the non-
attorneys of the Committee, and sometimes--although I generally
understand what goes on in our proceedings, I think the general
public sometimes, you know, feels like we are speaking in the
clouds, so I want to bring it underneath the clouds for a
second and speak about a particular signing statement that
maybe is less esoteric, but no less dire in terms of comparing
it to the PATRIOT Act, but the one that related to the Homeland
Security Appropriations Act of 2007.
Section 503(c)(2) was a provision that dealt with the issue
of qualifications of the FEMA Administrator, and if you will
recall, the FEMA Administrator during Hurricane Katrina was
Secretary Brown, and if you will recall, his prior experience
was being the head of the Arabian Horse Association, and there
was some significant concern about his qualifications, and they
were generally going forward about the qualifications of the
FEMA Administrator, of what the FEMA Secretary's should be, and
also the reporting and a lot of the other issues.
But in that section of the bill, Congress included a
provision that required the President to adhere to certain
qualifications in the individual who was being considered for
that post. When that law passed, the relevant section of the
signing statement that the President issued said as follows:
``Section 503(c) of the Homeland Security Act of 2002, as
amended by Section 611 of the act, provides for the employment
and certain duties as the Administrator of the Federal
Emergency Management Agency.
``Section 503(c)(2) vests in the President authority to
appoint the Administrator by and with the advice and consent to
the Senate, but purports to limit the qualifications of the
pool of persons from whom the President may select the
appointee in a manner that rules out a large portion of those
persons best qualified by experience and knowledge to fill the
office.''
He goes on to say, ``The executive branch shall construe--
'' not may construe, might necessarily construe, but ``shall
construe. . . Section 503(c)(2) in a manner consistent with the
appointment clause of the Constitution.''
Now, if you review that section of the law, that is not
what Congress instructed the President to do, and I am
wondering why it would be in the President's authority to just
decide to differently implement--not interpret, but differently
implement--Congress' direct instructions as to the
qualifications of the FEMA Administrator henceforth, after the
passage of that law.
Mr. Elwood. Two points.
First of all, whenever the President is implementing the
law, he must first interpret it, and when he interprets it, he
must interpret it in light of the Constitution. And all three
branches have to do that.
Ms. Wasserman Schultz. Mr. Elwood, I know you have
repeatedly said that, but that is not the President's role.
That is the judicial branch's role. It is the President's job
to implement the words in the law as Congress has passed them,
and if he does not agree--or she, hopefully, one day--does not
agree with the words in the law, then it is his responsibility
to veto them, as Mr. Edwards has said.
Mr. Elwood. I would disagree with you.
It is the long-held position of the executive branch--and
the Supreme Court has indicated in Myers v. United States where
they upheld the President's ability to not abide by the Tenure
of Office Act there, which was another restriction on the
President's removal power, not appointment. But it held there
that the President could--despite a law saying that he could
not--remove people in his Cabinet without Senate approval, the
Court held that that was unconstitutional; and not one of the
nine members of the Court said that the President was at fault
for not enforcing that.
Ms. Wasserman Schulz. That deals with tenure in office.
That doesn't deal with the qualifications. Congress does have
the right to specifically determine the qualifications OF an
individual the President is considering. We can constrain the
President in that regard. Do you disagree? Then you can go to
court.
Mr. Elwood. There are limits on what the Congress can do in
that regard. There is another school of thought that just as
people have been saying the only thing the Constitution says,
it says you can only veto or sign it, those are your only
choices, but similarly, some people interpret the Constitution
to say that because the Senate can confirm or deny confirmation
to a person that that is the only role for Congress in
determining the qualifications of a person. There is a body of
law that says Congress can set qualifications, but it can't set
so many qualifications that it limits the President's ability
to appoint essentially someone of his choosing.
Now, finally, I do want to note the President continues to
apply the law as written. I will note that R. David Paulison,
the person who was appointed, was somebody who oversatisfied
the conditions. He has 30 years in law enforcement.
