[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
NEGATIVE IMPLICATIONS OF THE
PRESIDENT'S SIGNING STATEMENT
ON THE SUDAN ACCOUNTABILITY
AND DIVESTMENT ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FINANCIAL SERVICES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 8, 2008
__________
Printed for the use of the Committee on Financial Services
Serial No. 110-87
U.S. GOVERNMENT PRINTING OFFICE
41-178 WASHINGTON : 2008
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HOUSE COMMITTEE ON FINANCIAL SERVICES
BARNEY FRANK, Massachusetts, Chairman
PAUL E. KANJORSKI, Pennsylvania SPENCER BACHUS, Alabama
MAXINE WATERS, California DEBORAH PRYCE, Ohio
CAROLYN B. MALONEY, New York MICHAEL N. CASTLE, Delaware
LUIS V. GUTIERREZ, Illinois PETER T. KING, New York
NYDIA M. VELAZQUEZ, New York EDWARD R. ROYCE, California
MELVIN L. WATT, North Carolina FRANK D. LUCAS, Oklahoma
GARY L. ACKERMAN, New York RON PAUL, Texas
BRAD SHERMAN, California STEVEN C. LaTOURETTE, Ohio
GREGORY W. MEEKS, New York DONALD A. MANZULLO, Illinois
DENNIS MOORE, Kansas WALTER B. JONES, Jr., North
MICHAEL E. CAPUANO, Massachusetts Carolina
RUBEN HINOJOSA, Texas JUDY BIGGERT, Illinois
WM. LACY CLAY, Missouri CHRISTOPHER SHAYS, Connecticut
CAROLYN McCARTHY, New York GARY G. MILLER, California
JOE BACA, California SHELLEY MOORE CAPITO, West
STEPHEN F. LYNCH, Massachusetts Virginia
BRAD MILLER, North Carolina TOM FEENEY, Florida
DAVID SCOTT, Georgia JEB HENSARLING, Texas
AL GREEN, Texas SCOTT GARRETT, New Jersey
EMANUEL CLEAVER, Missouri GINNY BROWN-WAITE, Florida
MELISSA L. BEAN, Illinois J. GRESHAM BARRETT, South Carolina
GWEN MOORE, Wisconsin, JIM GERLACH, Pennsylvania
LINCOLN DAVIS, Tennessee STEVAN PEARCE, New Mexico
PAUL W. HODES, New Hampshire RANDY NEUGEBAUER, Texas
KEITH ELLISON, Minnesota TOM PRICE, Georgia
RON KLEIN, Florida GEOFF DAVIS, Kentucky
TIM MAHONEY, Florida PATRICK T. McHENRY, North Carolina
CHARLES WILSON, Ohio JOHN CAMPBELL, California
ED PERLMUTTER, Colorado ADAM PUTNAM, Florida
CHRISTOPHER S. MURPHY, Connecticut MICHELE BACHMANN, Minnesota
JOE DONNELLY, Indiana PETER J. ROSKAM, Illinois
ROBERT WEXLER, Florida KENNY MARCHANT, Texas
JIM MARSHALL, Georgia THADDEUS G. McCOTTER, Michigan
DAN BOREN, Oklahoma KEVIN McCARTHY, California
DEAN HELLER, Nevada
Jeanne M. Roslanowick, Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on:
February 8, 2008............................................. 1
Appendix:
February 8, 2008............................................. 35
WITNESSES
Friday, February 8, 2008
Caprio, Hon. Frank T., General Treasurer, Office of the Rhode
Island General Treasurer....................................... 23
Fowler, Jerry, Executive Director, Save Darfur Coalition......... 13
Schwartz, Paul H., Esq., Partner, Cooley Godward Kronish, LLP.... 21
Wald, Hon. Patricia M., former Judge and Chief Judge, United
States Court of Appeals for the District of Columbia Circuit... 15
APPENDIX
Prepared statements:
Caprio, Hon. Frank T......................................... 36
Fowler, Jerry................................................ 39
Schwartz, Paul H., Esq....................................... 43
Wald, Hon. Patricia M........................................ 53
Additional Material Submitted for the Record
Frank, Hon. Barney:
Press release on the President's Signing of the Sudan
Divestment Legislation, dated January 7, 2008.............. 59
Letter from the U.S. Department of State to Senator Mitch
McConnell, dated October 22, 2007.......................... 60
Letter from the U.S. Department of State to Senator Harry
Reid, dated October 22, 2007............................... 63
Letter from The White House to Chairman Barney Frank, dated
February 4, 2008........................................... 66
Letter from the U.S. Department of Justice to Vice President
Richard B. Cheney, dated October 26, 2007.................. 67
Letter from the Department of the Treasury to Senator Harry
Reid, dated July 30, 2007.................................. 73
Bachus, Hon. Spencer:
Ward Brehm's National Prayer Breakfast Remarks, dated
February 8, 2008........................................... 75
NEGATIVE IMPLICATIONS OF THE
PRESIDENT'S SIGNING STATEMENT
ON THE SUDAN ACCOUNTABILITY
AND DIVESTMENT ACT
----------
Friday, February 8, 2008
U.S. House of Representatives,
Committee on Financial Services,
Washington, D.C.
The committee met, pursuant to notice, at 10:04 a.m., in
room 2128, Rayburn House Office Building, Hon. Barney Frank
[chairman of the committee] presiding.
Members present: Representatives Frank, Watt, Capuano,
Green, Cleaver; and Bachus.
Also present: Representative Lee.
The Chairman. This hearing of the Committee on Financial
Services will come to order.
This is a hearing on the implementation of legislation
passed, I believe unanimously, by both the House and the
Senate. It was passed unanimously over the objections of the
Bush Administration. And there are, of course, in the
Constitution, ways for the President to fight legislation to
which he is opposed. He is free, obviously, to have members of
his Administration argue against it, and he in fact ultimately
has a veto, which could require a two-thirds vote of both
Houses.
The legislation, of course, is legislation intended to
enhance the ability of people in the United States to take
action expressing their horror at the genocide that is taking
place in the Darfur region of Sudan. We think it is important
for the American government to oppose that in various ways.
We believe it is also important to remove any obstacles
from others in this country--States, economic entities, and
individuals--from joining in. And indeed, there is an argument
in favor of that, which I believe is very powerful.
It is often the case that governments who have engaged in
atrocious behavior, when the United States government opposes
them--we don't do that as consistently as I would like, but in
those cases where we do, there is a tendency for those
governments to say, oh, well, that is just the Administration.
It is particularly the case now, and it has become easy to
argue in some places to people who aren't terribly
sophisticated about America's internal politics, that this
Administration does not speak for the majority of the country
in a number of areas.
In the case of Sudan, it is clear that the Administration's
expressed opposition to the genocide represents an overwhelming
intense feeling from the American people. And what we do in
this legislation, which was originally conceived by our
colleague, the gentlewoman from California who sits with us
today, we are giving people a chance to repudiate that
argument.
Now, one of the things the Administration doesn't like is
the notion that State legislatures might take positions,
elected State officials might take positions expressing their
abhorrence of genocide and not just expressing their abhorrence
but putting their money where their mouths are. I do not
understand why the Administration is opposed to that.
Let's be clear: This is not a bill that generally allows
that to happen, although I would be in favor of such
legislation. It is a very narrowly crafted one that deals only
with the issues of Darfur in the Sudan. And why this
Administration would oppose our efforts to allow a broad range
of Americans to join the Administration in its stated policy of
opposing this is puzzling to me.
Apparently we have an Administration so wedded to the
notion of ever-increasing executive power that it is willing to
put its interest in enhanced executive power and diminished
ability for others in this country to speak out ahead of its
commitment to ending the genocide in Darfur because what they
tell us is that they would rather not have that help; they
don't want States interfering in foreign policy.
I would ask unanimous consent to put into the record now a
letter dated October 22, 2007, from Jeffrey Bergner, the
Assistant Secretary of Legislative Affairs for the Department
of State. And it says here in part--it is a letter to Senator
McConnell, and there is also one to Senator Reid opposing the
bill.
I want to make this point: the President tried to stop this
bill from passing. He lobbied against it. He lost. Indeed,
there were no votes on it because he did not have a lot of
support among members of the House or the Senate. So it went
through.
The President was entitled to oppose the bill. The
President was entitled to have the State Department lobby
against it. He was even entitled to veto it. What he is not
entitled to do is, having failed in those efforts and having
declined to veto it, to then unilaterally undermine it by a
signing statement which will vitiate its intended effect.
And what they say is, ``First and foremost, we oppose the
bill's affirmative authorization for State and local
governments to divest from foreign companies doing business in
named sectors in Sudan, Darfur. These provisions could be seen
(however incorrectly), they say parenthetically, ``as
effectively converting State actions which States are already
taking into federally protected privileges, thereby
undercutting the supremacy clause and the President's powers
thereunder. We do not believe that either the interests of
either the Article I or Article II branches of government are
served by such legislation, especially in this situation where
divestment actions are currently proceeding without Federal
intervention. Such authorizations would set a dangerous
precedent.''
Well, first of all, the silliness of the constitutional
argument is important. I am going to give myself extra time. I
will give it to others as well. How does it violate the
supremacy clause for the Congress of the United States to pass
a law, signed by the President, albeit reluctantly, authorizing
something?
The supremacy clause says that if there is a conflict
between the Federal Government and the States, the Federal
Government wins. It is a position I will ask Judge Wald to
correct me on if I have stated it incorrectly. The supremacy
clause is fairly clear-cut. It says if the Federal Government
makes a decision, it countermands a contrary State decision.
How could anyone argue rationally that the Federal
Government undermines the supremacy clause by a decision it
takes authorizing actions? What is the undercutting of the
supremacy clause? But again, understand, the right of the
executive to do this preempts the interest in enhancing the
effectiveness of action to express our distaste for what
happens in Sudan.
They also come to the defense of the fund managers. Now,
what we had is State pension funds that are afraid of being
sued. And the Administration says, well, they are proceeding
anyway. Yes, but they are proceeding under the threat of a
lawsuit.
The purpose of this bill--you know, we thought we had
people here who said, there is too much litigation in this
society. Well, we took an action to try and prevent litigation,
to allow these things to go forward. And the Administration
objects to our doing that, and they say, well, some people are
doing it anyway. Yes, but we believe more would if they weren't
threatened with litigation. And certainly no harm is done,
certainly not to the supremacy clause by the Congress passing a
law.
We then have the argument also on behalf of the fund
managers. Now, we have had situations where people have wanted
to have their mutual funds or the money that they have owned or
invested--they want divestiture. And they have been told by
some of the third party fund managers, oh, we can't do that. We
owe you the duty of maximizing the income.
Now, I must say that some of the fund managers who have
claimed to be restrained here welcome the restraints. There is
a device that we in Congress, in politics, sometimes use which
I think is in play here. It is what I call the ``reverse
Houdini.''
Harry Houdini had an act in which he would have other
people tie him up in very firm knots and then he would get out
of the knots. That was his act. It is common in politics, and
apparently in the fund management area, to do the reverse. You
tie yourself up in knots. You impose restraints on yourself.
