[Congressional Record Volume 152, Number 98 (Monday, July 24, 2006)]
[Senate]
[Pages S8122-S8124]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    PRESIDENTIAL SIGNING STATEMENTS

  Mr. SPECTER. Mr. President, the American Bar Association issued a 
release today summarizing a report by a blue ribbon task force which 
concluded that President Bush's signing statements are in violation of 
and undermine the important doctrine of separation of powers. As it has 
been widely recorded, President Bush has undertaken a practice of 
issuing a signing statement at the time he signs congressional action 
into law. The task force said its recommendations ``are intended to 
underscore the importance of the doctrine of separation of powers and, 
therefore, represent a call to the President and to all his successors 
to fully respect the rule of law and our constitutional system of 
separation of powers and checks and balances.''
  Noting that the Constitution is silent about Presidential signing 
statements, the task force found that while several Presidents have 
used them, the frequency of signing statements that challenge laws has 
escalated substantially, and their purpose has changed dramatically, 
during the administration of President Bush. According to a press 
release issued today by the ABA, the task force report notes:

       From the inception of the Republic until 2000, Presidents 
     produced fewer than 600 signing statements taking issue with 
     the bills they signed. According to the most recent update, 
     in his one-and-a-half terms so far, President George Walker 
     Bush . . . has produced more than 800.

  The report found that President Bush's signing statements are 
``ritualistic, mechanical, and generally carry no citation of authority 
or detailed explanation.'' Even when ``[a] frustrated Congress finally 
enacted a law requiring the Attorney General to submit to Congress a 
report of any instance in which that official or any officer of the 
Department of Justice established or pursued a policy of refraining 
from enforcing any provision of any federal statute, . . . this, too, 
was subjected to a ritual signing statement, insisting on the 
President's authority to withhold information whenever he deemed 
necessary.''
  This request raises serious concerns on the proceedings for 
separation of powers. The ABA states that its report goes on to say:

       If left unchecked, the president's practice does grave harm 
     to the separation of powers doctrine and the system of checks 
     and balances that have sustained our democracy for more than 
     two centuries.

  The Senate Judiciary Committee held a hearing on this subject and 
found that this practice does threaten the separation of powers 
doctrine. The hearing showed that the Constitution is clear, that when 
both Houses of Congress pass legislation and submit that legislation to 
the President, the Constitution calls either for the President to sign 
the legislation, to engage in what could be called a pocket veto, or to 
veto the legislation and send it back to Congress. If there is a 
constitutional issue and the President concludes that portions of the 
statute are unconstitutional, he has an oath to uphold the

[[Page S8123]]

Constitution. And the way to fulfill that oath is to return the 
legislation to the Congress with a veto message noting the 
unconstitutionality of the provision and giving Congress the option of 
altering the legislation to satisfy the President's request, passing it 
over the President's veto, or declining to act further.
  Additionally, the task force has urged the Congress to enact 
legislation to require the President to submit a report to the Congress 
of any such signing statement and has urged the Congress to enact 
legislation. During the course of the hearing before the Judiciary 
Committee, in my capacity as chairman, I made the request to Bruce 
Fein, who had been a lawyer in the Department of Justice during the 
Reagan administration, to take the lead and prepare legislation on the 
subject. Mr. Fein and my staff have been working on legislation. It is 
my expectation that, before the weekend, we will submit legislation to 
the Senate which will give the Congress standing to seek relief in the 
Federal courts in situations where the President has issued such 
signing statements and which will authorize the Congress to undertake 
judicial review of those signing statements, with the view to having 
the President's acts declared unconstitutional. That is our view as to 
the appropriate status of these signing statements.
  It is worth noting that the task force members include a very 
distinguished array of former public servants, including former CIA 
Director William Sessions; former Republican House Member Mickey 
Edwards; Court of Appeals Judge Patricia M. Wald, and others.
  At this point, I ask unanimous consent that the full text of the news 
release from the American Bar Association be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

      [From American Bar Association, News Release, July 24, 2006]

   Blue-Ribbon Task Force Finds President Bush's Signing Statements 
                     Undermine Separation of Powers

