[Congressional Record: April 23, 2009 (Senate)]
[Page S4676-S4678]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SPECTER (for himself, Mr. Tester, and Mr. Grassley):
S. 875. A bill to regulate the judicial use of presidential signing
statements in the interpretation of Acts of Congress; to the Committee
on the Judiciary.
Mr. SPECTER. Mr. President, I seek recognition today on behalf of
myself, Senator Grassley and Senator Tester, to offer the Presidential
Signing Statements Act of 2009. The purpose of this bill is to regulate
the use of Presidential Signing Statements in the interpretation of
Acts of Congress. This bill is similar in substance to two prior
versions of this legislation: the Presidential Signing Statements Act
of 2007, which I introduced on June 29, 2007; and the Presidential
Signing Statements Act of 2006, which I introduced on July 26, 2006.
As I have stated before, I believe that this legislation is necessary
to protect our constitutional system of checks and balances. This bill
achieves that goal in the following ways.
First, it prevents the President from issuing a signing statement
that alters the meaning of a statute by instructing federal and state
courts not to rely on, or defer to, presidential signing statements as
a source of authority when determining the meaning of any Act of
Congress.
Second, it grants Congress the power to participate in any case where
the construction or constitutionality of any Act of Congress is in
question and a presidential signing statement for that Act was issued
by allowing Congress to file an amicus brief and present oral argument
in such a case; instructing that, if Congress passes a joint resolution
declaring its view of the correct interpretation of the statute, the
Court must admit that resolution into the case record; and providing
for expedited review in such a case.
Since the days of President James Monroe, Presidents have issued
statements when signing bills. It is widely agreed that there are
legitimate uses for signing statements. For example, Presidents may use
signing statements to instruct executive branch officials how to
administer a law or to explain to the public the likely effect of a
law. There may be a host of other legitimate uses.
It is clear, however, that the President cannot use a signing
statement to rewrite the words of a statute, nor can he use a signing
statement to selectively nullify those provisions he does not like.
This much is clear from our Constitution. The Constitution grants the
President a specific, defined role in enacting legislation. Article I,
section 1 of the Constitution vests ``all legislative powers . . . in a
Congress.'' Article I, section 7 of the Constitution provides that,
when a bill is presented to the President, he may either sign it or
veto it with his objections. He may also choose to do nothing, thus
rendering a so-called pocket veto. But the President cannot veto part
of a bill--he cannot veto certain provisions he does not like.
The Framers had good reason for constructing the legislative process
as they did. According to The Records of the Constitutional Convention,
the veto power was designed to protect citizens from a particular
Congress that might enact oppressive legislation. However, the Framers
did not want the veto power to be unchecked, and so, in Article I,
section 7, they balanced it by allowing Congress to override a veto by
2/3 vote.
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As I stated when I initially introduced this legislation in 2006,
this is a finely structured constitutional procedure that goes straight
to the heart of our system of checks and balances. Any action by the
President that circumvents this procedure is an unconstitutional
attempt to usurp legislative authority. If the President is permitted
to re-write the bills that Congress passes and cherry pick which
provisions he likes and does not like, he subverts the constitutional
process designed by the Framers. The Supreme Court has affirmed that
the Constitutional process for enacting legislation must be
safeguarded. As the Court explained in INS v. Chahda, ``It emerges
clearly that the prescription for legislative action in Article I,
Section 1 and 7 represents the Framers' decision that the legislative
power of the Federal Government be exercised in accord with a single,
finely wrought and exhaustively considered, procedure.'' 462 U.S. 919,
951, 1982.
It is well within Congress's power to enact rules of statutory
interpretation intended to preserve this constitutional structure. This
power flows from Article I, section 8, clause 18 of the Constitution,
which gives Congress the power ``To make all laws which shall be
necessary and proper for carrying into execution the foregoing powers,
and all other powers vested by this Constitution in the Government of
the U.S., or in any department or officer thereof.'' Rules of statutory
interpretation are ``necessary and proper'' to execute the legislative
power.
Several scholars have agreed: Jefferson B. Fordham, a former Dean of
the University of Pennsylvania Law School said, ``[I]t is within the
legislative power to lay down rules of interpretation for the future;''
Mark Tushnet, a Professor at Harvard Law School explained, ``In light
of the obvious congressional power to prescribe a statute's terms (and
so its meaning), congressional power to prescribe interpretive methods
seems to me to follow;'' Michael Stokes Paulsen, an Associate Dean of
the University of Minnesota Law School noted, ``Congress is the master
of its own statutes and can prescribe rules of interpretation governing
its own statutes as surely as it may alter or amend the statutes
directly.'' Finally, J. Sutherland, the author of the leading multi-
volume treatise for the rules of statutory construction has said,
``There should be no question that an interpretive clause operating
prospectively is within legislative power.''
Indeed, recent experience shows why such legislation is
``necessary.'' The use of signing statements has risen dramatically in
recent years. President Clinton issued 105 signing statements;
President Bush issued 161. What is more alarming than the sheer
numbers, is that President Bush's signing statements often raised
constitutional concerns and other objections to several provisions of a
law. The President used those statements in a way that threatened to
render the legislative process a virtual nullity, making it completely
unpredictable how certain laws will be enforced. Even where Congress
managed to negotiate checks on executive power, the President used
signing statements to override the legislative language and defy
congressional intent.
