[Congressional Record Volume 152, Number 100 (Wednesday, July 26, 2006)]
[Senate]
[Pages S8271-S8272]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 3731. A bill to regulate the judicial use of presidential signing 
statements in the interpretation of Acts of Congress; to the Committee 
on the Judiciary.
  Mr. SPECTER. Mr. President, I seek recognition today to introduce the 
Presidential Signing Statements Act of 2006. This bill achieves three 
important goals.
  First, it prevents the President from issuing a signing statement 
that alters the meaning of a statute by instructing Federal and State 
courts not to rely on Presidential signing statements in interpreting a 
statute.
  Second, it permits the Congress to seek what amounts to a declaratory 
judgment on the legality of Presidential signing statements that seek 
to modify--or even to nullify--a duly enacted statute.
  Third, it grants Congress the power to intervene in any case in the 
Supreme Court where the construction or constitutionality of any act of 
Congress is in question and a presidential signing statement for that 
act was issued.
  Presidential signing statements are nothing new. Since the days of 
President James Monroe, Presidents have issued statements when signing 
bills. It is widely agreed that there are legitimate uses for signing 
statements. For example, Presidents may use signing statements to 
instruct executive branch officials how to administer a law. They may 
also use them to explain to the public the likely effect of a law. And, 
there may be a host of other legitimate uses.
  However, the use of signing statements has risen dramatically in 
recent years. As of June 26, 2006, President Bush had issued 130 
signing statements. President Clinton issued 105 signing statements 
during his two terms. While the mere numbers may not be significant, 
the reality is that the way the President has used those statements 
renders the legislative process a virtual nullity.
  The President cannot use a signing statement to rewrite the words of 
a statute nor can the President use a signing statement to selectively 
nullify those provisions he does not like. This much is clear from our 
Constitution. The Constitution grants the President a specific, 
narrowly defined role in enacting legislation. Article I, section 1 of 
the Constitution vests ``all legislative powers . . . in a Congress.'' 
Article I, section 7 of the Constitution provides that when a bill is 
presented to the President, he may either sign it or veto it with his 
objections. He may also choose to do nothing, thus rendering a so-
called pocket veto. The President cannot veto part of bill, however; he 
cannot veto certain provisions he does not like.

  The Founders had good reason for constructing the legislative process 
as it is: by creating a bicameral legislature and then granting the 
President the veto power. According to The Records of the 
Constitutional Convention, the veto power was designed by our Framers 
to protect citizens from a particular Congress that might enact 
oppressive legislation. However, the Framers did not want the veto 
power to be unchecked, and so, in article I, section 7, they balanced 
it by allowing Congress to override a veto by two-thirds vote.
  As you can see, this is a finely structured constitutional procedure 
that goes straight to the heart of our system of check and balances. 
Any action by the President that circumvents this finely structured 
procedure is an unconstitutional attempt to usurp legislative 
authority. If the President is permitted to rewrite the bills that 
Congress passes and cherry pick which provisions he likes and does not 
like, he subverts the constitutional process designed by our Framers.
  The Supreme Court has affirmed that the constitutional process for 
enacting legislation must be safe guarded. As the Supreme Court 
explained in INS v. Chahda, ``It emerges clearly that the prescription 
for legislative action in Article I, Section 1, clause 7 represents the 
Framers' decision that the legislative power of the Federal government 
be exercised in accord with a single, finely wrought and exhaustively 
considered, procedure.''
  So, while signing statements have been commonplace since our 
country's founding, we must make sure that they are not being used in 
an unconstitutional manner; a manner that seeks to rewrite legislation, 
and exercise line item vetoes.
  President Bush has used signing statements in ways that have raised 
some eyebrows. For example, Congress passed the PATRIOT Act after 
months of deliberation. We debated nearly every provision--often 
redrafting and revising. Moreover, we worked very closely with the 
President because we wanted to get it right. We wanted to make sure 
that we were passing legislation that the executive branch would find 
workable. In fact, in many ways, the process was an excellent example 
of the legislative branch and the executive branch working together 
towards a common goal.
  In the end, the bill that was passed by the Senate and the House 
contained several oversight provisions intended to make sure the FBI 
did not abuse the special terrorism-related powers to search homes and 
secretly seize papers. It also required Justice Department officials to 
keep closer track of how often the FBI uses the new powers and in what 
type of situations.
  The President signed the PATRIOT Act into law, but afterwards, he 
wrote a signing statement that said he could withhold any information 
from Congress provided in the oversight provisions if he decided that 
disclosure would impair foreign relations, national security, the 
deliberative process of the executive, or the performance of the 
executive's constitutional duties.
  Now, during the entire process of working with the President to draft