Ms. Wasserman Schulz. Let me just interrupt you there. He
is a constituent of mine. He lives in my district. He lives
down the street from me. So I am fully aware of his
qualifications and fully support him, and I am glad to see he
is heading up the Federal Emergency Management Agency.
That is not my point. My point is that the President in
this instance may not have decided to go with someone outside
of Congress' instruction, but it was inappropriate for him to
indicate in his signing statement that he could have.
Mr. Conyers. The gentlelady's time has expired.
Ms. Wasserman Schulz. Thank you, Mr. Chairman.
Mr. Conyers. I recognize our final Member for the day, Mr.
Ellison of Minnesota.
Mr. Ellison. Thank you, Mr. Chairman. One of the advantages
of being last is you get to hear everything that has gone on
before. So I would like to just ask this question.
It appears to me that as we have listened to the
testifiers, and thank you very much for your testimony, that
signing statements at worst, from the perspective of at least
Mr. Rosenkranz, are just basically the opinion of the President
and don't have the effect of law, and then on the other side
may have the effect of law, but we don't really know.
So my question is this: Why don't we just get rid of
signing statements? What is the real value of signing
statements? Why do we need them, if they are really no more
than I guess a flourish, as Professor Tribe said? Mr.
Rosenkranz, could you address that?
Mr. Rosenkranz. Again, I think that presidential signing
statements can serve an important function, which is, again, to
instruct the executive branch in the President's interpretation
of the law.
I just want to comment on the characterization of a moment
ago. It is simply not the case that the President's job does
not include interpretation of the law.
Mr. Ellison. Excuse me, sir, did I ask you that? I don't
believe that was my question, was it?
Mr. Rosenkranz. No, sir.
Mr. Ellison. Was that the question? Are you addressing my
question?
Mr. Rosenkranz. I am trying to address your question, yes,
sir.
Mr. Ellison. Please continue then.
Mr. Rosenkranz. The President--an important function of the
President in executing law, he is interpreting it, and
therefore instructing the executive branch in his
interpretation of it.
Mr. Ellison. So, in other words, in your view, does the
signing statement actually in any way alter or modify the
statute as passed by Congress?
Mr. Rosenkranz. No, it does not.
Mr. Ellison. So if it does not change what Congress has
done, why can't the President simply issue a press release or
hold a press conference on his view on what Congress passed?
Mr. Rosenkranz. He could do that.
Mr. Ellison. And in that case, we wouldn't have to worry
about whether or not the signing statement has changed the law
that Congress has passed? Would you agree?
Mr. Rosenkranz. Well, we would then be having a hearing
about press releases, I guess.
Mr. Ellison. Maybe not. We don't really have hearings about
press conferences, not to my knowledge. But in that case, we at
least would not have to worry about whether or not the
President was executing the law as passed by Congress. Is that
right?
Mr. Rosenkranz. In a presidential signing statement or in a
press release, the President may express his view about what a
statute means and the executive branch is duty bound to follow
the President's interpretation of the law, whether expressed in
a signing statement or a press release or anything else.
Mr. Ellison. Mr. Elwood, why do we need to have signing
statements if they simply are an expression of an opinion and
don't really change the law as passed by Congress?
Mr. Elwood. They are an expression, as Professor Rosenkranz
indicated, they are an expression of the President to the
people in the executive branch of how the law will be
administered. Several Presidents in addition have used it to
conduct sort of a dialogue with Congress. I suppose that could
be done through a press release as well.
Mr. Ellison. I was going to say, the President has a lot of
ways to carry on a dialogue with Congress, including having the
Committee chairs come to his office to talk about the law.
I believe you made the point that there is no case in which
the President has refused to carry out the statute. It is
simply an expression of opinion. So in that case, Mr. Edwards,
would you care to comment on why simply eliminating signing
statements would not be a good idea?
