TITLE: B-308603, Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts, June 18, 2007
BNUMBER: B-308603
DATE: June 18, 2007
**************************************************************************************************************
B-308603, Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts, June 18, 2007

   B-308603

   June 18, 2007

   The Honorable Robert C. Byrd

   Chairman, Committee on Appropriations

   United States Senate

   The Honorable John Conyers, Jr.

   Chairman, Committee on the Judiciary

   United States House of Representatives

   Subject: Presidential Signing Statements Accompanying the Fiscal Year 2006
   Appropriations Acts

   This letter responds to your request that we examine the fiscal year 2006
   appropriations acts and the President's accompanying signing statements to
   identify the provisions in the acts to which the President took exception
   and to determine how the President executed those provisions. We also
   examined how the federal courts have treated signing statements in their
   published opinions.

   We found that in 11 signing statements the President singled out 160
   specific provisions from the fiscal year 2006 appropriations acts. We
   examined 19 of these provisions to determine whether the agencies
   responsible for their execution carried out the provisions as written.^[1]
   Of these 19 provisions, 10 provisions were executed as written, 6 were
   not, and 3 were not triggered and so there was no agency action to
   examine.[2] With regard to the use of signing statements by the federal
   courts, we found that they cite or refer to them infrequently and only in
   rare instances have relied on them as authoritative interpretations of the
   law.

   In this review, we did not assess the merits of the President's
   objections, nor did we examine the constitutionality of the provisions to
   which the President objected.

   BACKGROUND

   There is no established definition of "signing statement." Signing
   statements usually take the form of a presidential statement or press
   release issued in connection with the President's signing of a bill. There
   is even some disagreement as to the first historical use of a signing
   statement. Many scholars cite President Andrew Jackson's statement
   accompanying an appropriations act involving internal improvements as the
   first signing statement.[3] Other scholars point to a statement made by
   President James Monroe a month after signing a law regulating the
   appointment of military officers.[4] Various presidential administrations
   have used signing statements since the early nineteenth century with a
   variety of responses by Congress and the courts.[5]

   Some signing statements praise the newly signed law and those involved in
   its passage. An example of such a signing statement was President
   Clinton's statement upon signing the Omnibus Consolidated Appropriations
   Act, 1997:

   "This bill is good for America, and I am pleased that my Administration
   could fashion it with the Congress on a bipartisan basis. It moves us
   further down the road toward our goal of a balanced budget while
   protecting, not violating, the values we share as Americans--opportunity,
   responsibility, and community."[6]

   The signing statement goes on to discuss specific parts of the act in
   similar fashion. In other signing statements, presidents have offered
   their interpretation of or have explained how agencies will execute a new
   law. Presidents also have raised constitutional concerns or objections to
   new statutes in signing statements. In some instances, a single signing
   statement serves some or all of these purposes. In other cases, presidents
   have issued multiple signing statements with different purposes for a
   single law. Not all laws have accompanying signing statements.

   According to the Congressional Research Service, presidential "signing
   statements have become increasingly common since the Reagan
   Administration" and have been used by Presidents to raise constitutional
   or interpretive objections to congressional enactments.[7] Both the Senate
   and House of Representatives have held hearings in the past year on
   signing statements.[8]

   For fiscal year 2006, the President issued signing statements for 11 of
   the 12 appropriations acts passed by Congress.[9] These signing
   statements[10] single out 160 provisions in the appropriations acts that
   raise some constitutional concern or objection of the President. In some
   cases, the President used these signing statements to direct the executive
   branch to construe the provisions in a manner that the President believed
   would cure the provisions' perceived constitutional deficiencies.

   PRESIDENTIAL CONCERNS AND OBJECTIONS

   We categorized each of the 160 provisions specifically identified by the
   President in the signing statements according to the nature of the
   President's concern with or objection to the provision. These concerns or
   objections are rooted in the President's understanding of his
   constitutional role and powers. Based on the language used in the signing
   statements, we identified 12 interconnected categories of concern or
   objection. Our understanding of each of the categories and their
   constitutional bases comes from the brief statements in the signing
   statements themselves, from the provisions cited therein, and, in some
   cases, from other executive branch statements.[11]

   We list the 12 categories in Enclosure II. For ease of explanation, we
   sorted these categories into four groups: (1) objections related to the
   theory of the unitary executive; (2) objections related to the Commander
   in Chief power, national security, foreign relations, or law enforcement;
   (3) objections related to the bicameralism and presentment clauses of the
   Constitution; and (4) miscellaneous categories related to the Recess
   Appointments Clause and the Fifth Amendment.

   We did not address the merits of the President's interpretation of his
   constitutional role and powers. Nor did we address the applicability of
   any particular concern or objection to the specific provisions addressed
   under that concern or objection. We also did not examine the
   constitutionality of the provisions to which the President objected.

   The Theory of the Unitary Executive

   Four of the 12 categories we identified relate to the theory of the
   unitary executive. The signing statements themselves do not explain the
   unitary executive theory, but simply assert it as a basis for the
   President's concern or objection to a number of different provisions.
   According to the Office of Legal Counsel (OLC), the theory of the unitary
   executive is rooted in Article II of the Constitution and, specifically,
   in the vesting in the President of the executive power[12] and the
   instruction that the President "take Care that the Laws be faithfully
   executed."[13] OLC has opined that these constitutional provisions provide
   the President a right to control executive branch employees and officers:

   "In order to fulfill those [constitutional] responsibilities, the
   President must be able to rely upon the faithful service of subordinate
   officials. To the extent that Congress or the courts interfere with the
   President's right to control or receive effective service from his
   subordinates within the Executive Branch, those other branches limit the
   ability of the President to perform his constitutional function."[14]

   OLC has also described the unitary executive theory this way:

   "Because no one individual could personally carry out all executive
   functions, the President delegates many of these functions to his
   subordinates in the executive branch. But because the Constitution vests
   this power in him alone, it follows that he is solely responsible for
   supervising and directing the activities of his subordinates in carrying
   out executive functions."[15]

   These two versions are not exclusive, and other versions exist.[16] The
   signing statements do not specify whether they are adopting either of
   these versions of the unitary executive theory or some other version.

   The provisions in the categories relating to the unitary executive require
   some action or organization within the executive branch. Common examples
   are provisions that require some type of communication by an executive
   branch employee or officer to Congress, such as transmitting information
   to Congress,[17] consulting with Congress or congressional committees,[18]
   or making legislative recommendations to Congress.[19] According to OLC,
   the provisions similar to these are constitutionally suspect because they
   interfere with the President's right to control executive branch employees
   and officers. [20]

   The President also objects to certain provisions based on an asserted
   authority to withhold from Congress information sometimes considered
   privileged. These provisions require an executive branch entity to provide
   Congress with information that the President believes could compromise the
   deliberative processes of the President or interfere with his general
   constitutional duties.[21] In one case the signing statement links the
   authority to withhold information to the authority to supervise the
   unitary executive branch.[22]

   Commander in Chief, National Security, Foreign Relations, and Law
   Enforcement

   Four of the twelve categories relate to a function of the federal
   government in which the President asserts he has the primary
   constitutional role. The first of these categories contains provisions
   that could, according to the President, interfere with his constitutional
   role as Commander in Chief.[23] Such provisions relate to transferring
   defense articles or services to other nations or international
   organizations, integrating foreign intelligence information, conducting
   foreign intelligence operations, and managing the command and control
   relationships within the Armed Forces.

   A second category, also based on the President's authority as Commander in
   Chief, relates to the President's authority to classify and control access
   to national security information. The signing statements assert that the
   Supreme Court of the United States has held that the power to classify and
   control access to national security information does not depend on a
   legislative grant of authority but flows from the Constitution. The
   provisions in this category relate to access to or disclosure of national
   security information to nonexecutive entities, such as congressional
   committees.