And then, when you are asked to do something, you say, ``Oh, I
can't do that. I am all tied up in knots.''
Because we are here untying them, and the Administration
objects to that. Here is what the Administration said: ``By
affirming that fund managers may avoid their fiduciary
responsibility in stated cases, these provisions weaken
essential legal protections for investors, including workers,
retirees, and their families, and set a dangerous precedent for
extending such immunity.''
I wish that this zeal on behalf of the right of people to
bring lawsuits in defense of investors had been present when
the Administration refused to allow the Securities and Exchange
Commission to file a lawsuit in the Stoneridge case vindicating
the rights of investors who wanted to bring a lawsuit. It is a
rare example of this Administration worrying about the right of
investors to sue not being infringed.
Those are the merits. So here is where we are. I got a
letter. We then, by the way, asked the Justice and State
Departments to come and testify. The State Department wrote a
letter expressing its opposition to the bill, so it seemed
natural then to say, ``Well, will you come and talk about this
signing statement?'' They refused to do it. The State
Department and the Justice Department refused to do it. And
essentially they said, frankly, ``Hey, go talk to the White
House because this is their signing statement.''
So then we have the letter that I received earlier this
week from the counsel to the President: ``While we appreciate
the interest the committee may have in the signing statement,
there are constitutionally based concerns about providing
direct testimony that will touch on communications to or with
the President, and particularly those in the nature of legal
advice.''
We asked the White House to come and explain the public
policy and the legal arguments here. They refused to do it. The
White House counsel is not some private attorney. In fact, I
think it was established during the disputes during the Clinton
Administration that the relationship between the President and
official counsel was not the same as a purely private attorney.
We are not talking about somebody up on a misdemeanor or
felony rap, and we are not trying to interfere with the
attorney-client privilege. We are asking the President's
lawyers to justify the constitutionality of an argument that,
having failed to defeat a bill through the normal legislative
process and having not had the courage to veto the bill,
although they wished obviously that they could have because
they didn't want to put their members, I guess, through the
choice of having to vote to override them, to come and tell us
by what right they now announce that they, having signed the
bill, will tell people when it is okay and when it isn't okay.
Because that is what the signing statement does.
And that is particularly relevant here because we are
talking about encouraging people to not be deterred by a
lawsuit. And now we have people saying, okay, Congress says I
won't be sued, but the President says I can be sued. I mean, it
is a clear blow at the core of this bill because what it says
is, hey, the White House says that if I am sued and I plead
this congressional act, the President who signed it may
intervene and say, no, no. The act was unconstitutional in that
regard. I signed it because why not sign an act that is
unconstitutional if I have reserved to myself the right
unilaterally to get rid of it or to tell people when they can
enforce it and when not?
So they refused to testify. And here is the next paragraph:
``It is the policy of the Administration to cooperate with the
legitimate inquiries of Congress to the fullest extent
possible. In that spirit and toward that goal, we are prepared
to provide an informal briefing to your committee presented by
subject matter experts within the Executive Branch if that is
desired by you.''
No, it is not. We will not accept some back door, informal
chat on a matter of overwhelming constitutional importance as
opposed to testimony by them openly. Also, by the way, they say
``subject matter experts.'' They mean that they will tell us
again why they didn't like the bill, why they tried to kill it,
and why he wished he could have vetoed it, but he knew it
wouldn't be sustained. They apparently don't plan to discuss
why they have the right to sign a bill and then tell people to
ignore it. And they then called my attention to these letters
which I just read.
We have a situation in which, expressing the deep outrage
of the American people at genocide, frustrated by our inability
to do more, we passed a bill that my colleague from California
initiated which said that those Americans whose sense of
decency drives them to say that they do not wish to be
financially complicit in one of the greatest crimes now going
on in the world, that the people to whom I have entrusted my
money can honor my outrage and not face a lawsuit, and allow
States and cities and others to join in expressing to the
government of the Sudan how outraged we are.
And this Administration said, ``No, that might set a bad
precedent for our powers.'' No, the American people have no
role in this other than having voted every 4 years for us. And
we will unilaterally, not having been able to kill the bill,
tell people, feel free to ignore it.
And as I said, in the nature of this case, since it is
meant to encourage people not to be deterred by the threat of
lawsuit, vitiating that really affects the law. So it is a
signing statement that is intended to give, through that
unilateral assertion of executive power, the right to undercut
a bill that they could not defeat.
It is bad for the efforts against the Sudan, and it is
wrong as a matter of constitutional principle. And it is
compounded by the arrogant refusal to discuss this in public.
So I hope that this hearing proceeding, and I must say it is my
intention at some point we will be thinking about whether the
House ought to pass a resolution repudiating this effort by the
President to take back, in this unilateral fashion, what he
could not do through constitutional processes.
Before I recognize the ranking member, I would ask
unanimous consent that our colleague from California, an alumna
of this committee, be allowed to participate in the hearing,
showing the great spirit of charity on the part of this
committee and overlooking the fact that she left us. Is there
any objection?
[No response]
The Chairman. Hearing none, the gentlewoman will be allowed
to participate. Under the rules, the full members of the
committee will come first, and she will come at the end.
The gentleman from Alabama.
Mr. Bachus. Thank you, Mr. Chairman.
Mr. Chairman, I thank you for continuing to hold these
hearings focusing on Sudan and the genocide and Darfur. It is a
cause I believe in strongly, and you and I and Ms. Lee and
others have worked for years to try to have some positive
influence on the slaughter there. I welcome the Congresswoman
from California to the hearing, and I welcome her work in this
regard.
The Sudan Accountability and Divestment Act that we passed
in this Congress had overwhelming bipartisan support. As you
know, it became law on the last day of last year. We cannot
rewrite history or save lives that are already lost in Darfur.
However, we can and must resolve to do things better going
forward.
This law has the potential to give hundreds of thousands of
peaceful men, women, and children in Darfur an increased chance
of surviving the genocide. Economic and financial
considerations have been used to both block and water down our
Sudan capital markets legislation in the past. Economic and
financial considerations are important. But in a loving nation,
such considerations can never be used as a justification for
turning a blind eye to genocide.
Closing our financial markets to those who participate
directly or indirectly in the slaughter of innocent human
beings is well within our ability, and ought to be our bedrock
principle. America is a loving nation, and allowing our
financial markets to be utilized by an evil regime that
conducts religious and racial genocide is inconsistent with our
values and principles.
This new law puts strong pressure on a government that has
consistently engaged in genocidal actions, both directly and as
an enabler of paramilitary factions that are harassing and
killing people in Darfur and elsewhere in Sudan. It is vital to
keep pressure on the Khartoum government because of the bait-
and-switch game it has played with the rest of the world for
years, pretending to make strides to end the genocide and then
going back on its word when the world's outrage is temporarily
spent or focused elsewhere.
Even now, in neighboring Chad, efforts to overthrow the
current government are believed to be an attempt to frustrate
international efforts to intervene in Sudan. The upheaval in
Chad is widely believed to be supported by the Khartoum
government. The rebels have even entered Chad from Sudan.
President Deby's cooperation is essential for the
deployment of peacekeepers in Darfur, and efforts to overthrow
him starkly illuminate the intentions of the Khartoum
government. Such destabilizing actions and violent forays make
it clear that pressure on the Khartoum government must be
unrelenting.
The objectives of this law are ones I wholly embrace.
Shutting off Khartoum's financial pipeline will bring us closer
to the goal of halting the atrocities. It is a goal that I do
believe is shared by the Administration.
In regard to the signing statement, let me first say that
communications between this White House and the Congress have
been problematic on many issues. Obviously, this is an
additional one. I am disappointed by the State Department and
what appears on its face to be arrogance and also an ignorance
of the duties and obligations, as well as the powers vested in
the Legislative Branch by the Constitution.
Mr. Chairman, once again let me thank you for this
important hearing. As I conclude, I would like to read a few
passages from the prayer breakfast message yesterday. It is the
President's prayer breakfast. The President was there, and
Members of Congress were there, from both the Senate and the
House. Over 4,000 people attended throughout the world. Members
of the cabinet were also present.
The message was from Ward Breen, who heads up the African
Development Fund. Here is something that I think applies very
directly to the efforts that Ms. Lee and others in this
Congress have made to address the genocide in Africa.
He says, and I quote, ``The question I have been asked by
most of my American friends''--this is also a question I have
been asked--``is why cross an ocean to help people when you
need only cross the street to help your own?'' It is a great
question, and the answer, of course, is that we need to do
both. Solzhenitsyn said that disaster is defined by two things,
magnitude and distance. So a small disaster close to home or a
huge disaster far away results in what he describes as bearable
disasters of bearable proportions.
``We have become too good at bearing. Our hearts should be
broken by the things that break the heart of God. Specifically
in Africa, there are many far-away disasters of epic
proportions.'' He lists Rwanda as one. He goes on to say,
``Today in Darfur, Sudan, 1.5 million homeless and thousands
terrorized by raping and killing.'' He concludes by talking
about AIDS. Epic disasters of epic proportions, far from home
for most of us.
Mr. Chairman, I thank you for your hearing, and I only hope
that the Administration will take a more helpful, more
cooperative role in this process. Thank you.
The Chairman. I thank the gentleman. Before turning to the
gentleman from North Carolina, I just want to express my
appreciation. And people should know that the gentleman from
Alabama now, and previously when he was chairman of the
Subcommittee on Financial Institutions, has been one of the
leading members of this Congress in trying to deal with the
terrible problems that have afflicted people in Africa, from
debt relief to now.
This was a sign of a genuine passion that he has honestly
and courageously articulated, and we will continue to work
together on a number of these issues.
Mr. Bachus. Could I introduce into the record the entire
speech?
The Chairman. Yes.
Mr. Bachus. I would also like to add another thing he said
that I had underlined: ``Proverbs, the Book of Wisdom, says,
`Speak up for those who can't speak for themselves, and defend
the rights of the poor and destitute.' If there are any people
that can't defend themselves, it is the people of Darfur.''
The Chairman. I thank the gentleman, and that will be made
part of the record without objection.
The gentleman from North Carolina is now recognized. I
should note that he is also a member of the Judiciary
Committee, and one of the leading legal scholars of this
Congress.
Mr. Watt. Thank you, Mr. Chairman. I won't take 4 or 5
minutes, but I do think it is important to make two points.
The first point is that I was not here in Congress during
the lead-up to the actions that were taken with respect to
South Africa. But in many respects, from what I have read about
those steps leading to it, the White House and Presidents of
the United States were just as reluctant to take any kind of
affirmative, positive step until they were basically forced to
do so.
And this strikes me as yet another example of that, in
which if this works out well, which really there is no good
method to make it work out well retrospectively but it might
work out well prospectively, I suspect this President will be
bragging about all of the good things that he did to end the
genocide in Darfur, including this legislation that we passed.
