[Senate Hearing 109-1053]
[From the U.S. Government Publishing Office]
S. Hrg. 109-1053
THE USE OF PRESIDENTIAL SIGNING STATEMENTS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 27, 2006
__________
Serial No. J-109-92
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
43-109 PDF WASHINGTON : 2009
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 4
Durbin, Richard J., a U.S. Senator from the State of Illinois.... 5
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
statement.................................................... 222
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Boardman, Michelle E., Deputy Assistant Attorney General, Office
of Legal Counsel, U.S. Department of Justice, Washington, D.C.. 6
Fein, Bruce, Partner, Fein & Fein LLC, Washington, D.C........... 24
Ogletree, Charles J., Jr., Professor, Harvard Law School,
Cambridge, Massachusetts....................................... 20
Rosenkranz, Nicholas Quinn, Associate Professor of Law,
Georgetown University Law Center, Washington, D.C.............. 27
Yoo, Christopher S., Professor, Vanderbilt University Law School,
Nashville, Tennessee........................................... 22
QUESTIONS AND ANSWERS
Questions submitted by Senators Kennedy and Feinstein to Charles
Ogletree (Note: Reponses to questions were not received as of
the time of printing, April 16, 2009........................... 39
Responses of Michelle Boardman to questions submitted by Senators
Specter, Leahy, Kennedy, Feinstein and Schumer................. 41
Responses of Bruce Fein to questions submitted by Senator Kennedy 71
Responses of Nicholas Rosenkranz to questions submitted by
Senators Feinstein and Kennedy................................. 74
Responses of Christopher Yoo to questions submitted by Senator
Feinsten....................................................... 85
SUBMISSIONS FOR THE RECORD
American Bar Association, News Release, statement................ 95
Boardman, Michelle E., Deputy Assistant Attorney General, Office
of Legal Counsel, U.S. Department of Justice, Washington, D.C.,
statement...................................................... 98
Boston Globe, Boston, Massachusetts:
April 30, 2006, article...................................... 109
May 3, 2006, article......................................... 119
Calabresi, Steven G., Professor of Law, Northwestern University
School of Law, Yale University, statement and attachment....... 122
The Constitution Project, Washington, D.C., statement............ 200
Department of Justice, Washington, D.C., Memorandum for Bernard
N. Nussbaum.................................................... 204
Fein, Bruce, Partner, Fein & Fein LLC, Washington, D.C.,
statement...................................................... 215
Ogletree, Charles J., Jr., Professor, Harvard Law School,
Cambridge, Massachusetts, statement............................ 227
Rosenkranz, Nicholas Quinn, Associate Professor of Law,
Georgetown University Law Center, Washington, D.C., statement.. 234
Yoo, Christopher S., Professor, Vanderbilt University Law School,
Nashville, Tennessee, statement................................ 247
THE USE OF PRESIDENTIAL SIGNING STATEMENTS
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TUESDAY, JUNE 27, 2006
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Cornyn, Leahy, Kennedy,
Feinstein, Feingold, and Durbin.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. The
Judiciary Committee will now proceed with our hearing on
presidential signing statements.
The issue has come into sharp focus as a result of the
extensive use by President Bush of signing statements. There
have been many signing statements issued by Presidents in the
past, and there are good purposes which are not subject to
challenge; for example, if the signing statement is one which
contains instructions to the executive branch as to how to
carry out the legislation. But there is a sense that the
President has taken the signing statements far beyond the
customary purview as, for example, with the heated controversy
on the issue of interrogation of prisoners and the alleged use
of torture.
When the Senate passed 89-9 a prohibition on that kind of
interrogation practice, and after very extensive negotiations
with the White House on the so-called McCain amendment, the
President issued a signing statement which appeared to undercut
what had been negotiated.
In the PATRIOT Act, which was a measure which came out of
this Committee, very extensively negotiated, unanimous on the
Committee and the Senate bill, and without any dissent on the
floor, went through on the unanimous consent calendar--rather
unusual. We did have some points of controversy when it got to
the conference with the House of Representatives. And the
administration had every opportunity to weigh on in the
provisions of the bill, but when the President signed it, he
put a notation in that he could withhold information. We had
put into the bill oversight provisions intended to make sure
that law enforcement did not abuse the special terrorism-
related powers to search homes and secretly seize paper. It
also required the Department of Justice to keep a closer track
of how often the FBI used the new powers and in what types of
situations.
The President then in his signing statement added an
addendum that that disclosure would not be made if, in his
judgment, it would ``impair foreign relations, national
security, the deliberative process of the Executive, or the
performance of the Executive's constitutional duties.''
Now, if the President had intended to put that limitation
into law, that is something I believe should have been
submitted to the Congress. We should have weighed it. We should
have evaluated it, and, if we under the exercise of our
legislative powers granted in the Constitution, thought it
appropriate, we would have put it in. But there is a real issue
here as to whether the President may, in effect, cherrypick the
provisions he likes and exclude the ones he does not like and
add addenda as to what he may prefer.
There is no doubt that the President's constitutional power
under Article II cannot be limited by statute. But as a matter
of comity and negotiation, these are things which we would all
be better served if they were brought to the attention of the
legislative branch before the legislation is finished. Then, as
we all know, the President has the option under the
Constitution to veto or not. And the Framers, in leaving with
the Congress the authority to legislate, provided for an
override of the veto, again, as we all know.
And in the decision of the Supreme Court of the United
States in the Chadha case, the Court said, ``It emerges clearly
that the prescription for legislative action in Article I,
Section 1, Clause 7, represents the Framers' decision that the
legislative power of the Federal Government be exercised in
accord with a single, finely wrought and exhaustively
considered procedure.'' And that language of the Court I think
bears very heavily on the issue of presidential signing
statements and where they may appropriately go.
Let me yield now to the distinguished Ranking Member of
this Committee, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. I am sorry that the
administration--and this is nothing against you, Ms. Boardman,
but I am sorry they did not want to send up anybody who would
have authority to speak on this. But, considering the fact that
they are using basically an extraconstitutional and
extrajudicial step to enhance the power of the President, it is
not unusual.
I commend the Chairman for holding this hearing, even
though we will not get the answers that we need. The President
has made unprecedented claims for unchecked Executive power. I
have never seen anything quite like this. Historically, these
signing statements have been basically press releases sent out
by Presidents to commend themselves or others, which is fine,
on enactment of laws. But this administration has so expanded
it that I believe it is a practice which poses a grave threat
to our constitutional system of checks and balances.
The President has not vetoed any bills, but basically he
has done a personal veto. He has used his bill signing
statements to sign his own interpretation of laws, and he has
also said which laws he will not follow, and basically said
certain laws do not apply to the President. He has put himself
above the law, even the same laws he signs. According to a
review of these statements conducted by the Boston Globe,
President Bush has employed signing statements to ignore or
disobey more than 750 laws enacted by a Republican Congress. I
mean, this is a rubber-stamp Congress to begin with, and he is
still saying that he will not even follow the laws that he
signs. That 750, incidentally, is far more than all the signing
statements signed by every single President from George
Washington to Bill Clinton put together.
When the President signed the Sarbanes-Oxley law, combating
corporate fraud, he used a signing statement to attempt to
narrow a provision protecting corporate whistle-blowers in a
way that would have afforded them little protection. Senator
Grassley and I wrote a letter to the President stating that the
President's narrow interpretation, which we now understand was
signed off on by Vice President Cheney's office first, did not
reflect the law. And after a great deal of public exposure and
pressure, they relented and agreed with Senator Grassley and
myself.
We had months of debate and negotiations in Congress on the
USA PATRIOT Act reauthorization language. I commend the
Chairman for working with those who had differing views. Former
Congressman Dick Armey of Texas and I had put in amendments
that required sunset provisions so we would have to look at it
again. And we negotiated and negotiated. Again, I commend the
Chairman on this, but when we finally got down to the end--
after negotiating a number of things, I voted against it
because I did not believe, even with those things that the
administration agreed to, that they had followed the law. And,
of course, when the President signed it, he stated his
intention not to follow the reporting and oversight provisions
contained in that bill. He also used signing statements to
challenge laws banning torture, affirmative action, or those
laws that prohibited censorship of scientific data. He had
great press conferences and a lot of press, for example, on the
McCain torture bill, with the President saying how we had
negotiated all this, and the Vice President negotiated all
this, and then the President signs it, to great fanfare, but
quietly says, ``Of course, it will not apply to people I do not
want it to apply to.''
Basically, the President signs laws enacted by the people's
Representatives in Congress, while he is crossing his fingers
behind his back. And when he proudly says he has never had to
make a veto, heck, why? He just signs laws and says he is not
going to follow them.
It is hard to see a situation where somebody so blatantly
says that they are above the law. I was always brought up to
believe that in this society no one is above the law. We are
not and the President is not either. But we are not going to
hear from the Attorney General or the Deputy Attorney General,
somebody we confirmed in a bipartisan way. We are not going to
hear from a spokesman for the White House, although they are
all too willing to spin to the press or friendly audiences. We
will not hear from the Acting Assistant Attorney General for
the Office of Legal Policy, who we were initially told would be
attending.
Ms. Boardman, I wish you well, but, you know, it is almost
irrelevant what you say because, once again, this
administration said, even with a rubber-stamp Republican
Congress, they do not care what we think because they are going
to decide what laws to follow and what laws to disobey. And
they have been doing that a great deal because nobody up here
will call them on it.
Thank you, Mr. Chairman. I will put my full statement in
the record.
Chairman Specter. Thank you, Senator Leahy. Without
objection, your full statement will be made a part of the
record.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. I do not want to dispute too much your
statement about the rubber-stamp Congress since you did not
call it a rubber-stamp Judiciary Committee.
Senator Leahy. I did not.
Chairman Specter. Senator Cornyn, would you care to make an
opening statement?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Just briefly. Thank you, Mr. Chairman, for
the opportunity. I think this is a fascinating topic, I guess
something mainly law students and lawyers can love. I do not
know why the issue of Presidents' issuing signing statements is
controversial at all since the practice dates back to 1821 and
James Monroe and was something done by President Clinton and
defended by Walter Dellinger when he was President Clinton's
Assistant Attorney General for the Office of Legal Counsel.
As a practical matter, I do not really know what impact it
has other than the fact that, of course, when there is a
possibility of someone acquiring standing and actually filing a
lawsuit, ultimately it is not the executive branch that
determines what the law means. It is not even the legislative
branch, which writes it. It is the judicial branch that makes
the decision, and, of course, that is by interpreting what
Congress' intent is, legislative intent, not Executive intent.
But I do think it is helpful for the Executive to identify
areas of concern in the course of signing statements. Actually,
it promotes public discourse and discussion about what the
roles of the legislative branch are and the roles of the
executive branch are insofar as all of us, all three branches,
take an oath to uphold and defend the Constitution and laws of
the United States. But recognizing that there are a whole
variety of decisions made by Congress and by the executive
branch in signing legislation that never make their way to
court and there is really no likelihood that any court will
ever actually resolve the disputes between the Executive and
the legislative branches over what a statute or a bill may
mean, I find the use of the presidential signing statements is
helpful for us to understand the rationale of the executive
branch in signing the legislation rather than vetoing it, and
promoting the kind of discussion that we are going to have here
today about the relative powers of executive, legislative, and
judicial branches when it comes to each of their oaths to
uphold and defend the Constitution.