   In a third category are provisions that, according to the signing
   statements, "purport to direct or burden the Executive's conduct of
   foreign relations."[24] According to one signing statement, the
   Constitution commits to the President the primary responsibility for
   conducting the foreign relations of the United States.[25] There is no
   single constitutional provision establishing presidential authority over
   foreign relations like the Commander in Chief clause. The President does
   have specific constitutional authority to make treaties and appoint
   ambassadors with the advice and consent of the Senate, and to receive
   ambassadors.[26]

   A fourth category contains one provision relating to the President's law
   enforcement powers. According to the signing statement addressing this
   provision, decisions on the deployment of law enforcement officials are
   part of the President's executive power, and Congress cannot dictate to
   the President how to wield this power.[27]

   Bicameralism and Presentment Clauses of the Constitution

   Two of the 12 categories relate to the bicameralism and presentment
   requirements of the Constitution. The Constitution requires that before a
   bill can become a law it must pass both the House of Representatives and
   the Senate (bicameralism) and be presented to the President for his
   signature (presentment).[28] The President then can sign or veto the bill,
   but if a bill is vetoed, Congress can vote to override the President's
   veto.[29]

   The first category related to bicameralism and presentment contains over
   70 provisions. The President identified these 70 provisions as implicating
   the constitutional principles enunciated by the Supreme Court in
   Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). At
   issue in Chadha was a statute which allowed a resolution passed by only
   one house of Congress to override a determination made by the Attorney
   General under a grant of statutory authority. The Court held that such a
   "legislative veto" was unconstitutional because it allowed one house of
   Congress to overrule the Attorney General's lawful action, instead of both
   houses voting to overrule the action and presenting the passed bill to the
   President. Chadha, 462 U.S. at 959. Some of the provisions in this
   category require agencies to obtain congressional committee approval prior
   to making certain types of obligations, expenditures, or reprogrammings of
   appropriated funds. Other provisions require prior approval for a plan for
   expenditure. In a few cases, the provision directs the agency to submit a
   report for approval.

   In the second category the President refers to bicameralism and
   presentment, but does not cite Chadha. Many of these provisions require an
   agency to act in accordance with existing documents, such as joint
   statements of managers, committee reports, or Senate reports. Although the
   law refers to these documents, the President declares, "These documents do
   not satisfy the constitutional requirements of bicameral approval and
   presentment to the President needed to give them the force of law."[30]

   Miscellaneous Objections

   The President also objects to certain provisions that he feels implicate
   two constitutional clauses not directly related to the others discussed
   above.

   The first of these is the recess appointments clause, which grants the
   President the power to fill all vacant appointments that occur during the
   recess of the Senate with a commission that expires at the end of the next
   congressional session.[31] The President identified one provision in
   relation to his power to make recess appointments. That provision
   prohibited the use of appropriated funds to pay the salary of any person
   serving in a position for which the President nominated the person and the
   Senate voted not to confirm the nomination. The President declared that
   the executive branch would "construe this provision in a manner consistent
   with the President's constitutional authority to make recess
   appointments."[32]

   The second of these categories involves the Fifth Amendment to the
   Constitution, which prohibits the federal government from depriving any
   person of life, liberty, or property without due process of law.[33]
   Several signing statements observe that the act accompanied by the signing
   statement contains provisions which raise an objection or concern under
   the Fifth Amendment. According to the signing statements, these provisions
   relate to race, ethnicity, gender, and state residency. Although four
   signing statements make this observation generally, only one signing
   statement identified specific provisions.

   AGENCY ACTIONS

   Of the 160 provisions of law to which the President raised some concern or
   objection, we selected 19 provisions to examine to determine how the
   agencies were executing them. This group includes at least one provision
   from each appropriations act and at least one provision from 11 of the 12
   categories of presidential concern or objection we identified.[34]

   We contacted the relevant agencies and asked them how they were executing
   the provisions. After evaluating the responses we received, we determined
   that agencies failed to execute six provisions as enacted. Ten provisions
   were executed as written and three provisions were not triggered so there
   was no agency action to assess. Of the six provisions that agencies did
   not execute as written, the President objected to three on the grounds
   that they violated the bicameralism and presentment clauses of the
   Constitution as enunciated in Chadha. The President objected to two others
   on unitary executive grounds, and a single provision on the grounds that
   it infringed on his law enforcement powers. A detailed summary of our
   findings for each of the 19 provisions appears in Enclosure III. Although
   we found the agencies did not execute the provisions as enacted, we cannot
   conclude that agency noncompliance was the result of the President's
   signing statements.

   Agencies did not execute six provisions as follows:

   .        Chadha: The Pension Benefit Guaranty Corporation (PBGC) did not
   seek approval from the congressional appropriations committees prior to
   incurring obligations for administrative expenses beyond the level set by
   Congress in the appropriations act. However, PBGC did notify the
   committees of its action.

   .        Chadha: The Federal Emergency Management Agency (FEMA) did not
   submit a proposal and expenditure plan for housing as directed by Congress
   in the appropriations act because, according to FEMA, it does not normally
   produce such plans.

   .        Chadha: The Department of Agriculture did not obtain prior
   approval for a transfer of funds as required by the applicable
   appropriations act. However, it did notify the committees prior to
   transferring the funds and responded to a subsequent congressional request
   for information.

   .        Unitary Executive: The Department of Defense (DOD) did not
   include as part of the fiscal year 2007 budget submission to Congress
   separate budget justification documents for the costs of all contingency
   operations for the Military Personnel, Operation and Maintenance, and
   Procurement accounts. DOD did provide a separate justification document
   that included the costs of contingency operations in the Balkans and
   Guantanamo Bay but did not include costs for any other contingency
   operations, such as those in Iraq.

   .        Unitary Executive: DOD responded to an inquiry from the Chairman
   of the Subcommittee on Military Quality of Life and Veterans Affairs,
   House Committee on Appropriations, in 38 days, instead of 21 days as
   directed by the appropriations act.

   .        Law Enforcement: Customs and Border Patrol (CBP) did not relocate
   its checkpoints in the Tucson sector every 7 days as directed by Congress
   in the appropriations act. CBP told us that such relocations were not
   always consistent with CBP's mission requirements. Instead, CBP shut down
   its checkpoints for short periods in an effort to comply with what CBP
   termed the "advisory provision" in the appropriations act.

   Three provisions required agencies to take an action only if a certain
   prior event occurred. The event did not occur, so the portion of the
   provision to which the President objected was not triggered. For example,
   if the Department of the Interior (Interior) used its 2006 appropriation
   for "the emergency reconstruction, replacement, or repair of aircraft,
   buildings, utilities, or other facilities or equipment damaged or
   destroyed by fire, flood, storm, or other unavoidable causes," it was
   required to seek a supplemental appropriation to replenish the funds
   promptly.[35] Interior did not use any of its fiscal year 2006
   appropriation for these purposes and did not trigger the requirement that
   it seek a supplemental appropriation.

   SIGNING STATEMENTS AND THE FEDERAL COURTS

   We also examined how the federal courts have treated presidential signing
   statements in their published opinions. A search of all federal case law
   since 1945 found fewer than 140 cases that cited presidential signing
   statements. When courts did cite signing statements, it was for a variety
   of reasons. The most common use of a signing statement was to supplement
   legislative history such as committee reports. Courts have also cited
   signing statements to establish the date of signing, to provide a short
   summary of the statute, to explain the purpose of the statute, or to
   describe the underlying policy behind the statute. After reviewing the
   courts' use of presidential signing statements, we determined that,
   overall, federal courts infrequently cite or refer to them in their
   published opinions.

   Cases containing citations to the signing statements of three acts in
   particular--the act disapproving the amendments to the Sentencing
   Guidelines,[36] the Antiterrorism and Effective Death Penalty Act,[37] and
   the Civil Rights Act of 1991[38]--account for over a third of the cases in
   which courts have cited or referred to signing statements. Further,
   citations to signing statements that raise constitutional concerns have
   appeared in a few cases dealing with the constitutional issues discussed
   in the signing statements. These constitutional issues include separation
   of powers principles, foreign relations matters, and federalism
   constraints. The federal courts have only in rare instances treated
   signing statements as authoritative sources of interpretation of either
   statutes or the Constitution. For more information, see Enclosure IV.

