[Congressional Record Volume 153, Number 107 (Friday, June 29, 2007)]
[Senate]
[Pages S8744-S8745]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 1747. A bill to regulate the judicial use of presidential signing 
statements in the interpretation of Act of Congress; to the Committee 
on the Judiciary.
  Mr. SPECTER. Mr President, I seek recognition today to offer the 
Presidential Signing Statements Act of 2007. The purpose of this bill 
is to regulate the use of Presidential Signing Statements in the 
interpretation of acts of Congress. This bill is similar in substance 
to the Presidential Signing Statements Act of 2006, which I introduced 
on July 26, 2006. The Senate Judiciary Committee also held a hearing on 
this topic on June 27, 2006.
  I believe that this is necessary to protect our constitutional system 
of checks and balances. This bill achieves that goal in the following 
ways.
  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 grants Congress the power to participate in any case where 
the construction or constitutionality of any act of Congress is in 
question and a presidential signing statement for that act was issued 
by (i) allowing Congress to file an amicus brief and present oral 
argument in such a case; (ii) instructing that if Congress passes a 
joint resolution declaring its view of the correct interpretation of 
the statute, the court must admit that resolution into the case record; 
and (iii) providing for expedited review in such a case.
  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. When I introduced the Presidential Signing Statement bill 
last year, I noted that as of June 26, 2006, President Bush had issued 
132 signing statements. Since then, he has issued an additional 17 
statements, for a total of 149 to date. In comparison, President 
Clinton issued 105 signing statements during his two terms. Moreover, 
President Bush's signing statements often raise objections to several 
provisions of a law. For example, a recent report by the Government 
Accountability Office released June 18, 2007, found that, for 11 
appropriations acts for fiscal year 2006, President Bush issued signing 
statements identifying constitutional concerns or objections to 
160 different provisions appearing in the acts. While the mere numbers 
may not be significant, the reality is that the way the President has 
used those statements threatens to render the legislative process a 
virtual nullity, making it completely unpredictable how certain laws 
will be enforced.

  The President cannot use a signing statement to rewrite the words of 
a statute nor can he 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, however, cannot veto part of bill, 
he cannot veto certain provisions he does not like.
  The Founders had good reason for constructing the legislative process 
as they did: 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 I stated when I introduced the Presidential Signing Statement bill 
last year, 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 safeguarded. As the Supreme Court 
explained in INS v. Chahda, ``It emerges clearly that the prescription 
for legislative action in article I, section 1 and 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.
  As I have previously explained, President Bush has used signing 
statements in ways that have raised some eyebrows. An example is the 
signing statement accompanying Senator McCain's ``anti-torture 
amendment'' to the Department of Defense Emergency Supplemental 
Appropriations Act, otherwise known as the ``McCain Amendment.'' In 
that legislation, Congress voted by an overwhelming majority, 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 Senator McCain to the White House for a public 
reconciliation and declared they had a mutual goal: 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, President Bush and his 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 construe 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 
enactment of the McCain Amendment, the administration may still be 
preserving a right to inflict torture on prisoners and to evade the 
International Convention Against Torture.

  Now, the National Defense Authorization Bill, like the McCain 
amendment, has a crucial provision regarding torture: it provides that 
the Combatant Status Review Tribunals, CSRTs, in Guantanamo Bay ``may 
not consider a [detainee's] statement that was obtained through methods 
that amount to torture.'' See section 1023(4)(e). But

[[Page S8745]]

who knows how this provision will be enforced if deemed inconsistent 
with the unitary executive theory?
  And, the McCain amendment is just the tip of the iceberg: On close 
examination of the same signing statement, we see that President Bush 
has declared the right to construe the entire Detainee Treatment Act 
and all provisions relating to detainees, in a manner consistent with 
the unitary executive theory and with his powers as Commander and 
Chief. This is extremely troublesome. Like the DTA, this bill has 
crucial sections relating to detainees. Specifically, this bill 
contains much-needed provisions that protect detainees' due process 
rights in CSRT procedures, including allowing detainees a right to 
legal counsel, a right to compel and cross examine witnesses, and a 
right to have their status determined by a military judge. Should a 
similar signing statement be issued to S. 1547, that all sections 
related to detainees will be construed in a certain way, there is 
really no way to know how these crucial provisions will be enforced.
  We must ensure that such provisions, and for that matter, any and all 
provisions in this bill, are not subject to revision by a Presidential 
signing statement.
  In addition to these examples, I have noted another instance in which 
a questionable signing statement was issued, for the PATRIOT Act. We 
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.''
  As I noted last year, during the entire process of working with the 
President to draft the PATRIOT Act, he never asked the Congress to 
include this language in the act. At a hearing we held last June 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.
  Given this backdrop, I believe this bill is necessary. As I noted 
when I introduced the Presidential Signing Statement bill last summer, 
this bill does not seek to limit the President's power, and it does not 
seek to expand Congress's power. Rather, this bill simply seeks to 
safeguard our Constitution.
  This bill will provide courts with much-needed guidance on how 
legislation should be interpreted. The recent GAO report on 
Presidential Signing Statements found that Federal courts cited or 
referred to presidential signing statements in 137 different opinions 
reported from 1945 to May 2007. It also shows that the Supreme Court's 
reliance on presidential signing statements has been sporadic and 
unpredictable. In some cases, such as United States v. Lopez, 115 S.Ct. 
1624 at 1631, 1995, 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 to interpret an act, while in other 
cases, such as the military tribunals case, Hamdan v. Rumsfeld, 126 
S.Ct. 2749 (2006), Scalia dissenting, it has conspicuously declined to 
do so. This inconsistency has the unfortunate result of rendering the 
effect of Presidential signing statements on Federal law unpredictable.
  As I stated when I initially introduced the Presidential Signing 
Statements Act of 2006, it is well within Congress's power to resolve 
judicial disputes such as this by enacting rules of statutory 
interpretation. In fact, the Department of Defense Authorization bill 
already contains at least one ``rule of construction'' provision. See 
section 845(e). This power flows from article 1, 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.
  Several scholars have agreed: Jefferson B. Fordham, a former dean of 
the University of Pennsylvania Law School said, ``[I]t is within the 
legislative power to lay down rules of interpretation for the future;'' 
Mark Tushnet, a professor at Harvard Law School explained, ``In light 
of the obvious congressional power to prescribe a statute's terms, and 
so its meaning, congressional power to prescribe interpretive methods 
seems to me to follow;'' Michael Stokes Paulsen, an associate dean of 
the University of Minnesota Law School noted, ``Congress is the master 
of its own statutes and can prescribe rules of interpretation governing 
its own statutes as surely as it may alter or amend the statutes 
directly.'' Finally, J. Sutherland, the author of the leading 
multivolume treatise for the rules of statutory construction has said, 
``There should be no question that an interpretive clause operating 
prospectively is within legislative power.''
  Furthermore, 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.
  Put simply, this bill seeks to implement measures that will safeguard 
the constitutional structure of enacting legislation. In preserving 
this structure, this bill reinforces the 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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