[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


                                     

                         [H.A.S.C. No. 110-129]
 
 THE IMPACT OF THE PRESIDENTIAL SIGNING STATEMENT ON THE DEPARTMENT OF 
   DEFENSE'S IMPLEMENTATION OF THE FISCAL YEAR 2008 NATIONAL DEFENSE 
                           AUTHORIZATION ACT

                               __________

                                HEARING

                               BEFORE THE

               OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              HEARING HELD

                             MARCH 11, 2008

                                     
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               OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE

                     VIC SNYDER, Arkansas, Chairman
JOHN SPRATT, South Carolina          W. TODD AKIN, Missouri
LORETTA SANCHEZ, California          ROSCOE G. BARTLETT, Maryland
ELLEN O. TAUSCHER, California        WALTER B. JONES, North Carolina
ROBERT ANDREWS, New Jersey           JEFF MILLER, Florida
SUSAN A. DAVIS, California           PHIL GINGREY, Georgia
JIM COOPER, Tennessee                K. MICHAEL CONAWAY, Texas
HANK JOHNSON, Georgia                GEOFF DAVIS, Kentucky
JOE SESTAK, Pennsylvania
                Greg Marchand, Professional Staff Member
                Thomas Hawley, Professional Staff Member
                Roger Zakheim, Professional Staff Member
                    Sasha Rogers, Research Assistant


                            C O N T E N T S

                              ----------                              

                     CHRONOLOGICAL LIST OF HEARINGS
                                  2008

                                                                   Page

Hearing:

Tuesday, March 11, 2008, The Impact of the Presidential Signing 
  Statement on the Department of Defense's Implementation of the 
  Fiscal Year 2008 National Defense Authorization Act............     1

Appendix:

Tuesday, March 11, 2008..........................................    39
                              ----------                              

                        TUESDAY, MARCH 11, 2008
 THE IMPACT OF THE PRESIDENTIAL SIGNING STATEMENT ON THE DEPARTMENT OF 
   DEFENSE'S IMPLEMENTATION OF THE FISCAL YEAR 2008 NATIONAL DEFENSE 
                           AUTHORIZATION ACT
              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Akin, Hon. W. Todd, a Representative from Missouri, Ranking 
  Member, Oversight and Investigations Subcommittee..............     3
Snyder, Hon. Vic, a Represenative from Arkansas, Chairman, 
  Oversight and Investigations Subcommittee......................     1

                               WITNESSES

Fein, Bruce, Constitutional Attorney, Bruce Fein & Associates, 
  Member, American Bar Association Task Force on Presidential 
  Signing Statements.............................................     9
Halstead, T.J., Legislative Attorney, American Law Division, 
  Congressional Research Service.................................     5
Kepplinger, Gary L., General Counsel, U.S. Government 
  Accountability Office..........................................     7
Rosenkranz, Nicholas Quinn, Associate Professor of Law, 
  Georgetown University Law Center, Washington, DC...............    12

                                APPENDIX

Prepared Statements:

    Akin, Hon. W. Todd...........................................    45
    Fein, Bruce..................................................    87
    Halstead, T.J................................................    48
    Kepplinger, Gary L...........................................    70
    Rosenkranz, Nicholas Quinn...................................    95
    Snyder, Hon. Vic.............................................    43
    Tierney, Hon. John F. joint with Hon. Thomas H. Allen........   108

Documents Submitted for the Record:
    [There were no Documents submitted.]

Questions and Answers Submitted for the Record:
    [There were no Questions submitted.]
 THE IMPACT OF THE PRESIDENTIAL SIGNING STATEMENT ON THE DEPARTMENT OF 
   DEFENSE'S IMPLEMENTATION OF THE FISCAL YEAR 2008 NATIONAL DEFENSE 
                           AUTHORIZATION ACT

                              ----------                              

                  House of Representatives,
                       Committee on Armed Services,
                 Oversight and Investigations Subcommittee,
                           Washington, DC, Tuesday, March 11, 2008.
    The subcommittee met, pursuant to call, at 12:06 p.m., in 
room 2212, Rayburn House Office Building, Hon. Vic Snyder 
(chairman of the subcommittee) presiding.

  OPENING STATEMENT OF HON. VIC SNYDER, A REPRESENTATIVE FROM 
 ARKANSAS, CHAIRMAN, OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE

    Dr. Snyder. The hearing will come to order.
    Good afternoon. We appreciate you all being here today.
    Our hearing topic today is on the impact of the 
Presidential signing statement on implementation of the 
National Defense Authorization Act for Fiscal Year 2008. And by 
far, though, our concern about this issue is as we look ahead 
to future defense bills, as Mr. Skelton is here with us, 
looking at how is this going to impact on the drafting of this 
year's defense bill.
    I want to read this Presidential signing statement that the 
President issued on January 28, 2008, when he signed the 
National Defense Authorization Act for Fiscal Year 2008.
    ``Today I have signed into law H.R. 4986, the National 
Defense Authorization Act for Fiscal Year 2008. The act 
authorizes funding for the defense of the United States and its 
interests abroad, for military construction and for national 
security-related energy programs. Provisions of the act, 
including sections 841, 846, 1079 and 1222, purport to impose 
requirements that could inhibit the President's ability to 
carry out his constitutional obligations to take care that the 
laws be faithfully executed to protect national security, to 
supervise the executive branch and to execute his authority as 
commander in chief. The executive branch will construe such 
provisions in a manner consistent with the constitutional 
authority of the President.'' And that is the end of this 
statement.
    Two things come to mind. First, there is no detail there at 
all about any of those four provisions, about what that means. 
There is no guidance to this committee, as drafters of the 
defense bill, and so we are hoping to have some insight today 
from this hearing on what that means.
    And then the second concerning provision--the President's 
statement clearly says ``provisions including these four'' and 
with the clear statement being that perhaps there are another 
500 provisions, perhaps there are another three provisions. It 
is not clear from the statement what that means.
    Because of the statements contained in the signing 
statement, Chairman Skelton requested that this subcommittee 
hold a hearing to ask a simple question of the Department of 
Defense: Are you implementing or planning to implement the law, 
this fiscal year defense bill, as Congress wrote it? 
Unfortunately, DOD declined to provide a witness for today's 
hearing.
    We also invited the Department of Justice Office of Legal 
Counsel, but they declined, as well, because they don't testify 
about specific provisions of law.
    We are not the Judiciary Committee. Probably nobody here 
wants to be in the Judiciary Committee. We are here because we 
like working on defense issues, and we think it is very 
important, writing defense bills. But we need some guidance 
about what does this mean for future drafting of this bill.
    I am a little bit--Dr. Gingrey and I had the great honor 
last night of flying down and witnessing the launch of the 
space shuttle, which may account, if you see he or I nodding 
off, since we arrived back in D.C. at 6:30 this morning after 
being up all night.
    It was the second one I went to. The first one I went to 
was when Eileen Collins was the shuttle commander. And the 
thing fired up, and with, I don't know, just a few seconds to 
go, it just shut down, because somebody had seen something and 
pushed a button that said ``stop.'' And we did not see the 
launch. That was eight or nine years ago.
    Last night, we were watching it. It was just spectacular, 
and it went without a hitch. And it was just a wonderful thing 
to see.
    But it seems to me that, you know, nobody at NASA put a 
stick-em note on the side of the space shuttle last night 
saying, ``I may have concerns about this. I will let you know. 
There are a million-plus moving parts in that thing; we have a 
problem with three of them. We will let you know what those are 
down the line.'' It is either go or no-go. And we are trying to 
come to some edification about how do we make our defense bill, 
which we all care about on this committee, be a ``go'' 
situation.
    We are pleased to have Mr. Skelton here with us today. 
There is a lot of interest in these issues.
    Mr. Tierney and Mr. Allen, who had worked on one of these 
provisions, the stand-alone bill which Mr. Skelton included in 
the underlying defense bill, the wartime contracting 
commission, are very concerned about it, since one of the four 
provisions is their wartime contracting commission bill. And I 
would ask unanimous consent that Mr. Tierney and Tom Allen's 
statement be included as part of the record also.
    And any written statements from members, including Mr. Akin 
and Mr. Skelton, without objection, will be made part of the 
record.
    I would now like to call on Mr. Akin.
    Or should I tell another story, Todd, while you----
    [The prepared statement of Dr. Snyder can be found in the 
Appendix on page 43.]
    [The joint prepared statement of Mr. Tierney and Mr. Allen 
can be found in the Appendix on page 108.]

STATEMENT OF HON. W. TODD AKIN, A REPRESENTATIVE FROM MISSOURI, 
   RANKING MEMBER, OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE

    Mr. Akin. Filibuster another minute. [Laughter.]
    No. Thank you very much, Mr. Chairman--and Mr. Senior 
Chairman and Junior Chairman. We have got all kinds of chairmen 
here today.
    And thank you to our guests and our witnesses.
    The hearing addresses an important subject that merits the 
attention of this committee. And I think it is something that 
is just, for all of us that once in a while have to deal with 
the law, it is interesting to see how that works in this 
particular situation.
    Presidential signing statements invoke the constitutional 
prerogatives of the legislative branch and the executive 
branch. The House Armed Services Committee, in particular, 
carries out the specified duty in Article I of the 
Constitution, and that is to provide for the common defense and 
to raise and support armies and to provide and maintain a navy 
and to make rules for the government and regulation of the land 
and naval forces.
    Similarly, the President has the responsibility outlined in 
Article II to preserve, protect and defend the Constitution and 
to take care that the laws be faithfully executed.
    While we hope that these respective constitutional 
responsibilities of the legislative and executive branches do 
not conflict, the reality is that there is frequently 
disagreement between the two branches. In my view, this is a 
natural state of affairs that our founders built in to our 
unique form of government.
    The crucial question, therefore, is not if these conflicts 
are appropriate, as I believe these tensions are built in to 
our Constitution, but how such disputes are addressed and 
resolved.
    In my view, when the Congress and President do disagree 
about the constitutionality of a specific provision of the law, 
the most important equity to be preserved is transparency and 
communication. If the President believes his independent duties 
under the Constitution preclude him from implementing the law 
in the matter Congress prescribed, then I want to know. What I 
do not want is an executive that does not communicate with the 
Congress.
    Therefore, it seems to me that the Presidential signing 
statements, like a statement of the Administration's position 
Statements of Administration Policy (SAP) or so-called 
``heartburn letters,'' are important tools of communication so 
that the legislative branch knows which provisions of law will 
require increased oversight over executive implementation.
    With request to fiscal year 2008 National Defense 
Authorization Act (NDAA), the President highlighted four 
provisions in his signing statement. I think the prudent course 
for this committee is to oversee the implementation of those 
provisions to ensure that they are carried out consistent with 
our legislative intent.
    My understanding is that measuring exactly how signing 
statements actually affect implementation is something that has 
not been studied closely. I would like our witnesses to comment 
on this point.
    Finally, there is the matter of whether courts will give 
weight to signing statements in a manner similar to legislative 
history. My question for the witnesses, particularly Professor 
Rosenkranz, is whether it is inappropriate for courts to 
consider the President's constitutional equities when 
interpreting a statute. Moreover, if courts consult foreign 
sources of law when implementing U.S. law--something I am 
deeply skeptical of--shouldn't they take into account at least 
a President's statement?
    Thank you again to our witnesses for being here today. I 
look forward to your testimony.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Akin can be found in the 
Appendix on page 45.]
    Dr. Snyder. Thank you, Mr. Akin. And I had to keep Mr. 
Skelton from lunging for your sandwich there, while you were 
doing your statement.
    We are honored to have Mr. Skelton, our full committee 
chairman. Mr. Skelton is recognized.
    The Chairman. First, let me compliment you and congratulate 
you on calling this hearing.
    Being the lawyer that I am, it is important, when we pass 
laws, that the Administration understands our intent. We do 
know the English language pretty well and try to communicate 
that not just in the legislative language but also in the 
report language. And, as I say, with my background, I am 
concerned when signing statements leave the possibility of, 
``Part of this will not be fully enforced as you in Congress 
intend.'' And that, of course, is the subject of this hearing.
    I hope that you will shed light on where we could or should 
go on this. We do our best to be clear in our language and make 
it readable and understandable for the Administration to 
follow. We intend for that to happen. That is our job, to 
provide for, raise and maintain, as well as write the rules and 
regulations for the military. And that is what we do, and I 
think we have done a good job through the years in that 
department.
    I called the Deputy Secretary of Defense the other day, and 
I called him again today, regarding this issue. And I have his 
permission to quote him exactly as to what he told me this 
morning regarding this specific issue, and I share it with our 
panel.
    ``The Department of Defense always obeys the law. Questions 
regarding the constitutionality of laws are the purview of the 
Justice Department.''
    So there we are. And I hope that you can help us, because, 
in the future when we pass law and do report language, we 
intend for that to be fulfilled. Because that is our 
constitutional duty and the constitutional duty of the 
commander in chief and those that work for him, is to carry 
that out.
    So, with that, I thank you again, Dr. Snyder, chairman of 
the committee, and Mr. Akin, for calling this hearing, as well 
as the other members of this committee. And I look forward to 
the witnesses. Thank you.
    Dr. Snyder. Thank you, Mr. Skelton.
    Just to be sure everybody understands, that was Secretary 
England. You did not name a name, but you gave his title. I 
just wanted to be sure it was----
    The Chairman. Secretary Gordon England.
    Dr. Snyder [continuing]. Secretary Gordon England, right.
    Thank you, Mr. Skelton, for your great leadership on this 
committee.
    Let me introduce our four witnesses. We have four great 
people.
    We really appreciate you all being here this morning.
    T.J. Halstead, legislative attorney, the American Law 
Division at the Congressional Research Service; Gary L. 
Kepplinger, general counsel for the U.S. Government 
Accountability Office; Bruce Fein, constitutional attorney at 
Bruce Fein & Associates and a member of the American Bar 
Association Task Force on Presidential Signing Statements; and 
Nicholas Quinn Rosenkranz, associate professor of law at 
Georgetown University Law Center.
    And what we will do, gentlemen, is we will begin with Mr. 
Halstead and move down the line, which is the order I 
introduced you.
    We will have the clock put on for five minutes. When you 
see the red light go off, don't panic. If you have got other 
things to say, we want to hear from you. But it is to give you 
a sense of where you are at in your time. And I would probably 
encourage you to err on the side of brevity, so that we might 
get to the questions that members have. But feel free to ignore 
that red light.
    Mr. Halstead.