Thank you very much.
Chairman Specter. Thank you very much, Senator Cornyn.
Senator Durbin, would you care to make an opening
statement?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Just very briefly, Mr. Chairman. I thank
you for calling this hearing, and I think it is a critical
constitutional issue which we are considering. This President
has yet to veto a bill, but he seems to be a prolific author of
signing statements. It suggests, I would say to my friend and
colleague from Texas, that this administration believes that
they can sign whatever they want, as long as they put a
disclaimer, and the disclaimer basically says, ``We are not
going to follow certain portions of this law.'' And that to me
is troublesome. I am afraid it is part of a much larger pattern
which we have seen in the last several years, at least since 9/
11, where this Congress continues to cede its authority and
power to the executive branch. Every Executive that I have
witnessed has always wanted more power and authority. They have
resisted following even constitutional requirements for
declaration of war, if they could.
In this circumstance, this administration continues to
reach into the province and authority of our legislative branch
of Government with impunity. The President's own party is
complicit in ceding this power to the executive branch. I think
it is a serious constitutional mistake of historic consequence,
and I hope that the day will come, and soon, when we assert our
responsibility, not just for personal pride--that has nothing
to do with it--but, rather, because I do believe checks and
balances is still a very viable concept and principle.
Witness what is going on now with this whole warrantless
wiretap. We are now waiting for Vice President Cheney to rule
on the constitutionality of the Bush-Cheney administration's
policies. I think I know how he is going to rule. I think he is
going to find that they are very constitutional, thank you, and
that Congress should keep its nose out of it.
In the past, Congresses dominated even by the President's
political party would pay little or no attention to that sort
of subterfuge, but, sadly, today that passes for a meaningful
dialogue between the executive and legislative branches. I do
not buy it, and I think history is going to judge us very
poorly for standing by as so many precious rights and
responsibilities under our Constitution are ceded away.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Durbin.
We now turn to Ms. Michelle Boardman, Deputy Assistant
Attorney General in the Office of Legal Counsel of the
Department of Justice. Before joining the Department, Ms.
Boardman was an assistant professor at George Mason Law School.
She joined George Mason in 2002 after practicing appellate law
for several years with Wiley, Rein & Fielding. She clerked for
Judge Frank Easterbrook of the Seventh Circuit, has a
bachelor's degree from Brown, and a law degree from the
University of Chicago.
Thank you for joining us today, Ms. Boardman, and the floor
is yours for 5 minutes.
STATEMENT OF MICHELLE E. BOARDMAN, DEPUTY ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, D.C.
Ms. Boardman. Thank you very much, Mr. Chairman. I hope
that today I can persuade Senator Leahy, among others, that I
actually have something of value to offer to you, and not just
because the words ``Attorney General'' appear in my title. I
may not be the--
Chairman Specter. As Senator Thurmond used to say, would
you pull ``the machine'' a little closer?
[Laughter.]
Ms. Boardman. Sure, the machine. Does that work, Mr.
Chairman?
Chairman Specter. That works--not for Senator Thurmond, but
it does for us.
[Laughter.]
Ms. Boardman. Mr. Chairman, Senator Leahy, and members of
the Committee, I appreciate the opportunity to appear here
today to talk about the purpose and history of presidential
signing statements. I will use my brief initial time to make
two points: first, signing statements serve a legitimate and
important function and are not an abuse of power; second, the
Congress need not fear signing statements but should instead
welcome the openness that they provide.
It is important to establish at the outset what
presidential signing statements are not. They are not an
attempt to cherrypick parts of the law that the President can
choose to follow or an attempt to redefine an established law.
Many constitutional signing statements are an attempt to
preserve the Executive's role in the separation of powers, but
this preservation does not mean that the President will not
enforce the provision as enacted. And this is a point that is
often lost in the public discourse.
The President takes an oath to preserve, protect, and
defend the Constitution of the United States. The President
also has the responsibility and duty to see that the laws of
the United States are faithfully executed. Are these duties in
tension? No.
The President must execute the law faithfully, but the
Constitution is the highest law. It is the supreme law of the
land. If the Constitution and the statutory law conflict, the
President's duty requires him to choose the statutory law as
construed under the Constitution. It may interest you to know
that every President since President Eisenhower has issued
signing statements in which he said that he would not execute
an unconstitutional provision.
Signing statements are only one method where a President
can fulfill this duty. For example, the presidential
responsibility may arise sharply if a President is charged with
executing a law passed by a previous Congress, signed by a
prior President, that the President considers to be
unconstitutional under intervening case law. A President that
places statutory law over the Constitution in this context does
not fulfill his duty of executing the law faithfully, and the
principle is equally sound if the Supreme Court has not yet
ruled but the President finds the statutory law violates the
Constitution.
Most will agree with this principle, but everyone will
disagree with its application some of the time because there
are legitimate and difficult questions about constitutional
interpretation. But whether a particular constitutional
objection should be made is a different question from whether
constitutional signing statements are an appropriate exercise
of every President's power.
The consistent history of signing statements reveals that
this President's statements are in keeping with those of past
Presidents. And while the use of signing statements has
increased in the past several decades, starting with President
Reagan, this President's signing statements are not
substantially greater in number than those of prior Presidents.
I look forward to discussing those numbers with members of the
Committee.
To quote Walter Dellinger, the Assistant Attorney General
for the Office of Legal Counsel in the Clinton administration,
signing statements have frequently expressed the President's
intention to construe or administer a statute in a particular
manner, often to save the statute from unconstitutionality.
Some have argued that this President has increased the use of
signing statements, but even if there is a modest increase,
allow me to suggest that it must be viewed in light of current
events and the legislative response to those events.
While the President has issued numerous signing statements
involving issues such as the foreign affairs power and his
power as Commander-in-Chief, the significance of legislation
affecting national security has increased markedly since
September 11th. Congress has been more active; the President
has been more active. The kind of tension in this area of
concurrent powers is precisely how the Founders envisioned the
system of separation of powers as working when we have this
kind of dispute.
Now to my second point, the desirability of signing
statements. To appreciate the value of signing statements, you
must, of course, consider the alternatives. As I understand the
argument, some would rather the President either veto the
legislation--and I hope we can talk about that--or remain
silent while signing the legislation. But it has never been the
case that the President's only option when confronting a
constitutionally difficult bill is to veto it. The Supreme
Court, among others, has noticed that it is not uncommon for
Presidents to approve legislation containing parts which are
objectionable on certain grounds.
Allow me to suggest that, in closing, respect for the
legislative branch is not shown through veto. Respect for the
legislative branch, when we have a well-crafted bill, the
majority of which is constitutional, is shown when the
President chooses to construe a particular section in keeping
with the Constitution as opposed to defeating an entire bill
that would serve the Nation. In short, presidential signing
statements are an established part of the President's
responsibility to take care that the laws be faithfully
executed. Members of Congress and Presidents will occasionally
disagree on constitutional questions, but this disagreement
does not relieve the President of his responsibility to defend
the Constitution. It instead supports an open and public
statement of the President's views.
Chairman Specter. Thank you very much, Ms. Boardman.
Ms. Boardman, you do agree, do you not, that the President
does not have a blank check?
Ms. Boardman. A blank check, no. No, Mr. Chairman.
Chairman Specter. You agree.
Ms. Boardman. Yes.
Chairman Specter. In the decision to issue a signing
statement, wouldn't the President be better advised if he
vetoed a bill, sent it back to the Congress, and said, ``I am
not going to sign it unless you take this provision out'' ?
When we had all the negotiations with the McCain amendment,
when he inserted the language in the signing statements on the
PATRIOT Act, which I read in my opening statement, that he
would disregard the limitations of the legislation if he
concluded it would ``impair foreign relations, national
security,'' et cetera, wouldn't the President be better off on
the constitutional comity if he followed the Constitution,
vetoed it, and then challenged the Congress to pass it in
accordance with what he would accept?
Ms. Boardman. Well, Mr. Chairman, you ask two very
interesting questions, and I will start with the veto question,
and perhaps we can get into the way in which the President's
signing statement on the McCain amendment is in keeping with
other signing statements of past Presidents.
Chairman Specter. No, do not do that. You had an opening
statement for that. I want you to answer my question.
Ms. Boardman. Yes. No, no. First I would like to talk about
the veto question. There are three reasons, I believe, why it
is better for the President to not veto in that circumstance,
or at least, not obviously, preferable for him to veto. The
first is he is not required to do so. Some have suggested--and
I know you have not--that a President who finds a portion of a
law unconstitutional must veto the law--
Chairman Specter. You say he is not required to do so. Of
course he is not if he signed the bill. But if he disagrees
with the bill, isn't the constitutional provision to veto?
Ms. Boardman. Well, the second reason why I think he should
not veto in that circumstance is especially in modern
legislation we have large omnibus bills, hundreds of pages
long, involving, as you say, difficult compromise and
negotiation, a lot of work on behalf of Congress, and it is
often--
Chairman Specter. Deal with the McCain amendment and the
PATRIOT Act. Don't give me an omnibus bill. Why didn't he veto
those bills and lay the challenge down for Congress either to
comply with what he wanted or he would veto?
Ms. Boardman. Mr. Chairman, can I answer the veto question?
And then we can talk about the other two bills. I would like to
set up a framework here because I think--we can talk about
those bills. The vast majority of the time when a President
does not veto, it is because there is a minor provision in a
large bill. There are some bills where that is not the case,
and obviously you feel strongly about those bills.
The one point I would like to make before discussing those
bills in the context of the history of signing statements is
this: The veto does not actually avoid the problem. If the
President vetoes a bill and then the Congress overrides that
veto, the President still has the constitutional obligation to
uphold and defend the Constitution and to execute the law
faithfully. So if a veto is overridden, including a veto that a
President expressly makes because he believes something is
unconstitutional, it does not give the President free rein to
then ignore the dictates of the Constitution. He is still
required to construe the provision in keeping with the
Constitution. So, to some extent, I really think a veto only
delays the question.
Now, if you would like, I can talk about the similarities
of the McCain situation to other legislative signing
statements.
Chairman Specter. Well, you are going to have less than a
minute because I have another question for you. It is a little
difficult if you choose what you are going to say in response
to questions. That is what you have an opening statement for.
We did not interrupt you. But supply those answers in writing.
That is what I would like you to do since you chose to talk
about framework rather than to respond to the questions.
Let me go to another question which I consider to be very
important. When we had the PATRIOT Act, we had a lot of
negotiations. Then it went over to the House of
Representatives, and we had a lot of negotiations there. If the
President wanted to have an exception, if he decided that it
would ``impair foreign relations, national security, or the
deliberative process of the Executive,'' wouldn't it have been
preferable as a matter of comity for the administration to have
come to the Judiciary Committee and said, ``This is something
we would like to have in the bill, would you consider putting
that in the bill? '' instead of working with us on all the
provisions that he liked, which we put in, and then in the
signing statement eliminate that? Would it, as a matter of
comity and recognition of co-equal branches of government, be
preferable to take it up with Congress before unilaterally
putting those provisions in?
Ms. Boardman. Well, Mr. Chairman, that signing statement is
in keeping with a long line of signing statements that address
the question of furnishing information to entities outside of
the executive branch in a manner consistent with the
President's foreign relations power. And the President has a
duty to generally protect classified information, but the
President, like the courts, also assumes that, in lieu of
anything to the contrary, Congress intends to pass a
constitutional law.