The difference there, I think, was that signing statements
were not the order of the day. And as the chairman has noted,
we have found in the Judiciary Committee that this President
has just, in a virtual dictatorial fashion, decided that he can
ignore the laws that Congress passes, even those that he signs
into law, by writing these signing statements that have the
effect of watering them down or minimizing the impact of them.
So this is not new, but it is new in the sense that signing
statements have become such a precedent for this
Administration, being used in so many different areas that it
is unbelievable.
The second point is, this is a particular disappointment
because a number of us work with our local States to try to get
them to pass divestment legislation. Many of them had
reluctances, based on the uncertainty of the law and various
and sundry other concerns that they were expressing, but they
passed those laws anyway.
To the extent that the signing statement that the President
has attached to this bill muddies the water about whether
States have the authority and what authority they have, it
basically sets us back substantially, I think, in some of those
States that were kind of concerned about what the standards
were and concerned about what they could do at the State level
not only with their government funds but with pension plans and
other funds that were potentially being divested or were being
invested in Darfur and Sudan.
So this is a real concern, and I join the chairman in
expressing that concern. And I am glad that we are having the
hearing about it to try to minimize it as much as we can.
I will yield back the balance of my time.
The Chairman. I thank the gentleman. And I do want to note
that we did get a letter from the Department of Justice as well
which made similar arguments, which we will put in the record.
And again, they declined to come and discuss it.
But we did get a letter from the Department of the
Treasury. They had one objection about their role in providing
the specifics of the list, and we acceded to that. So on the
procedural question, an important question but a question about
how you did this, when Treasury raised an objection about how
do to this better, we acceded to that. So it is not as if they
were totally stonewalling.
Now I am going to call on my colleague and neighbor from
Massachusetts, who has been one of the leaders in the Congress
in the effort to mobilize against the Darfur genocide. My
colleague, Mr. Capuano.
Mr. Capuano. Thank you, Mr. Chairman. Mr. Chairman, I
really just came to kind of express my outrage at what is going
on here, and to thank people at this panel for standing up.
The easiest thing that I have seen anybody do is not--
nobody is for genocide, but to just remain silent, to just let
things slide, to worry about other issues. And the truth is,
let's be serious. I mean, if there is a complete and utter
genocide and everybody in Darfur were killed, most of our lives
will not be personally individually changed.
Yet that is not why any of us ever ran for public office.
That is not why you are here. And I would argue that anybody
who feels that way or allows those feelings to consume them are
less human than they should be. And I just want to thank the
chairman and the ranking member for keeping this issue alive
and moving it forward.
And there are days that--I have been involved with this now
for several years, and there are days that I, and I am sure
that any of us who watch this, feel powerless, helpless, and
that maybe nobody cares except a handful of us. I don't know.
But I will tell you that those are the days that get me
angry. I feel things that I don't generally feel when I am in
public office. And those are days that make me remember that
there have been people before us that have had better things to
say than I will ever say.
And there is one quote that I actually keep on my wall in
the office from Nobel Prize winner Elie Wiesel that says,
``There may be times we are powerless to prevent injustice. But
there must never be times that we fail to protest.'' And if
nothing else, I am here today to protest.
I don't know that this will change anything. I don't know
that we can get the President to actually do the things he
should be doing. I don't know that we can get the world to do
what they should be doing. But I do know one thing, that I am
not going to stop. And I know that the people at this table and
the people on this committee won't stop. If it doesn't save one
life, do what we can do.
And I will tell you that I don't know what we are going to
do next. I don't know if this government will do anything next.
But every day that goes by, I am looking for things that we can
do, that we can take action on, little as they might be, hoping
that someone will come up with a better idea than me.
I mean, right now I am reduced to the fact that right now I
have no intention of watching one minute of the Olympics. Not
one minute will I turn that TV on. Now, I hope that changes. I
want to watch the Olympics. I want to root for American
athletes. But I won't.
And I won't because we can't get China, the leading
protector of the Sudanese government, to do anything. To do
anything. To put their arms around their friends and say, guys,
stop. Not only are they not doing that--and the world isn't,
either. But the rest of the world is probably powerless to do
it.
The United States Government seems powerless to do it. All
we have to offer here is military might and economic might. We
seem at the moment to be unwilling to use our economic might,
and certainly unwilling to use our military might. There are
others who can, yet they refuse to do it. They talk a good
game. The U.N. has talked a good game. But in the final
analysis, people are still dying. The horrors are expanding,
and they may well consume the entire region.
You all know this. I am telling you things you already
know. I am kind of doing this for the three people who might be
watching this. At the same time, we do what we can do. I know
that you are each doing what you can do.
And I just want to say thank you for your leadership, for
your courage, and more importantly, your commitment, your
stick-to-it-iveness on an issue that again, for all of us, each
and every one of us, it would be just easier to focus on other
things and to worry about other things and to spend our time
doing other things that maybe we could change a little more
easily.
But there is nothing more important, in my opinion, than as
a human being standing up for the lives and wellbeing of other
human beings that are being so oppressed and so unnecessarily
victimized. So I just want to say thank you.
The Chairman. Next we will hear from another one of the
legal experts on this committee, a former judge who brought his
legal learning and his passion to our deliberations. The
gentleman from Texas, Mr. Green.
Mr. Green. Thank you, Mr. Chairman. And I thank my
colleague, Ms. Lee, for returning to the committee and
continuing to stay the course. She has been a stellar, supreme
example, if you will, for many of us. When we were neophytes,
she was there to lead the way and to in fact show us the way
over to the jailhouse. Some of us were involved in protest with
her, and we were quite pleased to make a sacrifice for this
cause.
I am as disturbed as anyone with the behavior of the
President. I think the comments of the chairman are most
appropriate with reference to a resolution. I will gladly join
the chairman in presenting a resolution such that we can at
least express our deep desire to have the President understand
the import of his actions.
This President has put us in a position now where we have
announced to the world, the United States of America has
announced to the world, that genocide is taking place. But we
are also saying to the world that we will watch the very thing
that we have denounced continue when we had the power to make a
difference.
It is one thing to witness something when you are
powerless, but an entirely different thing to sit silently by
when you have the power to make a difference. History will not
be kind to those who had the power and who refused to use it.
History will not be kind to this President.
We should not be kind. We should impose a resolution, the
strongest possible resolution, denouncing his actions. I thank
you, Mr. Chairman, and I yield back the balance of my time.
The Chairman. And next another member of the committee--
Mr. Bachus. Mr. Chairman?
The Chairman. I will yield to the gentleman.
Mr. Bachus. If I could, I would like to respond. I would
like to think--I know the President has a dedication to Africa.
He has quadrupled the funding for AIDS. I have to believe that
this is a disconnect between the President and the State
Department or some of his advisors. So I would hope that at
least some opportunity is afforded--
The Chairman. Well, the gentleman has certainly earned the
right--I mean, in general that would be a courtesy we would
give the President. But the gentleman from Alabama is certainly
in the right. We won't take any action pending whatever
conversation would happen.
Mr. Bachus. But I do--Mr. Green, I do understand your
passion for Africa that I share, the genocide. Let me just
emphasize, I know the President is concerned about the
genocide, so that I am puzzled why the State Department--
The Chairman. Let me say to the gentleman, look. We are
not--
Mr. Bachus. --is not any more responsive.
The Chairman. This is much too important an issue for
point-scoring. I don't denigrate point-scoring, but we can do
that in another context. What I am concerned about is the
extent to which this may undercut. And if there could be some
conversations that could diminish that effect, then there
wouldn't be a need for further action. So we will work with the
gentleman and be glad to do that.
Mr. Bachus. You know, as has been said here, the President
did sign the legislation. He did attach a signing statement.
And there needs to be open discussion of this.
The Chairman. We will look forward to that.
Mr. Bachus. And as you read the letters, I think maybe
the--I am sorry that they didn't see fit to be here.
The Chairman. I appreciate it.
Let me--finally, another perspective. Our colleague from
Missouri who is also, of course, a minister, and I am a great
believer in the separation of church and state, but when we
talk about a great moral evil such as this genocide, there is a
perspective that the gentleman from Missouri brings that we
have frequently found useful.
And so I am glad to recognize Mr. Cleaver.
Mr. Cleaver. Thank you, Mr. Chairman. I rarely ever miss
our committee hearings, and I don't like to be late when I am
here. I changed my flight schedule today because I needed for
my own psychological wellbeing to at least come to express my
concern.
In my real life, as the chairman mentioned, I am a United
Methodist pastor, and 5 years ago, we adopted 20 young men
referred to by the media as the ``Lost Boys.'' These are young
men who were able to get out of the Sudan. They left during
their early teen years, and we provided housing for them, and
now most of them are in the University of Missouri.
They have no connection with their families at all. They
don't know where their mothers, their fathers, their sisters,
and their brothers are, and thus the name the Lost Boys. And
they immigrated here in this country, and I wish the people of
the Congress and the State Department and the White House could
spend one hour listening to these young men tell of what they
saw.
It is a tragedy that a 12-year-old could stand behind a
tree and watch people he has known all of his life be machete'd
to death. I tremble. I tremble at the thought that our country
could act and fails to do so.
My hope is that some kind of transformation will occur,
whether it is in the State Department or in the White House,
that would allow this country to do what it ought to do in the
face of almost unparalleled agonies experienced by people.
It seems to me that the signing statement that trumps all
signing statements is the United States Constitution. It has
already been signed. And that cancels out anybody signing
anything that cancels it out. I am concerned that when we have
these signing statements, it undermines the moral integrity of
our Nation and it tarnishes our image as we stand on the world
stage.
Thank you, Mr. Chairman.
The Chairman. I thank the gentleman.
Finally, joining us today is our colleague who was the
author and guiding spirit of this legislation. She combined a
passion with an understanding of the process. I worked
patiently with her, and very well staffed as she was so that we
were able to deal with legitimate concerns that the
Administration raised, as I said, when the Treasury had some
arguments about how best to do it.
But her combination of discipline and passion is the reason
that this bill became law. The gentlewoman from California, Ms.
Lee.
Ms. Lee. Thank you very much, Mr. Chairman. And first, let
me just say to you this never could have happened without your
leadership, your intellect, and your understanding of what we
had to do in terms of making sure that the legislative
processes worked in this body.
But also I want to thank you for your moral and ethical
commitment, and your understanding of really America's role in
the world and how this committee, under your leadership as
chairman, can really address and become once again a leader in
setting a new moral standard. So thank you, Mr. Chairman, for
your leadership.
I also thank Mr. Bachus for his commitment and his
willingness and understanding to work in a bipartisan fashion.
And I know that this stems not for political reasons, but for
moral reasons. It comes from his heart. He understands that
this is necessary in terms of how we address many of these
moral crises. And yes, genocide is a great moral and
humanitarian crisis.
I have to thank him and this entire committee for stepping
up to the plate and for taking this on head-on. And I think Mr.
Watt mentioned the South Africa model. Well, my predecessor,
now Mayor Ron Dellums, carried the divestment legislation. And
as I remember it, President Reagan vetoed that legislation. But
you know what? The Congress overrode that veto and finally put
the United States on the right side of history as it related to
the brutal, oppressive regime of apartheid in South Africa. And
the rest is history.