   SUMMARY

   In 11 of the 12 appropriations acts for fiscal year 2006, the President
   issued signing statements identifying constitutional concerns or
   objections with some provisions appearing in the acts. In total, the
   President singled out 160 provisions of law in these 11 signing
   statements, which we categorized on the basis of the President's stated
   concern or objection. We examined 19 of these provisions and found that
   agencies did not execute 6 of the provisions as written. In 3 instances,
   the relevant portion of the provision was not triggered. Agencies executed
   the remaining 10 provisions as written. We also found that federal courts
   infrequently cite or refer to signing statements and have only in rare
   instances relied on them as authoritative interpretations of the law.

   We hope you find this information useful. Should you have any questions,
   please contact Susan A. Poling, Managing Associate General Counsel, at
   202-512-2667. Assistant General Counsel Carlos Diz, Senior Staff Attorney
   Wesley Dunn, and Staff Attorney Andrew Jackson Stephens made key
   contributions to this opinion.

   Sincerely yours,

   Gary L. Kepplinger

   General Counsel

   Enclosure I:  Scope and Methodology

   Enclosure II: Categories of the President's Objections

   Enclosure III: Agency Actions

   Enclosure IV: Presidential Signing Statements and Federal Court Opinions

                             Scope and Methodology

   GAO initiated this undertaking at the request of the Chairmen of the
   Senate Committee on Appropriations and the House Committee on the
   Judiciary. We began by reviewing the presidential signing statements for
   all the appropriations acts for fiscal year 2006. The President issued
   statements upon signing all of the appropriations acts, including the
   emergency supplemental, with the exception of the Legislative Branch
   Appropriations Act.[39]

   We reviewed the 11 signing statements and identified 160 specific
   provisions in the appropriations acts that the President addressed in the
   signing statements. The signing statements indicate that the provisions
   that the President specifically identifies are not the only provisions in
   the acts that might raise the cited concerns or objections of the
   President. Further, in several signing statements, the President raises a
   concern or objection without specifically identifying any provisions in
   the act raising that concern or objection. We arrived at the number of 160
   provisions by listing all the provisions specifically identified in the
   signing statements. We chose to be conservative in how we counted. The
   President cited some provisions under more than one objection; we counted
   these only once. The President separately cited some subsections of a
   single provision; we counted all subsections of a provision as only one
   provision.

   We sorted the provisions into 12 categories according to the language the
   President used in the signing statements to describe his basis of concern
   or objection. Different signing statements share identical or almost
   identical language describing the President's concerns with specific
   provisions. For example, six signing statements share the following,
   almost identical, language:

   "The executive branch shall construe certain provisions of the Act that
   purport to require congressional committee approval for the execution of
   the law as calling solely for notification, as any other construction
   would be inconsistent with the constitutional principles enunciated by the
   Supreme Court of the United States in INS v. Chadha."[40]

   Two more signing statements share similar language: "The executive branch
   shall construe as calling solely for notification those provisions of the
   Act that are inconsistent with the requirements of bicameral passage and
   presentment set forth in the Constitution, as construed by the Supreme
   Court of the United States in 1983 in INS v. Chadha."[41] We categorized
   all the provisions noted under this language together. [42]

   We then considered which provisions would be appropriate for further
   inquiry. In examining the provisions, we identified some for which it
   would be difficult to determine whether the President was executing the
   provision, either because of the breadth of executive action covered by
   the provision or because the information would not be readily available
   due to national security or foreign relations concerns. For example, a
   provision in the Foreign Operations Appropriations Act conditions funding
   for counterdrug activities in the Andean region of South America on
   consultation and reporting to Congress.[43] To assess whether the
   executive branch complied with this provision, we would have had to
   inquire about all the counterdrug activities in the Andean region of South
   America. An example of a provision that was too broad is section 107 of
   the Military Quality of Life and Veterans Affairs Appropriations Act,
   which states, "None of the funds made available in this title for minor
   construction may be used to transfer or relocate any activity from one
   base or installation to another, without prior notification to the
   Committees on Appropriations of both Houses of Congress."[44] For us to
   determine whether the agencies carried out this provision as written, we
   would need information regarding how the military has used all the funds
   appropriated in the act for minor construction and would need to assess
   whether the military has used them to transfer activities between bases or
   installations. Of the 160 provisions which the President addressed, 31 fit
   into these categories, including all of the provisions to which the
   President objected on the grounds that the provision impinged on his
   general authority as Commander in Chief.

   We did not pursue one provision because it had been overtaken by
   subsequent events. In his signing statement, the President noted
   provisions that dealt with the legal rights of detainees in the war on
   terror, specifically restricting the right of habeas corpus.[45]
   Subsequently, the United States Supreme Court found that these provisions
   preserved the right of some detainees to petition for habeas corpus.[46]
   On October 17, 2006, Congress responded with the Military Commissions Act
   of 2006 which again restricted the right of habeas corpus for
   detainees.[47]

   Of the remaining 128 provisions for which action on the part of agencies
   was more readily determinable, we identified 19 provisions to pursue
   further. These 19 include at least 1 from 11 of the 12 different
   categories[48] of concern and at least 1 from each of the 11
   appropriations acts. For every category that applied to 12 or more
   provisions, we selected at least 2 provisions to pursue.

   For 18 of the 19 provisions, we identified the agency responsible for
   executing the provision. We then sent a letter to the General Counsels of
   these agencies describing the provision and the President's signing
   statement and asking how the agency had complied with the provision in the
   appropriations act, what form that compliance or noncompliance took, and
   to provide us with all relevant documentation. After receiving the agency
   responses, we contacted the agencies with follow-up questions as needed.
   We also researched the history of some of the provisions to better
   understand the nature of the requirement and the agencies' responses. We
   did not determine whether agency noncompliance was a result of the
   President's signing statement.

   One of the 19 provisions did not relate to action by an agency. That
   provision forbids the payment of any appropriated funds to any person
   filling a position for which he or she was nominated if the Senate voted
   not to approve the nomination.[49] Regarding this provision, we searched
   for all nominees on whom the Senate voted not to approve their nomination
   within the last 20 years and then confirmed that the nominees were not
   currently employed in the positions for which they were nominated.

   We also reviewed the history of the use of signing statements in the
   federal courts. We searched in legal databases for federal court cases
   from 1945 to May 2007 that cited presidential signing statements. We
   reviewed these cases and analyzed the purposes for which the courts cited
   the signing statements.