STATEMENT OF T.J. HALSTEAD, LEGISLATIVE ATTORNEY, AMERICAN LAW 
            DIVISION, CONGRESSIONAL RESEARCH SERVICE

    Mr. Halstead. Mr. Chairman, members of the subcommittee, my 
name is T.J. Halstead. I am a legislative attorney with the 
American Law Division of the Congressional Rresearch Service 
(CRS). And I thank you for inviting me to testify today 
regarding the impact of signing statements on national defense 
authorization acts.
    As I explain more fully in my prepared statement, the 
initial step the subcommittee is taking today to look at the 
practical impact of a signing statement on a specific 
congressional enactment is a sound approach from an 
institutional perspective.
    I say this because, until recently, the congressional 
response to signing statements has focused almost exclusively 
on the instrument of the signing statement itself, presumably 
motivated by the current Administration's utilization of these 
documents, to raise numerous individual objections to statutory 
provisions, resulting in challenges to well over 1,000 distinct 
provisions of law in the 157 statements that have been issued 
by President Bush.
    However, there is no constitutional or legal impediment to 
the issuance of signing statements in and of themselves. And 
when you look at the language that typifies these statements, 
it becomes apparent that the objections that are raised are so 
generalized that they constitute nothing more and nothing less 
than a broad assertion of Presidential authority over all 
aspects of executive branch organization and operation.
    The President's signing statement accompanying the most 
recent national defense authorization act provides a good 
example of this dynamic. The President's statement identifies 
four provisions of law, as the chairman just noted, that the 
President deems constitutionally problematic.
    And the objections voiced are typical of those raised in 
signing statements in other contexts, in that they consist of a 
generalized declaration that the provisions--namely, sections 
841, 846, 1079 and 1222--purport, again, to impose requirements 
that could inhibit the President's ability to carry out his 
constitutional obligations to: one, take care that the laws be 
faithfully executed; two, to protect national security; three, 
to supervise the executive branch; and finally, impair the 
President's ability to executive his authority as commander in 
chief.
    And, additionally, as in numerous other signing statements, 
the statement is concluded with the declaration that the 
executive branch shall construe those provisions in a manner 
consistent with the constitutional authority of the President.
    The nature of these objections is not clarified or 
substantiated when you look at the actual text of the 
provisions that have been objected to.
    Section 841 establishes a legislative commission that is 
tasked with studying agency contracting in Iraq and Afghanistan 
and is similar in composition and authority to numerous other 
commissions that Congress has created in the past.
    Section 846 strengthens whistleblower protections for 
contractors. And there is, likewise, ample precedent for the 
imposition of such provisions by Congress.
    Section 1079 imposes reporting requirements on certain 
elements of the intelligence community. And it is, again, well-
established that Congress can impose direct reporting 
requirements of this type.
    Finally, Section 1222 prohibits the use of any funds 
appropriated in the act to establish permanent military bases 
in Iraq or to exercise control over Iraq's oil resources.
    It seems that the President's objection to this provision 
rests upon a broad reading of his constitutional commander-in-
chief powers, which are largely undefined in relation to the 
powers of Congress to control military operations. However, 
Congress's power of the purse would appear invested with the 
prerogative to impose binding restrictions of this type on the 
use of appropriated funds.
    Ultimately, the objections that are raised in the current 
act are similar to previous signing statements, in that they do 
not contain explicit, measurable refusals to enforce a law, but 
instead raise challenges that are largely unsubstantive or are 
so general that they appear simply to be hortatory assertions 
of executive power.
    These broad assertions of authority carry significant 
practical and constitutional implications for the traditional 
relationship between the executive branch and Congress. But 
those implications will manifest themselves by virtue of the 
substantive actions taken by the Administration to embed that 
conception of executive authority into the constitutional 
framework and not simply as the result of the President's use 
of the instrument of the signing statement.
    Moreover, I think it is unlikely that a reduction in the 
number of challenges raised in signing statements, whether that 
is caused by the imposition of procedural limitations or simply 
through political rebuke, will result in any change in a 
President's conception and assertion of executive authority.
    And, in light of that, I think these signing statements 
essentially give you a roadmap of provisions of law that the 
President holds in disregard, in turn affording Congress the 
opportunity, through focused inquiries of the type this 
subcommittee is undertaking today, to engage in systematic 
monitoring to more effectively assert the constitutional 
prerogatives of Congress, as well as the Congress's oversight 
prerogatives, and to ensure compliance with congressional 
enactments.
    Mr. Chairman, I will conclude my statement there. I would 
be happy to answer any questions you or other members of the 
subcommittee might have. And I look forward to working with all 
members and staff of the subcommittee on this issue in the 
future.
    [The prepared statement of Mr. Halstead can be found in the 
Appendix on page 48.]
    Dr. Snyder. Thank you, Mr. Halstead.
    Mr. Kepplinger.

    STATEMENT OF GARY L. KEPPLINGER, GENERAL COUNSEL, U.S. 
                GOVERNMENT ACCOUNTABILITY OFFICE

    Mr. Kepplinger. Mr. Chairman, Mr. Akin, members of the 
subcommittee, thank you very much for inviting me to 
participate in today's hearing on Presidential signing 
statements.
    I would like to focus my remarks on two issues that we 
examined last year, at the request of Chairman Conyers and 
Chairman Byrd of the Senate Appropriations Committee: First, 
what use and weight has the Judiciary given signing statements? 
And second, have agencies faithfully implemented statutory 
provisions to which the President objected in signing 
statements?
    Before discussing these issues, I would like to give some 
background regarding signing statements.
    Historically, Presidents have used signing statements for a 
variety of purposes, most of them noncontroversial. Some 
signing statements praise new laws. Others applaud 
bipartisanship and cooperation that led to a law's passage. 
These largely ceremonial statements extolling the benefits of a 
bill are not, and have not been, the cause of public 
consternation or debate.
    Presidents, including the current President, have used 
signing statements in more controversial ways. Presidents have 
used signing statements to offer a statutory interpretation of 
a provision or to explain how agencies will execute the newly 
signed law. These signing statements may be of no more public 
moment or controversy than the policy objectives than the 
policy objectives that the law seeks to further.
    Presidents also use signing statements to raise 
constitutional objections to provisions of law. These 
constitutional objections typically go to two types of 
statutory provisions: those which the President believes 
impinge on his constitutional prerogatives or those that he 
believes impinge on the constitutional rights of our fellow 
citizens.
    These more controversial signing statements sometimes will 
announce a refusal to enforce or defend what the President 
views as an objectionable provision. More frequently, however, 
the statements do no more than raise objections on broad, 
abstract grounds without explicitly directing the agencies not 
to enforce or defend the laws.
    They also frequently offer curative interpretations of 
objectional provisions, directing implementation, as in the 
case of the signing statement accompanying the National Defense 
Authorization Act, ``consistent with the President's views of 
his constitutional authority.''
    It is with respect to these more controversial uses of 
signing statements that Congress's constitutional role of 
enacting the laws duly presented and signed by the President 
clearly intersect with the President's responsibilities to take 
care that the laws be faithfully executed.
    Add to this the difficulties associated with satisfying 
Article III standing requirements needed to judicially 
challenge implementation of many of these provisions, and one 
can easily appreciate Congress's and others' frustrations with 
signing statements.
    As CRS has reported, one of the objectives associated with 
the Reagan Administration's increased use of signing statements 
was--and I will quote my friend here on the right--``to 
establish the signing statement as part of the legislative 
history of an enactment and, concordantly, to persuade courts 
to take the statements into consideration in judicial 
rulings.''
    As part of our work for Chairmen Byrd and Conyers, we 
surveyed Federal case law to determine how Federal courts have 
treated signing statements. Our search, going back to 1945, 
found fewer than 140 cases that cited two signing statements.
    When cited, the signing statements rarely had any impact on 
judicial decisionmaking. Rather, courts cited to signing 
statements to identify the date a bill was signed into law or 
to provide a short summary of the statute. Sometimes courts 
have cited to signing statements to note that the statement 
echoes views expressed about a bill in congressional documents 
such as committee reports.
    In sum, I think it fair to say that signing statements are 
not part of the legislative history of a law and, hence, 
generally will not be used in ascertaining Congress's intent in 
enacting a law. Accordingly, courts only rarely give signing 
statements any interpretive weight in their construction of the 
statute.
    The second issue we looked at was whether agencies 
responsible for provisions to which the President had raised 
constitutional objections had implemented the provisions as 
written. To do this work, we looked at the implementation of 29 
provisions of law. Parenthetically, one provision applied to 
two agencies, so we examined agency action in 30 instances.
    We contacted the responsible 21 agencies and requested and 
obtained information from them regarding their implementation. 
In nine of the 30 instances we examined, the agencies 
responsible for implementing the provision had not done so.
    The provisions required a variety of actions on the part of 
the agencies charged with their implementation. Five of the 
nine called for agencies to receive congressional approval 
prior to spending funds--the so-called Chadha provisions--or to 
provide Congress with information of a certain nature or within 
a specific timeframe.
    A couple limitations: We did not assess the merits of the 
President's objections, nor did we analyze the 
constitutionality of the provisions themselves. We also did not 
examine provisions to which the President objected that dealt 
with matters of national security or intelligence, given the 
difficulties obtaining sensitive information from responsible 
agencies within the timeframes needed.
    In addition, we offered no opinion on whether the 
President's signing statements actually caused the agencies in 
question not to execute the provisions as written. Because 
agency noncompliance could have resulted from a number of 
factors, we could not determine whether a cause-and-effect 
relationship existed between the signing statement objections 
and agency implementation.
    But apart from these limitations, the fact remains that, in 
nine of 30 instances we examined, the responsible agencies had 
failed to implement the statutory provisions according to the 
letter of the law. Moreover, the President continues to issue 
signing statements objecting to provisions that leave the 
Congress unsure whether the President will carry out the laws 
as written.
    The difficulties associated with obtaining judicial review 
that I mentioned earlier should not deter Congress from 
investing its institutional capital to ensure agency compliance 
with its directions through vigorous oversight. Indeed, while 
violations of the provisions we reviewed may not always involve 
matters of great public policy, they do go directly to the tone 
and tenor of the institutional dialogue between Congress and 
the executive branch needed for Congress to effectively 
discharge its responsibilities.
    Committee monitoring of agency implementation of statutory 
provisions about which the President objects or raises concerns 
in signing statements is a good first step in reasserting 
congressional control. Depending on the facts and circumstances 
surrounding implementation, Congress has a variety of tools at 
its disposal to ensure its expressed will is honored in 
substance even if not in form.
    The concludes my remarks. I would be happy to answer any 
questions.
    [The prepared statement of Mr. Kepplinger can be found in 
the Appendix on page 70.]
    Dr. Snyder. Thank you, Mr. Kepplinger.
    We have a motion to adjourn coming up. Mr. Fein, I think we 
will have time for your opening statement, and if it, at some 
point, appears we won't, I will interrupt you. But let's go 
ahead and try to get your opening statement in now.
    Mr. Fein.