       Washington, DC.--Presidential signing statements that 
     assert President Bush's authority to disregard or decline to 
     enforce laws adopted by Congress undermine the rule of law 
     and our constitutional system of separation of powers, 
     according to a report released today by a blue-ribbon 
     American Bar Association task force.
       To address these concerns, the task force urges Congress to 
     adopt legislation enabling its members to seek court review 
     of signing statements that assert the President's right to 
     ignore or not enforce laws passed by Congress, and urges the 
     President to veto bills he feels are not constitutional.
       The Task Force on Presidential Signing Statements and the 
     Separation of Powers Doctrine was created by ABA President 
     Michael S. Greco with the approval of the ABA Board of 
     Governors in June, to examine the changing role of 
     presidential signing statements after the Boston Globe on 
     April 30 revealed an exclusive reliance on presidential 
     signing statements, in lieu of vetoes, by the Bush 
     Administration.
       In appointing the special task force Greco said, ``The use 
     of presidential signing statements raises serious issues 
     relating to the constitutional doctrine of separation of 
     powers. I have appointed the Task Force to take a balanced, 
     scholarly look at the use and implications of signing 
     statements, and to propose appropriate ABA policy consistent 
     with our Association's commitment to safeguarding the rule of 
     law and the separation of powers in our system of 
     government.''
       The task force report and recommendations will be presented 
     to the ABA's policymaking House of Delegates for adoption at 
     its upcoming Annual Meeting Aug. 7-8. Until the ABA House has 
     taken formal action, the report and recommendations represent 
     only the views of the task force.
       The bipartisan task force, composed of constitutional 
     scholars, former presidential advisers, and legal and 
     judicial experts, noted that President George W. Bush is not 
     the first president to use signing statements, but said, ``It 
     was the number and nature of the current President's signing 
     statements which . . . compelled our recommendations.''
       The task force said its report and recommendations ``are 
     intended to underscore the importance of the doctrine of 
     separation of powers. They therefore represent a call to this 
     President and to all his successors to fully respect the rule 
     of law and our constitutional system of separation of powers 
     and checks and balances.''
       The task force determined that signing statements that 
     signal the president's intent to disregard laws adopted by 
     Congress undermine the separation of powers by depriving 
     Congress of the opportunity to override a veto, and by 
     shutting off policy debate between the two branches of 
     government. According to the task force, they operate as a 
     ``line item veto,'' which the U.S. Supreme Court has ruled 
     unconstitutional.
       Noting that the Constitution is silent about presidential 
     signing statements, the task force found that, while several 
     recent presidents have used them, the frequency of signing 
     statements that challenge laws has escalated substantially, 
     and their purpose has changed dramatically, during the Bush 
     Administration.
       The task force report states, ``From the inception of the 
     Republic until 2000, Presidents produced fewer than 600 
     signing statements taking issue with the bills they signed. 
     According to the most recent update, in his one-and-a-half 
     terms so far, President George Walker Bush . . . has produced 
     more than 800.''
       The report found that President Bush's signing statements 
     are ``ritualistic, mechanical an generally carry no citation 
     of authority or detailed explanation.'' Even when ``[a] 
     frustrated Congress finally enacted a law requiring the 
     Attorney General to submit to Congress a report of any 
     instance in which that official or any officer of the 
     Department of Justice established or pursued a policy of 
     refraining from enforcing any provision of any federal 
     statute . . . this too was subjected to a ritual signing 
     statement insisting on the President's authority to withhold 
     information whenever he deemed it necessary.''
       ``This report raises serious concerns crucial to the 
     survival of our democracy,'' said Greco. ``If left unchecked, 
     the president's practice does grave harm to the separation of 
     powers doctrine, and the system of checks and balances, that 
     have sustained our democracy for more than two centuries. 
     Immediate action is required to address this threat to the 
     Constitution and to the rule of law in our country.''
       Greco said that the task force's report ``constructively 
     offers procedures that consider the prerogatives both of the 
     president and of the Congress, while protecting the 
     public's right to know what legislation is adopted by 