                    Categories of the President's Objections

   +------------------------------------------------------------------------+
   |               |              |Specific provisions|Number of |          |
   |               |Appropriation |   cited by the    |provisions|Number of |
   | Categories of |acts[50] where| President in the  | in each  |provisions|
   |  provisions   |  provision   |      signing      |  act in  | in each  |
   |               |   appears    |  statements[51]   |   each   | category |
   |               |              |                   | category |          |
   |------------------------------------------------------------------------|
   |       Categories related to the theory of the unitary executive        |
   |------------------------------------------------------------------------|
   |Provisions that|Agriculture   |sect. 719          |1         |4         |
   |the executive  |              |                   |          |          |
   |branch shall   |--------------+-------------------+----------|          |
   |construe "in a |Transportation|sect. 836; Office  |2         |          |
   |manner         |              |of Management and  |          |          |
   |consistent with|              |Budget, "Salaries  |          |          |
   |the President's|              |and Expenses"      |          |          |
   |authority to   |              |                   |          |          |
   |supervise the  |--------------+-------------------+----------|          |
   |unitary        |Homeland      |sect. 529          |1         |          |
   |executive      |Security      |                   |          |          |
   |branch"        |              |                   |          |          |
   |---------------+--------------+-------------------+----------+----------|
   |Provisions that|Energy and    |sect. 101; sect.   |2         |18        |
   |"purport to    |Water         |303                |          |          |
   |make           |--------------+-------------------+----------|          |
   |consultation   |Foreign       |sect. 506; sect.   |11        |          |
   |with Congress a|Operations    |509; sect. 512;    |          |          |
   |precondition to|              |sect. 534; sect.   |          |          |
   |the execution  |              |543; sect. 564;    |          |          |
   |of the law"    |              |sect. 576; sect.   |          |          |
   |which shall be |              |595; USAID,        |          |          |
   |construed "in a|              |"Transition        |          |          |
   |manner         |              |Initiatives";      |          |          |
   |consistent with|              |Department of      |          |          |
   |the President's|              |State, "Andean     |          |          |
   |authority to   |              |Counterdrug        |          |          |
   |supervise the  |              |Initiative";       |          |          |
   |unitary        |              |Department of the  |          |          |
   |executive      |              |Treasury, "Debt    |          |          |
   |branch"        |              |Restructuring"     |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Defense       |Office of Justice  |1         |          |
   |               |              |Programs, "State   |          |          |
   |               |              |and Local Law      |          |          |
   |               |              |Enforcement        |          |          |
   |               |              |Assistance"        |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Interior      |National Park      |3         |          |
   |               |              |Service, "Historic |          |          |
   |               |              |Preservation Fund";|          |          |
   |               |              |Environmental      |          |          |
   |               |              |Protection Agency, |          |          |
   |               |              |"State and Tribal  |          |          |
   |               |              |Assistance Grants";|          |          |
   |               |              |Smithsonian        |          |          |
   |               |              |Institution,       |          |          |
   |               |              |"Administrative    |          |          |
   |               |              |Provisions"        |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Emergency     |sect. 1304         |1         |          |
   |               |Supplemental  |                   |          |          |
   |---------------+--------------+-------------------+----------+----------|
   |Provisions that|Agriculture   |sect. 715          |1         |13        |
   |purport to     |              |                   |          |          |
   |require the    |--------------+-------------------+----------|          |
   |executive      |Defense       |sect. 8010; sect.  |5         |          |
   |branch to make |              |8100; sect. 8032;  |          |          |
   |recommendations|              |sect. 8037;        |          |          |
   |to Congress    |              |"Operation and     |          |          |
   |which shall be |              |Maintenance,       |          |          |
   |construed in a |              |Defense-Wide"      |          |          |
   |manner         |--------------+-------------------+----------|          |
   |consistent with|Interior      |sect. 101; sect.   |2         |          |
   |the President's|              |103                |          |          |
   |authority to   |--------------+-------------------+----------|          |
   |supervise the  |Transportation|sect. 182; sect.   |5         |          |
   |unitary        |              |208; sect. 219;    |          |          |
   |executive      |              |sect. 315; sect.   |          |          |
   |branch         |              |818                |          |          |
   |---------------+--------------+-------------------+----------+----------|
   |Provisions that|Labor         |Health and Human   |1         |7         |
   |mandate or     |              |Services, "Office  |          |          |
   |regulate the   |              |of the Secretary,  |          |          |
   |submission to  |              |General            |          |          |
   |Congress or    |              |Departmental       |          |          |
   |other entities |              |Management"        |          |          |
   |of information |--------------+-------------------+----------|          |
   |that "could    |Veterans      |sect. 126          |1         |          |
   |impair . . .   |Affairs       |                   |          |          |
   |the            |--------------+-------------------+----------|          |
   |deliberative   |Transportation|sect. 120; sect.   |5         |          |
   |processes of   |              |182; sect. 818;    |          |          |
   |the Executive, |              |sect. 820;         |          |          |
   |or the         |              |"Operating Subsidy |          |          |
   |performance of |              |Grants to the      |          |          |
   |the Executive's|              |National Railroad  |          |          |
   |constitutional |              |Passenger          |          |          |
   |duties"        |              |Corporation"       |          |          |
   |------------------------------------------------------------------------|
   |          Categories related to the Commander in Chief power,           |
   |                                                                        |
   |       national security, foreign relations, and law enforcement        |
   |------------------------------------------------------------------------|
   |Provisions the |Defense       |sect. 8059; sect.  |4         |4         |
   |executive      |              |8104; sect. 8106;  |          |          |
   |branch will    |              |sect. 8119         |          |          |
   |construe       |              |                   |          |          |
   |consistent with|              |                   |          |          |
   |the President's|              |                   |          |          |
   |constitutional |              |                   |          |          |
   |authority as   |              |                   |          |          |
   |Commander in   |              |                   |          |          |
   |Chief[52]      |              |                   |          |          |
   |---------------+--------------+-------------------+----------+----------|
   |Provisions that|Defense       |sect. 8007; sect.  |3         |11        |
   |infringe on    |              |8011; sect. 8093   |          |          |
   |"the           |--------------+-------------------+----------|          |
   |President's    |Homeland      |sect. 516          |1         |          |
   |authority to   |Security      |                   |          |          |
   |classify and   |--------------+-------------------+----------|          |
   |control access |Veterans      |sect. 107; sect.   |4         |          |
   |to information |Affairs       |110; sect. 113;    |          |          |
   |on national    |              |sect. 118          |          |          |
   |security"      |--------------+-------------------+----------|          |
   |               |Emergency     |sect. 1209; sect.  |3         |          |
   |               |Supplemental  |2202; "Joint       |          |          |
   |               |              |Improvised         |          |          |
   |               |              |Explosive Device   |          |          |
   |               |              |Defeat Fund"       |          |          |
   |---------------+--------------+-------------------+----------+----------|
   |Provisions that|Foreign       |sect. 506; sect.   |8         |16        |
   |"purport to    |Operations    |514; sect. 551;    |          |          |
   |direct or      |              |sect. 561; sect.   |          |          |
   |burden the     |              |562; sect. 575;    |          |          |
   |Executive's    |              |sect. 590; sect.   |          |          |
   |conduct of     |              |593                |          |          |
   |foreign        |--------------+-------------------+----------|          |
   |relations"     |Veterans      |sect. 118          |1         |          |
   |               |Affairs       |                   |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Science       |sect. 405; sect.   |7         |          |
   |               |              |413; sect. 414;    |          |          |
   |               |              |sect. 631; sect.   |          |          |
   |               |              |637; "International|          |          |
   |               |              |Trade              |          |          |
   |               |              |Administration,    |          |          |
   |               |              |Operations and     |          |          |
   |               |              |Administration";   |          |          |
   |               |              |"Contributions for |          |          |
   |               |              |International      |          |          |
   |               |              |Peacekeeping       |          |          |
   |               |              |Activities"        |          |          |
   |---------------+--------------+-------------------+----------+----------|
   |Provision      |Homeland      |Customs and Border |1         |1         |
   |relating to    |Security      |Protection,        |          |          |
   |decisions on   |              |"Salaries and      |          |          |
   |the deployment |              |Expenses"          |          |          |
   |of law         |              |                   |          |          |
   |enforcement    |              |                   |          |          |
   |officials      |              |                   |          |          |
   |------------------------------------------------------------------------|
   | Categories related to the bicameralism and presentment clauses of the  |
   |                              Constitution                              |
   |------------------------------------------------------------------------|
   |Provisions that|Agriculture   |sect. 705; sect.   |4         |70        |
   |require the    |              |716; sect. 732;    |          |          |
   |approval of a  |              |Food and Drug      |          |          |
   |congressional  |              |Administration,    |          |          |
   |entity and     |              |"Salaries and      |          |          |
   |implicate "the |              |Expenses"          |          |          |
   |principles     |--------------+-------------------+----------|          |
   |enunciated by  |Defense       |sect. 8005         |1         |          |
   |the Supreme    |--------------+-------------------+----------|          |
   |Court of the   |Veterans      |sect. 128; sect.   |13        |          |
   |United States  |Affairs       |129; sect. 130;    |          |          |
   |in INS v.      |              |sect. 201; sect.   |          |          |
   |Chadha"        |              |211; sect. 216;    |          |          |
   |               |              |sect. 225; sect.   |          |          |
   |               |              |226; sect. 227;    |          |          |
   |               |              |sect. 229;         |          |          |
   |               |              |"Department of     |          |          |
   |               |              |Defense Base       |          |          |
   |               |              |Closure Account    |          |          |
   |               |              |2005"; Department  |          |          |
   |               |              |of Veterans        |          |          |
   |               |              |Affairs,           |          |          |
   |               |              |"Information       |          |          |
   |               |              |Technology         |          |          |
   |               |              |Systems";          |          |          |
   |               |              |Department of      |          |          |