STATEMENT OF BRUCE FEIN, CONSTITUTIONAL ATTORNEY, BRUCE FEIN & 
  ASSOCIATES, MEMBER, AMERICAN BAR ASSOCIATION TASK FORCE ON 
                PRESIDENTIAL SIGNING STATEMENTS

    Mr. Fein. Thank you, Mr. Chairman and members of the 
committee.
    The hearing today is a question of who exercises power. It 
is not quibbles over language. The dispute between the 
executive branch and this committee is a dispute over who gets 
to decide whether we project military force abroad and we send 
men and women to die for the United States of America.
    I want to refer to a few historical precedents that 
underscore the importance of the issue that you are examining.
    Let's go back to the Stuart days of the British monarch. 
There was a huge dispute over King Charles I's assertion of 
authority unilaterally to level a ship tax to fight wars that 
Parliament opposed. This particular dispute ended up in court, 
and although Charles I won the litigation, he lost his head 
soon thereafter.
    The dispute over the authority of the executive to spend 
money unilaterally in order to fight wars that Parliament 
opposed continued up through the reign of James II. And when he 
was overthrown, the English Bill of Rights of 1688--and they 
styled this provision a bill of rights, like our first Bill of 
Rights--declared that the king would have no power to spend any 
money to undertake any initiative unless it had been explicitly 
approved by Parliament.
    It was with that background that the founding fathers 
entrusted the power of the purse to the Congress of the United 
States. They feared that the executive would inflate danger in 
order to conduct war abroad to migrate power to the executive, 
to create bogus and imaginary fears in order to concentrate 
power and political popularity in the President. That is why 
James Madison characterized in the ``Federalist Papers'' the 
power of the purse as the ``invincible instrument'' that 
Congress had to redress grievances against the President.
    Now, we don't need to be conjectural about what the 
Congress intended in the National Defense Authorization Act 
with regard to permanent military bases in Iraq. Everyone knows 
the President is now involved in negotiating, perhaps, 
permanent military bases in Iraq, through executive order or 
otherwise. Now, that may well be a good or a bad idea, but the 
founding fathers insisted that if Congress wanted to have its 
say, it should be obeyed.
    Now, let's look at the language of 1222. It is not 
ambiguous, unless we are in Humpty Dumpty, saying, ``A word 
means whatever I want it to mean.'' The President says, well, 
he will construe section 1222 in a manner consistent with his 
constitutional authority. What is there to construe? It says in 
plain language, ``No monies appropriated under the bill shall 
be used for the purpose of establishing permanent military 
bases in Iraq.'' A schoolchild can understand that. There is no 
ambiguity. And there is nothing in the signing statement where 
the President says, ``I don't quite understand what Congress is 
getting at''--nowhere.
    What he basically is saying is, ``I am ignoring the law, 
because I think my executive authority enables me to establish 
bases, to spend money, whether Congress approves it or not, if 
I think it important for the national security.''
    You will notice the language of the signing statement is 
rather sweeping. In fact, quite alarming, he says if anything 
would ``impinge'' upon the President's ability to protect the 
national security, he can ignore that particular provision. 
That creates a worry. Well, the President may want to establish 
a new star wars. Congress doesn't appropriate funds. The 
President would say, ``You are impinging on my ability to 
protect the national security. I will go ahead and establish 
star wars anyway.''
    This issue is about the most important power any democracy 
can exercise, the power to initiate and conduct war--
underscore--and send our brave men and women abroad to die. And 
the founding fathers wanted this Congress to make the final 
judgment, not the President of the United States.
    And two centuries of practice vindicate that allocation. I 
remember in the Vietnam War days, the Congress of the United 
States passed a law that said there is no money to carry the 
Vietnam War into Laos or Cambodia or Thailand with ground 
troops, and President Nixon obeyed that. It wasn't 
controversial; everyone said, certainly, Congress can have the 
authority under the power of the purse to decide how far to 
extend the war.
    This President, through this signing statement, is seeking 
to establish a revolutionary change in the idea of what our 
Constitution is about.
    And it is not just rhetoric. I want to call to mind our own 
revolutionary history. We protested the Stamp Act of 1765 as 
colonists because we had no representation in the Parliament. 
Our argument was, ``We are not required, and should not be 
required, to obey laws where we have no role in their 
enactment.''
    The next year after the agitation succeeded and the stamp 
tax was repealed, the Parliament enacted something called the 
Declaratory Act and said, ``By the way, even though we have 
repealed the stamp tax, we retain authority to legislate with 
you on any matter whatsoever, even if you have no 
representation here.'' And it was that statement of authority 
that fueled the revolution that led to the Declaration in 1776.
    Suppose the President issues a signing statement that says, 
``I am a monarch. I am like Louis XIV. I am the state.'' Is 
Congress supposed to sit idly by and say, ``Well, let's wait 
till the Reichstag burns before we do anything''? That is what 
this President is saying in that signing statement.
    There is no ambiguity in 1222. He knows what it says: no 
permanent military bases in Iraq with money appropriated under 
the statute. There is nothing to debate. And he says, ``I have 
to construe it''? And he will implement it in some way that is 
not clear on its face?
    And this is a pattern that has persisted from the Bush 
Administration from the outset. This signing statement is not 
in isolation.
    And if the only remedy is you put a provision in the law 
that says it is a criminal violation, you go to jail for ten 
years if you spend money contrary to this, then there might be 
a little wake-up in the White House.
    But I want to underscore again what this real debate is 
about. It is over the power to send our men and women abroad to 
fight. And the President is saying it is his unilateral 
decision, you have no say.
    Thank you.
    [The prepared statement of Mr. Fein can be found in the 
Appendix on page 87.]
    Dr. Snyder. Thank you, Mr. Fein.
    Professor Rosenkranz, we are going to wait until we come 
back after the vote.
    Mr. Skelton is not going to be able to join us after the 
vote, and he wanted to make a brief statement.
    Go ahead, Ike.
    The Chairman. Thank you.
    And I apologize, Professor Rosenkranz. I am sorry I won't 
be able to come back for it.
    I just want to point out, because, at the end of the day, 
when we are working with the chairman and the ranking member in 
the Senate to try to close out every issue on the defense bill 
before we all sign the statement approving the bill to go to 
the floor for a final vote, we are working with a document that 
the President always furnishes us, a document spelling out 
certain issues that he objects to and potentially would be veto 
subjects should we press on.
    As we know, we had a veto on an issue that was not brought 
to our attention regarding a lien on Iraqi assets, but we very 
quickly reworded that provision and passed the bill again and 
got it signed into law--of course, with the signing statements, 
which are the subject of discussion today.
    We are cognizant, as a legislature, of the objections of 
potential vetoes by a President. And the issues that were 
raised, my recollection is that they were not raised in the 
letter which is normally sent to us prior to our conclusion of 
our negotiations with the Senate, which I find to be rather 
interesting.
    But I appreciate you gentlemen taking the time and the 
effort to give us your valued opinion. And I agree, this lawyer 
has a little difficulty in understanding why something that is 
very, very clear in the English language is not fully followed.
    And, with that, Mr. Chairman, I appreciate your letting me 
speak out of order.
    Mr. Akin, thank you too.
    Dr. Snyder. Thank you, Mr. Chairman. We appreciate you 
being here.
    Professor Rosenkranz, if you will wait here in anticipation 
of doing your statement, we should be back shortly.
    I have asked the staff to let you read one of my Law Review 
articles, since you are legal scholars. You should find time to 
read this in the time that we have for the recess. [Laughter.]
    [Recess.]
    Dr. Snyder. I apologize. We will not be surprised if we 
have other votes sometime in the next hour. We will just deal 
with that, as you have before.
    Professor Rosenkranz, we look forward--did you all get to 
read my Law Review article? [Laughter.]
    Mr. Rosenkranz. Very well done.
    Dr. Snyder. I thought of it when I was leafing through 
somebody's footnote that I want to ask about.
    But Professor Rosenkranz.

STATEMENT OF NICHOLAS QUINN ROSENKRANZ, ASSOCIATE PROFESSOR OF 
     LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC

    Mr. Rosenkranz. Mr. Chairman, Representative Akin, members 
of the subcommittee, I thank you for the opportunity to express 
my views about the President's statement upon signing the 
National Defense Authorization Act.
    In the past, I have testified about the propriety and 
utility of Presidential signing statements generally, before 
both the House and Senate Judiciary Committees. Today, I will 
discuss how those general points apply to the particular 
signing statement at issue here.
    I will begin with some general observations about the 
propriety of the signing statement, and then I will consider 
the specific sections of the bill that it mentions.
    The most important word in this signing statement, the 
operative verb, is the verb ``construe.'' In this signing 
statement, as in virtually all of this President's signing 
statements, this verb signals the primary function of the 
signing statement: to announce to the executive branch and to 
the public the President's interpretation of the law.
    The propriety of such an announcement should be obvious. It 
is simply impossible, as a matter of logic, to execute a law 
without determining what it means. As President Clinton's 
Office of Legal Counsel has explained, this is a generally 
uncontroversial function of Presidential signing statements: to 
guide and direct executive officials in interpreting or 
administering a statute.
    The President interprets statutes in much the same way that 
courts do, with the same panoply of tools and strategies. His 
lawyers carefully study the text and structure of acts of 
Congress, aided perhaps by dictionaries, linguistic treatises, 
other tools of statutory interpretation. And, just like courts, 
they also apply well-established maxims of statutory 
interpretation, called canons.
    Now, one canon, in particular, is of interest today. This 
is the canon of constitutional avoidance. This is the canon 
that the President is applying when he says that he will 
interpret the National Defense Authorization Act ``in a manner 
consistent with the constitutional authority of the 
President.''
    Now, this statement emphatically does not declare the 
National Defense Authorization Act, or any part of it, 
unconstitutional. In fact, it declares exactly the opposite. As 
President Clinton's Office of Legal Counsel explained, these 
sorts of signing statements are ``analogous to the Supreme 
Court's practice of construing statutes, if possible, to avoid 
holding them unconstitutional.''
    What this signing statement says, in effect, is that, if an 
ambiguity appears on the face of the National Defense 
Authorization Act or becomes apparent in the course of 
execution, and if one possible meaning of the statute would 
render it unconstitutional, then the President will presume 
that Congress intended the other constitutional meaning, and he 
will faithfully enforce the statute as so understood.
    So there is nothing inherently objectionable in the fact or 
in the form of the President's signing statements.
    For the balance of my time, I will discuss the specific 
sections of the act that the President chose to single out.
    Section 841 creates a Commission on Wartime Contracting in 
Iraq and Afghanistan and empowers the commission to demand a 
wide variety of information from executive branch officials.
    Section 846 provides increased protection for government 
contractors from reprisal for disclosure of certain sorts of 
information.
    And section 1079 requires certain executive branch 
officials to provide ``any existing intelligence assessment, 
report, estimate or legal opinion'' to certain congressional 
committees upon demand.
    Now, to the extent that these provisions apply to 
classified or otherwise privileged information, they might 
raise significant constitutional concerns. As the Supreme Court 
has said, ``The President's authority to classify and control 
access to information bearing on national security flows 
primarily from the constitutional investment of power in the 
President and exists quite apart from any explicit 
congressional grants.'' The authority to protect such 
information falls on the President, as head of the executive 
branch and as commander in chief.
    This point is one of principle, and it is the sort of thing 
that Presidents point out in order to preserve their 
constitutional prerogatives. But in practice, the signing 
statement is unlikely to have a substantial effect on the 
implementation of these provisions. The President generally 
complies, as a matter of comity, with these sorts of provisions 
whether or not he believes that he is strictly bound by them.
    The final section singled out by the President provides 
that no funds appropriated by this act may be spent to 
establish a permanent military base in Iraq or to control Iraqi 
oil resources. This provision implicates the relationship 
between Congress's appropriations power and the President's 
power as commander in chief.
    Now, of course, Congress possesses broad power over 
appropriations, but this power is not unlimited. The power to 
withhold an appropriation altogether does not necessarily imply 
the power to appropriate money subject to limitless conditions.
    For example, Congress probably cannot trench upon the core 
functions of the executive branch with overly specific spending 
restrictions. And, in particular, arguably the Congress may not 
trench upon the power of the President, as commander in chief, 
with a spending restriction that amounts to a tactical 
battlefield decision. Just as Congress cannot make specific 
tactical military decisions by law, it, at least arguably, 
lacks the power to achieve the same result indirectly with a 
cunningly crafted spending restriction.
    But, again, I must emphasize, the President has not 
declared this provision unconstitutional on its face in all 
applications and all circumstances. And he certainly has 
expressed no intention to spend money in any manner 
inconsistent with it.
    All the President has done here is flagged a potential 
constitutional concern, one which the facts on the ground in 
Iraq might never actually present. And he signals that, if 
necessary, he will interpret the provision in light of this 
constitutional constraint.
    In conclusion, the President's statement upon signing the 
National Defense Authorization Act is unremarkable in both form 
and substance. For the most part, the constitutional issues 
identified are both contingent and, to some degree, 
theoretical. In practice, this signing statement is unlikely to 
substantially affect the implementation of the act.
    Thank you.
    [The prepared statement of Mr. Rosenkranz can be found in 
the Appendix on page 95.]
    Dr. Snyder. Thank you all for all your thoughtful both oral 
statements today and also your written statements.
    Mr. Akin for five minutes.
    Mr. Akin. Thank you, Mr. Chairman.
    It has been an interesting testimony to hear all of you 
share your thoughts on this.
    I guess the first thing I was struck by was the references, 
Mr. Fein, at least flamboyant in your testimony, I think 
perhaps quite a bit over the top perhaps--but seemed like the 
President was just about to become King George and march out 
and declare himself king over the whole world. But it seemed to 
me the exact opposite case. It seems to me--Mr. Rosenkranz, I 
think you are brushing on this--it seemed to, rather, signal a 
willingness of the executive branch to work with the 
legislative branch.
    My understanding is these statements don't occur in a 
vacuum; is that correct? In other words, there is an ongoing 
process between the legislative and executive branch as bills 
are put together. And as the executive branch says, ``Oh, no, 
we are a little uncomfortable with that,'' you know, ``If you 
do this, we are going to veto''--so there is this back-and-
forth. It seems to me that that is far preferable than a 
polarized bulkhead where both people are, sort of, lobbing 
bombs at each other.
    So it seemed to me that the signing statements may be an 
indication of more a sense of cooperation than it is a sense of 
somebody just, sort of, ``my way or the highway'' type of 
thing, and particularly in that there is a procedure. It is not 
just something that is done. Is that right? It is a long-term 
process; you are going back and forth. Is that right?
    Mr. Rosenkranz. Agreed. This is a useful aspect of 
constitutional dialogue. This is a method that the President 
uses to express his views to Congress, as well as to the 
executive branch, to let them know what his concerns are.
    Mr. Akin. Right. Now, we heard that, I guess, the President 
had done ``close to a thousand'' of these in the last seven-
some years. Is that right?
    Mr. Rosenkranz. It is actually he has done 100-some signing 
statements that we were told refer to 1,000-some provisions. I 
am not sure about that statistic.
    Mr. Akin. Okay. Versus the previous Administration, how 
many did they do?
    Mr. Rosenkranz. I believe the number is quite comparable. I 
don't have that in front of me.
    Mr. Akin. The numbers that I heard was about three times as 
many. So it is not something that is some new or unusual kind 
of process.
    Mr. Rosenkranz. Correct.
    Mr. Akin. So the question is, as you say, is it just simply 
like a footnote, in a sense?
    And then I guess the other question that was not answered 
was, it didn't seem like anybody was worried about these things 
from a precedent or that some judge is going to look at them in 
some dispute down the line. I suppose it is a piece of 
evidence; it is not the actual law itself. So there doesn't 
seem to be concern in that regard.
    I guess a question I have is, is there anything in these 
signing statements that is, from a precedent point of view, any 
different than anything that has been done in the past?
    Mr. Rosenkranz. No, I don't think there is. This signing 
statement and this President's signing statements are quite 
similar to the signing statements of President Clinton and of 
Presidents stretching back for decades.
    Mr. Fein. Well, if I could interject, I do not think any 
other President suggested that he, under his commander-in-chief 
powers, could be required to construe a law as clear as 1222--
it says in plain language that you understand and that 
President Bush understands, ``no money appropriated according 
to the authorizations under the act shall be used to establish 
permanent military bases in Iraq.''
    It is the first time I know of where a President has 
challenged the power of the purse that is expressed in as clear 
and lucid language as that. And despite what you have suggested 
about a dialogue over ambiguous language, you will notice, in 
this signing statement, President Bush never voices a syllable 
of uncertainty about what section 1222 means. If you can find 
some ambiguity, you are a better linguist than others.
    Mr. Akin. I hear what you are saying. And, again, I just 
think the sum of this falls into the zone of exactly where is 
the legislative, where is the executive authority. And that is 
something we have dealt with----
    Mr. Fein. But that doesn't relate to ambiguity, Mr. 
Congressman. If the President thinks something 
unconstitutional, he can veto it. He didn't veto it. He signed 
it, which indicates he thought he was executing his authority 
to defend the Constitution in signing the bill, not in flouting 
it.
    Mr. Akin. So your point is, then, that the President is--
don't you think that, in vetoing it, it would have been a 
stronger statement than in signing it?
    Mr. Fein. Fine, then the Congress can decide whether or not 
it wants to override or otherwise. That is how political 
dialogue occurs.
    Mr. Akin. Right.
    Mr. Fein. And that happens. And he could say to Congress, 
``I want you to delete this provision, because I think it 
infringes on my constitutional power.'' That is entirely 
appropriate, and Presidents in the past have done that and 
Congress has responded.
    Mr. Akin. Right. Well, he had a choice.
    Yes, go ahead.
    Mr. Rosenkranz. I should just say that there is nothing new 
or revolutionary in the President's suggestion that some 
conditions on appropriations could trench on the President's 
executive power.
    The executive branch has been consistent in that position 
for at least 70 years. I have a footnote in my written 
testimony that gives you an enormous string cite, stretching 
back to the early 1900s, with Office of Legal Counsel opinions 
making that very same point.
    Mr. Akin. Thank you.
    Thank you, Mr. Chairman.
    Dr. Snyder. Mr. Akin, I want you to have time if Mr. 
Halstead or Mr. Kepplinger have any response to you.
    Mr. Halstead. Just if you are curious about the statistics 
on signing statements, Congressman, the breakdown from the 
research that we have conducted, as well as from what we have 
seen in academic work on the subject, is that President Bush, 
to date, has issued 157 signing statements compared to, for 
instance, in the Clinton Administration, 381 signing 
statements.
    So certainly you see a larger number of signing statements 
from the Clinton Administration, in terms of just signing 
statements in and of themselves. Where the----
    Mr. Akin. I think that was the number that I had heard, was 
like 100/300.
    Mr. Halstead. Right.
    And the distinction comes into play when you look at the 
number of individual objections to provisions of law that are 
contained in a signing statement. And so, when you look at that 
category, of the 157 signing statements that President Bush has 
issued, roughly 122 of those contain some type of 
constitutional objection, not just of one type but of multiple 
provisions of law within that particular enactment. And so that 
goes to a situation where you have roughly 78 percent of 
signing statements from the Bush Administration containing some 
type of constitutional objection to over 1,000 particular 
specified provisions of law.
    When you look at the Clinton signing statements, of those 
381 statements, 70 of those statements raised some type of 
constitutional or legal objection, for a ratio of 18 percent 
compared to 78 percent.
    But one of the things that we have stressed and I lay out 
in my paper on the subject is that the focus on numbers is 
largely misplaced; that what you are really looking at are 
assertions and exercise of Presidential authority over a broad 
spectrum of issues.
    Mr. Akin. Yes. Good. Well, I appreciate the statistics on 
that.
    And it is interesting, you know, the idea of a permanent 
base, you know? What exactly is permanent and what is not 
permanent? I think you could debate that some.
    Thank you, Mr. Chairman.
    Dr. Snyder. Thank you, Mr. Akin.
    I will take my five minutes now.
    One of the issues that we have, Professor Rosenkranz, is, 
as with Mr. Skelton's presence here today, we are trying to 
learn from this. You talk about the dance between the executive 
and legislative. The problem is, we didn't learn much. I mean, 
what have we learned?
    In your statement, you talk about how it is a chance to 
seek to learn the interpretation of the law. We didn't learn 
anything. You just list these statements. And, in fact, the 
total is not a thousand provisions of law--not from the defense 
bill, but four from this year's defense bill. And I have got 
the chairman of the committee saying, ``Help us,'' you know? 
Mr. Skelton doesn't want to do unconstitutional things. Help 
us.
    You suggest that the Congress could go back and do a 
clarifying law. But where? Where is the information from the 
executive branch that says, ``We have really got a problem 
understanding whether you mean red light or green light''? 
Where is the need for clarifying law?