So it is often the case--and this is true for many
Presidents, including Presidents Clinton, Carter, and Reagan,
that when Congress passes a bill that touches on those issues,
requesting types of information, the President says in his
signing statement, ``I accept this to be in keeping and not in
contravention of my general power and duty to control sensitive
foreign relations and national security information.''
I think those statements really say not ``I believe the
bill means to impinge on these powers and I will not let it,''
but, ``I take this bill to mean that we all understand I have
some duties to protect sensitive information and that I will
not violate those duties in keeping with the bill.''
Chairman Specter. Well, my red light is on, so I will not
ask you another, nor will I press you to answer the last
question. But I will ask you to submit in writing an answer to
my question, and that question was: Wouldn't it be better, as a
matter of comity, for the President to have come to the
Congress and said, ``I would like to have this in the bill. I
would like to have these exceptions in the bill'' so that we
could have considered that? Submit that for me in writing, if
you will, please.
In order of arrival on the Democratic side, the early-bird
rule, Senator Durbin is next.
Senator Durbin. Thank you, Mr. Chairman.
Ms. Boardman, you have used many words carefully, and that
is what lawyers should do. But you have carefully avoided two
words: ``unitary executive.'' Are you familiar with that
theory?
Ms. Boardman. I am familiar with those words.
Senator Durbin. I guess you should be if you are part of
this administration. The Reagan administration mentioned the
unitary executive publicly once; the first Bush administration,
six times; the Clinton administration never cited it. Your
current administration has cited the unitary executive theory
an astounding 110 times in Executive orders, signing
statements, and elsewhere. And for those who are following this
and puzzled by what this could possibly mean, I think you
understand. It is a largely Federalist Society inspired theory
which suggests that the President has exceptional powers.
Time and again, President Bush has cited the so-called
unitary executive theory in claiming the right to ignore laws
passed by Congress. I will give you one illustration from the
Wall Street Journal, and I quote: ``Bush administration lawyers
contended that the unitary nature of presidential power over
national security meant Mr. Bush could not be constrained
either by treaties or laws passed by Congress that govern
treatment of enemy prisoners. The Justice Department has not
backed away from its theory on presidential power, which also
underlies domestic surveillance programs and the detention of
U.S. citizens as enemy combatants.''
I know why you carefully avoided using these two words,
because they go to the heart of the issue here. Twice the
Supreme Court on issues raised in the case Morrison v. Olson
and in the Hamdi case rejected the unitary executive theory,
but, clearly, it is the inspiration of this executive branch to
ignore the prerogative of the legislative branch.
So the nonpartisan Congressional Research Service has said
that the Supreme Court has ``clearly dispelled the so-called
theory of the unitary executive.'' Do you disagree?
Ms. Boardman. With everything you have said, Senator, or
with parts of it? I do disagree with part of what you have just
said, and I do disagree with the law statement. I think,
unfortunately, we still do not have necessarily a joint
understanding of what unitary executive means. And one reason I
think that earlier Presidencies did not use the phrase
``unitary executive'' is that it just was not really coined
until rather recently. That does not mean the concept was not
out there.
President Clinton, for example, would refer in his signing
statements, and I will quote, to his ``power to supervise and
guide my subordinates, including the review of the proposed
communications to the Congress.'' This is often under what
people call the unitary executive theory, a source of concern--
the ability of the President to control the delegates within
the executive branch and control their communications with
Congress.
President Clinton also said in another signing statement
that he would pay attention to ``concerns of depriving the
President and his department and agency heads of the ability to
supervise and control the operations and communications of the
executive branch.''
That is really what I think about when I think about the
unitary executive.
Senator Durbin. But don't you also agree that since 9/11
that has changed dramatically when it comes to issues of
national security and that this administration has used signing
statements and this Federalist Society theory of the unitary
executive to suggest that, regardless of what Congress passes
in law, the President as Commander-in-Chief, with the authority
and responsibility to protect America, will do what he wants to
do?
Ms. Boardman. Respectfully, Senator, I have to disagree.
The unitary executive theory really tells you about the
structure of power within the executive branch. It does not
have that much to say about the separation of powers and the
struggle for power between the two branches.
You are right that after 9/11 this issue has come to the
fore, and in large part that is because Congress has some more
powers and the President has some more powers, we have
concurrent powers. And when you have two separate branches in a
difficult time with a lot of high opinions, you end up with
that kind of a struggle. But I do not believe that this
administration's use of unitary executive differs from other
administrations.
Senator Durbin. I want to use one example as my time closes
here. The McCain torture amendment that passed 90-9, when Vice
President Cheney said that the employees of the intelligence
agencies would not be bound by it got into quite a flap over a
period of time, and then when the President signed it, here is
what he said in the signing statement: He would construe the
McCain torture amendment ``in a manner consistent with the
constitutional authority of the President to supervise the
unitary executive branch as Commander-in-Chief.''
So do you believe the President feels, based on that
signing statement, that he can set aside and ignore the
torture, the McCain torture amendment?
Ms. Boardman. No, Senator. I think we should look at the
President's public statements where he has said, ``No American
will be allowed to torture another human being anywhere in the
world, and I sign the appropriations bill, the McCain
amendment, because that is the way it is.''
Senator Durbin. So why the disclaimer?
Ms. Boardman. Signing statements like that often serve the
function of setting aside an issue that could in some unknown
future application cause a potential unconstitutional
difficulty. I do not propose to speak for this President as to
what was in his head when he signed it, but it is of a piece
with many other presidential signing statements that say--not I
will not follow the law, but there is a difficult
constitutional issue here, I sign the bill because I anticipate
being able to apply the law without constitutional difficulty,
but we should all be aware to be up front and honest that there
may be circumstances where a constitutional difficulty could
arise.
Senator Durbin. It is interesting to me, in the operative
legal language of the signing statement, he has created a
disclaimer, an exception, and then goes to the microphones and
makes a public statement, ``Don't worry, be happy.'' I just do
not think that that is consistent.
Thank you very much.
Chairman Specter. Thank you very much, Senator Durbin.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Ms. Boardman, do you agree with me that every person in
this country is bound by the decision of a court of law in a
case that decides the pertinent legal issue at hand?
Ms. Boardman. Yes, in general, we are all bound--
Senator Cornyn. In other words, the President of the United
States is bound by a court judgment, just like you are, just
like I am, just like every other person in the country,
correct?
Ms. Boardman. Yes, and as a matter of course, Presidents
choose to follow Supreme Court precedent. It is very unusual
for a President to attempt not to.
Senator Cornyn. My point is choose to do so or not, if a
court ultimately decides a case or an issue, that binds
everybody who is a party to that decision, correct?
Ms. Boardman. In general, yes.
Senator Cornyn. But there is a whole body of legal
decisions that Congress makes, that the President makes, in the
course of executing their duties that never end up in a court
of law, correct?
Ms. Boardman. That is true.
Senator Cornyn. And that is where, if I understand you
correctly, these presidential signing statements, perhaps even
legislative history by Congress, help inform the public debate
as to precisely what it is the Executive intended and exactly
what the legislature has intended. In those cases, it never
will go to court and will never be decided in a court of law.
Do you agree with that?
Ms. Boardman. I do agree with that, Senator. You raise an
interesting point, which is that signing statements do not
point out every potential constitutional error in a bill.
Signing statements, for the most part, point out those
constitutional difficulties that it is the job of the Executive
to enforce. The President, all Presidents are focusing on
retaining the appropriate scope of the executive power and the
separation of the branches and can only in that regard focus on
those laws that he has the power to execute.
Senator Cornyn. And I happened to go back and look at some
of the signing statements that President Clinton has signed,
and I found a number of them, one that I want to bring to your
attention, the statement on signing the Balanced Budget Act of
1997. Senator Durbin asked about a quotation from a signing
statement by President Bush in signing the so-called ban
against torture, which Senator McCain introduced in the Senate.
And I want to ask you whether the words in that signing
statement sound awfully similar to these contained in a signing
statement by President Clinton on signing the Balance Budget
Act of 1997.
He said, ``I will construe this provision in light of my
constitutional authority to recommend to the Congress such
legislative measures as I judge necessary and expedient, and to
supervise and guide my subordinates, including the review of
their proposed communications to the Congress.''
Does that sound awfully similar to the one that Senator
Durbin referenced?
Ms. Boardman. It does, Senator. That is a reference both to
the Recommendations Clause and to what today we might call the
unitary executive. But at the time, President Clinton was more
inclined to explain in a longer phrase.
Senator Cornyn. And I am not really exactly sure what the
bogeyman of the theory of the unitary executive--what the
implications of that mean, but what I understand President
Clinton to have said here is roughly equivalent to what has now
been coined as the unitary executive concept. Is that right?
Ms. Boardman. I would agree with that, Senator.
Senator Cornyn. And I think you have indicated that, dating
back to the early part of this country, Presidents have used
signing statements. Have almost all or maybe all
administrations used signing statements much as the President
did similar to the McCain amendment statement and the PATRIOT
Act statement that have already been referred to?
Ms. Boardman. Every President since Eisenhower has used
constitutional signing statements. The other Presidents that
have used them in the ballpark number that this President has
start with President Reagan. President Carter issued, we
believe, approximately 30 for one term. The numbers differ for
President Reagan depending on how you count. You can go from 80
to 105. For President Clinton, it is also around 80. There is
one study that says 105. I think that is probably a little
high.
We believe this President to date has issued 110. The
President who has issued the most number of signing statements
was George H.W. Bush, who in one term issued approximately 147.
Senator Cornyn. But you would agree with me, if there was
something wrong with a presidential signing statement, just
issuing one would be bad, if there was something wrong with it.
Ms. Boardman. One bad act is a bad act, Senator.
Senator Cornyn. So if there is nothing wrong with it from
the standpoint of executing the President's duties, how many a
President chooses to issue doesn't strike me as a significant
consideration. Do you disagree?
Ms. Boardman. No, and I think you can envision a
circumstance where Congress might feel, as Senator Specter
does, that perhaps there is a lack of good communication
between the parties, if the President is signing a thousand
signing statements that touch on constitutional issues, or
perhaps that could be a sign that Congress is rampantly passing
unconstitutional laws. You know, that could reflect on either
branch.
But because all of these numbers are basically in the
ballpark, I think we do not have to worry about that.
Senator Cornyn. Thank you very much.
Chairman Specter. Thank you, Senator Cornyn.
Under the early-bird rule, Senator Kennedy?
Senator Kennedy. Thank you, Mr. Chairman.
Ms. Boardman, on page 5 of your testimony, you talk in the
top paragraph, ``This presidential responsibility may arise
most sharply when the President is charged with executing a
statute, passed by a previous Congress and signed by a prior
President, a provision of which he finds unconstitutional under
intervening Supreme Court precedent.'' So far, so good.
Then, ``A President that places the statutory law over the
constitutional law in this instance would fail in his duty
faithfully to execute the laws.'' Okay.
Now, ``The principle is equally sound where the Supreme
Court has yet to rule on an issue, but the President has
determined that a statutory law violates the Constitution.''
This goes beyond signing statements. You believe the principle
is equally sound, the Supreme Court has not ruled, but the
President has determined that a statutory law violates--this is
the President that has determined, the Supreme Court has not
ruled, the President has determined that a statutory law
violates the Constitution.
