[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





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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

                              ----------                              

                    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

                              ----------                              


                         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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