    As you all were talking with Mr. Akin about vetoing the 
bill, the President did veto this bill. This bill was vetoed 
and was modified in response to the President's veto over 
language involving litigation against the government of Iraq, 
and they were concerned that there would be revenues taken.
    So the President knows how to use a veto pen on the defense 
bill, but, in the course of that, there wasn't any, ``Oh, by 
the way, this could be a good chance to clean up these other 
provisions. Here are my specific concerns.'' There wasn't 
anything like that.
    So you use the words ``useful'' or ``unremarkable.'' Well, 
no, actually, four provisions of our bill that members care 
about, including Mr. Tierney and Mr. Tom Allen from Maine, we 
don't know where it goes.
    Now, we do have Secretary England's statement that, ``The 
Department of Defense always obeys the law. Questions regarding 
the constitutionality of laws are the purview of the Justice 
Department.'' I think they are very clear, both publicly now 
but also informally, they intend to follow the law. We have 
seen specific information. But what about the President's 
appointments on the commission, the Tierney commission? And the 
information we received, via the staff, is that they fully 
intend to meet the deadline for their two appointments. So, you 
know, where is the usefulness of this, other than it creates 
uncertainty about what we are doing?
    I wanted to ask, I guess for the panel, we have now, in 
this defense bill, four provisions, and then we have a total of 
a thousand provisions. What does it mean for a President to 
sign a bill if he flat-out believes there is an 
unconstitutional provision? Not just creates certain 
uncertainties, but flat-out believes there is--what does it 
mean if a President signs a bill which he believes is--well, 
let's start with Mr. Halstead and go down the line here.
    Mr. Halstead. Well, that is a very robust area of academic 
debate, the notion of whether a President should or, some would 
argue, is he constitutionally required to veto a law that 
contains a provision he thinks is unconstitutional. And we do 
not have any dispositive treatment of that issue from the 
courts.
    In current practice, you, for instance, have a situation 
where large omnibus bills are passed by Congress and then 
signed into law by the President. And in many of those bills, 
there are legislative veto provisions that Congress includes, 
that basically state that one house of Congress can invalidate 
an executive branch action under certain circumstances.
    There is a Supreme Court case from 1983, INS v. Chadha, 
that states that that is unconstitutional. Congress cannot 
exercise its legislative power in that fashion. Nonetheless, 
Congress has utilized the legislative veto provision in 
possibly over a thousand instances since the decision in 
Chadha.
    And so, for instance, if you have a requirement, a 
constitutional requirement, that the President is to veto any 
law that he believes contains an unconstitutional provision, 
any time you were to see that type of inclusion by Congress, 
which we see quite commonly, the President would be required to 
veto an omnibus bill because of that one provision.
    And while, from a theoretical perspective, perhaps you 
could argue that is the way it should be done, that the 
President should always veto a bill that he thinks is 
unconstitutional, from a practical perspective it is not done 
and would also potentially significantly impair the legislative 
process as it has evolved today.
    So it carries from very significant ramifications, both 
from a practical and constitutional perspective.
    Mr. Kepplinger. Mr. Chairman, I tend toward the view that 
the President's decision about whether to veto a bill or not is 
a function of any number of different factors.
    I hearken back to World War II when Franklin Delano 
Roosevelt was faced with, I think, an emergency appropriation 
act which was needed to maintain the war effort during the war. 
And there was a particular provision in that bill that was an 
attainder. It identified employees in the State Department and 
basically said, ``You can't pay them anymore,'' to the point of 
them removing their jobs.
    Well, the signing statement that President Roosevelt issued 
at the time was, he said, you know, ``The House insisted, the 
Senate yielded, and I yield too as well, but I am not going to 
yield without putting on the records my strong belief that this 
provision is unconstitutional.''
    The process that the President and the Administration 
followed after that was to enforce the law. The individuals 
were not paid. They were then injured to the extent that they 
could have resort to the Federal courts, where the matter was 
adjudicated.
    The Administration did not defend that particular statute, 
because of its views on the constitutionality of it. To me, 
that was a not-inappropriate outcome, under those 
circumstances.
    Mr. Fein. The President takes an oath to seek to uphold and 
defend the Constitution in all his official acts. A signing 
statement is an official act. Signing a bill is an official 
act. If the President believes that he is putting into law 
something that would be unconstitutional, he is obliged, if he 
is going to be faithful to his oath, to veto it.
    Congress can override the veto. It can acquiesce in the 
President's decision to delete the offending provision. But the 
President then is scrupulously honoring his constitutional 
obligation.
    That was the understanding President Washington had. He 
said a President had a duty either to veto or sign a bill in 
its entirety. And President Washington had been President of 
the Constitutional Convention, and I think his views of what 
Presidential authority required are due enormous deference.
    Finally, I think that this issue relates to the legislative 
power of the Congress, in the sense that you all know that you 
think, by bundling together different provisions, you may be 
able to force the President into a politically awkward position 
where he may have to sign the bill even if he dislikes some 
provisions. Well, by authorizing a signing statement that says 
I am really not going to enforce those that I think are 
unconstitutional in his unilateral authority, he is basically 
removing that leverage you have over him to sign it or take 
nothing.
    And that is an important authority you have in the 
legislative maneuvering with the executive branch that the 
founding fathers intended to stay here, because they wanted the 
popular branch of government to be dominant in deciding the 
policies of the United States.
    Mr. Rosenkranz. I should say first that the case that you 
posit is extremely rare. So in the vast majority of signing 
statements, even ones that reference the Constitution or 
constitutional concerns, they take the form of this signing 
statement, which is to say they are exercises of the canon of 
constitutional avoidance. They are statements about 
interpretation of the statute, not at all declarations that any 
provision of the statute is unconstitutional. So----
    Dr. Snyder. No. And, in fact, I didn't ask about if the 
President signs a bill in which he attaches a signing statement 
that says it is unconstitutional. It was more a question of if 
he knows it is unconstitutional, regardless of whether there is 
a signing statement or not.
    Mr. Rosenkranz. Correct. In rare cases, the President may 
be presented with a bill in which he thinks a provision is 
flatly unconstitutional--that is, cannot be saved by 
interpretation, cannot be construed in a way to make it 
constitutional, it is flatly unconstitutional--but it is part 
of an enormous omnibus bill that is hugely important, perhaps 
important to national security.
    And the FDR example is a perfect example. So, from at least 
the time of FDR and the lend-lease bill, the executive branch 
has taken a position that, in such circumstances, presented 
with an enormous bill with perhaps a small unconstitutional 
provision, and the bill itself is of huge important 
significance to national security, the President has claimed 
the power to sign such a bill and decline to enforce the 
unconstitutional provision.
    Again, I would say it is very rare. But the executive 
branch has asserted that power since the 1940's at least.
    Dr. Snyder. It is probably much more common for Members of 
Congress to vote for bills in which they think there is 
unconstitutionality at play.
    Mr. Jones for five minutes.
    Mr. Jones. Mr. Chairman, thank you.
    And, Mr. Fein, did you work in the Reagan Administration?
    Mr. Fein. Yes. And I was a strong proponent of executive 
power there.
    Mr. Jones. Right. Well, I wanted to get that. I have seen 
you on TV a few times and just really wanted all, both 
Democrats and Republicans, to know that you were in the Reagan 
Administration, you were a legal advisor in some capacity.
    The issue I have--and I really appreciate the intellectual 
discussion today. I am not sure I fit in that, but I have 
enjoyed it and I have learned a great deal, so I would say 
thank you, from this panel as well as you, the presenters.
    The issue that many people have, quite frankly, as you 
know--and this is a little bit away from the Department of 
Defense (DOD) bill--but the Congress itself--and I am not sure 
that the President issued a signing statement--but the 
Congress, in an overwhelming vote, almost 410 to three or four, 
said that we were opposed to Secretary Peters' allowing Mexican 
trucks to have free access to America.
    And I will tell you, because I have heard this back home--
and, again, Mr. Chairman, it may be a little bit off the 
subject--back home that people, in my district at least, just 
don't understand how the will of Congress has been vacated as 
it relates to Mexican trucks having free access to America.
    And this does go back, in a way, to the issue of signing 
statements for this reason--and I understood and appreciated 
the history that you shared with us, and the discussion about 
the fact that, you know, this is a way that the President has 
some authority to not veto a bill but to say that on certain 
aspects of a bill he is not going to follow the wishes or the 
dictates of Congress.
    And this would be my question, and it is something that one 
of you said. How do we get, legally speaking, a better check 
and balance?
    I mean, when I look at--Senator McCain says, ``If I am the 
President, I will never sign a signing statement,'' according 
to this report. In addition, Mr. Obama and Mrs. Clinton say, if 
they become the President, that they have been disappointed 
with how much it has been used by this Administration.
    Is there any way to get Congress back into this process, so 
that we don't have a President, no matter who he or she might 
be in the future, that can just use their signing statement--
and, Mr. Halstead, I believe you said, and said correctly--and 
this will be my last point--and you gave the exact figures 
about the fact that George W. Bush, 107, of which 47 express 
constitutional objections or other concerns. President Clinton 
had 70, which was 18 percent of all those he signed, were 
constitutional concerns or objections. And then President 
George W. Bush, 118, which is 78 percent of his 152 or 154--
that 78 percent are constitutional objections or concerns.
    If this is going to be such a way of life for the 
Congresses of the future and the Presidents of the future, is 
there any way to get any type of--or to strengthen the checks 
and balances or the limits to how a President can just bypass 
the will of Congress with signing statements? I don't know.
    If everybody would answer that, I would appreciate it.
    Mr. Halstead. There is very little that can be done to 
formally constrain the President from issuing a signing 
statement. I mean, the notion that Congress could somehow 
prohibit the President from issuing a signing statement I think 
is a nonstarter.
    Some of the legislative proposals that are out there would, 
for instance, prohibit the use of any appropriated funds for 
the President to issue a signing statement. And that gets to 
Professor Rosenkranz's notion of, are there unconstitutional 
restrictions that Congress can impose via the appropriations 
power. That might theoretically be one of those instances. But 
even more fundamentally, there is nothing that would prevent 
the President from walking down to the corner drugstore, buying 
his own pen and paper and saying, ``Here you go. Here is your 
signing statement.''
    So from that perspective, for Congress to robustly assert 
its own prerogatives, I think it is essential--and this inquiry 
today I think is a good example of this--to have a systematic, 
regular exercise of Congress's oversight prerogatives, to 
ensure that the executive branch is, in fact, complying with 
congressional enactments.
    And I think that is fundamentally the way that goal will be 
accomplished. There is very little that you can do to prevent a 
President from issuing a signing statement or even 
fundamentally change his conception of his powers. But you can 
work to ensure that those enactments that are in question are, 
in fact, being carried out.
    Mr. Fein. But I think you can add sunshine to this by 
requiring, by statute, that all decisions by the President or 
the executive not to enforce a law be either published in the 
Federal Register or be systematically reported to Congress in a 
way that enables the press and the public to know exactly what 
is going on.
    The hearings can be hit or miss, and they don't attract the 
same kind of attention. And then you could require that it be 
put on special pages or access to the Internet, so every time 
that there is this decision to ignore a law, everyone knows 
what is going on.
    And then it would enable some reactive legislative to be 
specially targeted to that one provision. Then you could use 
the appropriation powers--no money of the United States shall 
be used not to enforce X, Y or Z statute that has been flagged.
    Mr. Kepplinger. As I think Mr. Akin and also Dr. Snyder 
have observed, one of the benefits, if you will, of signing 
statements is that they will enhance transparency and 
accountability. That presumes, however, that they are stated 
with enough specificity so that you understand what the 
particular concerns are and you are not left guessing.
    If you have that particular scenario, then I think a 
robust--to use T.J.'s word--vigorous oversight can be very, 
very helpful. And certainly, our limited analysis of the 
implementation of provisions in the 2006 Appropriations Act 
tells me that one should not assume compliance, one needs to 
stay on top of these matters of interest. And you can use these 
signing statements as a yellow or red flag to help you in that 
particular area.
    I would also point out that there is presently on the 
statute books in title 28, I think it is 530D, a requirement 
that the attorney general--and it also extends to, in certain 
limited circumstances, to the heads of the agencies--report 
when they are going to adopt a formal or informal program of 
nonenforcement of a particular statutory provision.
    Dr. Snyder. Although we don't think that has been used. And 
that provision was accompanied by a signing statement.
    Mrs. Davis for five minutes.
    Mrs. Davis of California. Thank you, Mr. Chairman.
    I would like to follow up a little bit more on this 
discussion. And I think we have a vote, so I am going to be 
quick.
    When you talk about being more proactive--and I think you 
basically said part of this is really monitoring very closely 
any outcomes as a result of the signing statement.
    Is there anything, though, just going back, I think, to 