   |               |              |Veterans Affairs,  |          |          |
   |               |              |"Construction,     |          |          |
   |               |              |Major Projects"    |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Homeland      |sect. 504; sect.   |13        |          |
   |               |Security      |538; sect. 518;    |          |          |
   |               |              |sect. 505; sect.   |          |          |
   |               |              |509; sect. 511;    |          |          |
   |               |              |sect. 526; "United |          |          |
   |               |              |States Visitor and |          |          |
   |               |              |Immigrant Status   |          |          |
   |               |              |Indicator          |          |          |
   |               |              |Technology";       |          |          |
   |               |              |Customs and Border |          |          |
   |               |              |Protection,        |          |          |
   |               |              |"Automation        |          |          |
   |               |              |Modernization";    |          |          |
   |               |              |Customs and Border |          |          |
   |               |              |Protection, "Air   |          |          |
   |               |              |and Marine         |          |          |
   |               |              |Interdiction,      |          |          |
   |               |              |Operation,         |          |          |
   |               |              |Maintenance, and   |          |          |
   |               |              |Procurement";      |          |          |
   |               |              |Immigration and    |          |          |
   |               |              |Customs            |          |          |
   |               |              |Enforcement,       |          |          |
   |               |              |"Automation        |          |          |
   |               |              |Modernization";    |          |          |
   |               |              |United States      |          |          |
   |               |              |Secret Service,    |          |          |
   |               |              |"Salaries and      |          |          |
   |               |              |Expenses";         |          |          |
   |               |              |"Research,         |          |          |
   |               |              |Development,       |          |          |
   |               |              |Acquisition, and   |          |          |
   |               |              |Operations--Science|          |          |
   |               |              |and Technology"    |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Interior      |sect. 130; sect.   |13        |          |
   |               |              |405; sect. 421;    |          |          |
   |               |              |sect. 422; sect.   |          |          |
   |               |              |435; United States |          |          |
   |               |              |Fish and Wildlife  |          |          |
   |               |              |Service,           |          |          |
   |               |              |"Administrative    |          |          |
   |               |              |Provisions";       |          |          |
   |               |              |National Park      |          |          |
   |               |              |Service,           |          |          |
   |               |              |"Construction";    |          |          |
   |               |              |Department         |          |          |
   |               |              |Management,        |          |          |
   |               |              |"Salaries and      |          |          |
   |               |              |Expenses"; Natural |          |          |
   |               |              |Resources Damage   |          |          |
   |               |              |Assessment and     |          |          |
   |               |              |Restoration,       |          |          |
   |               |              |"Administrative    |          |          |
   |               |              |Provisions"; Forest|          |          |
   |               |              |Service, "Wildland |          |          |
   |               |              |Fire Management";  |          |          |
   |               |              |Forest Service,    |          |          |
   |               |              |"Administrative    |          |          |
   |               |              |Provisions"; Indian|          |          |
   |               |              |Health Service,    |          |          |
   |               |              |"Administrative    |          |          |
   |               |              |Provisions";       |          |          |
   |               |              |Smithsonian        |          |          |
   |               |              |Institution,       |          |          |
   |               |              |"Administrative    |          |          |
   |               |              |Provisions"        |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Labor         |sect. 103; sect.   |3         |          |
   |               |              |208; "Pension      |          |          |
   |               |              |Benefit Guaranty   |          |          |
   |               |              |Corporation Fund"  |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Transportation|sect. 183; sect.   |22        |          |
   |               |              |201; sect. 205;    |          |          |
   |               |              |sect. 211; sect.   |          |          |
   |               |              |212; sect. 217;    |          |          |
   |               |              |sect. 218; sect.   |          |          |
   |               |              |603; sect. 608;    |          |          |
   |               |              |sect. 710; sect.   |          |          |
   |               |              |711; sect. 720;    |          |          |
   |               |              |sect. 838; sect.   |          |          |
   |               |              |841; Department of |          |          |
   |               |              |Transportation,    |          |          |
   |               |              |"Office of the     |          |          |
   |               |              |Secretary, Salaries|          |          |
   |               |              |and Expenses";     |          |          |
   |               |              |Department of      |          |          |
   |               |              |Transportation,    |          |          |
   |               |              |"Office of the     |          |          |
   |               |              |Secretary, Working |          |          |
   |               |              |Capital Fund";     |          |          |
   |               |              |Federal Transit    |          |          |
   |               |              |Administration,    |          |          |
   |               |              |"Administrative    |          |          |
   |               |              |Expenses";         |          |          |
   |               |              |Department of the  |          |          |
   |               |              |Treasury,          |          |          |
   |               |              |"Departmental      |          |          |
   |               |              |Offices, Salaries  |          |          |
   |               |              |and Expenses";     |          |          |
   |               |              |Internal Revenue   |          |          |
   |               |              |Service, "Business |          |          |
   |               |              |Systems            |          |          |
   |               |              |Modernization";    |          |          |
   |               |              |"High Intensity    |          |          |
   |               |              |Drug Trafficking   |          |          |
   |               |              |Area Program";     |          |          |
   |               |              |General Services   |          |          |
   |               |              |Administration,    |          |          |
   |               |              |"Federal Buildings |          |          |
   |               |              |Fund"; National    |          |          |
   |               |              |Archive and Records|          |          |
   |               |              |Administration,    |          |          |
   |               |              |"Electronic Records|          |          |
   |               |              |Archives"          |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Emergency     |Federal Emergency  |1         |          |
   |               |Supplemental  |Management Agency, |          |          |
   |               |              |"Disaster Relief"  |          |          |
   |---------------+--------------+-------------------+----------+----------|
   |Provisions that|Defense       |sect. 5022; sect.  |7         |19        |
   |require an     |              |5023; sect. 5024;  |          |          |
   |agency to act  |              |sect. 8073; sect.  |          |          |
   |in accordance  |              |8044; sect. 8082;  |          |          |
   |with documents |              |Natural Resources  |          |          |
   |that "do not   |              |Conservation       |          |          |
   |satisfy the    |              |Service,           |          |          |
   |constitutional |              |"Conservation      |          |          |
   |requirements of|              |Operations"        |          |          |
   |bicameralism   |--------------+-------------------+----------|          |
   |and            |Homeland      |sect. 527          |1         |          |
   |presentment"   |Security      |                   |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Interior      |Environmental      |2         |          |
   |               |              |Protection Agency, |          |          |
   |               |              |"State and Tribal  |          |          |
   |               |              |Assistance Grants";|          |          |
   |               |              |Department of      |          |          |
   |               |              |Health and Human   |          |          |
   |               |              |Services, "Indian  |          |          |
   |               |              |Health Services"   |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Transportation|sect. 710;         |4         |          |
   |               |              |"Community Planning|          |          |
   |               |              |and Development,   |          |          |
   |               |              |Community          |          |          |
   |               |              |Development Fund"; |          |          |
   |               |              |Department of      |          |          |
   |               |              |Housing and Urban  |          |          |
   |               |              |Development,       |          |          |
   |               |              |"Management and    |          |          |
   |               |              |Administration,    |          |          |
   |               |              |Salaries and       |          |          |
   |               |              |Expenses"; Office  |          |          |
   |               |              |of Management and  |          |          |
   |               |              |Budget, "Salaries  |          |          |
   |               |              |and Expenses"      |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Emergency     |sect. 7030; sect.  |5         |          |
   |               |Supplemental  |7031; sect. 7032;  |          |          |
   |               |              |sect. 7033; Federal|          |          |
   |               |              |Highway            |          |          |
   |               |              |Administration,    |          |          |
   |               |              |"Emergency Relief  |          |          |
   |               |              |Program"           |          |          |
   |------------------------------------------------------------------------|
   | Miscellaneous categories related to the Recess Appointments Clause and |
   |                          the Fifth Amendment                           |
   |------------------------------------------------------------------------|
   |Provision that |Transportation|sect. 809          |1         |1         |
   |relates to "the|              |                   |          |          |
   |President's    |              |                   |          |          |
   |constitutional |              |                   |          |          |
   |authority to   |              |                   |          |          |
   |make recess    |              |                   |          |          |
   |appointments   |              |                   |          |          |
   |---------------+--------------+-------------------+----------+----------|
   |Provisions that|Agriculture   |No specific        |0         |3         |
   |relate to      |              |provisions listed. |          |          |
   |"race,         |--------------+-------------------+----------|          |
   |ethnicity,     |Defense       |sect. 8014; sect.  |3         |          |
   |gender, and    |              |8020; sect. 8057   |          |          |
   |State          |--------------+-------------------+----------|          |
   |residency"     |Labor         |No specific        |0         |          |
   |               |              |provisions listed. |          |          |
   |               |--------------+-------------------+----------|          |
   |               |Transportation|No specific        |0         |          |
   |               |              |provisions listed. |          |          |
   |--------------------------------------------------+----------+----------|
   |Total[53]                                         |167       |167       |
   +------------------------------------------------------------------------+