Now, can you give us a list of the laws already on the
books before the beginning of this Presidency that President
Bush has decided not to enforce?
Ms. Boardman. I cannot give you that list, Senator.
Senator Kennedy. Pardon?
Ms. Boardman. I cannot give you that list.
Senator Kennedy. Well, who can?
Ms. Boardman. Well, I suppose we could ask the President,
but, Senator--
Senator Kennedy. Well, is there any way for the Congress or
the public to know when the President decides to enforce a law?
How are we going to know whether the President has made a
judgment down there in the White House he is not going to
enforce it? How is the American public and how is the Congress
going to know? And shouldn't we be entitled to know which laws
on the books now he is not going to enforce because he believes
that they are unconstitutional, and yet he is not going to tell
us, he is not going to tell the American people which laws he
is not going to enforce?
Ms. Boardman. I believe he will tell the American people,
but, Senator, this is not out of keeping with what all prior
Presidents--
Senator Kennedy. I am not asking. I am just saying this is
your testimony. This is your testimony here. I am asking you if
that is--you are giving the testimony. You are speaking on
this. We want to know what laws. I want to know what laws the
President feels today--what are they?
Ms. Boardman. This is not a discussion that I have had with
the President, but if I could say, please, Senator, you are
touching on the value, to my mind, of signing statements, which
is it is a public and open--
Senator Kennedy. No, no. I am not talking--let's leave
signing statements alone on this. We are talking here--
Ms. Boardman. Executive orders often serve the function in
the case that you are discussing. Executive orders, which are
open and public documents giving orders to the executive branch
about the way in which those members should construe the law,
are other examples of public statements where the President
explains that he may choose to construe a law in a particular
way.
Senator Kennedy. I have to come back. That is not what I am
referring to on page 5. It is very clear that what you are
saying here is that the President has a signing statement, we
have gone over--others have questioned that. He does not have
to enforce a law if the Supreme Court says it is
unconstitutional. So far, so good.
But you go further than that. ``The principle is equally
sound where the Supreme Court has yet to rule on an issue, but
the President has determined that a statutory law violates the
Constitution.'' He does not have to enforce that either.
Ms. Boardman. That is not a disputed point of
constitutional law.
Senator Kennedy. Well, I am just asking you--and evidently
you can say no, or whatever answer--what laws. What laws. This
is your testimony.
Ms. Boardman. The answer, Senator, is I--
Senator Kennedy. If you will listen to the question. If you
will listen to the question.
Ms. Boardman. Yes, Senator.
Senator Kennedy. In response to this, ``The principle is
equally sound where the Supreme Court has yet to rule. . . .the
President has determined that a statutory law violates the
Constitution.'' I want to know what laws have we passed, the
Congress has passed that are on the books that this President
does not feel that he is going to enforce.
Ms. Boardman. The direct answer to your question, Senator,
is I do not know the answer to that. The second answer is,
though, that that sentence refers to ``Presidents,'' not this
President. It refers to ``the President.''
Senator Kennedy. All right. Well, Mr. Chairman, I would ask
you if you would consider a legislative mandate for
Congressional notification that may be sensible and be willing
to work with us in a bipartisan way to ensure accountability to
the American people. It seems to me we ought to be able to work
out in a bipartisan way, at least legislatively, what in the
world--notification to Congress, the people's Representatives,
and the American people, what in the world this President is
going to say is going to be enforced and what he is not going
to enforce. I will raise this with the Chair. The other members
ought to be able to work this out in a bipartisan way. I think
the idea is absolutely--when will it end? Where does it stop?
I thank the Chair.
Chairman Specter. Senator Kennedy, you have directed a
question to me, and I am pleased to give you a response. The
specific issue which concerns me the most at this moment is
what is happening to the Foreign Intelligence Surveillance Act.
And it may well be that the President has constitutional
authority on electronic surveillance with one party in the
United States, but that determination requires a balancing act.
And when the President has objected to informing the
Intelligence Committees, which he is required to do under the
National Security Act of 1947, there were a lot of objections
made for his failure to do that. And, finally, when this
Committee prodded him, they informed the Subcommittee of both
the House and the Senate, 7 in the Senate and 11 in the House.
Then when we had the Hayden hearings, they had to inform the
full committees to get Hayden confirmed. But this Committee has
not yet had an answer to why the President would not submit the
electronic surveillance program to the Foreign Intelligence
Surveillance Court as four former members of the Court said
should be done and could be done, maintaining confidentiality,
where he does not have a blank check. And as Senator Cornyn
pointed out, it is the Court to decide the parameters. The
Court writes the check. And that is an issue which has not yet
been answered by the Attorney General, and we are going to try
again on July 18th. And, Ms. Boardman--
Senator Kennedy. Just on that, Mr. Chairman--
Chairman Specter. Wait 1 second. I would appreciate it if,
among the written responses that I have requested, you would
respond to that question in the context of the President being
able to maintain confidentiality with the submission to the
Foreign Intelligence Surveillance Court what reasons that there
should not be that judicial review for the Court to write the
check. And if it is made out to the President, he cashes it.
And if the Court declines to write the check, he cannot run the
program.
Senator Kennedy.
Senator Kennedy. Well, I had heard over the weekend that
there was at least a tentative agreement between you and the
Vice President. Are we going to have some opportunity to hear
about that some time?
Chairman Specter. You will, and I would be glad to discuss
it with you privately when this hearing is over.
Senator Kennedy. Thank you.
Chairman Specter. It is not with the Vice President. It is
with the Department of Justice and the National Security
Council, and I would be glad to inform you fully as to where we
stand.
Senator Kennedy. Thank you.
Chairman Specter. Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. I do thank you
very much for holding this hearing.
The administration has issued signing statements at an
astonishing rate to express the view that it does not have to
comply with the laws that Congress has passed. This
unprecedented use of so-called constitutional signing
statements raises very serious questions and concerns, and I am
glad that it is being examined closely today.
We are all familiar with the controversy surrounding the
signing statement on the Congressional ban on torture, and I
want to just talk about that briefly, as others have, because
it is at the core of the issue.
This Nation had a protracted public debate about torture
that spans several years. As a result of that debate, the
administration withdrew a memo, arguing that the President had
the constitutional authority to disregard the already existing
ban on torture. And despite reported backroom attempts by the
administration to water it down, late last year Congress passed
yet another clear prohibition on torture, no exceptions.
You would think that would be the end of the matter. But
what happened? The President responded by issuing a signing
statement making clear that he would retain the right not to
comply with the law if he chose not to do so. He made clear
that he had no respect for Congressional authority in this area
and that he would do just whatever he pleased, despite
Congress' clear direction.
Now, as witness testimony is pointing out, this
administration certainly is not the first to issue signing
statements, nor is it the first to express concern about the
constitutionality of particular provisions of laws and signing
statements. But this administration has taken this approach far
more often than prior administrations, and it has done so, in
my view, to advance a view of Executive power that, as far as I
can tell, has no bounds. What is more, this administration has
shown no sense of obligation to resolve thorny constitutional
questions by trying to facilitate judicial review of questions
provisions. And it has denied Congress the opportunity to
overcome a presidential veto. It has instead assigned itself
the sole responsibility for deciding which laws it will comply
with and, in the process, has taken upon itself the powers of
all three branches of Government.
As one law professor recently put it, in a piece on signing
statements, ``Because President Bush has found constitutional
problems with statutes so readily, and because he takes such a
radically expansive view of his own power, President Bush's
position amounts to a claim that he is impervious to the laws
that Congress enacts.''
So, Mr. Chairman, I do believe that this is dangerous to
our system of Government. As I said, I am glad we are talking
about it, and I would like to ask the witness a couple of
questions.
Back to the PATRIOT Act, the signing statement on the
PATRIOT Act reauthorization conference report states that the
executive branch will construe provisions that ``call for
furnishing information to entities outside the executive branch
in a manner consistent with the President's constitutional
authority.'' In particular, as you know, it references two
provisions of the PATRIOT Act that call for detailed audits of
the use of two of the most controversial authorities, Section
215, business record orders and national security letters, and
that require that the results of these audits be shared with
the Congress. These audit provisions were two of the strongest
oversight measures contained in the reauthorization package.
Is it the position of the administration that those audit
provisions are unconstitutional?
Ms. Boardman. Well, Senator, I think the President has been
clear in his statement, and I do not think there is any value
to my attempting to reinterpret it.
If you will allow me, I would like to quote from a signing
statement that President Clinton gave similar to this type of
signing statement, and then I would like to make a general--
Senator Feingold. That is going to use up all my time.
I am sorry. I just asked a straight question. Does the
administration take the position that these audit provisions
are unconstitutional? Yes or no.
Ms. Boardman. I believe the answer to that is no, but it is
not for me to reinterpret the President's statement.
Senator Feingold. All right. So is it your view the
administration thinks it does not have to conduct these audits
or that it does not have to share the results of these audits
with Congress, or both?
Ms. Boardman. It is my understanding that these audits are
already taking place and some of the results have already been
given to Congress.
Senator Feingold. That is fine. That is a factual statement
about what is happening. I am asking whether the administration
thinks it would not have to conduct these audits despite the
clear language of the law?
Ms. Boardman. Again, Senator, I think that the signing
statement gives the President's view, and I do not want to put
words in his mouth. What I will say is Presidents repeatedly
say in this context, ``The Congress has asked us for
information. We are pleased to give it. My national security
requirements and duty to take care of sensitive information
continues to apply.''
That is often simply a statement saying, ``Just so we all
know, there are some circumstances, maybe none here, maybe none
will occur, just so we all know, there is this one
constitutional duty I as President have.'' It is often not at
all a suggestion that the President does not intend to
completely enact the bill as written.
Senator Feingold. Just to be clear, the administration does
not take the position that all reporting requirements are
unconstitutional, does it?
Ms. Boardman. Oh, no, of course not, Senator.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Feingold.
Were you finished, Senator Feingold?
Senator Feingold. Yes.
Chairman Specter. Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. I
would like to use my time, if I might, to make a statement.
Approximately a month ago, I gave a speech to 85 judges and
about 400 lawyers and spoke about my concern regarding this
President's efforts to seriously expand executive authority
and, in my opinion, push a constitutional confrontation between
the three branches of Government. I am very concerned that,
under the Bush administration, our country is experiencing a
fundamental change in direction. In fact, I would argue that
the calculated expansion of executive power under this
President will be one of the lasting legacies of the Bush
administration and could have a longer impact on our country
than most, if not all, of his own policies.
The expansion of power has been implemented through many
different avenues, including the President's prolific use of
signing statements to alter or reject legislation at the time
he is signing it into law. I believe this new use of signing
statements is a means to undermine and weaken the law and that
it should be a serious concern to all Americans.
If the President is able to nullify or alter a law with a
stroke of a pen without issuing a veto, without going through
the legal and community channels, then the structure of our
Government and its inherent checks and balances are
fundamentally altered. Ironically, this week the President is
asking Congress to give him the authority to issue what are
called line-item vetoes, in effect giving the President the
power of the pen to strike down a portion of a statute that the
Congress has passed, without invalidating the entire bill.
Previously, this has been a policy I have supported. This
is a serious issue, and deciding whether to grant the President
this authority is now being debated in a very different
atmosphere than in previous Congresses. Whether my colleagues
agree or disagree with granting the President this authority, I
would hope we could all agree that if the President is going to
have the power to nullify all or part of a statute, it should
only be through veto authority that the Congress has authorized
and can reject, rather than through a unilateral action taken
outside the structures of our democracy.