what Mr. Halstead said--in this dance between the President and 
the Congress and I guess the Administration in some way, do you 
see anything in that process that should be looked at that 
could be more helpful? Whether or not there is a notice given 
that--in order to have a signing statement that relates to a 
certain piece of the legislation, at least some notice would 
need to be given up front.
    Is that way out of line? Can you speak to that a little 
bit, trying to help us through that?
    The other thing to just help me understand a little bit 
better is, where do these signing statements emanate from? I 
mean, is this somebody in the Administration who is the point 
person, who is looking to try and make those decisions? And I 
think some of you have experience with this. Where is it that 
we should be, I guess, focusing our efforts as we are working 
through some of this legislation, in particular?
    Mr. Rosenkranz. Well, I guess I would say first, I think 
the committee may be frustrated, to some extent, by how vague 
this particular signing statement is. So it is quite true that 
in this signing statement it is difficult to know exactly what 
the constitutional objections are.
    On this question of separation-of-powers dialogue, I quite 
agree, I think it would be better if the President were more 
specific in these signing statements.
    On the other hand, you have to understand that the 
President is interpreting laws ex ante, before any enforcement 
has happened, unlike courts, which are presented with actual 
cases and controversies. It is a much harder project to spot 
constitutional objections on the plain face of a statutory text 
than it is when you have actual parties in front of you and the 
thing has been enforced. This is a reason why the President is 
not as precise as we might like sometimes in his signing 
statements.
    It is nevertheless possible to read these things very 
carefully in light of prior Office of Legal Counsel opinions, 
prior Presidential signing statements, and figure out quite 
what the constitutional objections are and, ideally, to 
anticipate them for subsequent legislation.
    Mr. Fein. But some of these signing statements are not 
susceptible to after-the-fact redress, if you will.
    Suppose Congress enacts a law similar to 1222 and says, 
``There shall be no money appropriated to bomb nuclear 
facilities in Iran.'' The President issues a signing statement, 
well, he hasn't done it yet. So then he bombs the nuclear 
facilities, says, ``I don't have to obey that.'' Well, then do 
you hold an oversight hearing to decide, gee, whether he had 
authority to do that? The harm is already done. And that is 
especially true in national security affairs.
    Suppose President Nixon said, ``I am not going to obey the 
limitations on taking the Vietnam War into Laos or Cambodia.'' 
He goes in there with 500,000 troops, and then you hold a 
hearing afterwards? I mean, that is ridiculous.
    And one of the dangers about this particular signing 
statement is that it is so vague, because it suggests there is 
an unlimited power.
    Mrs. Davis of California. But that is largely by design.
    Mr. Fein. Of course it is. These people who write these 
statements--because I was in Office of Legal Counsel, which 
writes these statements--they aren't sitting there, you know, 
saying, ``Well, let's write this off in five minutes.'' They 
sit and think about this. Read all the books that have been 
written by those who served in the Administration. Of course it 
is calculated.
    And you will notice the language: anything that impinges 
upon what the President thinks are his powers to execute his 
authority as commander in chief over national security. Well, 
that covers virtually everything under the sun. ``I think I 
need money in order to build an anti-satellite program. I will 
just spend it on my own.''
    Mrs. Davis of California. Mr. Kepplinger, did you have a--
you seem to be responding--is there a way of getting in there 
before--you know, triggering that early on?
    Mr. Kepplinger. Well, I mean, somebody had already 
mentioned the statement of administrative positions when you 
are drafting a bill. And one would hope that any Administration 
is closely working with the Congress, if it has any 
constitutional concerns, before the bill is enacted. I mean, I 
would think that would be kind of a basic show of respect 
between equal bodies of our government.
    With respect to what particular measures should be brought 
to bear, it is always a function of the circumstances. But I 
would remind Mr. Fein that there were all sorts of hearings in 
anticipation of some of the limitations on President Nixon's 
authority that led to public awareness of the bombings and the 
incursions into Cambodia.
    But if, for example, there is a clear restriction on the 
use of appropriated funds, there are remedies.
    Thank you, sir.
    Dr. Snyder. We had better--we are short on time, Mrs. 
Davis.
    And it is one vote. Again, a motion to adjourn. We should 
be back. If any of you need to use phones or have some privacy, 
the staff would be glad to help you.
    [Recess.]
    Dr. Snyder. Dr. Gingrey, you are looking very alert, for 
having been up all night seeing the space shuttle, and I 
applaud you for hanging on.
    Dr. Gingrey. Looks can be mighty deceiving, Mr. Chairman, 
mighty deceiving indeed. [Laughter.]
    Dr. Snyder. Dr. Gingrey for five minutes.
    Dr. Gingrey. Thank you, Mr. Chairman.
    Mr. Fein, your opening remarks, statement, in regard to 
1222 in particular, you made a very emphatic statement, that 
there was no ambiguity whatsoever and that there was no way 
that the President could misinterpret the precepts of 1222.
    And you also stated in a recent op-ed in the Washington 
Times that, ``A combination of congressional inertness and 
imbecility, when confronted with signing statements like the 
one attached to the most recent defense authorization act''--
and I am assuming you reference mainly 1222----
    Mr. Fein. Yes.
    Dr. Gingrey [continuing]. Has crippled the power of the 
purse to check executive abuses and craving for perpetual 
war.''
    Now, I presume that you are referencing this President and 
his craving. I presume that--you have made a statement also 
about sending troops to their death, or something to that 
effect.
    Mr. Fein. Well, when they fight, they usually die.
    Dr. Gingrey. I am paraphrasing a bit, but, I mean, you can 
clarify if you wanted.
    But I think the question I want to ask you, after I make 
this point--the President, I think, could interpret 1222 in a 
way to say, ``What is the definition of a permanent base?'' It 
was very clear, no permanent bases; no money shall be used in 
this appropriate to establish permanent bases in Iraq. Well, is 
that a base that is there five years? Would that be permanent? 
One ten years, would that be permanent?
    Mr. Fein. Of course not.
    Dr. Gingrey. One six months, would that be permanent? If 
you will let me finish.
    So I think what we need to keep in mind is that veto is not 
the only exchange that a President can have with the 
legislative branch. And certainly, the opportunity--and some of 
your colleagues on the panel I think have pointed this out very 
clearly--that the opportunity, once something occurs, to say, 
well, you know, is this constitutional or is this not 
constitutional--and so, I think that I disagree with you quite 
emphatically in regard to this President and his intent.
    And if you can maybe specify to us even just one or two 
instances in which you think the President did something 
unconstitutional in regard to ignoring a statute or a part of a 
statute that we sent to him that he signed and that he ignored 
the precepts of.
    Mr. Fein. Let me first explain permanent war. That is what 
we are in at present, Mr. Congressman. The standard that the 
Administration has established for permanent war is that if 
there is any homo sapien anywhere in the Milky Way that 
threatens an American with a terrorist act, we are at war. And 
there has been no suggestion that there is any benchmark of 
terrorism that will ever be satisfied that ends the war. So we 
are in permanent war.
    Second, with regard to----
    Dr. Gingrey. Also permanent war with Korea, as an example? 
We have 35,000 troops there. Are we at permanent war?
    Mr. Fein. I think that there is a truce that has been there 
since 1953, negotiated by then-President Eisenhower.
    Anyway, this is something that is new, with regard to a 
tactic that will never bring a state of war to an end. And that 
is global, because terrorists fight everywhere. It is not 
country-specific.
    Now, with regard to provisions of the law that the 
President may ignore, he oftentimes doesn't flag them, but we 
know that, with regard to the Foreign Intelligence Surveillance 
Act, he did decide to flout that particular statute for at 
least five and a half years.
    When the Congress passed the Protect America Act that is 
now being debated for extension that you may be involved in, 
this was in August of 2007, I was invited to the Justice 
Department, asked to help try to interpret some ambiguous 
provisions in implementation. I said, well, will the President 
comply with the law? Well, he would like to comply, but if he 
thinks he needn't comply because it is important to violate it 
to gather foreign intelligence, he still had authority to do 
that. I said, well, will you tell us if he decides to violate 
the law? No, he is not going to flag that.
    So, simply because we don't have in the New York Times or 
The Washington Post yet a disclosure doesn't mean that the law 
isn't being violated.
    And I called to your attention, Mr. Congressman, the years 
that we had these hearings, then chaired by Senator Frank 
Church, and there were companion hearings in the House by Otis 
Pike, which disclosed 30 or 40 years of illegal spying that was 
never disclosed: opening mail, intercepting international 
telegrams and otherwise.
    The problem is, everything isn't done in the sunshine; we 
don't know, which is a worrisome element. And when you ask 
questions of this Administration, they say, ``State secrets, 
executive privilege, we won't tell you.''
    You now, even two years after the New York Times disclosed 
the warrantless surveillance program, don't know what its 
complete ramifications are. So you can't be definitive in 
giving an answer, whether the President has flouted the laws 
that Congress has passed.
    Dr. Gingrey. Mr. Chairman, I see that my time has expired. 
I just would wonder if Mr. Fein's level of cynicism toward this 
President extends to other Administrations as well.
    Mr. Fein. Certainly other Administrations was what caused 
Congress to enact the Foreign Intelligence Surveillance Act, 
and that is why we have checks and balances. It is the founding 
fathers who said we don't have angels; that is why ambition has 
to be made to counteract ambition. It is not cynicism, it is 
human nature. Absolute power corrupts absolutely, whether you 
are in the legislative branch or executive.
    Dr. Snyder. Mr. Conaway for five minutes. Then we will go 
to Mr. Andrews.
    Mr. Conaway. Thank you, Mr. Chairman.
    And I hate to act like we are piling on, Mr. Fein, but the 
phrase, ``permanent war,'' where is that in 1222?
    Mr. Fein. No, Congressman, I didn't intend to insinuate 
that language was in 1222----
    Mr. Conaway. I only get five minutes.
    While trying not to confirm your imbecility--opinion of 
Congress with my comments, I would like to finish having an 
exchange with you.
    Your unflappable certitude that there is no ambiguity in 
1222 is--as an example, Fort Ord, in California, would have at 
one point in time been a permanent base. Reese Air Force Base, 
in Lubbock, Texas, would have been a permanent base. Webb Air 
Force Base in Texas would have been a permanent base. They no 
longer exist in those forms.
    ``Control over oil resources,'' does that mean if we have a 
squad or a platoon guarding a particular switching station or a 
pipeline, that we can't do that because that would be 
exercising control? If we try to encourage the Iraqi 
legislature to spend the money in certain ways, are we 
controlling those oil resources?
    So, while you--again, I am not a linguist. I come from a 
part of the country where O-I-L can sometimes be a two- and 
three-syllable word. I wouldn't presume to be a linguist of any 
standing whatsoever. Even as naive and uninformed as I am, I 
can conjure up some ambiguity there that a crafty plaintiff's 
lawyer might like to take that side of the case.
    So when you are so strident in your opinion that there is 
absolutely no room for a second interpretation of two words, 
``permanent basing,'' you know, there is nothing permanent with 
a facility in Iraq that would ultimately be turned over to the 
Iraqis, that was of concrete and it would look like permanent 
structures, that would be for the benefit of our military using 
it temporarily until it was turned over to them--would that 
violate this permanent stationing clause?
    That is just editorial comments. You have had a chance for 
your editorial comments.
    You did make one comment about sunshine--you know, 
President announcing it--I guess your a favorite of the Post or 
the Times as being the official sunshine of the world. I am 
not.
    But what role would hearings like this have if we found 
some expenditures for permanent stationing or control that we, 
in our collective imbecility, thought were in violation of the 
law, and hauled the folks in here that actually were charged 
with spending that money? Is that sunshine that you would 
accept?
    Mr. Fein. Of course. In fact, it is regrettable we don't 
have Administration officials today testifying about the 
alleged ambiguity that you find in the statute. But the 
President didn't suggest, in the signing statement, that he 
didn't understand what 1222 meant.
    Mr. Conaway. Well, I don't know that we alleged any 
ambiguity, but apparently the President does.
    Mr. Fein. He didn't say that it was--do you find the word 
``ambiguity'' in the signing statement, sir?
    Mr. Conaway. No.
    Mr. Rosenkranz. Congressman, I think you are quite right 
that even the clearest provision can--ambiguity can lurk even 
in what seems like the clearest provision on its face.
    And the way that a provision of law will interact with the 
Constitution, whether it will perhaps raise a constitutional 
concerns, is going to turn on facts on the ground. So it is 
very hard to know ex ante whether any given provision is going 
to raise a constitutional concern, in light of what facts might 
arise in Iraq, as you point out.
    So the President is really just using these statements to 
flag the possibility that, given a certain set of facts, a 
certain interpretation of the statute might raise 
constitutional concerns. That is all these statements really 
do.
    Mr. Conaway. I want to make one final comment. I suspect 
every single once of us thinks our constitutional 
responsibility varies. And for it to be implied or stated flat-
out that I or my colleagues breached our constitutional 
responsibilities because we voted for something that isn't 
perfect, isn't--you know, something certainly as large as the 
Defense Authorization Act or the large omnibus bills, that we 
somehow breached our constitutional duty--or that the 
President, for that matter, breached his constitutional duty by 
pointing that out is very in the extreme.
    Mr. Fein. I never said that, sir.
    Mr. Conaway. Well, that is what I heard.
    Mr. Fein. Well, you heard something I didn't say.
    Mr. Conaway. Here is the developing status of forces 
agreement, which we typically do. Is there no possibility that 
1222 couldn't be limiting in that regard?
