[Congressional Record Volume 155, Number 60 (Thursday, April 23, 2009)]
[Senate]
[Pages S4676-S4678]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER (for himself, Mr. Tester, and Mr. Grassley):
  S. 875. 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 on behalf of 
myself, Senator Grassley and Senator Tester, to offer the Presidential 
Signing Statements Act of 2009. 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 two prior 
versions of this legislation: the Presidential Signing Statements Act 
of 2007, which I introduced on June 29, 2007; and the Presidential 
Signing Statements Act of 2006, which I introduced on July 26, 2006.
  As I have stated before, I believe that this legislation 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, or defer to, presidential signing statements as 
a source of authority when determining the meaning of any Act of 
Congress.
  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 allowing Congress to file an amicus brief and present oral argument 
in such a case; 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 providing 
for expedited review in such a case.
  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 or to explain to the public the likely effect of a 
law. There may be a host of other legitimate uses.
  It is clear, however, that 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, 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. But the President cannot veto part 
of a bill--he cannot veto certain provisions he does not like.
  The Framers had good reason for constructing the legislative process 
as they did. According to The Records of the Constitutional Convention, 
the veto power was designed 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 
2/3 vote.

[[Page S4677]]

  As I stated when I initially introduced this legislation in 2006, 
this is a finely structured constitutional procedure that goes straight 
to the heart of our system of checks and balances. Any action by the 
President that circumvents this procedure is an unconstitutional 
attempt to usurp legislative authority. If the President is permitted 
to re-write the bills that Congress passes and cherry pick which 
provisions he likes and does not like, he subverts the constitutional 
process designed by the Framers. The Supreme Court has affirmed that 
the Constitutional process for enacting legislation must be 
safeguarded. As the 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.'' 462 U.S. 919, 
951, 1982.
  It is well within Congress's power to enact rules of statutory 
interpretation intended to preserve this constitutional structure. 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 U.S., 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 multi-
volume treatise for the rules of statutory construction has said, 
``There should be no question that an interpretive clause operating 
prospectively is within legislative power.''
  Indeed, recent experience shows why such legislation is 
``necessary.'' The use of signing statements has risen dramatically in 
recent years. President Clinton issued 105 signing statements; 
President Bush issued 161. What is more alarming than the sheer 
numbers, is that President Bush's signing statements often raised 
constitutional concerns and other objections to several provisions of a 
law. The President used those statements in a way that threatened to 
render the legislative process a virtual nullity, making it completely 
unpredictable how certain laws will be enforced. Even where Congress 
managed to negotiate checks on executive power, the President used 
signing statements to override the legislative language and defy 
congressional intent.
  Two prominent examples make the point. In 2006, I spearheaded the 
delicate negotiations on the PATRIOT Act Reauthorization, which 
included months of painstaking efforts to balance national security and 
civil liberties, disrupted by the dramatic disclosure of the Terrorist 
Surveillance Program. The final version of the bill featured a 
carefully crafted compromise necessary to secure the act's passage. 
Among other things, it included several oversight provisions designed 
to ensure that the FBI did not abuse special terrorism-related powers 
permitting it to make secret demands for business records. The 
President dutifully signed the measure into law, only to then enter a 
signing statement insisting he could withhold any information from 
Congress required by 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.''
  The second example arose in 2005. Congress overwhelmingly passed 
Senator John McCain's amendment to ban all U.S. personnel from 
inflicting ``cruel, inhuman or degrading'' treatment on any prisoner 
held by the United States. There was no ambiguity in Congress's intent; 
in fact, the Senate approved it 90 to 9. However, after signing the 
bill into law, the President quietly issued a signing statement 
asserting that his Administration would construe it ``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.''
  Many understood this signing statement to undermine the legislation. 
In a January 4, 2006 article titled, ``Bush could bypass new torture 
ban: Waiver right is reserved,'' the Boston Globe cited an anonymous 
``senior administration official'' as saying, ``the president intended 
to reserve the right to use harsher methods in special situations 
involving national security.''
  As outrageous as these signing statements are, intruding on the 
Constitution's delegation of ``all legislative powers'' to the 
Congress, it is even more outrageous that Congress has done nothing to 
protect its constitutional powers. In 2006 and 2007, the legislation I 
introduced giving Congress standing to challenge the constitutionality 
of these signing statements failed to muster the veto-proof majority it 
would have surely required.
  With a new administration, I believe the time has come to pass this 
important legislation. 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. In this Congress, it 
has a better chance of mustering a majority vote and being signed into 
law by the new President.
  That said, two days after criticizing President Bush's signing 
statements, President Obama issued one of his own regarding the Omnibus 
Appropriations Act of 2009. Citing among others his ``commander in 
chief'' and ``foreign affairs'' powers, he refused to be bound by at 
least eleven specific provisions of the bill including one long-
standing rider to appropriations bills designed to aid congressional 
oversight. As I told The Wall Street Journal, ``We are having a repeat 
of what Democrats bitterly complained about under President Bush.'' I 
hope this will be the exception rather than the rule.
  In the meantime, 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.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 875

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Presidential Signing 
     Statements Act of 2009''.

     SEC. 2. DEFINITION.

       As used in this Act, the term ``presidential signing 
     statement'' means a statement issued by the President about a 
     bill, in conjunction with signing that bill into law pursuant 
     to Article I, section 7, of the Constitution.

     SEC. 3. JUDICIAL USE OF PRESIDENTIAL SIGNING STATEMENTS.

       In determining the meaning of any Act of Congress, no 
     Federal or State court shall rely on or defer to a 
     presidential signing statement as a source of authority.

     SEC. 4. CONGRESSIONAL RIGHT TO PARTICIPATE IN COURT 
                   PROCEEDINGS OR SUBMIT CLARIFYING RESOLUTION.

       (a) Congressional Right To Participate as Amicus Curiae.--
     In any action, suit, or proceeding in any Federal or State 
     court (including the Supreme Court of the United States), 
     regarding the construction or constitutionality, or both, of 
     any Act of Congress in which a presidential signing statement 
     was issued, the Federal or State Court shall permit the 
     United States Senate, through the Office of Senate Legal 
     Counsel, as authorized in section 701 of the Ethics in 
     Government Act of 1978 (2 U.S.C. 288), or the United States 
     House of Representatives, through the Office of General 
     Counsel for the United States House of Representatives, or 
     both, to participate as an amicus curiae, and to present an 
     oral argument on the question of the Act's construction or 
     constitutionality, or both. Nothing in this section shall be 
     construed to confer standing on any party seeking to bring, 
     or jurisdiction on

[[Page S4678]]

     any court with respect to, any civil or criminal action, 
     including suit for court costs, against Congress, either 
     House of Congress, a Member of Congress, a committee or 
     subcommittee of a House of Congress, any office or agency of 
     Congress, or any officer or employee of a House of Congress 
     or any office or agency of Congress.
       (b) Congressional Right To Submit Clarifying Resolution.--
     In any suit referenced in subsection (a), the full Congress 
     may pass a concurrent resolution declaring its view of the 
     proper interpretation of the Act of Congress at issue, 
     clarifying Congress's intent or clarifying Congress's 
     findings of fact, or both. If Congress does pass such a 
     concurrent resolution, the Federal or State court shall 
     permit the United States Congress, through the Office of 
     Senate Legal Counsel, to submit that resolution into the 
     record of the case as a matter of right.
       (c) Expedited Consideration.--It shall be the duty of each 
     Federal or State court, including the Supreme Court of the 
     United States, to advance on the docket and to expedite to 
     the greatest possible extent the disposition of any matter 
     brought under subsection (a).
                                 ______