[[Page S8272]]

the PATRIOT Act, he never asked the Congress to include this language 
in the Act. At a hearing we held on signing statements, I asked an 
executive branch official, Michelle Boardman from the Office of Legal 
Counsel, why the President did not ask the Congress to put the signing 
statement language into the bill. She simply didn't have an answer. I 
asked her to get back to me with the answer and I still have not gotten 
a response.
  Take another example, the McCain amendment. In that legislation, 
Congress voted by an overwhelming margin--90 to 9--to ban all U.S. 
personnel from inflicting cruel, inhuman or degrading treatment on any 
prisoner held anywhere by the United States. President Bush, who had 
threatened to veto the legislation, instead invited its prime sponsor, 
Senator John McCain, to the White House for a public reconciliation and 
declared they had a common objective: to make it clear to the world 
that this government does not torture and that we adhere to the 
international convention of torture.
  Now from that, you might conclude that by signing the McCain 
amendment into law, the Bush administration has fully committed to not 
using torture. But you would be wrong. After the public ceremony of 
signing the bill into law, the President issued a signing statement 
saying his administration would interpret the new law ``in a manner 
consistent with the constitutional authority of the President to 
supervise the unitary executive branch and as Commander in Chief and 
consistent with the constitutional limitations on the judicial power.'' 
This vague language may mean that--despite the McCain amendment--the 
administration may still be preserving a right to inflict torture on 
prisoners and to evade the International Convention Against Torture.
  The constitutional structure of enacting legislation must be 
safeguarded. That is why I am here today to introduce the Presidential 
Signing Statements Act of 2006. This bill does not seek to limit the 
President's power--and this bill does not seek to expand Congress's 
power. Rather, this bill simply seeks to safeguard our constitution.
  First, the bill instructs courts not to rely on Presidential signing 
statements in construing an act. This will provide courts with much-
needed guidance on how legislation should be interpreted. The Supreme 
Court's reliance on Presidential signing statements has been sporadic 
and unpredictable. In some cases--such as United States v. Lopez, where 
the Court struck down the Gun-Free School Zones Act--the Supreme Court 
has relied on Presidential signing statements as a source of authority, 
while in other cases, such as the recent military tribunals case, 
Hamdan v. Rumsfeld, it has conspicuously declined to do so. This 
inconsistency has the unfortunate effect of rendering the 
interpretation of Federal law unpredictable.
  It is well within Congress's power to resolve judicial disputes such 
as this by enacting rules of statutory interpretation. This power flows 
from article I, section 8, clause 18 of the Constitution, which gives 
Congress the power ``To make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers, and all other 
powers vested by this Constitution in the government of the United 
States, or in any department or officer thereof.'' Rules of statutory 
interpretation are necessary and proper to execute the legislative 
power. Moreover, any legislation that sets out rules for interpreting 
an act makes legislation more clear and precise which is exactly what 
we aim to achieve here in Congress. Congress can and should exercise 
this power over the interpretation of Federal statutes in a systematic 
and comprehensive manner.
  Second, this bill permits the Congress to seek a declaratory judgment 
on the legality of Presidential signing statements that seek to 
modify--or even to nullify--a duly enacted statute. Again, this simply 
ensures that signing statements are not used in an unconstitutional 
manner.
  Third, it grants Congress the power to intervene in any case in the 
Supreme Court where the construction or constitutionality of any act of 
Congress is in question and a Presidential signing statement for that 
act was issued. That way, if the court is trying to determine the 
meaning or the constitutionality of an act, the Congress gets a voice 
in the debate.
  Take for example United States v. Lopez. In that case, the Supreme 
Court struck down the Gun-Free School Zones Act as beyond Congress's 
power to regulate commerce. Chief Justice Rehnquist relied, in part, on 
President George Bush's signing statement to support the Court's 
conclusion that the plain language of the statute does not suggest that 
it affects interstate commerce. Now, I do not see, in a case like this, 
why Congress should not get to explain its side. This bill would allow 
Congress to intervene and present evidence as to the meaning of an act 
in question.
  This bill does not seek to limit the President's power and it does 
not seek to expand Congress's power. It simply seeks to put measures in 
place that will safeguard the constitutional structure of enacting 
legislation. In preserving this structure, this bill reinforces our 
system of checks and balances and separation of powers set out in our 
Constitution and I urge my colleagues to support it.
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