    Mr. Fein. Congress has the authority to limit what the 
executive can do. That is part of our Constitution.
    Mr. Conaway. I appreciate your open-mindedness to other 
people's opinion.
    I yield back.
    Dr. Snyder. Mr. Andrews for five minutes.
    Mr. Andrews. Thank you.
    I thank the panelists. I apologize for not being present 
for your oral testimony, but I read what you had to say.
    I think what we are having here is a discussion about two 
points there is broad agreement on. I don't think anybody 
disagrees the President has the authority to interpret 
ambiguous statutory language and give his own interpretation in 
direction the executive branch. And I think just about 
everybody would say here the President has no constitutional 
authority to disregard a specific statutory mandate.
    But, Professor Rosenkranz, I want to test with you how far 
we can stretch this interpretation-of-ambiguity idea. Is it 
your position that the President can issue a signing statement 
in which he disregards a statutory directive only when he 
thinks it is ambiguous, or any time he feels like it?
    Mr. Rosenkranz. There are two different kinds of 
constitutional signing statements the President can issue. One 
concerns ambiguity in statutes, and in those you usually find 
the word ``construe'' or ``interpret.''
    Mr. Andrews. Right.
    Mr. Rosenkranz. ``I will construe or interpret this statute 
consistent with some constitutional provision.'' That is the 
vast majority of signing statements.
    A small number of signing statements are triggered when 
there is no ambiguity and this provision is flat-out 
unconstitutional. He cannot find a constitutional reading of 
it. There the signing statement might say----
    Mr. Andrews. Let me ask you a couple hypotheticals. I was a 
law student. I have always wanted to ask law professors 
hypotheticals. So this is a great moment for me. [Laughter.]
    What if we passed a statute that said the President shall 
build a missile defense shield capable of knocking down an 
incoming Inter-Continental Ballistic Missile (ICBM), and the 
President says, ``I am not going to do that. I actually think 
that makes the country less secure, not more secure, so I am 
not going to do it. I am going to direct the Secretary of 
Defense not to implement the planning for this weapons 
system,'' and he does so by signing statement? Is that a valid 
exercise of Presidential prerogative?
    Mr. Rosenkranz. Well, again, I would have to understand, is 
that the entire bill, or is that a small provision of an 
enormous bill?
    Mr. Andrews. It is a paragraph of an enormous bill, just 
like the four instances under question here.
    Mr. Rosenkranz. So, if the President believed that that 
provision was constitutionally problematic, he could flag that 
constitutional----
    Mr. Andrews. Is it only if he believes it is 
constitutionally problematic, or he just doesn't like it?
    Mr. Rosenkranz. He has no power to do that if he just 
doesn't like it. Only if there is a constitutional----
    Mr. Andrews. In four instances--okay. In the four instances 
that are before us, did the President find each of these 
provisions constitutionally problematic, or did he just not 
like them?
    What was constitutionally problematic about the provision 
that says that we should not have a permanent base in Iraq?
    Mr. Rosenkranz. He made crystal-clear that his objections 
here are constitutional objections. And----
    Mr. Andrews. What were those objections? Constitutionally, 
what were they?
    Mr. Rosenkranz. In 1222, his objection, perhaps--well, the 
signing statements aren't crystal-clear on this point, but----
    Mr. Andrews. I would argue it doesn't say. I am sorry, what 
were you going to say?
    Mr. Rosenkranz. The signing statement does specify that it 
is a constitutional objection. The constitutional objection I 
infer is an objection to appropriating money with conditions 
that impinge on the commander-in-chief powers.
    Mr. Andrews. But it is kind of contradictory, because one 
of the arguments you make in favor of the robust use of signing 
statements is that it lays out the rationale for a Presidential 
decision. And I think there is something to that. But now you 
are telling us that you had to infer what the constitutional 
objection was.
    Shouldn't the President, at the very least, be explicit 
about the basis of his constitutional objection?
    Mr. Rosenkranz. Congressman----
    Mr. Andrews. I think he just disagrees with the idea of 
permanent bases in Iraq, which is his prerogative, in which 
case he should veto the bill.
    Mr. Rosenkranz. Congressman, I agree with you that these 
signing statements should be drafted as clearly as possible. 
But it is at least clear on this one point, that it is a 
constitutional objection, not an objection based on policy.
    Mr. Andrews. What is it? What is the constitutional 
objection to the bases in Iraq?
    Mr. Rosenkranz. Again, I think the constitutional objection 
is that----
    Mr. Andrews. You think? Or you can get it from reading the 
four corners of the statement?
    Mr. Rosenkranz. I can get it from reading the four corners 
of the statement. I believe that what the President is driving 
at is that appropriations bills cannot be subject to any and 
all conditions, that there may be some restrictions----
    Mr. Andrews. I would----
    Mr. Rosenkranz [continuing]. On what Congress can do in 
attaching conditions.
    Mr. Andrews. You are a vigorous advocate of your position. 
I just disagree with you, because I think our Constitution is 
not built on nuance or what we think someone said. We pass 
statutes that say certain things, and the President either 
vetoes those statutes or signs them. And his job is to execute.
    Now, where there is ambiguity, I agree with you, you need 
to explicate that. But I think what we really have here is a 
use of the signing statement process to express policy 
disagreements, not constitutional disagreements.
    And I have searched these four signing statements high and 
low, and, boy, it is hard to find many shards of constitutional 
law in there. I mean, I know he wants, probably, permanent 
bases in Iraq. He doesn't like this vigorous role for the 
Inspector General (IG). I think I know why, given the fiasco we 
have had in Iraq. He doesn't like the mandate that intelligence 
reports be shared with us when we ask for them. He doesn't like 
the commission on wartime contracting.
    But not liking something is a political decision, not a 
constitutional one. And I think the remedy is vetoing the bill, 
not saying you are just not going to enforce it.
    Mr. Rosenkranz. Again, Congress, the signing statement is 
only two paragraphs long, and it is crystal-clear that it is 
making a constitutional objection, not a policy objection.
    Mr. Andrews. But what is it? What is the constitutional 
objection?
    Mr. Rosenkranz. The constitutional objection is that 
certain provisions of this bill may impinge on the 
President's----
    Mr. Andrews. But specifically on the base issue, what is 
the constitutional objection? Did he say, ``I think it is in 
the national security interest to maintain a base there 
permanently, and as commander in chief I have made that 
judgment and you are impairing it''? Did he say that?
    Mr. Rosenkranz. He said implicitly that this provision 
could constitute a condition on spending----
    Mr. Andrews. Sort of like the implicit power for indefinite 
wiretapping under the Fourth Amendment. I just don't agree with 
you. A vigorous defense, you get an A in the class, but I don't 
agree. [Laughter.]
    Dr. Snyder. Mr. Akin.
    Mr. Akin. I don't have any additional questions.
    Dr. Snyder. We will go around again here, with the three of 
us.
    I wanted to read a little bit, if I might, from the 
statement by Tom Allen and John Tierney that was made a part of 
the record earlier. Toward the beginning of the statement, they 
say, ``We are baffled that the nature and foundation of the 
President's objection to the establishment of a bipartisan 
commission to weed out waste, fraud and abuse by government 
contractors carrying out missions in the name of the U.S. 
people and at their expense. We find it deeply troubling that 
the President's signing statement suggests that the 
Administration may hinder the work of this anticorruption 
commission. As a result, we offer this testimony in the hope 
that the Administration will clarify its intentions and clearly 
inform U.S. taxpayers that it will fully support the work of 
this vital commission.'' That is that paragraph.
    And then toward the end of the statement, again quoting 
from Congressman Allen and Congressman Tierney, ``It is our 
sincere hope that the President's signing statement is merely 
boilerplate rather than an indication that the Administration 
will not fully support the establishment and work of the 
wartime contracting commission. On behalf of the U.S. 
taxpayers, we will closely monitor the Administration's action 
in the coming days and weeks. And, with like-minded colleagues, 
we will use all congressional rights and powers at our disposal 
to both ensure that the American people receive a full 
accounting of the President's intentions and, at the end of the 
day, ensure this commission is quickly constituted and able to 
fully conduct its important work.'' That is the end of the 
quote.
    I may address this to you, Mr. Halstead, and for anyone 
else. I mean, I think you have referred to this issue that we 
may just want to take signing statements and say, ``This will 
be our menu for oversight.''
    And we didn't make a big fuss today when the DOD said they 
didn't want to come here. They make the argument, ``Look, we 
are not here to do the esoterics of constitutional law.'' We 
will make a big fuss if we have a hearing, if Mr. Akin and I 
decide to have a hearing, or Congressman Tierney, who is the 
chairman of the oversight committee on national security for 
the Government Reform Committee under Mr. Waxman, if he decides 
to have an oversight hearing on this specific provision and DOD 
says, ``We don't think we are going to send witnesses,'' I 
guarantee you that Members of Congress are going to go 
ballistic. Because it will be about a specific provision of law 
we expect them to carry out.
    What do you think about this idea that, in fact, what they 
have done is the President has given us a menu for oversight 
and we need to drill down in these areas?
    Mr. Halstead. I think that is--it is a point that I have 
made over the last couple years, as I have been addressing the 
controversy over Presidential signing statements, because there 
you have a discrete example in a signing statement regarding a 
discrete provision of law that creates this task force to study 
contracting in Iraq and Afghanistan.
    From a constitutional perspective, I think anybody would be 
hard-pressed to attack the constitutionality of this 
commission. It is not an entity that wields any degree of 
executive authority, so there are not Appointments Clause 
implications in that regard.
    It doesn't even have subpoena authority, which--it is well-
established that legislative commissions can wield subpoena 
authority. But this entity does not even have that.
    Dr. Snyder. One provision in it, it calls for the----
    Mr. Halstead. For the release of information upon request?
    Dr. Snyder [continuing]. That no longer requires it to have 
a couple appointments.
    Mr. Halstead. Right.
    Dr. Snyder. So another possibility in this is we will fine-
tooth through this stuff and figure out ways, do we need to 
write things differently. And we might say, well, to hell with 
them. You know, it is partly courtesy, partly we would benefit, 
from having people that both the Secretary of State and the 
Secretary of Defense wanted. But if it creates these kinds of 
problems, let's do a commission without the input of the 
executive branch. That doesn't seem a helpful result either.
    It seems like one response to this may be we will write 
things differently in a way that is not helpful to the 
executive branch, nor helpful to national security. Do you see 
that as a possibility also?
    Mr. Halstead. That is one potential. Again, from a 
constitutional perspective, there would be nothing to impair or 
prevent this commission from being purely a legislative 
commission in appointment.
    It does carry significant practical implications for the 
work of the commission, because, as a matter of comity, this 
notion of having a hybrid legislative Presidential appointment 
gives an imprimatur to this body that it has both executive and 
legislative officials, or appointees, who share a common goal 
in identifying issues surrounding contracting in Iraq and 
Afghanistan.
    Dr. Snyder. I think one of the things--Mr. Andrews left, 
but the issue about fleshing these things out. I mean, we did 
have a veto of this bill. There was a veto message that said 
specifically why the bill wasn't liked. It would have been a 
perfect time to say, ``Oh, by the way, there are four other 
provisions that I mention in my signing statement. These are 
the potential areas of concern we have. It would probably be 
better that you would draft these in such a way that we will 
not have to specifically enumerate them as potential problems 
with interpretation.''
    But that wasn't done. I mean, it doesn't seem, Mr. 
Rosenkranz, to help your case, in terms of them trying to get 
better clarification of language, if it is not even included in 
the veto message.
    Mr. Rosenkranz. But, Mr. Chairman, the fact of a signing 
statement flagging certain potential constitutional issues does 
not necessarily mean that something has gone wrong. It doesn't 
necessarily tell us that something is wrong with the drafting 
of the bill or that the bill should have been clearer or 
something like this.
    You just have to imagine, in an enormous bill, its 
interaction with facts on the ground, potentially infinite. So 
it is unsurprising to find that a provision of a huge bill, 
under some set of circumstances, might raise a constitutional 
issue, and the President just flagging that that is a 
possibility under some set of facts.
    Dr. Snyder. Yes, but that is--well, my time is--but that is 
not helpful at all, is it? I mean, to say, ``including these 
provisions.'' It is not helpful at all to say every provision 
of law may, at some point, depending on facts on the ground, 
have constitutional problems.
    I can probably take any provision of law, and even my 25 
years removed from going to law school, be able to come up with 
a set of facts that would bring about constitutional issues. I 
can do that, I think, with about any provision of law. I don't 
think that is helpful.
    The other thing about this--and then we will go to Mrs. 
Davis--is this is coming at a time when this Congress, in a 
bipartisan manner, really appreciate the work of Secretary 
Gates and Secretary England. There is just a night-and-day 
experience, in terms of our confidence in the Pentagon, the 
transparency, the information we get, the responsiveness. And 
so, this was clearly unresponsive.
    I mean, we can nitpick it and say, ``Yeah, they are just 
mentioning it is a potential problem''--well, no, that is not 
helpful.
    And, frankly, I think those guys--I don't know--I think 
they didn't have anything to do with it. I think somewhere some 
lawyers were sitting there saying, ``We need to cite some of 
these things because we are trying to stake out executive 
branch authority. And even though we know they are going to be 
enforced, we are going to throw these few provisions in there 
anyway.'' I mean, it is difficult to interpret in any other 
way.
    Mrs. Davis.
    Mrs. Davis of California. Thank you, Mr. Chairman.
