[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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