And so now we are at another moment when we have another
great crisis, and that is the genocide that is occurring in
Darfur. This Congress, in a bipartisan way, passed the
toughest, most reasonable divestment legislation which we are
talking about today. And the President, I guess, knew that he
could not override--that he could not veto this bill because,
once again, we would have overridden the veto.
And so I think this is very cynical what took place, Mr.
Chairman, because this is really where the rubber meets the
road. The President declared genocide as taking place in
Darfur, and indicated several years ago that he would take all
measures to address this genocide.
And so here now we have a bill that would begin to put the
squeeze on Khartoum, would allow our people in this country,
our universities, pension funds, States, to begin to do what
they needed to do to address this genocide, and he issues a
signing statement that in essence would try to send a signal
that this is not something that he would approve. And so I
think it is very contradictory. It is very cynical. And I am
pleased that we are holding the hearings today.
I want to thank our panel for being here and for your
leadership, and all of our young people, the faith community,
all of the groups that have really been the wind beneath our
wings throughout the country, who have insisted that we do
this.
Finally, let me just say that the President also has issued
a signing statement on our bipartisan effort on the defense
authorization bill, where we insisted that there should be no
permanent military bases built in Iraq. Once again, subverting
the law, issued a signing statement saying that this is
something that, in essence, the Administration is not going to
comply with.
This governmental lawlessness that we see is unbelievably
wrong. It is unconstitutional. And again, Mr. Frank, I want to
thank you for your leadership and for helping us try to figure
out how we can move forward to make sure that the law is
complied with. We cannot allow another Rwanda to occur, where
one million people died and our country did much of nothing
except, after the fact, apologize.
So thank you again.
The Chairman. Thank you. And let me just note she called
out the example of the South Africa sanctions bill. We are told
sometimes by analysts that sanctions never work. One of the
greatest moments I have had as a Member of Congress was to
stand in Statuary Hall with a large number of other members and
listen to one of the great men of this time or any time, I
believe, Nelson Mandela, thank the Congress of the United
States for passing the sanctions bill, and telling us that the
passage of the sanctions bill by the United States over Ronald
Reagan's veto was a very important part of the effort to get
rid of apartheid. Anyone who tends to dismiss sanctions has to
confront the argument to the contrary of Nelson Mandela.
We will now begin the testimony. We will start with Mr.
Jerry Fowler, the executive director of the Save Darfur
Coalition, with whom we worked. I have to say a lot of work
went into this. It was not some simple statement, as it
appeared at the first. But the staff on this committee, Ms.
Lee's staff and others, worked very hard to get this done.
I would also make explicit what should be clear. This is a
one-sided panel because the other side of the argument refused
to show up. We invited the Justice Department. We invited the
State Department. We invited the White House. They refused to
come.
So this was the bipartisan effort to produce a panel that
we think is representative of the argument, and we regret that
those who we thought might have defended the position of the
Administration declined to do so.
Mr. Fowler, please.
STATEMENT OF JERRY FOWLER, EXECUTIVE DIRECTOR, SAVE DARFUR
COALITION
Mr. Fowler. Thank you very much, Chairman Frank,
distinguished members of the committee, and Ms. Lee. Thank you
for this opportunity to speak to you today about this issue,
and thank you especially for your continuing leadership on it.
As the president of the Save Darfur Coalition, I would like
to ground our discussion today in the human reality of the
crisis in Darfur, which this law was designed to help change.
Ultimately, we can't lose sight of the fact that it is human
lives that have been destroyed and human lives that remain at
risk.
And I want to put a human face on it by telling a story
from the first time that I went to the region. I traveled to
Chad in May of 2004, to the Sudanese border where refugees were
coming across the border every day.
And one day, near the end of that trip, after I had talked
to dozens of refugees and heard their stories, I met a woman
named Hawa. And you have to understand that the daily
temperature there was 115 to 120 degrees. There were
sandstorms. It was an incredibly harsh environment.
I had heard all of these stories of suffering, and I met
Hawa in her little hut, a little makeshift hut that she was
living in with her four children.
She told me about the day her village was attacked. On that
day, her father was killed and her brother was killed. A cousin
was killed. Thirty people in her village were killed, and her
mother disappeared. And I have to admit that I suddenly felt
overwhelmed by that suffering, by her suffering, and I wanted
to get out of that hut and just get out of the oppressive
atmosphere in there.
And I started to back out of the hut, and she started
speaking in a low voice. And I looked over at her, and tears
were coming down her cheeks. And she was saying, ``What about
my mother? What about my mother? I don't know where my mother
is. I don't know if she is dead or alive.'' And I felt as
though she was asking me to give her an answer, which I
couldn't possibly give.
And the only thing that I could think to say was to ask her
for her mother's name and to tell her that I would bring her
mother's name back to America and tell Americans her mother's
name. And her mother's name is Khadiya Ahmed. Khadiya Ahmed.
And so now I am telling you that name, and I am telling you
that as vast as this catastrophe is, it ultimately comes down
to one woman who doesn't know where her mother is and probably
won't know where she is until there is peace and security in
Darfur.
We are nearly 5 years into this conflict, and lives still
hang in the balance even as we speak today. Over two million
people remain displaced inside Darfur, and another couple of
hundred thousand across the border in Chad. The best chance for
improved security for civilians in Darfur is the full and
effective deployment of a 26,000-strong United Nations/African
Union civilian protection force. Yet more than 6 months after
the Security Council unanimously authorized that force, only a
third of it is on the ground, and those are ineffective African
Union troops who simply switch their hats from green to blue.
The primary reason that this force has not been deployed is
that the Sudanese government is successfully impeding its
deployment by stalling on basic technical issues. Then last
month, its army brazenly went a step further and ambushed a
clearly marked U.N. convoy. Lives will continue to be lost if
the United States and the international community do not act
more vigorously to impose swift and strong consequences on
Sudan.
While the United States had led international efforts to
impose sanctions on the Sudanese regime, existing sanctions
have not been enough to bring about the necessary change in the
regime's behavior. The legislation that we are discussing
today, which was unanimously passed by this Congress, called
SADA, the Sudanese Accountability and Divestment Act, was
carefully crafted as another tool to generate concerted
economic pressure on the government of Sudan.
Its successful passage was the product of a vibrant
partnership between House and Senate leaders, including the
leaders here today, and a broad constituency of conscience that
brings together a diverse group of civil society organizations,
religious groups, and grassroots activists.
By signing the bill, President Bush has enacted the extra
legal protection offered to States that decide that their tax
dollars shall no longer be invested in companies that help fund
the genocide in Darfur. In my mind, the real negative impact of
the signing statement so far has been the ambiguous message it
sends to Khartoum and to the business interests that are
contributing to Khartoum's ability to carry out genocide in
Darfur.
Each day of delay in imposing real economic and political
consequences on Sudan is another day that refugees will suffer,
that girls and women will be exposed to rape while gathering
firewood, and that Hawa, the woman I met in 2004, will wait to
find her mother and return home. We ask for your continued help
and leadership in ensuring that their days of suffering and
waiting will be numbered. Thank you very much.
[The prepared statement of Mr. Fowler can be found on page
39 of the appendix.]
The Chairman. Next, I am delighted to be joined by one of
our leading scholars, the former chief judge of the District of
Columbia Circuit Court, Judge Wald.
STATEMENT OF THE HONORABLE PATRICIA M. WALD, FORMER JUDGE AND
CHIEF JUDGE, UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT
Judge Wald. Thank you, Chairman Frank. And thank you, other
members of the committee, Ranking Member Bachus, and
Representatives Lee, Watt, and Green for inviting me to testify
here today.
I might say before I begin my testimony, which will focus
on the signing statements aspect and put this signing statement
hopefully in the context of the larger dispute about signing
statements, I would like to put on the record the fact that I,
too, have had some personal relationships with genocide.
As you may know, I sat for several years--2 years--on the
International Criminal Tribunal for the former Yugoslavia. And
during that time, I sat on a genocide trial, in fact, the first
genocide trial there, dealing with the notorious massacre of
7,000 to 8,000 young Bosnian men in one week at Srebrenica,
called at that point the worst massacre since World War II.
Hopefully Darfur will not reach that title.
So I have seen firsthand the witnesses, hundreds of
witnesses, testifying. I will cite only one woman witness in
this genocide, who said, ``In one week I lost my father, my
husband, my son, and 20 male relatives,'' gone in one week in
that genocide.
The second point, and then I will move on to the focus of
my testimony, is that I have done work since leaving both
courts with international foundations that deal with some of
these problems of atrocities and genocide abroad. And I have
come to know how important is the role of finance in these
genocides.
For instance, even the Bosnian genocide was financed, in a
sense, by the government of Yugoslavia. I mean, all of the
soldiers were being paid out of Belgrade. But even more
relevant here, I am sure you are aware of the pending
prosecution of Charles Taylor, the former president of Liberia,
who has been indicted by the Sierra Leone court for his role in
financing the terrible civil war and the atrocities attendant
thereto, the blood diamonds, etc., in Sierra Leone.
So I think this bill is especially important, as the last
speaker noted, because of the arrogance with which the current
government in Sudan and Darfur has defied international law,
for instance, the International Criminal Court. And in this one
instance, as I am sure you are aware, despite Administration
opposition to the International Criminal Court, the United
States did not veto in the Security Council the Security
Council resolution to refer the Darfur case to the
International Criminal Court, which has already brought down
two arrest warrants against two high government officials in
Darfur.
Unfortunately, the premier has more or less thumbed his
nose at those, has refused to give up the indictees, but not
only that, with one of them he has appointed that particular
indictee to oversee the deployment of humanitarian aid and the
situations in the refugee camps in that country, which is sort
of the ultimate thumb your nose. So I do think that financial
sanctions are important. I will now go on to the main business.
In terms of signing statements, I will make five points
briefly about signing statements in general.
The Chairman. Let me just say, we have--although for a
Friday with no votes it is a big turnout, we are not under a
time constraint, so the 5-minute rule is pretty flexible.
Judge Wald. All right. Well, I will try to stay within it
anyway.
The Chairman. Well, if you did, Judge, you would have 46
seconds.
[Laughter]
The Chairman. I mean, I am no Rehnquist. But you go ahead
and take your time.
Judge Wald. All right. Okay.
Mr. Bachus. Yes. Actually, we are asking you to take
longer.
Judge Wald. Okay. I accept.
As one of the speakers has already pointed out, the
Constitution says nothing about signing statements. The
Constitution is very clear in Article I, Section 7, that when a
bill that has passed both Houses of Congress is presented to
the President, quote from the Constitution, ``If he approves,
he shall sign it. But if not, he shall return it with his
objections.'' And it goes on to say, of course, that if both
Houses re-pass it by a two-thirds vote, again a quote from the
Constitution, ``It shall become a law.''
Now, this would seem to be relatively clear about the
process by which a bill becomes law. Yet I would have to
acknowledge that since the early 1800's, Presidents of both
parties have appended signing statements to bills that they
have approved.