    Thank you, again, for all of you being here.
    Professor Rosenkranz, you said that basically this is 
rhetorical, that the statements are rhetorical. I think that is 
what you said.
    Mr. Rosenkranz. I don't think they are quite rhetorical. 
They are the President signalling possible constitutional 
issues with the bill and suggesting that he is going to 
interpret the bill consistent with his constitutional 
obligations. So I wouldn't call them quite exactly just 
rhetoric.
    Mrs. Davis of California. Okay. I think you did say 
rhetorical, but I may be mistaken.
    At what point would it not be rhetorical? Where would you 
draw the line?
    Mr. Rosenkranz. Again, I don't think that I said these are 
rhetorical. And I don't think they are quite just rhetorical. I 
think they are signalling one of the tools that the President 
will use when he tries to interpret this act.
    Mrs. Davis of California. Would anybody else like to weigh 
in? I mean, where would you begin to say, okay, this goes 
beyond it being a statement that he is signalling? Where is he 
not signalling? I mean, do you think, is there something more 
than a signal here? Something more than a signal that even the 
Supreme Court, at some point, did weigh in on?
    Mr. Kepplinger. Mrs. Davis, I have been listening to the 
discussion, and, you know, my view when I first read the 
President's signing statement with respect to this is--my 
reaction: What is the point?
    To the extent that there are circumstances that may present 
themselves at some point in the future, where the application 
of one of these provisions to particular circumstances present 
an issue, you certainly can deal with it then. You certainly 
aren't inhibiting your ability to deal with it then by being 
silent when you signed the statement.
    And so, I begin to get--it is a little bit of a Chicken 
Little reflex of, you know, the sky is falling on Presidential 
authority, which I don't think is the case at all.
    And so, I think it is--the Congressional Research Service 
(CRS) has made the point in the past that this orchestrated use 
of signing statements to raise abstract, conjectural 
constitutional issues is more to, if you will, advance an 
ideology than it is to deal with any particular issues of the 
moment.
    Mr. Fein. If I could elaborate, most of the checks and 
balances, separation of powers law that the Supreme Court 
embraces comes more from practice in rhetorical exchanges 
between Congress and the executive branch than by looking at 
the words of the Constitution, which are blurry at best in this 
regard.
    This is an effort by the President to establish de facto 
what the Constitution means by saying over and over again, 
``These are my prerogatives, and you can't encroach on this.'' 
And if Congress doesn't respond, he will go into court and say, 
``See? I have said this all along. And Congress hasn't 
suggested that I am wrong, and therefore that is what the law 
is.'' That is how executive privilege, actually, was finally 
endorsed by the U.S. Supreme Court in the U.S. v. Nixon case.
    The other issue that is addressed, at least indirectly, by 
your question is, oftentimes, the nonenforcement is 
undetectable. The President doesn't come forward and say, ``You 
know, I am violating that law. I am not going to enforce it.''
    And that has happened with the Foreign Intelligence 
Surveillance Act (FISA). The President never said after 9/11, 
``Eh, the act is antiquated. I am just going to go ahead and 
enforce in other ways.'' And despite the ridicule of the New 
York Times, we wouldn't have a discussion about FISA. You 
wouldn't even be thinking about the Protect America Act if the 
executive branch hadn't leaked that information to the New York 
Times. We wouldn't know about it.
    Mrs. Davis of California. Mr. Halstead.
    Mr. Halstead. It is essentially part of what I see as a 
general strategy or position on the part of the executive 
branch that any time we have the opportunity to assert very 
expansive assertions of Presidential power, we are going to 
take that opportunity. And it is designed to inure Congress, 
the courts, the public to the notion that the executive branch 
in fact possesses these large swathes of power, upon which 
Congress and the courts may not intrude.
    And in my report, I lay out instances. One of the most 
common things you see in signing statements is objections to 
direct reporting requirements that are imposed by Congress. It 
is well-established that those are not remotely 
constitutionally problematic in and of themselves. Certainly, 
if you have a direct reporting requirement that intrudes upon a 
sphere of privilege, then you may have an issue. But, as a 
general matter, direct reporting requirements are 
constitutionally unexceptional.
    And so, it is part of an overall position or strategy, I 
think, on the part of the Administration to forward these 
claims of power whenever possible.
    Mr. Rosenkranz. I should just say, I don't see any evidence 
in this signing statement, or in this President's signing 
statements generally, of broad strategy to assert some broad 
swathe of executive power. The statement is only two paragraphs 
long.
    And what it is saying is, ``This statute could possibly 
raise constitutional issues, and I am going to keep that in 
mind, in particular with regard to these specific provisions. 
And I want the executive branch to keep this in mind, as 
well.'' It doesn't say anything more than that.
    Mrs. Davis of California. But I think that--earlier, I just 
thought I heard you saying that there is a place for Congress, 
though, to be more proactive, as it relates to those signing 
statements. And I am trying to determine the extent to which 
that is the case.
    Mr. Rosenkranz. I agree that Congress should read these 
things carefully.
    Dr. Snyder. Mr. Andrews for five minutes.
    Mr. Andrews. I wanted to ask each of our two law professors 
how they reconcile the controversy over signing statements with 
Justice Scalia's announcement that legislative history has very 
little to do with anything.
    And the reason I ask this--and I think that is perhaps an 
unfair characterization, but I think it is accurate.
    The reason I raise that is, of course, if the 
Administration is going to continue to preempt litigation or 
challenges by announcing what it thinks something means without 
vetoing, then, of course, our corresponding power would be to 
make it clear in legislative history what we mean.
    So let me try this one on. Let's say that in the section 
841, commission creation, we had said in the committee report 
of this committee and again on the floor in a colloquy that, 
should a situation arise where an executive branch person who 
is commanded to turn over a document believes that the turning 
it over would constitute a violation of executive privilege or 
some other executive constitutional prerogative and that that 
is shared by the President, that it is not our intention to 
have that ``shall'' applied to that. So we disclaim in the 
legislative history that we are pushing that constitutional 
envelope. It is only in cases where there is no dispute that 
they ``shall'' do it.
    I think Justice Scalia has told us that that doesn't mean 
anything. First of all, do any of you disagree with that 
characterization of Justice Scalia's position?
    Mr. Fein. He has clearly stated that it is the language of 
the statute that counts and that legislative history isn't 
voted on by the Congress and it is not signed or vetoed by the 
President. And, therefore, it is----
    Mr. Andrews. So, Professor Rosenkranz, do you agree with my 
characterization?
    Mr. Rosenkranz. Justice Scalia would say that legislative 
history is not very useful to the interpreting of Federal 
statutes, and also Presidential signing statements are not very 
useful to the interpreting of Federal statutes.
    Mr. Andrews. I don't quite know that that issue has reached 
him yet. But I do know--so what we do have, at least a 
significant voice on the Supreme Court, if not the majority 
voice, saying that if we want to say something we had better 
put it in the statute explicitly.
    It seems to me, if--do you think Justice Scalia is right, 
by the way? If you were sitting on the court, would you agree 
with that view or disagree with it?
    Mr. Rosenkranz. I would agree with that.
    Mr. Andrews. Okay. So if you agree with that view, then 
shouldn't we make the same thing hold for the executive branch? 
Shouldn't we say that if the President wants something not to 
happen, he needs to exercise his veto power; and if he signs a 
bill, then he really has to execute the law? Shouldn't there be 
a reciprocal obligation in the executive branch?
    Mr. Rosenkranz. It is a very good question. There are two 
different issues here. One is the effect of Presidential 
signing statements in the executive branch. And the other is 
the effect of Presidential signing statements in court.
    So there is nothing inconsistent about saying a 
Presidential signing statement should inform how the Defense 
Department reads----
    Mr. Andrews. But with all due respect, judgments and 
decisions of courts then affect the real world. So if the court 
says, ``No, you don't have to turn over this document about 
contracting in Iraq because it is protected by executive 
privilege,'' then the document doesn't get turned over, right? 
So----
    Mr. Rosenkranz. Congressman, the Secretary of Defense has 
to follow the President's interpretation of the law. The 
Supreme Court doesn't have to follow the President's 
interpretation of the law. They follow their own interpretation 
of the law. There is nothing inconsistent in that.
    Mr. Andrews. It just strikes me as oddly lacking a 
reciprocity here, when you say you agree with Justice Scalia's 
view that if the legislative branch wants to really mean 
something it has to use its common instrument of the statute to 
do so--its only instrument, I guess he would say--but if the 
President wants to nullify a statutory direction, he can simply 
do so without veto; he has this other--it reminds me of the 
penumbras in Griswold v. Connecticut, just sort of happened one 
day. But there is this penumbral power of the President to do 
these signings that are sort of half-fish and half-fowl, right?
    They are half-veto but half-signature. Isn't that an odd 
contradiction?
    Mr. Rosenkranz. Again, there is nothing inconsistent here. 
It is the difference between intra-branch communication and 
inter-branch communication. If you----
    Mr. Andrews. Professor Fein, why am I right? [Laughter.]
    Mr. Fein. I think Professor Rosenkranz is flawed in the 
sense that the majority of these cases will never get into 
court.
    Let's take the situation that we have with 1222. Suppose if 
the President spends money to establish a permanent military 
base in Iraq, who has standing to go into court? You don't. I 
don't. The Supreme Court standing rules make it impossible.
    So the fact is, the President's word is the final word, 
short of impeachment or some other retaliation, through not 
confirming someone or whatever.
    And that is most of the cases concerning these claims that 
the President makes in signing statements, raise issues that 
will never get to court because you will never have standing.
    Mr. Andrews. I think the same is true of the intelligence 
mandate. I think if the President refused to turn over an 
intelligence report and we went to Federal district court to 
compel him to do so, we would get kicked out for lack of 
standing.
    So our remedies, apparently, would be to impeach him or, I 
guess, shut the government down and not fund the executive 
branch or some really radical approach.
    Whereas, I would think that if he thinks that this 
requirement that intelligence reports turned over impair his 
ability as commander in chief, he should veto the legislation 
and make us do it over. That is what I think.
    Dr. Snyder. Mr. Akin, anything further?
    Mr. Akin. No. I think we have pretty much plowed the field.
    Dr. Snyder. Well, I know, but I am not going to let that 
stop me from going ahead one more time.
    I have here the President's veto message from December 28, 
2007, of the bill. And it is a two-page statement, most of 
which discusses section 1083 that dealt with Iraqi monies and 
the litigation.
    And then at the very end, he says, ``This legislation 
contains important authorities for the Department of Defense, 
including authority to provide certain additional pay and 
bonuses to service members. Although I continue to have serious 
objections to other provisions of this bill, including section 
1079 relating to intelligence matters, I urge the Congress to 
address the flaw in section 1083 as quickly as possible so I 
may sign into law the National Defense Authorization Act for 
Fiscal Year 2008 as modified.'' And that is the last paragraph.
    So now we have a situation in the most recent message from 
the President about that bill is that only one of the 
provisions are mentioned as warranting consideration.
    I mean, Professor Rosenkranz, what does that do to your 
analysis, that the other three provisions are not specifically 
mentioned? Does it do anything? Are these just, like, messages 
to be ignored, boilerplate, that one day it is going to be four 
provisions, a few days later it is going to be one provision?
    Mr. Rosenkranz. I have not seen that prior statement, so I 
don't know what----
    Dr. Snyder. Okay. This is the veto message that came from 
the President when he vetoed. But my point is----
    Mr. Rosenkranz. And were these provisions identical then to 
the ones that were passed?
    Dr. Snyder. Yes. Yes.
    Mr. Rosenkranz. I see.
    Dr. Snyder. I mean, because my point is he specifically 
talks about serious objections to other provisions of this bill 
but then does not mention three of the four. I don't know what 
it means. I think it is just part of this confusion that we 
have right now.
    Before seeing if Mrs. Davis or Mr. Andrews have anything 
further, I do want to mention I actually do have another Law 
Review article. You have already read my one today from 
Vanderbilt University. And, in fairness to Vanderbilt 
University, I should acknowledge my one-page Law Review article 
by Vanderbilt University. I actually did write another one that 
I actually thought was a real Law Review article about the 
congressional oath of office and what does it mean as a member 
of the Congress to take the congressional oath of office. So if 
you can't sleep at night, take that one.
    Mrs. Davis, anything further?
    Mrs. Davis of California. No, Mr. Chairman. You were just a 
perennial student.
    Dr. Snyder. Yes.
    Mr. Andrews.
    Mr. Andrews. I am going to wait and see the movie. 
[Laughter.]
    Dr. Snyder. All right. Anything further, Mr. Andrews?
    Mr. Andrews. No, thank you, Mr. Chairman.
    Dr. Snyder. Mr. Akin.
    Mr. Akin. No, thank you.
    Dr. Snyder. Thank you all for being here. I am sorry this 
took longer because of the votes. We appreciate your patience 
with us. I think your information has been helpful. Thank you.
    And I will also give you as an open question for the 
record, if anybody has anything that they are dying to submit 
in written form to be appended to this, I would be glad to do 
that in response to this question.
    Thank you. We are adjourned.
    [Whereupon, at 2:36 p.m., the subcommittee was adjourned.]
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                            A P P E N D I X

                             March 11, 2008

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              PREPARED STATEMENTS SUBMITTED FOR THE RECORD

                             March 11, 2008

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