So I am very pleased that you are having these hearings. I
think it is a very serious situation when you see an expanded
Article I authority combined with signing statements, and I
think this has really put our democracy in a totally different
direction. And when one really goes out and examines the
specific signing statements, as we have, you find that they are
in a multitude of different directions, essentially saying to
the Congress, you know, ``What you do is not really important.
I am going to do whatever I want to do.''
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Feinstein.
Thank you, Ms. Boardman. You are an accomplished attorney.
You have faced some tough questions, and I think your responses
have been very, very helpful, and we appreciate your coming in.
And we have left you some homework, which we would very much
appreciate your directing your attention to and providing us
written answers. If you could do that within the course of the
next week, we would appreciate it. Is that a realistic
timetable for you?
Ms. Boardman. It is a little hard for me to know, Senator,
only because the Department of Justice is flooded, and I do not
have access to my office. As you may know, the Department is
shut down for the next week. But I will do my best, Mr.
Chairman.
Chairman Specter. Well, let's say a week from the time you
get back to your desk.
Ms. Boardman. I hope that is next Monday. Yes, Mr.
Chairman, I will do my best.
Chairman Specter. Okay. Thank you very much.
Senator Kennedy. Mr. Chairman, could I ask just one quick
question?
Chairman Specter. Yes, Senator Kennedy.
Senator Kennedy. Would you provide an answer in writing to
my question about the President complying with the existing law
as set forth. It is 28 U.S.C. Section 530(d), the President is
required to report to Congress and the American people on laws
that he is not enforcing because of constitutional objections.
Can we get that in writing?
Ms. Boardman. Yes, Senator.
Senator Kennedy. Thank you.
Chairman Specter. Thank you very much.
[The prepared statement of Ms. Boardman appears as a
submissions for the record.]
Chairman Specter. We now turn to our second panel:
Professor Ogletree, Professor Yoo, Mr. Fein, and Professor
Rosenkranz.
Our first witness on panel two is Professor Charles
Ogletree, the Jesse Climenko Professor of Law at Harvard, where
he is also the Executive Director of the Charles Hamilton
Houston Institute for Race & Justice. Professor Ogletree is the
recipient of many honors, including being named in the National
Law Journal as one of the 100 most influential lawyers in
America; published extensively on race relations and criminal
law; currently the co-chair of the Reparations Coordinating
Committee, a group which seeks reparations for defendants of
African slaves.
Thank you for being with us today, Professor Ogletree, and
we look forward to your testimony.
STATEMENT OF CHARLES J. OGLETREE, JR., PROFESSOR, HARVARD LAW
SCHOOL, CAMBRIDGE, MASSACHUSETTS
Mr. Ogletree. Senator Specter, it is good to see you. Good
to see you again and glad to be here. I am Charles Ogletree,
the Jesse Climenko Professor of Law and the Executive Director
of the Charles Hamilton Houston Institute for Race & Justice.
At the outset, I want to make clear that my remarks here
today are neither on behalf of the ABA task force, which I sit
on--called the American Bar Association Task Force on
Presidential Signing Statements and the Separation of Powers
Doctrine--nor am I speaking on behalf of Harvard Law School.
I am pleased to have this opportunity to speak with you
briefly on what I think and what others think are some profound
and serious issues concerning the separation of powers and the
way that the executive branch has exercised its powers with
respect to signing statements. There are three central points
that I want to make.
The first is that signing statements in and of themselves
are not necessarily objectionable. They have been used by
Presidents on many occasions to help clarify and even salute
important principles of law, and that is not an issue of
debate.
The second point, the more profound point, is that we have
seen an incredible juxtaposition over the past 5 years with
President Bush, and that juxtaposition is the absence of this
President, unless his predecessors, of ever exercising an
actual veto of legislation, but instead using signing
statements to interpret and challenge congressional action in
ways that I believe are unprecedented and that raise serious
questions.
The third point is that despite what the executive branch
has done--and it has been done by Republican and Democratic
administrations; it has been done on many important issues--the
third most important point here is the legislative function,
and in many respects, one of the great challenges that this
Congress faces is that much of these efforts have taken place
right in the presence of Congress, but with little notice and
little response. And I would urge this Committee in particular,
with this responsibility to create the laws, to take it as an
ultimate responsibility to find ways to challenge this use of
authority and to make sure that there is a balance of authority
between the executive, the legislative, and the judicial
branches of Government.
One way that would obviously have to happen would be for
this Committee to look very carefully at some of its own laws
and how they have been interpreted by the executive branch and
to determine whether and to what extent, given issues of
standing and other important constitutional limitations there
is any basis upon which Congress might challenge the authority
of presidential signing statements.
Let me say a word about the ABA task force, a final point
before taking any questions that members may have. One of the
great things about the American Bar Association and President
Mike Greco, who appointed this task force, is that it is
bipartisan and has a wide range of perspectives. Among the
members are people familiar to this Committee. Bruce Fein, who
worked in the Reagan administration; William Sessions, the
former Director of the FBI; Patricia Wald, the former Chief
Judge of the D.C. Circuit, and who also has been involved in a
number of the War Tribunals; and, additionally, Congressman
Mickey Edwards, who served with distinction in the House for
many years. We are also joined by a number of legal scholars,
including former Dean of Stanford Law School, Kathleen
Sullivan; current Dean of Yale Law School, Howard Koh; and a
variety of other private lawyers who have had extensive
administrative experience in the executive branch and some in
the legislative branch. And it is chaired by Neal Sonnett, a
Miami lawyer, who also has been very active in the American Bar
Association.
To put it bluntly, I think that the great issue here is one
of transparency. To what extent has President Bush, through the
exercise of his authority with these signing statements,
frustrated the intent of Congress and avoided having these
matters, which may be unconstitutional, examined by a higher
court?
It seems clear on a cursory examination of the decisions
that have been made over the past 5 years, that it is very
incumbent upon the legislative branch of Government to take
this matter quite seriously and to make sure 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 policy, public policy, but it also creates a
unilateral and unchecked exercise of authority in one branch of
Government without the interaction and consideration of the
other branches of Government. And I would urge this Senate
judiciary Committee to examine very carefully what has been
done, but also to think what responsibilities and authority it
has to address it more completely.
Thank you.
[The prepared statement of Mr. Ogletree appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Ogletree.
Our next witness is Professor Christopher Yoo, professor at
the Vanderbilt University Law School, where he is also Director
of the Technology and Entertainment Law Program. Before going
to Vanderbilt, Professor Yoo was an associate at Hogan &
Hartson, clerked for Judge Randolph on the document Circuit and
Supreme Court Justice Anthony Kennedy. He was an author on the
issue of presidential authority, a co-author of the forthcoming
book, ``A History of the Unitary Executive: Executive Branch
Practice from 1789 to 2005.''
We appreciate your being here, Professor Yoo, and the floor
is yours for 5 minutes.
STATEMENT OF CHRISTOPHER S. YOO, PROFESSOR, VANDERBILT
UNIVERSITY LAW SCHOOL, NASHVILLE, TENNESSEE
Mr. Yoo. Thank you very much, Mr. Chairman, members of the
Committee. I am Christopher Yoo, professor of law at Vanderbilt
University and visiting professor of law at the University of
Pennsylvania Law School. I am grateful for the opportunity to
testify today about presidential signing statements.
Presidential signing statements have a long and storied
history that dates back to the earliest days of our Republic.
For example, in 1821, President James Monroe issued a signing
statement indicating that he would construe a statutory
provision in a manner that did not conflict with his power to
appoint executive officers. Similarly, in 1830, President
Andrew Jackson issued a signing statement indicating that he
would interpret a particular statute as authorizing the
construction of a road only in the Michigan Territory, and not
outside.
Signing statements began to become a more regular feature
of the political landscape during the administration of
Franklin Delano Roosevelt, with subsequent Presidents of both
parties, including Presidents Truman, Eisenhower, Kennedy,
Johnson, Nixon, Ford, and Carter each issuing signing
statements on a regular basis. Signing statements began to
appear with even greater frequency during the Presidencies of
Ronald Reagan, George H.W. Bush, and Bill Clinton.
The popularity of signing statements over the years should
come as no surprise. The enactment of a major piece of
legislation is a momentous occasion, and it is natural for
those responsible for bringing it about to commemorate it with
some remarks. The increase in the frequency of their use should
also come as no surprise. The role of the media in politics has
been on the ascent since the days of FDR's fireside chats, and
this has heightened the incentives to turn a political
milestone, like the enactment of major legislation, into a
public event.
Presidential signing statements, as Professor Ogletree has
noted, have served a wide range of purposes, the vast majority
of which are completely uncontroversial. For example, they are
often used to thank legislators for their support for
legislation, to inform the public about the legislation's
overarching purposes and general effects, to call for further
legislation, and to communicate to the public and to executive
branch officials how a statute will be implemented, just to
name a few. The broad appeal of each of these purposes
underscores that signing statements are not partisan in nature.
Presidents of both parties have placed ever increasing reliance
on signing statements, and we should expect that trend to
continue into the future.
Another use of signing statements that is relatively
uncontroversial is to offer the President's interpretation of a
statutory provision that is susceptible of more than one
interpretation. As anyone in this room recognizes, the
limitations of the English language, the realities of the
legislative process, and the inability to anticipate every
possible contingency makes perfect precision in drafting
statutes infeasible.
When enforcing a statute, executive officials are
inevitably confronted with such ambiguities, and they must
proceed on the basis of some understanding of what the statute
means. To use a classic example coming from H.L.A. Hart,
suppose that Congress were to enact a statute saying no
vehicles in the park. A police officer confronting a child's
bicycle, a motorized wheelchair, and an ambulance rushing to
the scene of a medical emergency would have to interpret what
the terms of that statute actually meant. For this reason, it
is generally accepted that some executive role in statutory
interpretation is inevitable. Indeed, agency experience with
administering statutes often leads courts to accord executive
branch interpretations special respect. Given the inevitability
of the executive branch's role in statutory role in
interpretation, there seems little reason to prevent such
interpretations from being offered as early and in as
transparent a manner as possible, as is the case with
presidential signing statements.
The last category includes signing statements that raise
concerns about the constitutionality of a particular provision.
It is quite common for Presidents to be confronted with
statutes that are open to two interpretations, one of which
would be constitutional and the other of which would raise
serious constitutional doubts. It has long been accepted that
courts confronted with such a statute should favor the
interpretation that avoids raising constitutional doubts. This
doctrine is based in part on the presumption that Congress and
the President take seriously their duty to uphold and defend
the Constitution, and in part on a desire to minimize
constitutional holdings and to minimize conflict among the
branches. As a formal opinion issued by the Clinton Justice
Department makes clear, the law expects the executive branch
officials to do the same and to adopt interpretations when
confronted with ambiguous statutes that tend to render the
statute constitutional.
This is not to say that the President's opinion about
constitutionality of a statute is necessarily binding. The
process for resolving the constitutionality of a statute is
demonstrated by the statute that led to the impeachment of
Andrew Johnson, which remains one of the most politically
important events in our Nation's history. The Tenure of Office
Act left unclear whether the President could remove the Cabinet
members that Johnson had inherited from President Lincoln. The
House and the Senate were unable to resolve the dispute, with
the House believing that the statute should prevent Johnson
from removing holdover Cabinet members, and the Senate
believing that the statute should not. Congress, thus, drafted
an ambiguous statute that was open to either interpretation.