Now, in most cases those signing statements are
noncontroversial. They say, this is a great bill. I want to
thank ``X'' and I want to thank ``Y'' for helping to pass it.
Or even in cases of ambiguity, if a provision in a bill is
ambiguous, nobody has appeared to controvert the President's
right to say, well, I want you to know that in construing this
ambiguous provision, I am going to construe it in the following
way.
Now, what has caused controversy is where the President has
said, I am not going to enforce this particular provision
because I think it is unconstitutional, or what we call the
constitutional avoidance interpretation, in which he says, if I
interpret it in a certain way, then I will consider it
unconstitutional. So I am not going to interpret it in that way
regardless of how clear the congressional intent is that it
should be interpreted in a particular way.
Now, one of the scholars who studied this at much greater
depth than I have, certainly, has said that up to 1981, there
were 100 such provisions which had been challenged
constitutionally by the whole number of Presidents up to that
time. But actually, in only 12 cases had the President gone on
not to enforce the law afterwards, after complaining.
And again, candor acknowledges that even in recent times,
some of our Presidents, Democratic as well as Republican, have
used this device. For instance, President Carter refused to
abide by the rider to an appropriations bill that prohibited
his using funds to put in effect his amnesty plan. He went
ahead and used them. Somebody attempted to sue, and the court
threw the case out and said there was no standing. And so his
program went ahead.
Now, President Reagan began using the constitutionally
objecting signing statements much more plentifully than had
prior Presidents. He also advanced, through his Attorney
General, Edwin Meese, the notion that courts in construing a
statute ought to look at presidential signing statements, and
got them reproduced along with legislative history in the U.S.
Code and Congressional Service.
However, I stop here to point out there have been very few
instances in which courts have actually cited signing
statements. There have been a few, but not very many. And also,
they have generally used them in a confirmatory way to say,
well, we arrive at this conclusion by ourselves, according to
the other evidence, but the signing statement goes along with
them. I know of no instance in which a court has said, well, I
am going to depend on this signing statement as some kind of
controlling evidence to say that the law is unconstitutional.
Now, up until the second President Bush, again relying on
some of the scholars, 600 provisions since the beginning of our
history had been objected to constitutionally by all of the
Presidents combined. As of the near end of President Bush, the
second President Bush's term--and I don't have the exact number
because, to my knowledge, it hasn't been compiled--but it is
well over 800 separate provisions in his two terms have been
constitutionally objected to in a way either that says, I will
not enforce, but usually somewhat similar to the one in this
particular signing statement, which says, I will interpret it
in a way that meets my constitutional objections to it, and I
will enforce it in that way only.
The Chairman. Judge, let me ask you so I get it right. You
are saying prior to January 20, 2001, it was 600, and since
then it has been 800? Is that--
Judge Wald. Over 800, but I don't have the exact.
The Chairman. 600 total entire before?
Judge Wald. Provisions. Provisions. The numbers get
sometimes confusing because some people talk about the number
of statements--
The Chairman. You are talking about provisions. Yes.
Judge Wald. --but one statement can have a lot of different
provisions. And I am taking my numbers from the American Bar
Association task force report.
Mr. Bachus. Mr. Chairman, if I could add to that.
Judge Wald. Go ahead.
Mr. Bachus. The signing statements, as you have said, they
started under President Reagan--
Judge Wald. Well, they--
Mr. Bachus. --and I think actually before that.
Judge Wald. Yes.
Mr. Bachus. But, I mean, I think the first common--
Judge Wald. They escalated. They escalated.
Mr. Bachus. And I agree with your statement that most of
them do not challenge--or a growing number. For instance,
President Clinton, 18 percent actually challenged.
Judge Wald. Right.
Mr. Bachus. The rest were supportive of the legislation.
Judge Wald. Right.
Mr. Bachus. The distinction between that and this
Administration is that 78 percent of them through September of
last year were objecting to the bill or saying they were going
to enforce it in only a certain way. So there is a growing
tendency not so much to have signing statements but to say that
they are not going to enforce it or that they object to the--or
that they will enforce it in a certain way.
Judge Wald. Yes. You are absolutely right, Representative
Bachus. And the numbers that are in my more formal statement
point out that those numbers have gone up. And President
Clinton stayed with that trend. He had, I think the number was
105 provisions that he objected to constitutionally. But the
numbers since--I think all experts agree that the numbers since
President Bush II have gone up exponentially.
But the other difference about the current use of them is,
in the past, it is pretty well been confined sometimes to a
particular provision that has come up here or a particular
provision that has come up there.
But the repeated use in the Bush II signing statements of
mechanical, ritualistic, boilerplate--those are what some of
the scholars call them--designations which don't tie down any
specifics as to the reasoning, as indeed this one doesn't, but
use terms like ``unitary executive'' or ``commander in chief
powers'' or ``the President's exclusive power in foreign
relations''--for instance, the unitary executive has been used,
that term, ``This is in violation of principles of the unitary
executive,'' 82 times.
And I might add here that although I have no notion that
there is a connection, in past signing statements, very often
``unitary executive'' has been used to constitutionally object
to provisions in congressional enactments that required
subordinate members of the cabinet or the agencies to report
directly to Congress.
I don't know if that has any relationship to why you got a
negative response to your pleas for a government witness here.
But I know that it is a recurrent theme that the President
says, no, my people can't go directly to Congress. It has to
come up through me.
Now, the American Bar Association task force on which I
served as a member, and many other scholars, say there really
is no constitutionally valid justification for signing a
statement by the President and then saying, I am not going to
enforce it, or I am only going to enforce it in a way that is
contrary to the clear congressional intent.
This, ironically, is a fairly strict constructionist
theory. But in the Supreme Court case of Clinton v. New York,
the Supreme Court did say that even when Congress authorized a
line item veto, it was not constitutional. Justice Stevens
wrote the opinion, saying, look, the Constitution says how a
bill becomes law. And maybe it is hard sometimes. Maybe it
means tough choices. But the Founding Fathers meant there to be
tough choices, and that is the way it is.
Now, again, I have to point out that this is not a
unanimous theory. As I am sure you are well aware, during
President Clinton's term, Walter Dellinger, who is a much
respected colleague, legal colleague, did write a memorandum
which said that under Article III, the President has the duty
to see that the laws are faithfully executed, and he therefore
has the right to refuse to execute a law that he believes
unconstitutional if he also believes that the Supreme Court
will uphold his view, even if the Supreme Court has not yet
done so. I don't buy into that theory, but it certainly does
have--
The Chairman. Just so we can--what was his official
position at the time he wrote that, Judge?
Judge Wald. At the time of that, I believe he was head of
the Office of Legal Counsel.
The Chairman. Of Legal Counsel?
Judge Wald. Right. And he wrote it--there were two
memorandas. One was to Ab Mikva, who was White House Counsel. I
don't remember who the other one--
The Chairman. But it was in his official capacity in the
Justice Department?
Judge Wald. Yes. It was in--oh, yes. Absolutely.
The Chairman. I just wanted to make that clear.
Judge Wald. It is in the official records.
Mr. Bachus. And Judge, let me ask. The case you referred
to, that is the 1998 Supreme Court case?
Judge Wald. The Clinton v. New York.
Mr. Bachus. On the line item veto?
Judge Wald. Yes. I have it here someplace, but I am pretty
sure that is the right date.
Mr. Bachus. Yes. Thank you.
Judge Wald. But there was a follow-up, I mean, in all
fairness to the Dellinger memo. The follow-up said, but the
President ought to use any such power very cautiously, and in
using it, he ought to take account of three things: one, its
likely effects on individuals or entities; two, its effect upon
the constitutional prerogatives of the President; but three,
the likelihood of judicial resolution of the issue coming
about.
The Chairman. Judge, we should wrap up now because we have
already started questioning you.
Judge Wald. All right. I am--let me make four points about
this signing statement. Just to conclude the other, no court
has yet ruled which of those interpretations is correct.
All right. As to this particular signing statement, four
brief notes. One, it uses the same kind of cryptic, non-
detailed reasoning as to why the President says that he will
enforce it only in a manner that doesn't conflict with his
authority. In other words, even in the Department of Justice
letter which preceded the passage, which I have a copy of, they
never--they say there are laws, treaties, etc., etc., on the
book that may conflict. They never cite one.
I was trying myself to think about it. I can't even
speculate as to what kind of treaty or law on the books that
they refer to but never tell us what they are. It does seem,
and the ABA task force said, that if the President is going to
do something as important as say, I am not going to enforce
this law the way Congress meant to, he really needs to be
specific in terms of what he thinks it conflicts with or what
kind of situation he thinks could cause a problem.
Okay. Secondly, in most cases where even President Bush has
used these unitary executive signing statements in the past, he
has been defending, in his own view, his own turf, namely, the
executive power versus congressional encroachment upon that.
Here we have a very enigmatic role that he is taking on because
he has to admit that the preeminent role given by the
Constitution is to the Federal Government. It is not to the
executive alone.
Certainly within the Federal Government under Article I,
Section 8, the primary role is given to Congress in regulating
foreign commerce. So in effect, he is taking on a role of
defending Congress against Congress's own action, which is
somewhat strange. And I point only to the steel seizure case in
which Justice Jackson's famous soliloquy said that even where
there is any acknowledged shared power between the executive
and Congress, the executive power is at its lowest ebb, where
Congress has already legislated. And that is certainly true in
this case.
The third point is: It is unclear whether there can be a
judicial resolution here. Theoretically, the President would
have to move against the State if a State went ahead and
divested, and he thought that that was interfering with his
power. But it is very unclear in present law whether there
would be standing, who would have standing, whether the courts
would take such a case or not. So we don't have any clear case
where it will be settled by the courts.
And my last point is: Some people have said, well, signing
statements are not the problem. I mean, the President could go
out and make a speech tomorrow night at the Hilton and say the
same thing and it wouldn't be any constitutional problem. It is
the non-enforcement itself which poses the constitutional
dilemma.
Whether or not that is true, I want to point out that I
believe, having worked in the Federal Government, that as a
practical matter, signing statements do have real world
effects. They may, as some people have alluded, have a
deterrent effect because States don't want to have a lawsuit
even if they would win it eventually. Or we all know executive
officials in the Administration have many areas in which they
interact with the States and in which their ``benign-ness`` or
their antipathy could be very important in other areas. There
are all sorts of ways of leveraging power, and so the States
might have reason to worry about that.
I will conclude there.
[The prepared statement of Judge Wald can be found on page
53 of the appendix.]
The Chairman. Thank you very much, Judge. And we obviously
had a hard time restraining ourselves, so we will get back to
it.
We are also very pleased to be joined by Paul Schwartz, who
is a partner in Cooley Godward Kronish. People will note the
witnesses were put together so we have people who have been
primarily concerned with the specific subject, some legal
experts, and then a State official who is the intended target
of both our action and the signing statement.
Mr. Schwartz, please go ahead.