     Congress and if and how the president intends to enforce 
     it. This transparency is essential if the American people 
     are to have confidence that the rule of law is being 
     respected by both citizens and government leaders.''
       The bipartisan and independent task force is chaired by 
     Miami lawyer Neal Sonnett, a former Assistant U.S. Attorney 
     and Chief of the Criminal Division for the Southern District 
     of Florida. He is past chair of the ABA Criminal Justice 
     Section, chair of the ABA Task Force on Domestic Surveillance 
     and the ABA Task Force on Treatment of Enemy Combatants; and 
     president-elect of the American Judicature Society.
       ``Abuse of presidential signing statements poses a threat 
     to the rule of law,'' said Sonnett. ``Whenever actions 
     threaten to weaken our system of checks and balances and the 
     separation of powers, the American Bar Association has a 
     profound responsibility to speak out forcefully to protect 
     those lynchpins of democracy.''
       The other task force members, whose brief background 
     information follows, are William S. Sessions, Patricia M. 
     Wald, Mickey Edwards, Bruce Fein, Harold Hongju Kho, Charles 
     Ogletree, Stephen A. Saltzburg, Kathleen M. Sullivan, Mark 
     Agrast, Tom Susman, and adviser Alan Rothstein.
       The task force recommendations urge Congress to adopt 
     legislation to permit the president, Congress or other 
     entities to seek court review any time the president claims 
     he has the authority, or states his intention, to disregard 
     or decline to enforce all or part of a law he has signed, or 
     when he interprets the law in a manner inconsistent with the 
     intent of Congress. Currently, Congress lacks legal authority 
     to seek judicial review in those circumstances.
       The task force also urges the president to use his veto 
     power, as all prior presidents have done, instead of a 
     signing statement when he believes all or part of a bill is 
     unconstitutional, in keeping with the Constitution's 
     requirement that the president either approve or disapprove 
     in their entirety laws presented to him by Congress.
       If the president believes a bill pending before Congress 
     would be unconstitutional if enacted, he should communicate 
     his concerns to Congress before the bill is passed, according 
     to the task force.
       Additionally, the task force urges Congress to enact 
     legislation requiring the president promptly to submit to 
     Congress an official copy of every signing statement he 
     issues. Any time the president claims authority or states his 
     intention to disregard or decline to enforce all or part of a 
     law he has signed, the legislation should require him to 
     submit a report to Congress, available in a public database, 
     setting forth in full the reasons and legal basis for his 
     position, said the task force.
       Presidential signing statements are not new, according to 
     the task force, which notes that ``Presidents have issued 
     statements elaborating on their views of the laws they sign 
     since the time of President James Monroe.'' But under 
     President Ronald Reagan, ``For the first time, signing 
     statements were viewed as a strategic weapon in a campaign to 
     influence the way legislation was interpreted by the courts 
     and Executive agencies as well as their more traditional use 
     to preserve Presidential prerogatives.'' The report also 
     notes that President Clinton, like his predecessors, used 
     signing statements, but to a significantly lesser degree, and 
     different purpose.
       Among President Bush's signing statements, the task force 
     noted refusals to carry out laws involving ``Congressional 
     requirements to report back to Congress on the use

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     of Patriot Act authority to secretly search homes and seize 
     private papers, [and] the McCain amendment forbidding any 
     U.S. officials to use torture or cruel and inhumane treatment 
     on prisoners.''
       Where legislation has mandated reports to Congress on 
     special matters, such as the Intelligence Authorization Act 
     of 2002, the signing statement treated the requirement as 
     only advisory, said the task force. The task force said 
     President Bush's signing statements are ``particularly 
     adamant about preventing any of his subordinates from 
     reporting directly to Congress.''
       With more than 410,000 members, the American Bar 
     Association is the largest voluntary professional membership 
     organization in the world. As the national voice of the legal 
     profession, the ABA works to improve the administration of 
     justice, promotes programs that assist lawyers and judges in 
     their work, accredits law schools, provides continuing legal 
     education, and works to build public understanding around the 
     world of the importance of the rule oflaw in a democratic 
     society.

     

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