President Johnson believed the statute gave him the power to
remove those Cabinet members. Consistent with its understanding
of the statute, the House impeached Johnson. And consistent
with its understanding of the statute, the Senate exonerated
Johnson. Eventually, the Congress, based on its concerns about
the constitutionality of the statute, repealed it, and
eventually, the Supreme Court held, some 50 years after the
fact, that it was, in fact, unconstitutional.
It seems to me this is precisely the way such disputes
should be resolved, through an inter-branch dialogue among all
three branches. It also is clear to me that President Johnson's
removal of a Cabinet member was not improper. Like every Member
of the Congress, he takes an oath to support and defend the
Constitution.
Together these arguments suggest that presidential signing
statements are inherent in our system of checks and balances,
and as well in the role of the President as Chief Executive. I
discuss these arguments at greater length in my submitted
remarks, and I am happy to answer any questions based on either
of my remarks today or my submitted remarks that the Committee
might have.
[The prepared statement of Mr. Yoo appears as a submission
for the record.]
Chairman Specter. Thank you very much, Professor Yoo.
We will now turn to Mr. Bruce Fein, a partner in the
consulting firm of Fein & Fein. He has a very extensive record
of Government service, a research director for the Joint
Congressional Committee on the Iran-Contra Affair back in 1986-
87; General Counsel for the FCC under President Reagan;
Assistant Director of the Department of Justice Office of Legal
Policy for 3 years; law clerk to Judge Kauffman, graduate of
Harvard Law School cum laude, bachelor's degree from University
of California, where he was Phi Beta Kappa.
Thank you for joining us here today, Mr. Fein, and we look
forward to your testimony.
STATEMENT OF BRUCE FEIN, PARTNER, FEIN & FEIN LLC, WASHINGTON,
D.C.
Mr. Fein. Thank you, Mr. Chairman and members of the
Committee. I think a page of history is worth volumes of logic
in examining the President's use of signing statements to
neglect to faithfully enforce the laws.
In 1688, the Parliament in Great Britain convened and
declared basically the overthrow of King James II, and they
voted as follows in declaring the English Bill of Rights, and I
am quoting: ``By assuming and exercising a power of dispensing
with and suspending of laws and execution of laws without the
consent of Parliament, King James II was threatening the laws
and liberties of the kingdom.'' And they continued in the
Declaration of Rights to conclude that, ``The pretended power
of suspending of laws or the execution of laws by regal
authority without consent of Parliament is illegal.'' And
continued on that, ``The pretended power of dispensing with
laws or the execution of laws by regal authority as it has been
assumed and exercised of late by King James II is illegal.''
And he lost his throne for failing to execute the laws.
Now, the Founding Fathers wrote upon British history when
they were crafting our own Constitution, and the Take Care
Clause in Article II is modeled after the problem that the
British Parliament confronted with King James II. It requires
the President to take care that the laws be faithfully
executed, not sabotaged.
Now, that does not mean that the President has to blind
himself to constitutional problems that he may see in
legislation that is presented to him. Indeed, he takes an oath
to faithfully defend the Constitution, and in executing his
official authority to sign or veto legislation, it is incumbent
upon the President to consider the constitutional issues that
may be raised and to veto--to veto--a bill if it is believed,
in whole or in part, to violate the Constitution. The veto
enables then Congress to reconsider that with an override vote.
Now, this was clearly the understanding of the Founding
Fathers. As the Supreme Court explained in Clinton v. New York,
a decision holding the line-item veto unconstitutional, ``Our
first President understood the text of the Presentment Clause
as requiring that he either `approve all the parts of a bill,
or reject it in toto.' ''
Now, the first President was George Washington, who, of
course, you remember, was President of the Constitutional
Convention, and his views and practices are given enormous
weight in providing the gloss on the constitutional provisions.
So it was understood at the outset that the President, when
confronted with a law, in whole or in part, that was
unconstitutional had to veto it in toto if he was to defend the
Constitution as he saw it. There were not any other options.
Now, President George Washington's view was not an
aberrational one. President William Howard Taft, who had a very
expansive view of Executive authority, which he expounded later
on as Chief Justice in United States and Myers, similarly wrote
that, ``The President has no power to veto part of a bill and
let the rest become a law.''
Presidents, nevertheless, have sought to evade their
obligation to veto a bill by issuing signing statements saying
that they simply will refuse to enforce parts of the law or all
of the law, precisely the evil that led to the overthrow of
King James II, precisely the evil the Founding Fathers wished
to avoid by requiring the President to sign a bill and enforce
it or veto it if he thought parts were unconstitutional.
Now, it is said that somehow the Constitution ought to be
changed because initially the volume of legislation that
Congress considered was relatively slim, and the President did
not confront thousand-page laws that contained many provisions
he might like and others he might dislike. But simply because
there has been a change in the political dimension of the
Federal Government is no excuse for violating the original
intent of the Founding Fathers. And I give as an example the
Supreme Court's approach to the use of the legislative veto in
the Chadha case.
You may recall the legislative veto arose after the welfare
state began to blossom under Franklin Delano Roosevelt, and
Congress said to itself, Gee, we are confronting these
thousands of regulations, we are delegating enormous power to
the President, and, therefore, we need the legislative veto to
exercise some kind of supervision over the executive branch
that was not required in earlier times when the executive
branch was much smaller.
That was thoroughly unpersuasive with the United States
Supreme Court. It said the Presentment Clause is the
Presentment Clause; the legislative veto violates that clause;
and it is no excuse to say Government is more complicated these
days than then; therefore, we can torture the architecture of
the Constitution. If the Constitution needs to be changed in
structural format, there is an amendment process to do so, and
it has been undertaken from time to time.
It is also said that the President should not be
confronted--
Chairman Specter. Pardon me for interrupting. Our
timekeeper lost track of time. Just let me ask you how much
more time you need.
Mr. Fein. If you could give me just 1 minute.
Chairman Specter. That would be fine.
Mr. Fein. Now, what is an appropriate response for the
Congress to take? One method would be to provide as a generic
rule that anytime a President announces that he will simply
refuse to execute part of a law that he then will have no money
to execute any of the law, so he has to default on the entire
law, although that has the problem of not enabling Congress to
override a veto. So that is at least partially unsatisfactory.
A second approach would be to attempt to confer standing on
the House and Senate collectively to sue in Federal court to
obligate the President to enforce a statute that he says he
will not enforce. There may be problems under Article III as to
whether that would be constitutional, but at least it would
provide a method short of impeachment where you could get a
judicial resolution of constitutional disputes between Congress
and the President. And I don't think anyone would dispute that.
If a President ignores a decree of the United States Supreme
Court, we are talking about offenses that are impeachable.
It may well be that it is very difficult for the President
to veto legislation that he finds generally commendable but in
small parts unconstitutional. But Presidents repeatedly, like
Congress, have to make tough political decisions. Harry Truman
said, ``If you can't stand the heat, stay out of the kitchen.''
If you do not want to make tough political decisions, then do
not be President. And if the President is to faithfully execute
his office, he is required, if he believes a bill is
unconstitutional, to veto it, not simply to bury it and say he
will not enforce it.
Thank you.
[The prepared statement of Mr. Fein appears as a submission
for the record.]
Chairman Specter. Thank you very much, Mr. Fein.
Our final witness on this panel is Professor Nicholas
Rosenkranz, Professor of Constitutional Law at Georgetown Law
Center. He is the author of two articles in the Harvard Law
Review: ``Federal Rules of Statutory Interpretation'' and
``Executing the Treaty Power.'' He was attorney adviser in the
Office of Legal Counsel at the Department of Justice from 2002
to 2004, clerked for Judge Easterbrook on the Seventh Circuit
and Justice Kennedy on the Supreme Court, attended Yale Law
School.
Thank you for being with us today, Professor Rosenkranz,
and we look forward to your testimony.
STATEMENT OF NICHOLAS QUINN ROSENKRANZ, ASSOCIATE PROFESSOR OF
LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, D.C.
Mr. Rosenkranz. I thank the Committee for the opportunity
to express my views about presidential signing statements. I
largely agree with the position put forth by Deputy Assistant
Attorney General Michelle Boardman earlier this morning. Rather
than reiterate her 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, most important, and most uncontroversial
function of presidential signing statements is to announce the
President's interpretation of the law. As the Supreme Court has
explained, ``interpreting 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 rules.
One such rule is of particular interest today: the canon of
constitutional avoidance. This is the canon that 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, and 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 signing 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 statute
so understood.
Now, at least three legislative proposals on this topic are
pending in the House of Representatives, so I shall address the
balance of my testimony to the constitutionality and the wisdom
of such proposals.
One bill that has been introduced in the House provides
that Federal entities, including executive agencies, shall not
consider presidential signing statements when construing
Federal statutes. This provision is almost certainly
unconstitutional for the simple reason that it is the
President's duty to ``take care that the laws be faithfully
executed.''
The House resolution would impede the President's
performance of this duty, by closing the ears of the executive
branch to his interpretation of the law. For that reason alone,
it would be unconstitutional.
A different section of the same bill would forbid the
President to spend any money on signing statements. This
provision, too, is arguably unconstitutional. Congress
possesses broad power over appropriations, but for Congress to
use its power of the purse to impede a core executive function
would raise serious constitutional concerns. And in any case,
this President's use of signing statements does not justify
such a constitutionally contentious response.
By contrast, one resolution that has been introduced in the
House would merely require the President to report to Congress
whenever he determined not to carry out a duly enacted law.
This resolution may be sensible. On very rare occasions, the
President may determine that a statute is thoroughly
unconstitutional and that no saving construction is possible.
When he does so, basic separation-of-powers principles do
suggest that the other branches should have notice and an
opportunity to respond.
Most interestingly, one of the House resolutions would also
forbid Federal courts from considering presidential statements
when construing Federal statutes. 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 4 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, forbidding reliance on
presidential signing statements, would be wise.
I have written that Congress should indeed exercise its
power over the tools that courts use to interpret Federal
statutes, but a crucial aspect of my thesis is that Congress
should approach this project comprehensively. For this reason,
I think that any rule on this 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 for Federal rules of statutory
interpretation.
Thank you.
[The prepared statement of Mr. Rosenkranz appears as a
submission for the record.]
Chairman Specter. Professor Rosenkranz, why do you say it
is an unwarranted brouhaha when the Congress takes up the
McCain amendment and has an overwhelming vote, 89-9, directing
what the executive branch may do as a matter of public policy
on interrogation techniques, and the Executive responds and
says we are not going to pay any attention to it?
Mr. Rosenkranz. Well, Senator, I do not think that is a
fair reading of the President's signing statement. He does not
say there and, indeed, he never says, ``I am not going to pay
any attention to a provision of law.'' What he says sometimes
and what he said there is, ``I will construe this statute to be
consistent with my constitutional obligations.'' There are only
two choices. He can either construe it to be consistent with
his constitutional obligations or construe it to be
inconsistent with his constitutional obligations. And it is a
well-settled canon of construction which finds its rationale in
respect for the Congress that he opts for the constitutional
interpretation. He assumes that you mean to pass a
constitutional bill.