STATEMENT OF PAUL H. SCHWARTZ, ESQ., PARTNER, COOLEY GODWARD
KRONISH, LLP
Mr. Schwartz. Thank you, Mr. Chairman, Ranking Member
Bachus, members of the committee, and Representative Lee. I am
proud to be, in addition to a partner in Cooley Godward
Kronish, counsel to the Sudan Divestment Task Force. And I am
grateful for the opportunity to testify today concerning the
constitutionality of State and local divestment measures
authorized by SADA in light of the President's signing
statement.
Many people believe, Mr. Chairman, that targeted divestment
from foreign companies that provide the most direct support for
the government of Sudan is an essential tool in the fight to
end the genocide in Darfur and to protect the financial and
reputational interests of U.S. pensioners.
SADA serves the important function of ensuring that those
measures rest on solid constitutional ground. It does that by
giving State and local divestment measures that comply with the
terms of the statute the blessing of Federal law, thereby
making them part of the Federal Government's own policy
response to the genocide.
Despite signing the legislation, the President has tried to
unsettle the constitutional ground by suggesting that even
State measures explicitly authorized by Federal law might
``interfere with implementation of national foreign policy,''
and thus conflict with the Constitution's vesting with the
Federal Government of the exclusive authority to conduct
foreign relations.
In my view, the Administration's argument is without any
legal merit. Nevertheless, a risk exists that the signing
statement could create a misimpression among States and local
governments that are considering targeted Sudan divestment that
SADA does not effectively protect their actions. I hope,
therefore, that this hearing will reaffirm the solid
constitutional ground on which State and local measures
authorized by SADA rest.
The constitutional analysis, in my view, really is
straightforward. When the Federal Government properly enacts a
law, that law embodies policy of the United States. It is
policy of the United States. Consequently, when a law
authorizes State measures that touch on foreign affairs, the
Federal Government has expressed a judgment that the measures
do not impede Federal foreign policy but rather complement that
policy, are part of that policy. Accordingly, such measures
cannot violate the constitutional principle that States may not
unduly interfere with Federal foreign policy.
And that is particularly so, I submit, when, as here, the
President actually signs the legislation. As Judge Wald
explained, Article I, Section 7 of the Constitution, the
presentment clause, tells the President exactly what he must do
when Congress passes a bill. If he approves it--``approve'' is
the word that the Constitution uses--he shall sign it. But if
not, he shall return it, in other words, veto it.
By signing SADA, therefore, the President, in the words of
the Constitution, approved it. It is especially difficult to
see how a State action can be an unconstitutional interference
with Federal foreign policy when it has been approved not only
by Congress but by the President as well.
In neither the Zschernig case nor the Garamendi case from
the Supreme Court, two cases that the Justice Department has
cited in a letter for the Administration's position--in neither
one of those cases did the Supreme Court hold that State
measures authorized by Federal law could somehow constitute an
unconstitutional interference with U.S. foreign policy.
The Administration again in this Justice Department letter
from October 2007 seems to take the position that because
Article II of the Constitution confers on the President certain
powers to conduct foreign affairs, that Executive Branch
policies with respect to foreign relations somehow can trump
even properly enacted Federal law like SADA.
That is not so. In our constitutional system, Congress,
too, plays an important role in foreign affairs, especially
when, as with investments in and divestment from foreign
companies, it involves the regulation of foreign commerce.
The President's signing statement does nothing to change
this constitutional analysis. Presidential signing statements
do not have the force of law. They are simply statements of
opinion. In my view, in this case, that opinion is wrong.
Because SADA reflects the explicit policy judgment of the
Federal Government, articulated by Congress and approved by the
President, State and local divestment measures that comport
with the statute also comport with U.S. policy regarding Sudan
and the genocide, States and local governments should feel
confident that their actions are fully consistent with the
United States Constitution.
Once again, I thank the committee, and I look forward to
answering your questions.
[The prepared statement of Mr. Schwartz can be found on
page 43 of the appendix.]
The Chairman. Thank you, Mr. Schwartz.
And finally, a very important witness, my new neighbor,
Frank Caprio, who is the general treasurer of the State of
Rhode Island, and very much in the forefront of this movement,
and is one of the State officials who has really been put in
the vortex of this by whatever conflict might have arisen from
the signing statement.
Treasurer Caprio, please.
STATEMENT OF THE HONORABLE FRANK T. CAPRIO, GENERAL TREASURER,
OFFICE OF THE RHODE ISLAND GENERAL TREASURER
Mr. Caprio. Thank you, Chairman Frank, and I hope you are
over the loss of the Patriots on Super Bowl Sunday. We are
still suffering the effects in Rhode Island.
The Chairman. I know. But I have regained the ability to go
up and down Route 1, so that is a compensation.
Mr. Caprio. Chairman Frank, Ranking Member Bachus, and
Representatives Lee, Watts, and Green, it is an honor to be
here today with you.
Chairman Frank, I especially liked your reverse Houdini
story today. I grew up in a household where I was one of five
children, and my mom--her affectionate nickname from my dad was
Houdini because whenever there was any extra money in the
household, it disappeared. My dad would say she pulled a
Houdini. But really, she was spending it on the kids. She
wasn't spending it on herself. But it was a very common
discussion in the household of how Houdini made the money
disappear.
My name is Frank Caprio, and I am chairman of the State
Investment Commission of Rhode Island and the elected General
Treasurer of Rhode Island. As a fiduciary of a State that
successfully passed divestment legislation in June of 2007, I
am here before you today to thank you for passing the Sudan
Accountability and Divestment Act, and to highlight the aspects
of the Act that are important to the States, Federal
authorization of divestment and protection from litigation.
In the most basic sense, divestment from Sudan represents a
choice by the State to invest its money in concert with the
value of its citizens. Accordingly, States possess both the
right and the capacity to invest based on social, humanitarian,
and financial values, as long as those decisions are consistent
with prudent investment standards. The targeted approach to
divestment followed successfully in Rhode Island and in other
States addresses these concerns while upholding rigorous
financial standards.
Having passed this recent act, Congress is well aware that
targeted divestment works. To see proof, you need not look
further than the recent withdrawal from the Sudan of European-
headquartered powerhouses ABB and Siemens, who cited divestment
as their motivation. And last spring, while we in Rhode Island
were considering our State act, which was signed into law,
Rolls Royce, PLC withdrew from the Sudan.
It is becoming obvious that investment in a regime
committing genocide carries too high a risk to justify the
pursuit of doing business in such a region. These companies'
actions are tremendous victories, and a call for the States to
continue on this course. The passage of this Act serves to
create a divestment framework, end ambiguity, and galvanize the
States' rights to act in their own financial as well as
humanity's best interests.
The President's murky signing statement reinstates the fear
of legal action that this Act was intended to remove. It is
counterintuitive that an Act which intends to end ambiguity on
the issue of Sudan divestment would be accompanied by a
presidential statement that opens the very door to the
ambiguity by placing the Act at the President's potential
discretion.
If we truly seek to protect commerce in the face of
divestment, then we must uphold the tenets of this Act to its
highest degree, ensuring the enforcement of a uniform
procedure. We cannot afford to take an ambiguous stand on the
genocide in Darfur.
In conclusion, Mr. Chairman, the Sudan Accountability and
Divestment Act of 2007 displays the Federal Government's power
to enable States to join a collaborative movement, allowing
even the smallest State in our Nation like Rhode Island, even
though our pension fund is over $8 billion, to leverage the
collective strength of this great union to put an end to one of
the generation's greatest genocides.
Thank you for your time.
[The prepared statement of Mr. Caprio can be found on page
36 of the appendix.]
The Chairman. Thank you, Treasurer Caprio.
I just want to say this bill, it seemed like a simple idea,
even to me. And it took a lot of work to get it into this form.
And I just want to acknowledge the staff--on Congresswoman
Lee's staff, Christos Tsentas, as they began the bill; Jim
Segel, Dan McGlinchey, and Deb Silberman of the Democratic side
on the Financial Services Committee; and Joe Pinder and Anthony
Cimino on the Republican side. I think one of the reasons we
got a signing statement is that the bill was pretty
unassailable in any other way. So we take some pride in that.
I am now going to begin with our colleague from California,
who has a plane to catch. And so the author of the bill, the
gentlewoman from California, is recognized for 5 minutes for
questioning.
Ms. Lee. Thank you very much, Mr. Chairman. And I
appreciate you allowing me to ask this question because I do
have to leave for California. But this was such an important
hearing today. And I want to thank you again, and Mr. Bachus,
for holding this. This is so important in oversight and in
making sure that the people of Darfur somehow, someday,
hopefully sooner rather than later, are able to live their
lives, and those who are still alive return home.
First, let me just say, Judge Wald, you mentioned the
signing statement dealing with the tax money as it relates to
establishing permanent bases in the National Defense
Authorization Act, which I mentioned in my opening statement. I
hate to say, I really could take this personally but I won't
for the present.
These are both my provisions, one, my ``no permanent
bases,'' which we have been working on for years. It has been
written into, I think, the law at least 8 times, into
appropriations and authorization bills. And we have worked in a
bipartisan way to make sure that the President understands the
will of the American people. And he--again, a signing statement
on that, and now here on SADA.
So it is quite amazing to me. And I wanted to just ask you,
or Mr. Schwartz, or both of you: Mr. Schwartz, you mentioned
that you believe that this had no force of law but was a
statement of opinion, in terms of the signing statements.
But I guess how do we ensure that the statements of opinion
don't begin to subvert the law? And as I said in my opening
statement, I think this is a very cynical attempt to undermine
and subvert the law. But how do we make sure that doesn't
happen, or do you think that is the reason for some signing
statements, especially this one?
Mr. Schwartz. Well, I think that is a very difficult
question, Representative Lee. I can't speak for the
Administration. I certainly would not attempt to speak for--
The Chairman. But we might as well try. They refused.
[Laughter]
Mr. Schwartz. I will pass. But the only way to get true
resolution of the legal issue, the constitutional issue, is
litigation and a resolution by the courts. I think that would
be unfortunate. I think that is unnecessary. And I think
perhaps that is one of the reasons that the Administration is
not here today defending their legal position. In my view, the
position is indefensible.
What you are really asking is: How can we protect against
the practical--not the legal so much, but the practical--
consequences, if any, of the signing statement? I don't have
the answer to that. I am not sure that the ABA task force has
the answer to that, although the ABA task force has
recommendations. And perhaps Judge Wald will speak about that.
I do think that proceedings like these, statements by the
Congress making clear that the President's view of the
constitutionality, or purported view of the constitutional
issues, is not the view of Congress and not the view of the
House and not the view of the committee with respect to these
constitutional issues, may help.
But ultimately, in the case of SADA, I believe that the
constitutional analysis sort of will stand on its own and
should stand on its own. And that is why I am hopeful and I am
confident that States and local governments considering
divestment measures who might be deterred by the President's
signing statement will look at the analysis, and it will be
sufficiently clear to them that the President is wrong. And if
they have any questions, I am happy to help explain it.