   Source: GAO analysis of presidential signing statements.

                                 Agency Actions

                                        

   The following summary of agency action regarding the 19 statutory
   provisions we examined is arranged by category of the President's
   objection. Of the 6 provisions that agencies did not execute as written,
   the President objected to 3 on the grounds that they violated the
   bicameralism and presentment of the Constitution as set forth in
   Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). The
   President objected to 2 others on unitary executive grounds, and a single
   provision on the grounds that it infringed on his law enforcement powers.
   Although we found that some agencies did not execute the provisions as
   enacted, we cannot conclude that agency noncompliance was the result of
   the President's signing statements. Bold face indicates whether or not the
   agency executed the provision as written or whether the provision was not
   triggered.

    

   THEORY OF THE UNITARY EXECUTIVE

   Provisions that "purport to make consultation with Congress a precondition
   to the execution of the law"

   Section 534(k) of the Foreign Operations, Export Financing, and Related

   Programs Appropriations Act--Executed as Written

   This provision made available up to $35 million in no-year funds from the
   Economic Support Fund for the creation and operation of a Middle East
   Foundation following consultations with the congressional appropriations
   committees (hereinafter committees). Foreign Operations, Export Financing,
   and Related Programs Appropriations Act, 2006, Pub. L. No. 109-102,
   sect. 534(k), 119 Stat. 2172, 2210 (Nov. 14, 2005). The purpose of the
   Middle East Foundation is to support democracy, governance, human rights,
   and the rule of law in the Middle East region. Id.

   Upon signing the act, the President identified this provision as one which
   purported "to make the consultation with Congress a precondition to the
   execution of the law" and stated that the executive branch would therefore
   construe it "as calling for, but not mandating such consultation."
   Statement on Signing the Foreign Operations, Export Financing, and Related
   Programs Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1718 (Nov.
   21, 2005) (Foreign Ops Statement).

   As of February 28, 2007, the Department of State (State) had not yet
   established a Middle East Foundation. However, it had performed some
   preliminary work and, in doing so, obligated some of the funds made
   available by the 2006 Foreign Operations Appropriations Act. As required
   by the act, prior to obligating the funds, State consulted

   with the committees. After consulting with the committees, State also gave
   formal notification on November 16, 2005, and July 31, 2006.[54]

   The July 31 notification concerned both the obligation of $10,750,000 from
   the 2006 Appropriations Act and the reprogramming of $171,064 from the
   Foreign Operations, Export Financing, and Related Programs Appropriations
   Act, 2005. State transmitted the notification on behalf of the Bureau of
   Near Eastern Affairs. The funds would be used for five different projects:
   (1) a National Democratic Institute political party strengthening program
   in Mauritania in advance of elections following a military coup d'etat,
   (2) a preliminary assessment and due diligence exercise contract for the
   Broader Middle East North Africa Foundation for the Future, (3) a contract
   for a monitoring and evaluation system for Middle Eastern Partnership
   Initiative projects, (4) a pilot

   scholarship program for schools at the seventh grade level, and (5)
   support for American schools and universities in the region. We conclude
   that State executed this provision as written.

   Section 101 of the Energy and Water Development Appropriations Act--Not
   Triggered

   This provision has three subsections implicated by the signing statement.
   Section 101(c) required the United States Army Corps of Engineers (USACE)
   to submit a report by January 19, 2006, to Congress to establish a
   baseline for reprogramming and transfer authorities. Energy and Water
   Development Appropriations Act, 2006, Pub. L. No. 109-103, sect. 101, 119
   Stat. 2247, 2252 (Nov. 19, 2005). Section 101(a)(5) forbids the obligation
   or expenditure of funds through a reprogramming that augmented existing
   programs, projects, or activities in excess of $2 million or by 50
   percent, whichever is less, without the committees' prior approval.
   Section 101(a)(6) does the same for reducing existing programs, projects,
   or activities. Id.

   The President's signing statement indicates that the executive branch
   would construe section 101 as "calling for, but not mandating,
   consultation with Congress." Statement on Signing the Energy and Water
   Development Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1751
   (Nov. 28, 2005).

   Section 101(c) required the report to include: (1) a table for each
   appropriation with a separate column to display the President's budget
   request, adjustments made by Congress, adjustments due to enacted
   recessions, and enacted level; (2) a delineation in the table for each
   appropriation by both object class and program, project, and activity, as
   detailed in the budget appendix for the respective appropriations; and (3)
   an identification of the items of special congressional interest. The
   report construes "special congressional interest" to mean programs,
   projects, or activities specified in Public Law 109-103 or discussed in
   the accompanying committee reports or Statement of Managers. The report
   met the requirements of the provision and was submitted on January 18,
   2006, as requested.

   With regard to section 101(a)(5) and (6), USACE issued guidance to its
   field offices instructing them that Congress should be notified of
   reprogrammings which met the requirements of sect. 101(a)(5) and (6).
   Engineering Circular No. 11-2-189 states that reprogramming will not
   exceed the limits established by sect. 101(a)(5) and (6) without prior
   notification of the committees. This guidance memorandum is silent
   regarding seeking congressional approval. USACE EC Cir. No. 11-2-189,
   Programs Management, Execution of the Annual Civil Works Program, 9 (Dec.
   31, 2005).

   On September 29, 2006, USACE sent the committees letters regarding some of
   USACE's reprogramming actions. USACE reprogrammed funds to four projects.
   The letters included a table that detailed which four projects received
   funds and from which projects those funds were derived. The reprogramming
   in this instance did not trigger the section 101 requirement because it
   was not for the purpose of "making funds available for obligation or
   expenditure." Instead, it was the result of actions by USACE while
   operating under the Continuing Resolution in effect from October 1, 2005,
   to November 18, 2005. No other USACE reprogramming actions in fiscal year
   2006 reached the levels described by sections 101(a)(5) and (6), so USACE
   did not provide the committees with any additional letters regarding
   reprogramming. As of March 23, 2007, USACE had made no reprogrammings that
   require committee approval under section 101. Therefore, the portions of
   section 101 dealing with reprogramming were not triggered.

