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