Chairman Specter. But in that context, he makes the
unilateral determination as to what is constitutional, so that
he does not take the route which the Constitution provides to
veto the bill and seek to have a legislative determination as
to whether his veto will be upheld or not.
It may well be that a presidential veto would be respected
by the Congress on the McCain bill if he states his reasons for
the veto. But that was never a part of the process, the
legislative process, or the determination of constitutionality.
And when he handles the McCain amendment as he did, isn't he
pretty much saying, ``I am going to decide what interrogation
tactics are appropriate, I am going to decide the parameters of
the tactics, it is not going to be up to the Congress, and I am
not going to veto the bill to give you a chance to override it,
or I am not going to veto the bill to provide an opportunity
for the Congress to rethink what it has done,'' which is what
the Constitution says he should do?
Mr. Rosenkranz. Well, Senator, it is novel in a way for
Congress to protest that the President is not vetoing a
sufficient number of bills. When a statute is thoroughly
unconstitutional in every provision, the President probably
should veto such a bill.
Chairman Specter. Well, was the McCain amendment thoroughly
unconstitutional?
Mr. Rosenkranz. No, Senator, but if a provision of law is
arguably constitutional, or even probably constitutional, but
it may raise constitutional issues, it is quite right and
consistent with a settled canon of construction, that the
President tries to interpret that statute to be constitutional;
and then once he has done that, he can sign it and he can
enforce it as interpreted.
Chairman Specter. Professor Yoo, Professor Rosenkranz
suggests that the alternative of having legislation which would
say the courts may not consider the reasons given by the
President in a signing statement for not enforcing the law,
that the courts may not consider that. Do you think that that
is a provision which would be constitutional? Can the courts be
instructed by Congress on what they may consider and what they
may not consider, especially on constitutional issues?
Mr. Yoo. In fact, the Congress already has. There is a
wonderful statute that is often called ``the Dictionary Act.''
It is 1 U.S.C. 1 through 1 U.S.C. 8, the very first part of the
U.S. Code. That gives very specific guidance about how courts,
agencies, everyone, people in the country, should interpret
Federal statutes. It says, for example, when we say
``corporations'' and ``persons'' may not do that, it means one
person as well as multiple people. It lays out a wide number of
rules of construction that will govern. There is no question
that that is the case. Whether--
Chairman Specter. Well, you can have guidance on statutory
construction, but can you direct the court what the court may
consider on a constitutional issue? Isn't the court the
ultimate arbiter, the Supreme Court the ultimate arbiter of the
constitutional issue?
Mr. Yoo. The answer under the doctrine of Cooper v. Aaron
is yes. The actual answer to me is somewhat more complicated
than that, as the example put forward by--
Chairman Specter. More complicated than Cooper v. Aaron?
Mr. Yoo. I think so. For example, think about the New Deal
era where the Court was holding unconstitutional minimum wage
laws and maximum hours laws. A number of State legislatures
continued to pass them, and the Court struck them down for a
time, but eventually reversed course, reconsidered its actions,
and began to uphold them. And that was a proper way for the law
to evolve. The question would be: Would a legislature who
disagreed and thought that minimum wage legislation continued
to be a good idea, were they acting lawlessly by continuing to
put that issue before the Court?
In that case, for example, those actors continued to engage
in a dialogue with the Supreme Court to resolve what the
ultimate meaning of the Constitution is, and eventually the
meaning of the Constitution evolved.
Chairman Specter. My time is up, but your hand is raised,
Professor Rosenkranz, so we will acknowledge your hand.
Mr. Rosenkranz. I just wanted to speak to that question for
a moment. I just wanted to be clear. I believe that Congress
can instruct the courts in how to read statutes, not in how to
read the Constitution. So a provision which instructed the
court about statutory interpretation is permissible, not one
that instructs the courts about constitutional interpretation.
Chairman Specter. Well, the signing statements customarily
reach constitutional issues.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. I think this
hearing has already been very enlightening, although it does
not quite up meet the billing that some have presented ahead of
time. For example, some have said that this is an unprecedented
practice or new practice, and we find out that it is
precedented and it is not new.
Some have complained that Congress needs to be notified
anytime the President thinks that it has passed an
unconstitutional statute. But to me, that is one of the
purposes that a presidential signing statement might fulfill,
identifying those statutes which the executive branch considers
problematic.
For example, one here that I have, a statement on signing
the National Defense Authorization Act for Fiscal Year 1996,
where President Clinton said, ``I have concluded that this
discriminatory provision is unconstitutional. In accordance
with my constitutional determination, the Attorney General will
decline to defend this position.'' So neither new nor
unprecedented, and serve, in fact, the desirable purpose of
Congressional notification and transparency.
I guess I would like to ask Mr. Fein--I know you, of
course, served with distinction in the Reagan administration,
and the figures that we have in front of us show that it was
President Reagan who, although he did not begin this practice,
certainly was responsible for generating more presidential
signing statements than his predecessors had. Would you just
agree with me that this was also a practice that President
Reagan used to identify what he considered to be statutes to
which the administration was not legally bound because he
interpreted them as being unconstitutional?
Mr. Fein. Yes, I do not believe President Bush is charting
new ideological territory here or claims of power. Certainly it
was periodic since the Eisenhower administration, but I still
think the structural problems are identical, that is, the
President, instead of vetoing a provision he thinks is
unconstitutional, disables Congress from reconsidering a
provision of a bill he thinks should be null and void and
exercises de facto line-item veto authority. That is a
structural problem, and it is not unique to this President.
Senator Cornyn. I think I understand your argument that
really the President, if he thinks any part of a statute is
unconstitutional, he ought to veto the entire statute. But I
would just ask as a practical matter, given the contentiousness
of debates on legislation, not only within the Senate but
within the branches of the legislature and the difficulties
navigating important legislation--for example, the PATRIOT Act
that Chairman Specter spent an awful lot of time and effort
navigating to successful completion--it seems like it would be
counterproductive if the President had some concern with a
relatively small, from a percentage standpoint, portion of that
statute, have to veto everything and start over from the
beginning. Wouldn't that create a logjam?
Mr. Fein. No, not necessarily. I remember the Republicans,
when Newt Gingrich was the Speaker of the House, shut down the
Government because he could not get consensus with President
Clinton, and I think the Republicans--
Senator Cornyn. It did not go very well, if my memory is--
Mr. Fein. And I think the Republicans lost politically on
that score. It may be difficult, but I want to recall the same
kind of argument that I think you have articulated, Senator,
that was made in defense of the legislative veto. Surely you
did not want Congress, now confronted with just thousands of
regulations issued by administrative agencies, as you well
know, to be disabled from exercising a legislative veto because
they could not keep accountability, as Congress was able to do
in the early years of the country. And the Supreme Court said
that does not matter. You may think legislative vetoes are now
required in order to exercise greater supervision of executive
branch agencies that, in terms of numbers and power, vastly
exceeded anything that was contemplated at the founding. But
that is not good enough.
Senator Cornyn. Let me reclaim the last 30 seconds so I can
ask another question of Professor Yoo in this instance. There
seems to be a lot of concern expressed that because so few
cases are actually going to be decided by the courts, that
there is this vast body of law out there that there is going to
be no final judicial determination on either what the statute
means or whether it is constitutional; that the executive and
legislative branches simply do not have any role in that
process--in this instance, the executive branch--in
interpreting it perhaps in a way that avoids constitutional
problems or the like.
Could you speak to the responsibility of the executive
branch to try to uphold and defend the Constitution as well as
the legislative and judicial branches?
Mr. Yoo. Certainly. Every officer of the executive branch
swears an oath to uphold and defend the Constitution, just as
every Member of Congress and every judge, and, in fact, they
confront--the President himself has an obligation to take care
that the laws be faithfully executed. And when a statute is
applied for the first time or applied to a particular person,
the executive officer is usually the first person to confront
how a particular statute applies and what the scope of that
statute would be and what the proper--whether constitutional
limits permit--how the Constitution permits that statute to be
applied.
That is inevitable in this process, and, in fact, many of
those decisions do not make it into court. What I would suggest
is, in fact, our system is not a system of courts. It is a
system of laws. And it is a finely crafted system of three
branches of Government, which is much more robust in how it
handles that.
As this Committee knows, if the Congress becomes
dissatisfied with the way the President is administering a
statute, even if that matter never appears in court, there can
be hearings on reauthorization, there can be simple hearings in
the Committee, there can be hearings before the Subcommittee on
Appropriations, there can be hearings in front of the
subcommittees on oversight, and, in fact, there can be a great
deal of confirmation of appointees, discussion during
confirmation of appointees, and, in fact, there is a great deal
of communication between individual members raising specific
concerns about the way the law has been administered, and that,
in fact, we have a system that is not court-centered but is, in
fact, a much more robust one with a much more dynamic
interaction between the legislature and the Executive about how
the law should be interpreted.
Chairman Specter. Thank you, Senator Cornyn.
Professor Ogletree, you heard Mr. Fein offer a suggestion
about legislation which would give Congress standing to sue in
court, take the case to the Supreme Court of the United States.
Do you think that would pose a case in controversy and not be
an advisory opinion and be constitutional?
Mr. Ogletree. Senator Specter, I think it is a difficult
but an achievable issue, and I think that this Congress should
look very carefully at the opportunities to raise this matter
to the Court.
I think Congress is going to rue the day that it examined
the use of signing statements the way this President has used
them and really frustrates the idea of separation of powers. We
live in a democracy, not in a monarchy, and I think what we are
seeing clearly, in case after case, is the excessive
application of the executive power and in a sense ignoring the
legislative respect.
It is important for this final and important reason:
Professor Yoo is right when he talks about HLA Hart. I remember
reading the great work he has done on legal process, no
vehicles in the park. That is an interesting issue for
interpretation. Senator McCain said a ban on torture. There is
a distinct and substantive difference. And when this Congress
has spoken time and time again on fundamental issues consistent
with the war on terrorism, consistent with our changed issues
since 9/11/2001, it has not given up its responsibility in
making laws to ensure that the executive branch responds.
I think it is time that Congress does two things: One,
require the President to provide an official copy of all
signing statements. I don't know where they are. You don't know
where they are. They are done in the dark of night or in the
light of day, but we just do not know. And, second, to examine
the likelihood of a constitutional challenge that will allow
this to happen. The Constitutional Project has issued a report,
a bipartisan report, outlining some of these issues, and I
would urge Congress to accept its responsibility and the duty
to not just let this continue to happen, but to think about
legislative alternatives, including a case before the Supreme
Court of the United States of America.
Chairman Specter. So you think we could draft a statute,
take the President to court on his signing statements, which
would be constitutional.
Mr. Yoo. I think not only you can, I think you must. If the
view is going to be that these are harmless, simple
interpretations of law and the President's authority cannot be
checked, I see no alternative except to let the Court decide.
That is what Marbury v. Madison told us many years ago, and I
think that is what this Supreme Court may have to tell us now.
Chairman Specter. Mr. Fein, do you want to reinforce your--
Mr. Fein. Well, I would like to--
Chairman Specter. Wait a minute. You have not heard the
question yet. Do you want to reinforce your position that there
could be a constitutional statute prepared?
Mr. Fein. Yes, and I also would indicate that there are
reasons why Congress should do that, because there are many
instances where there is no private litigant to bring a case.