Mr. Edwards. Congressman, it doesn't matter to me whether
we have signing statements or don't have signing statements.
What matters to me is whether or not a President can declare,
can assert, that he does not have to comply with an act of
Congress that has been signed into law by himself.
I must say, I have got to say this, Mr. Chairman, it sounds
to me like I walked in accidentally to a meeting of the
national committees and am shocked by the number of Members of
this Committee who can't get beyond their party affiliation.
I was a foreign policy adviser to President Bush's
campaign. I worked for President Bush. I supported him and I
voted for him. This is not party, this is Constitution, and the
Constitution is more important than whether or not we are
defending a President of our party. I am really bothered by the
tone that I have heard today.
Mr. Conyers. I would like to advise the gentleman--I will
give you the last question. You waited the longest.
Mr. Ellison. I was simply going to direct a question to Mr.
Edwards again. You know, again, as has been pointed out
clearly, President Clinton has used these signing statements,
other Presidents have used them in the past. There is a veto
which is available which is well within the constitutional
structure.
Would Americans not be better served if we simply
eliminated these signing statements and therefore we would have
a much more straight up and down, clearer delineation of
constitutional roles? What is your screw on that?
Mr. Edwards. I don't think the President should be muzzled.
The President should certainly have the right to express his
opinion any way he wants. The Constitution provides him that
opportunity through a veto, which then allows the Congress to
override it.
The problem with the signing statements serving as
instruction about whether we will comply or not means that the
Congress does not have the final say and the President has the
final say as to what is constitutional, in which case the whole
structure of the Constitution has just been undermined for the
sake of party unity.
Mr. Conyers. On behalf of all of the Members of the
Judiciary Committee, we are deeply indebted to you, the
witnesses, Ms. Mathis, Mr. Elwood, Mickey Edwards, Professor
Rosenkranz, for your dedication and your contribution. We
deeply appreciate it.
Without objection, the hearing record will be open for a
period of 1 week to allow additional materials to be submitted
for the record, including Members' opening statements, and
written questions for our witnesses, which we will ask them to
answer promptly so they can be included in part of the record.
Additionally, I ask unanimous consent to submit all 148
copies of the President President Bush's signing statements
into the record.
This is the beginning of our oversight efforts. I look
forward to the continued cooperation----
Mr. Gohmert. Mr. Chairman, reserving the right to object?
Mr. Conyers. Yes?
Mr. Gohmert. Could I also ask unanimous consent that we
could submit all of the signing statements by President Clinton
to show that bipartisanship that former Congressman Edwards was
talking about?
Mr. Conyers. We would be delighted. If you get those up and
submit them for the record, we will include them as well.
Mr. Gohmert. I knew you would be that fair. Thank you.
Mr. Conyers. They will be an important part of the record.
[Note: Due to the large number of pages of the signing
statements of Presidents Bush and Clinton, these documents are
not printed in this hearing record, but a copy of these
statements has been retained in the official Committee hearing
file. These documents are also available at http://
www.presidency.ucsb.edu/signingstatements.php.]
Mr. Conyers. Ladies and gentlemen, we have had a long day,
but I think it is an important day, and I think this is a
highly appropriate subject for our oversight hearings to begin
in the 110th Congress. The Committee stands adjourned.
[Whereupon, at 2:45 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas
Mr. Chairman, I move to strike the last word. I thank the Chairman
and the Ranking Member and I welcome each of the witnesses comprising
this most distinguished panel. I am very much looking forward to their
testimony and the opportunity to engage in serious discussion on a most
serious subject.
Might I also take this opportunity to congratulate you, Mr.
Chairman, on your assuming the gavel of this august committee. You have
led our side with grace, wisdom, and good cheer for many years now and
I am delighted to know that the full committee will now be benefiting
from your boundless energy, seriousness of purpose, and unshakeable
commitment to justice.
Judging by the subject chosen for the very first hearing that you
have presided over as Chairman, you are living up to expectations.