Two prominent examples make the point. In 2006, I spearheaded the
delicate negotiations on the PATRIOT Act Reauthorization, which
included months of painstaking efforts to balance national security and
civil liberties, disrupted by the dramatic disclosure of the Terrorist
Surveillance Program. The final version of the bill featured a
carefully crafted compromise necessary to secure the act's passage.
Among other things, it included several oversight provisions designed
to ensure that the FBI did not abuse special terrorism-related powers
permitting it to make secret demands for business records. The
President dutifully signed the measure into law, only to then enter a
signing statement insisting he could withhold any information from
Congress required by the oversight provisions if he decided that
disclosure would ``impair foreign relations, national security, the
deliberative process of the executive, or the performance of the
executive's constitutional duties.''
The second example arose in 2005. Congress overwhelmingly passed
Senator John McCain's amendment to ban all U.S. personnel from
inflicting ``cruel, inhuman or degrading'' treatment on any prisoner
held by the United States. There was no ambiguity in Congress's intent;
in fact, the Senate approved it 90 to 9. However, after signing the
bill into law, the President quietly issued a signing statement
asserting that his Administration would construe it ``in a manner
consistent with the constitutional authority of the President to
supervise the unitary executive branch and as Commander in Chief and
consistent with the constitutional limitations on the judicial power.''
Many understood this signing statement to undermine the legislation.
In a January 4, 2006 article titled, ``Bush could bypass new torture
ban: Waiver right is reserved,'' the Boston Globe cited an anonymous
``senior administration official'' as saying, ``the president intended
to reserve the right to use harsher methods in special situations
involving national security.''
As outrageous as these signing statements are, intruding on the
Constitution's delegation of ``all legislative powers'' to the
Congress, it is even more outrageous that Congress has done nothing to
protect its constitutional powers. In 2006 and 2007, the legislation I
introduced giving Congress standing to challenge the constitutionality
of these signing statements failed to muster the veto-proof majority it
would have surely required.
With a new administration, I believe the time has come to pass this
important legislation. This bill does not seek to limit the President's
power, and it does not seek to expand Congress's power. Rather, this
bill simply seeks to safeguard our Constitution. In this Congress, it
has a better chance of mustering a majority vote and being signed into
law by the new President.
That said, two days after criticizing President Bush's signing
statements, President Obama issued one of his own regarding the Omnibus
Appropriations Act of 2009. Citing among others his ``commander in
chief'' and ``foreign affairs'' powers, he refused to be bound by at
least eleven specific provisions of the bill including one long-
standing rider to appropriations bills designed to aid congressional
oversight. As I told The Wall Street Journal, ``We are having a repeat
of what Democrats bitterly complained about under President Bush.'' I
hope this will be the exception rather than the rule.
In the meantime, this bill seeks to implement measures that will
safeguard the constitutional structure of enacting legislation. In
preserving this structure, this bill reinforces the system of checks
and balances and separation of powers set out in our Constitution.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 875
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Presidential Signing
Statements Act of 2009''.
SEC. 2. DEFINITION.
As used in this Act, the term ``presidential signing
statement'' means a statement issued by the President about a
bill, in conjunction with signing that bill into law pursuant
to Article I, section 7, of the Constitution.
SEC. 3. JUDICIAL USE OF PRESIDENTIAL SIGNING STATEMENTS.
In determining the meaning of any Act of Congress, no
Federal or State court shall rely on or defer to a
presidential signing statement as a source of authority.
SEC. 4. CONGRESSIONAL RIGHT TO PARTICIPATE IN COURT
PROCEEDINGS OR SUBMIT CLARIFYING RESOLUTION.
(a) Congressional Right To Participate as Amicus Curiae.--
In any action, suit, or proceeding in any Federal or State
court (including the Supreme Court of the United States),
regarding the construction or constitutionality, or both, of
any Act of Congress in which a presidential signing statement
was issued, the Federal or State Court shall permit the
United States Senate, through the Office of Senate Legal
Counsel, as authorized in section 701 of the Ethics in
Government Act of 1978 (2 U.S.C. 288), or the United States
House of Representatives, through the Office of General
Counsel for the United States House of Representatives, or
both, to participate as an amicus curiae, and to present an
oral argument on the question of the Act's construction or
constitutionality, or both. Nothing in this section shall be
construed to confer standing on any party seeking to bring,
or jurisdiction on
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any court with respect to, any civil or criminal action,
including suit for court costs, against Congress, either
House of Congress, a Member of Congress, a committee or
subcommittee of a House of Congress, any office or agency of
Congress, or any officer or employee of a House of Congress
or any office or agency of Congress.
(b) Congressional Right To Submit Clarifying Resolution.--
In any suit referenced in subsection (a), the full Congress
may pass a concurrent resolution declaring its view of the
proper interpretation of the Act of Congress at issue,
clarifying Congress's intent or clarifying Congress's
findings of fact, or both. If Congress does pass such a
concurrent resolution, the Federal or State court shall
permit the United States Congress, through the Office of
Senate Legal Counsel, to submit that resolution into the
record of the case as a matter of right.
(c) Expedited Consideration.--It shall be the duty of each
Federal or State court, including the Supreme Court of the
United States, to advance on the docket and to expedite to
the greatest possible extent the disposition of any matter
brought under subsection (a).
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