For instance, you may recall in the Detainee Treatment Act
signing statement the executive branch said there is not any
private right of action here, that is, no one who is subject to
torture could bring a suit claiming that there was a violation
of the Detainee Treatment Act. Unless Congress then has
standing to challenge the President's application and claim
that he has constitutional authority to gather foreign
intelligence by torture, that statute is hollow.
I also think that this President is not using signing
statements to provide a gloss on ambiguous language, and let me
read you language from a provision that has been repeatedly
enacted by Congress in the Intelligence Authorization Act to
try to keep the United States out of military combat in
Colombia. And Section 502 of the Intelligence Authorization Act
that has been repeatedly re-enacted provides that, ``No United
States Armed Forces personnel or United States civilian
contractor employed by the United States Armed Forces will
participate in any combat operation in connection with
assistance made available under this section to Colombia.''
Now, that is pretty straightforward. No one can
participate. And yet the President claims--in his signing
statement, he says, ``The executive branch shall construe the
restriction''--no combat use--``in that section as advisory.''
Now, it is clear that that was not an advisory limitation in
the statute.
So the suggestion that the President is not declining to
enforce laws but simply providing a gloss on ambiguous language
I think is counterhistorical and counterfactual. He is doing
that, and as King James II, declining to faithfully execute the
laws, and an appropriate response is needed.
Chairman Specter. Professor Yoo, would such a statute be
constitutional?
Mr. Yoo. My reaction is that if a statute is unambiguous,
what the President says in the signing statement is irrelevant.
It has been established since the days of Chief Justice John
Marshall that, where a statute is plain on its face, there is
no room for interpretation. And a legislative history, whether
from the President or from this body or from the House of
Representatives, has no place in the judicial decisionmaking.
So if the statute is plain, whether the President says--
whatever the President says in a signing statement is beside
the point. A plainly worded statute might violate the terms of
the Constitution, but that is a separate issue from the role of
the signing statements and is a separate matter that will be
litigated in terms of the Court. But in that determination,
what the President said in his or her signing statement would
not matter.
Chairman Specter. Well, you may say it does not matter, and
it may be plain on its face. But where the President has stated
he does not intend to follow it, the question is: Would it be
constitutional for Congress to enact legislation where the
Congress concludes that the President has flouted the plain
language of the statute, that it gives itself standing to take
the case to the Federal court, would that statute be
constitutional in your opinion?
Mr. Yoo. It is a difficult issue that has not been fully
litigated in front of the courts.
Chairman Specter. Well, of course, it has not been
litigated. We have not drafted the statute yet. But I am
interested in your judgment if you care to give it.
Mr. Yoo. My judgment is that it would be very difficult for
the Congress to meet Article III standing. The biggest obstacle
is a decision called Raines v. Byrd, decided by the Supreme
Court, debating whether Members of Congress had standing to
challenge the line-item veto. And the first time that the
Court--
Chairman Specter. Congress had not given standing to
challenge it.
Mr. Yoo. But it wasn't a question of whether--it is not
just a question of whether a statute confers standing on the
Congress. There is also a constitutional limitation of whether
the Constitution allows a party like Congress to appear in
court. And as you know, the basic requirement is that there be
a case in controversy. And the Supreme Court has defined that
to mean a pocketbook issue, that is, something that affects
someone's individual rights directly and--
Chairman Specter. Well, a case in controversy is different
from standing, but I take it your answer is no.
Mr. Yoo. My initial judgment would be no. I would have to
look, obviously, at the particular language in the particular
context, but it is clear to me it would face formidable
obstacles.
Chairman Specter. Do you think it is constitutional,
Professor Rosenkranz?
Mr. Rosenkranz. I am inclined to agree with Professor Yoo.
I think it is quite a difficult question. Standing doctrine--
Chairman Specter. Sufficiently difficult to take it to
court?
Mr. Rosenkranz. There could be a case that would resolve
this question in court, but standing doctrine is notoriously
complicated, and Congress' ability to confer standing on itself
is a vexed question.
Chairman Specter. Well, if it is not up to Congress to
confer standing, who confers standing?
Mr. Rosenkranz. Well, there are also constitutional
limitations, so Congress can confer standing to a point, but
there may well be constitutional limits on what Congress can do
to confer standing.
Chairman Specter. But are those limits beyond the issue of
case in controversy?
Mr. Rosenkranz. I am sorry? I am not sure I understand.
Chairman Specter. Are the constitutional limit to get this
into court beyond the question of case in controversy?
Mr. Rosenkranz. Well, Senator, I think what you are
imagining is a statute which confers standing on Congress to
challenge a presidential signing statement. Is that what we are
talking about?
Chairman Specter. Correct.
Mr. Rosenkranz. I think a presidential signing statement
simpliciter, a provision that purported to allow Congress to
challenge any presidential signing statement, almost certainly
would be unconstitutional in at least some applications. If the
President issues a signing statement which says, ``I applaud
this bill, and I thank Senator Specter for his work on it,''
obviously there would not be a case in controversy if you chose
to challenge that presidential signing statement.
Chairman Specter. Mr. Fein, would you be willing to
undertake the first line of drafting such a bill?
Mr. Fein. Yes, there is--I know at least one precedent that
is somewhat analogous--
Chairman Specter. If you send it to me, send a copy to
Professor Yoo and Professor Rosenkranz.
Mr. Fein. The Senate Select Committee v. Nixon was a case
where a Committee of Congress was afforded standing to sue
President Nixon, seeking documents that they thought were
important to legislate on campaign finance. That hit the U.S.
Court of Appeals for the District of Columbia Circuit. It did
not get to the U.S. Supreme Court. But at least there is some
analogy in conferring standing on a Committee with conferring
standing on the entire Congress.
Chairman Specter. Professor Ogletree, do you think it would
be better to put this issue to the Supreme Court as opposed to
this panel?
Mr. Ogletree. Absolutely.
Chairman Specter. One final question. The House of
Representatives passed a resolution to--passed ``an amendment
to prohibit the use of funds from being available to engage in
electronic surveillance in the United States, except as
authorized under the Foreign Intelligence Surveillance Act.''
It lost, but narrowly, by a vote of 207-219.
I filed such an amendment on the appropriations bill, the
supplemental appropriations bill, and had grave concerns about
the wisdom of such an amendment. And to see 207 votes in the
House, including many Republican votes, rekindles the thought.
Do you think as a matter of public policy it is a good idea,
Mr. Fein?
Mr. Fein. Yes. Indeed, James Madison, the Father of the
Constitution, writing in the Federalist Papers, celebrated the
power of the purse as the most efficacious way for the
legislative branch to redress grievances against the President.
As you well know, being around at the enactment of FISA, it
says that there shall be no gathering of foreign intelligence,
except specifically in accord with this statute. And the power-
of-the-purse remedy seems entirely appropriate. It has been
used in the past by Congress to prevent covert actions in
Angola, to prevent the Vietnam War from slipping in Laos and
Cambodia, and those were not questioned as to their
constitutionality or wisdom. And I think an appropriate
amendment, as you have crafted, would be right in line.
Chairman Specter. Professor Yoo, two parts to your
question. One, would it be constitutional to do that? And,
second, would it be wise as a matter of public policy?
Mr. Yoo.T1 There are certainly a lot of constitutional
aspects about requiring electronic surveillance to be overseen
by a court. The Fourth Amendment clearly provides that--puts
limitations on the ability of the United States law enforcement
agencies to gather surveillance. There are some very difficult
questions about extraterritorial application which go beyond
the strict limit of the Constitution, which are very difficult
to resolve in particular cases. But it is fairly clear to me
that, in addition to the constitutional question, law
enforcement has to be authorized by some basic Federal law
before it can act. And, in fact, the Constitution has a limit
on the kinds of authorizations that can be given, but can very
rarely authorize actions in its own right.
So my guess is that you could--it would be entirely
constitutional for this Congress, the Senate and the House, to
put limitations on the ability of the Government to gather
intelligence consistent with certain broad requirements.
Now, there are limitations that come out of the nature of
the executive branch itself. For example, there is a
deliberative process privilege. When the executive asks
questions amongst itself in trying to make a decision, that
information is generally not considered reachable by any other
means, and there are some things inherent in the executive--the
nature of the executive branch that defend certain kinds of
information from being gathered.
Chairman Specter. Is that a yes?
Mr. Yoo. The answer is mostly yes, but as any lawyer would
probably do, it would depend on the details of the specific
proposal.
Chairman Specter. I do not think any lawyer; perhaps any
professor but not any lawyer.
Part two, would it be a wise policy?
Mr. Yoo. I think that it is always wise to put some check
on any exercise of power. I do believe that--
Chairman Specter Even one as drastic as cutting off
funding? Wouldn't you worry a little bit that without knowing
what the President is doing exactly--because we do not know--
that we may be curtailing some very important anti-terrorism
data gathering to fight terrorists if we do it in the dark?
Mr. Yoo. I would share that concern with you, Senator. As
with most of these tough issues, it requires a balance.
Chairman Specter. Maybe if it looked like it was going to
pass, the President would tell us what it was so we would not
pursue the legislative remedy of cutting off funding.
Mr. Yoo. What is fascinating to me is the executive that we
have is the direct product of our frustrations with a multi-
headed executive under the Articles of Confederation. And if
you go back to the Federalist Papers, they say one of the
reasons we like executive power is because it is energetic when
it is concentrated in one person, and that, in fact, laws get
implemented, liberty is protected, public safety is better
preserved by that, and there has to be a proper sphere of
action in which the President can direct the executive branch
to achieve those goals.
Is that power unlimited? No. There is appropriate judicial
and legislative checks on that process, and it is all part of
this complex dialogue in which the three branches enter into
every day.
Chairman Specter. I don't detect in that answer any clue to
the answer to my question as to whether it might get the
President to tell us what the program is.
Mr. Yoo. Without knowing the details of the program--it is
clear to me that it is appropriate for the Congress to insist
on the disclosure of the details of many parts of the program.
Chairman Specter. Professor Rosenkranz, would the provision
that failed in the House be constitutional?
Mr. Rosenkranz. I agree with Professor Yoo that the
question is a difficult one and that one would have to study
the details of the specific language.
Chairman Specter. Well, I just read you the language.
Mr. Rosenkranz. Well, Congress has very broad
appropriations power. The President, though, has a certain
scope of inherent Commander-in-Chief power, and the
interaction--
Chairman Specter. And he should spend money that Congress
prohibits him from spending?
Mr. Rosenkranz. It is arguably possible that an
appropriation so cunningly tailored to restrict inherent
executive powers would be unconstitutional. This is a
controversial point and one that scholars debate. But the
interaction of Congress' appropriation power with inherent
Article II powers is complicated and uncertain.
Chairman Specter. Well, maybe you could organize a course
at the Yale Law School. Do you think it would be wise as a
public policy matter, Professor Rosenkranz?
Mr. Rosenkranz. Sir, I am a law professor. I am not going
to purport to speak to the wisdom of that as a matter of public
policy.
Chairman Specter. You may not be invited back then.
[Laughter.]
Chairman Specter. Well, this has been illuminating, and it
is always a challenge when we get you guys from Harvard and
Yale, et cetera, to debate these issues as to where we come
out. You expose a lot more nuances than we customarily hear in
this room, especially when the Senators are here alone.
Thank you all very much, and that concludes our hearing.
[Whereupon, at 12:02 p.m., the Committee was adjourned.]
[Questions and answers and submissions follow.]
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