   Office of Justice Programs, State and Local Law Enforcement Assistance,
   Department of Defense, Emergency Supplemental Appropriations to Address
   Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act--Executed as
   Written

   This provision appropriated $125 million for the Office of Justice
   Programs "for necessary expenses related to the direct or indirect
   consequences of hurricanes in the Gulf of Mexico in calendar year 2005."
   Department of Defense, Emergency Supplemental Appropriations to Address
   Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, Pub. L. No.
   109-148, div. B, title I, ch. 8, 119 Stat. 2680, 2776 (Dec. 30, 2005). It
   further provides that the Attorney General shall consult with the
   committees on the allocation of these funds prior to expenditure.

   The signing statement for the 2006 Defense Appropriations Act asserted
   that "the President's constitutional authority to supervise the unitary
   executive branch and take care that the laws be faithfully executed cannot
   be made by law subject to a requirement to consult with congressional
   committees or to involve them in executive decision-making." Statement on
   Signing the Department of Defense, Emergency Supplemental Appropriations
   to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act,
   2006, 41 Weekly Comp. Pres. Doc. 1918 (Jan. 2, 2006) (Defense Statement).
   The signing statement directed the executive branch to construe the
   provision to require only notification. Id.

   The Department of Justice and congressional staff held three meetings on
   the allocation of the $125 million. The January 19, 2006, meeting was with
   the Senate Appropriations Committee and Senator Thad Cochran's staffs. The
   January 24, 2006, meeting was with Senators Mary L. Landrieu's and David
   Vitter's staffs. The March 3, 2006, meeting was with the Senate
   Appropriations Committee staff.

   Following these meetings, on March 17, 2006, the Office of Justice
   Programs obligated the $125 million in three grants to the Louisiana
   Commission on Law Enforcement, the Alabama Department of Economic and
   Community Affairs, and the Mississippi Division of Public Safety Planning.
   We conclude that the Office of Justice Programs executed this provision as
   written.

   Provisions requiring the executive branch to make recommendations to
   Congress

   Section 101 of the Department of the Interior, Environment, and Related
   Agencies Appropriations Act--Not Triggered

   Section 101 provides that any appropriations made available to the
   Department of the Interior (Interior) in the fiscal year 2006 Interior
   appropriations act could be expended or transferred for "the emergency
   reconstruction, replacement, or repair of aircraft, buildings, utilities,
   or other facilities or equipment damaged or destroyed by fire, flood,
   storm, or other unavoidable causes." Department of the Interior,
   Environment, and Related Agencies Appropriations Act, 2006, Pub. L. No.
   109-54, 119 Stat. 499, 520 (Aug. 2, 2005). Section 101 also states in
   relevant part that "all funds used pursuant to this section must be
   replenished by a supplemental appropriation which must be requested as
   promptly as possible." Id. The President noted in his statement that
   "[t]he executive branch shall construe [section 101] in a manner
   consistent with the President's constitutional authority to recommend for
   congressional consideration such measures, including requests for
   appropriations, as he judges necessary and expedient." Statement on
   Signing H.R. 2361, 41 Weekly Comp. Pres. Doc. 1243 (Aug. 2, 2005)
   (Interior Statement).

   Interior states that it did not use any of the funds appropriated by the
   2006 appropriations act for the purposes authorized by section 101.
   Because it did not use any of the appropriated funds for such purposes,
   Interior says, it did not need to request a supplemental appropriation.
   Therefore, this provision was not triggered.

   Section 8100 of the Department of Defense, Emergency Supplemental
   Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic
   Influenza Act--Not Executed as Written

    

   Section 8100 provides in relevant part:

   "The budget of the President for fiscal year 2007 . . . shall include
   separate budget justification documents for costs of United States Armed
   Forces' participation in contingency operations for the Military Personnel
   accounts, the Operation and Maintenance accounts, and the Procurement
   accounts: Provided, That these documents shall include a description of
   the funding requested for each contingency operation, for each military
   service, to include all Active and Reserve components, and for each
   appropriations account: Provided further, That these documents shall
   include estimated costs for each element of expense or object class, a
   reconciliation of increases and decreases for each contingency operation,
   and programmatic data including, but not limited to, troop strength for
   each Active and Reserve component, and estimates of the major weapons
   systems deployed in support of each contingency."

   Pub. L. No. 109-148, sect. 8100. 119 Stat. at 2721.

   The President noted in his statement that the "executive branch shall
   construe [section 8100] in a manner consistent with the President's
   constitutional authority to . . . recommend for congressional
   consideration such measures as the President shall judge necessary and
   expedient." Defense Statement.

   DOD submitted a separate budget justification document for contingency
   operations as part of its fiscal year 2006 budget submission to Congress,
   but this document contained fiscal year 2007 data only for operations in
   the Balkans and Guantanamo Bay. It did not contain fiscal year 2007
   information for other contingency operations such as Operation Iraqi
   Freedom and Operation Enduring Freedom. DOD states that it did not include
   this information in its budget justification because the costs of these
   operations were "difficult to predict because of the continuing insurgent
   activity." Thus, DOD was "not able to estimate with a great certainty" its
   fiscal year 2007 costs for these operations. DOD determined because of
   this uncertainty "any estimate prepared in time to be included in the FY
   2007 Presidents [sic] request would have been flawed." We conclude that
   DOD did not execute this provision as written.

   Provision that the executive branch shall construe "in a manner consistent
   with the President's authority to supervise the unitary executive branch."

   Office of Management and Budget, Salaries and Expenses, Transportation,
   Treasury, Housing and Urban Development, the Judiciary, the District of
   Columbia, and Independent Agencies Appropriations Act--Executed as Written

    

   This provision states:

   "For necessary expenses of the Office of Management and Budget, . . .
   $76,930,000, of which not to exceed $3,000 shall be available for official
   representation expenses: . . . Provided further, That none of the funds
   appropriated in this Act for the Office of Management and Budget may be
   used for the purpose of reviewing any agricultural marketing orders or any
   activities or regulations under the provisions of the Agricultural
   Marketing Agreement Act of 1937 (7 U.S.C. 601 et seq.): Provided further,
   That none of the funds made available for the Office of Management and
   Budget by this Act may be expended for the altering of the transcript of
   actual testimony of witnesses, except for testimony of officials of the
   Office of Management and Budget, before the Committees on Appropriations
   or their subcommittees: Provided further, That the preceding shall not
   apply to printed hearings released by the Committees on Appropriations:
   Provided further, That none of the funds provided in this or prior Acts
   shall be used, directly or indirectly, by the Office of Management and
   Budget, for evaluating or determining if water resource project or study
   reports submitted by the Chief of Engineers acting through the Secretary
   of the Army are in compliance with all applicable laws, regulations, and
   requirements relevant to the Civil Works water resource planning process:
   Provided further, That the Office of Management and Budget shall have not
   more than 60 days in which to perform budgetary policy reviews of water
   resource matters on which the Chief of Engineers has reported. The
   Director of the Office of Management and Budget shall notify the
   appropriate authorizing and Appropriations Committees when the 60-day
   review is initiated. If water resource reports have not been transmitted
   to the appropriate authorizing and appropriating committees within 15 days
   of the end of the OMB review period based on the notification from the
   Director, Congress shall assume OMB concurrence with the report and act
   accordingly."

   Transportation, Treasury, Housing and Urban Development, the Judiciary,
   the District of Columbia, and Related Agencies Appropriations Act, 2006,
   Pub. L. No. 109-115, 119 Stat. 2396, 2474 (Nov. 30, 2005).

   The President noted in his signing statement that the executive branch
   would construe this provision "in a manner consistent with the President's
   authority to supervise the unitary executive branch and take care that the
   laws be faithfully executed, including the authority to direct which
   officers in the executive branch shall assist the President in faithfully
   executing the law. Statement on Signing the Transportation, Treasury,
   Housing and Urban Development, the Judiciary, the District of Columbia,
   and Independent Agencies Appropriations Act, 2006, 41 Weekly Comp. Pres.
   Doc. 1800 (Dec. 5, 2005) (Transportation Statement).