Those of us on this side of the dais know you as person who never takes
his eyes off the prize, who always see the big picture, who recognizes
what is important where others only see what may be unusual.
Such is the case with presidential signing statements. To some, the
topic may seem abstract or esoteric or arcane. But you and I and most
members of this Committee understand that what has been going on in
this Administration for the past six years regarding the misuse and
abuse of signing statements poses, as the American Bar Association's
Task Force on Signing Statements has observed, ``a real threat to our
system of checks and balances and the rule of law.''
It is for this reason that in the last Congress I introduced H.R.
5684, the ``Congressional Lawmaking Authority Protection Act'' or CLAP
Act of 2006, which (1) prohibited the expenditure of appropriated funds
to distribute, disseminate, or publish presidential signing statements
that contradict or are inconsistent with the legislative intent of the
Congress in enacting the laws; and (2) bars consideration of any
signing statement by any court, administrative agency, or quasi-
judicial body when construing or applying any law enacted by Congress.
I am proud to say that the Chairman was one of the original co-sponsors
of my bill.
I have reintroduced this legislation in substantially the same form
in the 110th Congress, except that the new bill, H.R. 264, makes clear
that the limitations of the law do not apply to presidential signing
statements that are not inconsistent with the congressional intent.
This is not a hard test to administer. Like the late Justice Potter
Stewart said about obscenity: ``it may be hard to define, but you know
it when you see it!''
As an aside Mr. Chairman, might I say this to those who would
question whether the Congress has the power to ban the use of
appropriated funds to publish or distribute signing statements:
regardless of whether it is wise to do so, if no one seriously can
question Congress' constitutional authority to terminate a president's
use of appropriated funds to wage military operations, a fortiori,
Congress has the constitutional authority to withhold from the
president funds needed to distribute a signing statement that
undermines the separation of powers!
Let me state clearly and for the record my concern with the abuse
and misuse of presidential signing statements, especially by the
current president.
Presidential signing statements seek to alter Congress' primacy in
the legislative process by giving the President's intention in signing
the bill equal or greater standing to Congress' intention in enacting
it. This would be a radical, indeed revolutionary, change to our system
of separated powers and checks and balances.
Bill signing statements eliminate the need for a president ever to
exercise the veto since he could just reinterpret the bill he signs so
as to make it unobjectionable to him. Such actions deprive Congress of
the chance to consider the president's objections, override his veto,
and in the process make it clear that the president's position is
rejected by an overwhelming majority of the people's representatives.
Since few presidents wish to suffer a humiliation so complete and
public they have strong incentive to work closely with the Congress and
are amenable to negotiation and compromise. This is precisely the type
of competitive cooperation the Constitution contemplates and which bill
signing statements threaten!
Although presidents have used signing statements since the Monroe
Administration, they really came to prominence during the
administration of Ronald Reagan, who issued 276 signing statements, 71
of which (26%) questioned the constitutionality of a statutory
provision. The Reagan Administration's goal, as articulated by then-
Office of Legal Counsel lawyer, now Associate Justice Samuel Alito, was
to establish the signing statement as part of a statute's legislative
history which courts would use in interpretation. This met with limited
success because while the Court referenced signing statements in two
major cases, there is no indication that it accorded them any weight.
President George H.W. Bush issued 214 signing statements during his
single 4-year term raising 146 constitutional objections. President
Bill Clinton issued 391 but raised only 105 constitutional objections.
Thus, out of a total of 881 signing statements, 322 constitutional
objections were raised to the bills signed by Presidents Reagan, the
first Bush, and Clinton during the twenty (20) year span from 1981-
2001.
The record of the Bush Administration is dramatically different and
confirms our worst fears. In less than six years, the current occupant
of the White House issued more than 125 signing statements, raising
more than 800 constitutional objections by himself. As the ABA Task
Force put it:
From the inception of the Republic until 2000, Presidents produced
signing statements containing fewer than 600 challenges to the bills
they signed. According to the most recent update, in his one and a half
terms so far, President George W. Bush (Bush II) has produced more than
800.