Judge Wald. I certainly agree with my colleague here that,
as Learned Hand once said, litigation is to be eschewed at all
costs if possible. However, I do think--I am sure that the
members of the committee are aware that there are several
pending bills in both houses--I don't know how far they have
gone along--which would allow the Congress to litigate the
signing statement itself before the President has attempted to
carry it out in any way. How far they will go and whether or
not the courts will say that they in turn are constitutional as
presenting a case in controversy remains to be seen.
I do agree that one of the really tricky and unfortunate
things about the signing statement is that when the President,
as the chief executive, says something and says, this is a
terrible law; I signed it, but it is unconstitutional and I am
not going to enforce it, that does send a message down through
the bureaucracy and through the executive officials. And that
is really the unfortunate thing about signing statements.
So the only way to combat that short of getting actually a
court to say no, it is constitutional is, I think, through the
reinforcement you suggested of your own resolutions, perhaps
many of the States, such as the prior witness, reaffirming
their belief that Congress has laid down the law. And I might
say that this signing statement, as with most of the other
constitutionally based signing statements, is an attempt by the
executive to empower itself in those areas to pick and choose,
cherry pick in a law, when they will enforce it, when they will
not, and not to tell you about that beforehand.
I think that goes against certainly the spirit as well as
the letter of the Constitution because this has arisen, as you
well know, with the FISA legislation, with several other pieces
of legislation that Congress passes where the executive says,
``Ah-hah, you can pass a law, but I have this residual power
back there. So I will decide when to enforce it or not, and I
won't tell you ahead of time when that is likely to be.''
So I think that this current experience with 800 of these
in two terms should galvanize both the legal profession, the
States in this case and Congress itself, to reinforce their
belief that is not the way the Founding Fathers meant to run
the government under the Constitution.
The Chairman. Thank you very much. What you were saying,
Judge Wald and Mr. Schwartz, in your answers completely
summarizes. That is exactly where we are. We didn't have this
hearing idly. We had it because we are worried about the
signing statement's impact because we are talking here about
encouraging people and not discouraging people. And it may be
our move.
The gentleman from Alabama.
Mr. Bachus. Thank you. This question is for the whole
panel. There was a Reuters article yesterday that OFAC, Office
of Foreign Assets Control, had announced they are going to
institute civil actions against many companies they say have
breached U.S. sanctions against doing business with the
Sudanese government. And they are going to be able to impose
fines up to $2 million. Prior to the legislation, I think the
limit was $50,000.
I have two questions. Number one, do you think that will be
an effective tool against companies doing business with Sudan?
Well, and the second one you can comment at the same time.
It is my impression that the United States has really been in a
leadership role of applying sanctions. I know other countries
have been aggressive, too. And then other countries have not
been at all, including China. But how do you see number one,
OFAC's actions, as being a positive? And number two, how is the
rest of the world responding to the genocide?
Mr. Caprio. I could respond to that as chair of a fund, an
institutional investor. The more exposure that is given to the
entities that are doing business in the Sudan, the better.
Right now the legislation that we passed in our State and the
Federal legislation is going after the worst offenders.
But if we can highlight across the board companies that are
materially doing business there, maybe not to the level of some
of the goliath multinational entities, but now those entities
will shift from--the entities that you are citing will shift
now into a different category that will allow institutions like
us to then take action. So I welcome the scrutiny that they are
going to receive.
Mr. Bachus. And I didn't know if the panel was aware of
OFAC's actions. Treasury has actually taken action. I hadn't
seen any encouragement or participation of the State
Department. But it seems almost as if even the two departments
of the executive branch are going in two different directions.
But are there any other comments?
Mr. Schwartz. I would just make two points, Ranking Member
Bachus. One is that the genocide obviously is an extraordinary
horror that requires extraordinary measures, as I understand
it. The Sudan Accountability and Divestment Act was not
intended to be a replacement for existing Federal sanctions but
a supplement to it. So any enforcement of sanctions and
ratcheting up of sanctions is a positive development.
Secondly, although this is not my area of expertise, I do
know that my client, the Sudan Divestment Task Force, has been
very active in moving its efforts overseas as well, or I should
say expanding its efforts overseas. And there is a lot of work
going on in Europe now.
I would say they are probably behind where we are in the
United States in terms of the divestment movement. But the
divestment movement is ratcheting up and moving with our
European allies. As well, there have been statements made by, I
believe, the European parliament in the last year supporting
targeted divestment. And so it does need to be a worldwide
effort.
Mr. Fowler. If I could just add a couple of things to that.
I think as important as divestment is, and it is very
important, it has got to be part of concerted economic pressure
against the government of Sudan. And sanctions are one part of
that. So vigorous enforcement of the unilateral sanctions that
the United States already has announced is very, very
important. And civil actions would be part of that.
The second thing that I would want to say is that, as you
point out, other countries have lagged behind the United
States. And that is one of the things that is so negative about
the signing statement, as I mentioned in my opening remarks, is
the ambiguous signal that it sends to the rest of the world for
the President to sign the legislation and then cast doubt on it
at the same time.
And the irony of it is, and my friend Adam Sterling, who is
here behind me from the Sudan Divestment Task Force, has said
this many times, is that before this legislation was passed,
the Administration never suggested it was going to act against
States or municipalities for divesting. So it is implausible to
think that they will do it now. And in that sense, the signing
statement is unnecessary damage to the whole cause.
Then the final point I would make, which picks up on what
Paul just said, is that internationally, there is a growing
movement. More diplomacy is needed by the United States. But in
terms of civil society, the Save Darfur Coalition and other
groups here in the United States are working with partners in
other countries to bring more pressure to bear on their
governments. And that is going to be a very, very important
part of the effort going forward.
Judge Wald. The only additional comment I would make is
that I think the financial is going to be increasingly
important because according to what I hear and read in the
papers, the U.N. attempt to set up the military force, a
multinational military force, has faltered.
Here the Americans have been better than most of the other
countries. They have actually been willing to contribute and
have contributed, not only manpower but equipment. But it has
been a very slow process trying to get the other countries to
contribute the helicopters or any equipment.
So it may be that the burden, at least for a while, is
going to lie on the financial end.
Mr. Bachus. Thank you.
The Chairman. I am going to call on my colleague, Mr.
Green. But let me say I appreciate the gentleman's calling our
attention to this article. I asked for a copy of the article.
It is just an interesting timing issue here.
``U.S. Prepares to Act Against Sanction Busters.'' And this
is an announcement that they plan to take some action in a
month or two. I am sure they do. I am also sure that the fact
that they now decided in a month or two was not entirely
unrelated to the fact that we are here this morning.
So I welcome that, and maybe we will have some more
hearings, and maybe they will do more things. But it is clear
as you read this that they are waiting for the regs, and in a
month or two they are going to do some things.
The gentleman from Texas.
Mr. Green. Thank you, Mr. Chairman. I, of course, thank you
and the ranking member for having this hearing.
And I would like to make it as clear as possible,
conspicuously so: I do not question the motives of the
President. I think that people with the best of intentions can
do bad things. I don't think that this was done with malice
aforethought. But I do know this: If a person pulls out a gun
and he kills me, whether it is by accident or design, I am
still dead.
We are dealing with life and death in Sudan. Because you
have the right to do it doesn't mean that it is the right thing
to do. It was morally wrong. Whether it was legally right is
debatable. It was morally wrong for the President to obfuscate
this issue with this signing statement when lives are at risk.
Constitutional scholars can debate these issues ad
infinitum. But the moral question is what I contend the
President will have to answer for, the morality of, at a time
of death, when people--I have been to Sudan--when people are
literally living on the ground in villages where they don't
have water, where they don't have the necessary cover from the
elements, and where people are being raped--it is morally wrong
for the President to do this.
And I stand by what I said. He really is not going to be
judged kindly by history. And I appreciate all those who have
contrary views, and their friendship is still valued. I still
love the President, as a matter of fact. He is a friend. This
will not change how I feel about him. It will change how I feel
about what he has done here.
I condemn the actions, not the man. His actions are going
to create a circumstance that we need not have to deal with.
And I yield back the balance of my time.
The Chairman. I thank the gentleman. We don't know whether
it will interfere with the way he feels about the gentleman,
but that is the nature of this business.
I am going to take some more time here. I appreciate very
much this testimony. I have two sets of questions. One, of
course, deals with the specificity of the impact of the signing
statement on this cause, and then on the broader constitutional
question.
Let me say, in furtherance toward what the gentleman said,
I do not believe that this indicates any less interest in the
Administration's view in trying to combat the genocide, taken
by itself. And indeed, the fact that we got a statement today
from the Treasury Department, from OFAC, announcing that in a
month or two they are going to take further action, without
question that was generated by the need to offset any negative
impression that this hearing would cause.
And I accept that fact. They continue to care a lot about
that. The problem is the order of priorities. This is an
Administration that cares more about enhancing executive power
than about the specific issue. And the problem is, judged in
the abstract, yes. They are very concerned about the genocide.
But when it comes to protecting the supremacy not of the
Federal Government but of the presidency, then everything else
gets subordinated. That is what is involved here.
And if you read this, it is clear. And this goes to the
point I think Mr. Fowler made that, well, why didn't they
object when some States did this on their own? Because that did
not codify what they saw as a threat to executive power in the
United States. It is when we recognize that--and of course,
States on their own can't immunize themselves from Federal
lawsuits.
And again, I have to stress the irony of some of the
Administration papers here saying, oh, but you don't want to
take the rights away from the poor investors. I will tell you
because this committee has jurisdiction over that, in the time
that I have been ranking member and chairman, this is the first
time that I can remember this Administration asserting any
concern for anything that might diminish investor rights to
protect themselves. They have been on the opposite side of
every such issue.
But what is clear is--and Mr. Fowler's point makes it very
well. They don't object to the States doing that on their own
because no real harm is being done. But they interfere with
this bill's effectiveness because the passage by this Act--and
it is not--and I think this is the other important point I want
to make, and Mr. Fowler's point,I think, carries this out.
Their arguments conflate the federalism argument versus the
executive versus legislative argument. Judge Wald correctly
pointed out that they are using the unitary executive argument
really to argue against Congress, not within the
Administration.
If this bill gave the head of OFAC the statutory power to
make these decisions, then there would be a unitary executive
argument. It would be an argument that we had lodged power in
an inferior officer, and that undercut the President's ability
to make that decision.
But obviously we don't do that. So I think this is very
clear. This is concern about presidential power because--and
this notion that it violates the supremacy clause is just mind-
boggling. How can it violate the supremacy clause, which
protects the supremacy of laws passed by the United States,
when we have passed a law and when we have done this
delegation? So we are clearly talking here about executive
versus legislative. This is what is at stake. And that sadly
has trumped the genocide issue.
So let me just ask again to Mr. Fowler and Mr. Caprio. And
again, I want to stress to people, this is no minor quibble. As
we in our frustration as a Nation search for ways more
effectively to try to save the innocent victims in Darfur from
murder and torture in huge numbers, we listen to the people who
have been in the forefront, the people in the coalition.
Mr. Fowler, am I correct that this was as high a priority
that your group had for Congress to act on this past year?