Mr. Chairman, according to Professor Christopher Kelley, an expert
on presidential signing statements, as of January 12, 2007, President
Bush has issued 150 signing statements challenging 1,149 provisions of
law.
Not coincidentally, President Bush's signing statements have
challenged the constitutionality of extremely high-profile laws such as
the reporting provisions under the USA PATRIOT Act of 2005, and the
McCain Amendment prohibiting torture. The president's statements have
essentially asserted that President Bush does not believe that he is
bound by key provisions of the legislation. They seek to further a
broad view of executive power and President Bush's view of the
``unitary executive,'' pursuant to which all the powers lodged in the
Executive and administrative agencies by Congress is somehow
automatically and constitutionally vested in the President himself.
In general, President Bush's signing statements do not contain
specific refusals to enforce provisions or analysis of specific legal
objections, but instead are broad and conclusory assertions that the
president will enforce a particular law or provision consistent with
his constitutional authority, making their true intentions and scope
unclear and rendering them difficult to challenge.
What makes President Bush's use of presidential signing statements
doubly problematic is his demonstrated and documented reluctance to
raise his constitutional objections in a veto message to Congress, as
contemplated by the Constitution. Indeed, to date, more than half-way
through his second term, President Bush has only vetoed a single bill
(embryonic stem cell), notwithstanding the more than 1,000
constitutional objections he has raised during this same period of
time.
It seems obvious to intelligent observers that the president is
trying to game the system and frustrate the system of checks and
balances so carefully crafted by the Framers. Rather than risk a
showdown with the Congress over some claimed constitutional right he
thinks he possesses but cannot articulate or defend in the light of
day, President Bush simply signs the law as if he accepts its
constitutional validity and then when no one but Vice-President Cheney
is watching issues a signing statement saying he will comply with the
law only to the extent he feels legally bound to do so, which of
course, he doesn't.
This sort of presidential shenanigan would embarrass and anger the
Founding Fathers. Embarrass them because the action is cowardly, which
was hardly to be expected of the Chief Executive of the United States.
It would anger them because it makes a mockery of the system of checks
and balances they so carefully crafted.
So thank you again, Mr. Chairman, for convening this timely and
important hearing. I am looking forward to hearing from the witnesses
and considering their responses to the subcommittee's questions.
Thank you. I yield the balance of my time.
Prepared Statement of the Honorable Linda T. Sanchez, a Representative
in Congress from the State of California
Thank you Chairman Conyers and Ranking Member Smith for holding
today's hearing on this extremely important issue. I also thank the
distinguished witnesses who have agreed to testify here today.
In addition to creating new laws, Congress has a responsibility to
monitor how those laws are being executed. The Framers of the U.S.
Constitution were very careful to develop a system of checks and
balances and Congress must ensure that that system is not circumvented.
The Constitution is clear in assigning to Congress the power to
write the laws and to the President a duty ``to take care that the laws
be faithfully executed.'' Accordingly, the President has the
constitutional authority to veto a bill in its entirety or sign it into
law.
By repeatedly declaring that he does not need to execute a law, or
parts of a law, he believes is unconstitutional, the President is
usurping the roles of both the Legislature and the Judiciary.
Congress spends a substantial amount of time negotiating and
deliberating legislation before it arrives on the President's desk. For
the President to then pick and choose which parts of a bill he would
like to enforce is just another way for this Administration to make
unilateral decisions that dramatically affect the American people.
The President's signing statement on H.R. 6407, the ``Postal
Accountability and Enhancement Act'' is a perfect example of this.
There he used such broad language that it could be interpreted to allow
citizens' mail to be opened without a warrant.
Additionally, I do not believe that the practice of selectively
picking and choosing which parts of a bill will actually be enforced as
law is substantially different from a line item veto, which the Supreme
Court has squarely held unconstitutional in Clinton v. City of New
York.
This President's use of signing statements seems to demonstrate
that the Administration believes that the executive branch is superior
to the other branches of government, rather than co-equal.
I applaud the American Bar Association for establishing the bi-
partisan task force on Presidential Signing Statements, and I hope this
hearing will draw even more attention this very important issue.
Thank you, Mr. Chairman.
Prepared Statement of the Honorable Steve Cohen, a Representative in
Congress from the State of Tennessee
The constitutional separation of powers acts as the first line of
defense for our liberty. President Bush's abusive use of signing
statements to suggest that he would not enforce or comply with duly
enacted laws passed by Congress is an affront to this principle.
Today's oversight hearing is a long overdue step in confronting just
one of the President's arrogant and egregious attempts to undermine the
constitutionally mandated balance of power among the branches of
government.
Prepared Statement of the Honorable Luis V. Gutierrez, a Representative
in Congress from the State of Illinois
Mr. Chairman, I thank you for holding this important hearing to
examine the use of presidential signing statements by the Bush
Administration. This hearing demonstrates your leadership and
commitment to fulfilling our crucial oversight responsibilities.
I also want to thank the witnesses today for being here and adding
to this important debate. I am pleased that we have invited both
administration officials, as well as legal and constitutional experts
to examine this important issue.
Today, we are faced with an ever-increasing amount of signing
statements that question the constitutionality of duly enacted laws or
statutes therein. President Bush has often used the practice of signing
statements to challenge laws he has signed by declaring he will only
enforce them in a manner that concurs with his interpretation of the
constitution and his vision of the so-called unitary executive branch.
As many of our witnesses have shared in their written testimony,
these signing statements pose a grave threat to the separation of
powers among the three branches of government. They endanger the
legislative branch's constitutionally granted power to write laws. For
example, in his signing statements accompanying the PATRIOT Act and
legislation on the treatment of detainees or the ability of the federal
government to open our mail, the President has time and again sought to
expand the Administration's power under the guise of fighting the War
on Terror.
Today, we have the opportunity to further explore whether this is a
practice in which Congress needs to intervene. I look forward to my
colleagues' questions and again thank the panelists for being here.
Response to Post-Hearing Questions from John P. Elwood, Deputy
Assistant Attorney General, Office of Legal Counsel, United States
Department of Justice \1\
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\1\ The letters and reports referenced in Mr. Elwood's responses
have been retained in the official Committee hearing file but because
of the volume of the information, they are not being inserted in the
printed hearing record.
Response to Post-Hearing Questions from the Honorable Mickey Edwards,
former Member of Congress from the State of Oklahoma, Aspen Institute
Response to Post-Hearing Questions from Karen J. Mathis, President,
American Bar Association
Response to Post-Hearing Questions from Nicholas Quinn Rosenkranz,
Associate Professor of Law, Georgetown University Law Cente
Response to Post-Hearing Questions from Charles J. Ogletree, Jr., Jesse
Climenko Professor of Law, Harvard Law School
Newspaper article entitled `` `Signing Statements' Are a Phantom
Target,'' by Laurence H. Tribe, August 9, 2006, The Boston Globe,
submitted by the Honorable F. James Sensenbrenner, Jr., a
Representative in Congress from the State of Wisconsin
Newspaper article entitled ``Who's Afraid of Presidential Signing
Statements?'' by Stanley Fish, February 4, 2007, The New York Times
Newspaper article entitled ``Guess who is opening, reading your mail;
OUR OPINION: CONGRESS MUST HOLD HEARINGS ON SIGNING STATEMENTS,''
January 9, 2007, The Miami Herald
Newspaper article entitled ``ENDING BACK-DOOR VETOES,'' July 25, 2006,
The Boston Globe
Newspaper article entitled ``Veto? Who Needs a Veto?'' May 5, 2006, The
New York Times