Mr. Fowler. Well, yes. For congressional action, SADA was a
priority.
The Chairman. Yes. For us. Right. Obviously, there are
other things the executive can do.
But in fact, that underscores the point. This still leaves
the executive in major control of this operation. This does not
empower us. We don't have delusions of grandeur here that by
passing this Act, we have suddenly run rushing to the rescue.
We wish we could. So it is a fairly minor addition to the
arsenal, but it was the best we could do.
And let me just ask again to Mr. Caprio, to make it
explicit. You have talked about this. Clearly, when--well, let
me ask: When you worked with your colleagues in the Rhode
Island legislature to pass the divestment bill, what kind of
opposition did you get?
Mr. Caprio. Minimal if any opposition. It was unanimously
passed on both sides of the legislature and signed by the
governor.
The Chairman. Were there any arguments aimed at you? Did
you hear from anybody who said, well, you have these fiduciary
responsibilities?
Mr. Caprio. No. We had widespread support in the community
and--
The Chairman. Well, that is encouraging. We have heard from
others, though, for instance in the mutual fund area, that they
are concerned. And Mr. Schwartz and Judge Wald summarized this
well.
The purpose of this bill is to encourage people not to be
intimidated by the threat of lawsuit. That is all the bill
does. And so when the Administration asserts its right to
undercut it, it undercuts the heart of the bill, which is the
protection against lawsuits.
And as I said, I think it is clear that it is this
Administration's relentless insistence on enhancing executive
power beyond any conception that has previously been here. And
Judge Wald is right. She said the unitary theory of the
executive.
I was debating on the Floor when we were talking about
whether or not, if Congress passed a law requiring search
warrants for wiretaps of Americans, whether that would be
binding on the President. I must say, when I first came here,
the notion that we would be debating whether an act of Congress
signed into law was binding on the President seemed kind of
remote.
And I was told by one of my Republican colleagues that it
did violate the Constitution, our effort to bind the President,
because it violated the unitary theory of the executive. And I
thought I knew the Constitution pretty well, but I couldn't
remember what that was.
So I asked. I asked him, well, where in the Constitution is
this unitary executive? He didn't know. They had not briefed
him appropriately. And they were all whispering in his ear,
which never helps when you are trying to say something. They
are whispering in your ear. You better know it before then.
So I was standing at the podium, and I said to a page,
would you bring me a copy of the Constitution? We have it in
Jefferson's manual. And I looked it up, and there it was. And
it says, the executive powers of the United States shall be
lodged in the President. That is from which all this comes.
And as Judge Wald made clear, that has no logical,
conceivable argument about the right of the President vis-a-vis
anybody else--vis-a-vis the States, vis-a-vis the Congress, or
the courts.
And so out of that very common, very sort of commonplace,
the executive powers shall be lodged in the President, we get
this very broad assertion of power. And now we see what it
means. It is powerful enough, their insistence on preserving
this and diminishing the power of the Congress. And that is
what this is aimed at, not so much the States. They want to
diminish the powers of the Congress.
So let me ask our two legal representatives here, Judge
Wald and Mr. Schwartz: As you read this, am I correct? They
make a federalism argument, but they also make a separation of
powers argument. My view is that the federalism argument is not
the real argument, that in fact that collapses.
And in part I guess what they do is they can make a
federalism argument only because they identify the Federal
Government with the president, so that--I mean, if the Federal
Government consists of, for the law-making powers, the
President and Congress together, there is no federalism
argument because it is an act of Congress.
But they convert their separation of powers into a
federalism argument by the strength of their separation of
powers argument. The Federal Government is, for these purposes,
only the President, and therefore it becomes the supremacy
clause.
I would ask you to comment on that. Judge?
Judge Wald. I agree with your analysis. And I think even if
you look at--parse the wording of the signing statement, the
last couple of lines, it says, ``However, as the Constitution
vests the exclusive authority to conduct foreign relations with
the Federal Government.'' That is--the Federal Government
consists of three branches, but relevant here are the two
political branches, the President and the Congress.
Then it jumps logically and says, ``Because foreign
relations is with the Federal Government''--that is the
president and Congress--``the Executive Branch shall construe
and enforce this legislation so it doesn't conflict with that
authority.''
So it jumps from the fact that the power is in the
Constitution in two branches to one branch shall decide, shall
make the decision as to whether or not there is going to be any
conflict, both as to federalism and as to the inter-branch
between Congress and the President.
So it doesn't logically follow. It is mixed there. But I
think the intent is clear. I think you are right. This is a
situation where it is another in 801 statements about the
plenary--almost plenary power of the executive.
And just one last thought. Perhaps one reason why you are
not getting any official representative at this hearing and why
they would like to talk to you privately reinforces the notion
that you would be doing the right thing by keeping this front
and center publicly, both through hearings and through
resolution because I think it is probably going to be
embarrassing for the Administration to have to come forth and
oppose this publicly with reasons, none of which we really have
gotten so far.
I think they probably are well aware of the sentiments.
Perhaps it will make them rethink, as Representative Green
suggests. But if not, it will at least put it out front and
center, and there certainly will be public reaction to the fact
that they won't debate this out on the merits, whatever their
position is.
The Chairman. Thank you. I appreciate that analysis of the
signing statement. That was what I was getting at. I hadn't
made that particular connection, but you are very clear.
The signing statement begins by asserting Federal power,
and then sub silentio converts that into--
Judge Wald. Into executive.
The Chairman. --the President. So the federalism argument
falls away. It is a presidential supremacy argument. And as
somebody mentioned, when we talk about foreign commerce, that
is one where Congress in fact is given constitutional powers.
Judge Wald. Preeminently. Right.
The Chairman. So even the constitutional justification on
foreign policy can't bear out.
Mr. Schwartz?
Mr. Schwartz. Yes. I would just add that I think--I
certainly agree with the chairman and Judge Wald on this point.
I think another place that we see the point is in the Justice
Department's October 26, 2007, letter to the Senate, at page 3.
This is really the letter where the Administration's legal
argument is set forth in somewhat greater detail.
The Chairman. But actually, if you notice, it is addressed
to the Honorable Richard Cheney. I think they persuaded him.
Mr. Schwartz. I understand. It says, ``Dear Mr.
President,'' that as well, President of the Senate.
But it goes on to say at page 3--and this I view as to be
the heart of the Administration's argument--Section 3 of the
bill, which is the State divestment authorization, by its
terms, the Department of Justice concedes, ``could remove the
threat of the direct statutory or Article I foreign commerce
clause preemption on which the Supreme Court relied in the
Crosby case.''
So that really goes to the point that you were making, Mr.
Chairman, with respect to ordinary preemption under the
supremacy clause. I think you noted that argument was made by
the State Department that there is a supremacy clause problem
here. This statement by the Justice Department acknowledges
that authorization through an act of Congress logically removes
any supremacy clause or preemption.
The Chairman. I am glad you called attention to that
because then the following--
Mr. Schwartz. Then the next sentence is really where the
rubber meets the road.
The Chairman. Yes. You want to read that one, too?
Mr. Schwartz. Sure. ``But it is by no means clear that
Section 3 of the bill would, or that Federal legislation could,
remove any Federal preemptive force that flows from the
Constitution's grant to the President of certain foreign
affairs powers under Article II.''
So that is really what this argument is all about. And I
submit that there are numerous Supreme Court cases, I count the
Steel Seizure cases, in which the Supreme Court held that
President Truman, notwithstanding his Article II powers as
commander in chief--
The Chairman. During wartime, in fact, the most powerful.
Mr. Schwartz. Correct--could not trump a Federal statute
that was enacted pursuant to--
The Chairman. What I also appreciate, which I think you
mentioned, the foreign commerce power is specifically given to
Congress. And we are talking here about commerce. We are not
talking about foreign relations in the natural sense. We are
not telling them whether they can or can't send an ambassador
to Sudan, or how to vote in the U.N. It is regulation of that.
So this is just--I appreciate both of you pointing these
things out. It becomes very clear. This is an insistence on
enhancing executive power and diminishing Congress posing as
federalism when there is no federalism.
And I guess the final question--because they--it is
interesting that the State Department cites the supremacy
clause and Justice cites some of the other--basically what we
gave--maybe I am a little bit reassured. It is State that gets
the Constitution blatantly wrong and Justice that gets the
foreign policy blatantly wrong. So at least they make their
major errors in the other area.
But here is one statement from Justice. And I think it is a
red herring, and I would ask the two lawyers to respond to
this. It is a reference to--oh, I had it and lost it again.
They worry that a State might pass a preemption statute that
explicitly conflicts with the Federal statute. If that
happened, what would be the clear result? Judge?
Mr. Schwartz. If--
Judge Wald. Go ahead.
The Chairman. If a State were to pass a divestment statute
that specifically contradicted a Federal law, what would
happen?
Mr. Schwartz. I believe it would be unconstitutional under
the supremacy clause.
Judge Wald. And a court would so hold it, probably.
The Chairman. Yes. That is the red herring. I mean, one
thing they say is, well, suppose under this bill a State passed
a law that conflicted. And the answer is, the supremacy clause
wins and it is out there. So it is clear this is just about the
executive.
Let me just summarize. I was very pleased by my colleague
from Alabama, who has been very strong on this. And actually,
the gentlewoman from California, Ms. Waters, and I joined him
and the former chairman of this committee, Mr. Leach, in
frankly opposing the Clinton Administration's Treasury
Department in pressing for debt relief when they thought it was
imprudent, particularly for Africa. He is, I think, returning
that consistency to principle here.
We really do want to say to the Administration, and I know
that they are not talking but they are listening: The fight
over executive power can really be fought elsewhere. Please, is
my plea to the President, do not undercut our effort here to
increase our ability to protect the people of Darfur by
dragging this bill into that battle.
This is little enough to do. Every one of us is anguished
by our inability to do more. But to undercut whatever this bill
can do by dragging it into this fight over executive versus
congressional power is unseemly. It is simply a refusal to
exercise some moral discretion.
There are plenty of areas in which we can fight between us,
the Executive Branch and the Legislative Branch, about power.
Let's not let the poor people, the victims of murder in Darfur,
be dragged into this battle.
And I know my colleague from Alabama intends to have some
further conversations with the White House. If necessary, I am
in favor of a resolution. Let every member of the House stand
up, and our friends from the Save Darfur Coalition will be
there, to say: Do not undercut this bill.
But that oughtn't to be necessary. I don't think the
Administration was thinking primarily of undercutting the
Darfur situation. I think they ignored the fact that it could
do it. A clarification that they in no way intended to vitiate
the bill could be very helpful, and it could avoid further
action. But if we don't get that, then there will be further
action.
I thank the panel. This has been very useful. And it is not
the last word on this subject, but I hope it is the next to
last word because I hope the last word will be from the
Administration clearing the thing up.
The hearing is adjourned. And of course, anyone who wishes
to submit--any of the members or any of the members of the
panel who wish to submit further information may do so.
[Whereupon, at 12:04 p.m., the hearing was adjourned.]
A P P E N D I X
February 8, 2008
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