   According to OMB, after a reasonable inquiry, they determined that OMB had
   not reviewed any agricultural marketing orders. OMB identified no
   instances in which OMB altered any transcript of actual testimony of
   non-OMB witnesses before the committees.

   OMB did conduct budget reviews of 13 water resource and study projects
   submitted by the Chief of Engineers through the Secretary of the Army. OMB
   stated that it did not conduct any legal reviews of these projects. All 13
   of the budget reviews were completed within 60 days. For each of the
   reviews, OMB sent a letter notifying the Chairman of the Subcommittee on
   Energy and Water Development, Committee on Appropriations, United States
   Senate, of the review. These letters were dated September 27, 2005;
   October 12, 2005; November 28, 2005; March 7, 2006; March 22, 2006 (three
   letters); April 11, 2006; August 10, 2006; August 30, 2006; and October
   11, 2006 (three letters). We conclude that OMB executed this provision as
   written.

    

   Provision that the President believes impinges on the deliberative process
   of the executive branch

   Section 126 of the Military Quality of Life and Veterans Affairs
   Appropriation Act--Not Executed as Written

    

   This section provides that:

    

   "Whenever . . . any . . . official of the Department of Defense is
   requested by the subcommittee on Military Quality of Life and Veterans
   Affairs, and Related Agencies of the Committee on Appropriations of the
   House of Representatives or the subcommittee on Military Construction and
   Veterans Affairs, and Related Agencies of the Committee on Appropriations
   of the Senate to respond to a question or inquiry submitted by the
   chairman or another member of that subcommittee pursuant to a subcommittee
   hearing or other activity, the . . . [official] shall respond to the
   request, in writing, within 21 days of the date on which the request is
   transmitted."

   Military Quality of Life and Veterans Affairs Appropriations Act, 2006,
   Pub. L. No. 109-114, sect. 126, 119 Stat. 2372, 2380 (Nov. 30, 2005).

   The President's statement declared that the "executive branch shall
   construe [section 126] in a manner consistent with the President's
   constitutional authority to . . . withhold information the disclosure of
   which could impair foreign relations, the national security, the
   deliberative processes of the Executive, or the performance of the
   Executive's constitutional duties." Statement on Signing the Military
   Quality of Life and Veterans Affairs Appropriations Act, 2006, 41 Weekly
   Comp. Pres. Doc. 1799 (Dec. 5, 2005).

   The Department of Defense (DOD) identified two instances in which a DOD
   official received an inquiry implicated by section 126. DOD responded to
   one of these inquiries in 38 days, instead of the 21 required by section
   126. On July 18, 2006, the Secretary of Defense received an inquiry from
   the Chairman of the Subcommittee on Military Quality of Life and Veterans
   Affairs requesting DOD to provide the Subcommittee with proposals to fill
   a potential funding gap in the Defense Health Program. DOD responded on
   August 24, 2006, 38 days later. According to DOD, the tardy response was
   "due to a delay in staffing." DOD did not execute this provision as
   written.

   BICAMERALISM AND PRESENTMENT

   Provisions that require the approval of a congressional entity and
   implicate "the principles enunciated by the Supreme Court of the United
   States in INS v. Chadha."

   Administrative Provisions, Department of the Interior, Environment, and
   Related Agencies Appropriations Act, United States Fish and Wildlife
   Service--Not Triggered

    

   The relevant portion of this provision reads:

   "[N]otwithstanding any other provision of law, the Secretary of the
   Interior may not spend any of the funds appropriated in this Act for the
   purchase of lands or interests in lands to be used in the establishment of
   any new unit of the National Wildlife Refuge System unless the purchase is
   approved in advance by the House and Senate Committees on Appropriations .
   . . ."

   Pub. L. No. 109-54, 119 Stat. at 506. In his statement the President
   declared,

   "Provisions of the Act that purport to require congressional committee or
   individual leaders' approval prior to execution of the law shall be
   construed as calling solely for notification, as any other construction
   would be inconsistent with the principles enunciated by the Supreme Court
   of the United States in INS vs. Chadha."

   Interior Statement.

   Interior says that it has not spent any of the funds appropriated in its
   fiscal year 2006 appropriations act to purchase lands or interests in
   lands to be used in the establishment of any new unit of the National
   Wildlife Refuge System. The United States Fish and Wildlife Service (FWS)
   established two refuges in fiscal year 2006, but it did not use funds
   appropriated by Public Law 109-54 to do so. FWS used funds from the
   Migratory Bird Conservation Fund to establish one of the refuges, and the
   other resulted from a donation of land. Therefore, Interior did not
   trigger the advance approval requirement of this provision.

   Pension Benefit Guaranty Corporation Fund, Department of Labor, Health and
   Human Services, and Education, and Related Agencies Appropriations
   Act--Not Executed as Written

   This provision required the Pension Benefit Guaranty Corporation (PBGC) to
   obtain the approval of OMB and the congressional appropriations committees
   before incurring obligations greater than $296,978,000 for administrative
   expenses. Department of Labor Appropriations Act, 2006, Pub. L. No.
   109-149, title I, 119 Stat. 2833, 2837 (Dec. 30, 2005). In his statement
   upon signing the act, the President declared that the executive branch
   would construe this provision as calling solely for notification.
   Statement on Signing the Departments of Labor, Health and Human Services,
   and Education, and Related Agencies Appropriations Act, 2006, 41 Weekly
   Comp. Pres. Doc. 1920 (Jan. 2, 2006).

   Over the course of fiscal year 2006, PBGC obligated $381,151,175 for
   administrative expenses, which was enough to trigger the provision in
   question. On three separate occasions, PBGC requested reapportionment from
   OMB to obligate funds for administrative expenses in excess of
   $296,978,000. In each case, PBGC obtained OMB's approval and then notified
   the committees of OMB's approval and PBGC's intention to obligate more
   funds. On December 9, 2005, PBGC notified the committees of an increase to
   its obligational authority of $76,806,000. On March 23, 2006, the increase
   was $5,200,000, and on June 8, 2006, the increase was $6,663,500. Although
   PBGC did not execute the provision as written, it did notify the
   committees of its intention to obligate funds. We conclude that PBGC did
   not execute this provision was written.

    

   Disaster Relief, Emergency Supplemental Appropriations Act for Defense,
   the Global War on Terror, and Hurricane Recovery--Not Executed as Written

   The Emergency Supplemental Appropriations Act for Defense, the Global War
   on Terror and Hurricane Recovery, 2006, appropriated $6 billion to the
   Federal Emergency Management Agency (FEMA) for disaster relief and
   emergency assistance. Pub. L. No. 109-234, title II, ch. 4, 120 Stat. 418,
   459 (June 15, 2006). This provision required that the Secretary of
   Homeland Security by July 30, 2006, "submit for approval a proposal and an
   expenditure plan for housing, including alternative housing pilot programs
   under section 2403 of this Act, to the Committees on Appropriations of the
   Senate and House of Representatives." Id. Upon signing the act, the
   President issued a statement declaring that the executive branch would
   construe this provision as "calling solely for notification, as any other
   construction would be inconsistent with the constitutional principles
   enunciated by the Supreme Court of the United States in INS v. Chadha."
   Statement on Signing of Emergency Supplemental Appropriations Act for
   Defense, the Global War on Terror, and Hurricane Recovery, 2006, 42 Weekly
   Comp. Pres. Doc. 1159 (June 19, 2006) (Supplemental Statement).

   With regard to FEMA's Alternative Housing Pilot Program, FEMA conducted a
   series of briefings and communications with committee and members' staffs
   between August and December 2006 prior to FEMA issuing its grant guidance.
   FEMA stated it did not provide the committees with a proposal and an
   expenditure plan for housing because it does not have such plans with
   respect to its disaster housing program. FEMA provides direct housing,
   usually in the form of travel trailers or mobile homes, and rental
   assistance to all eligible disaster victims. Since the number of eligible
   victims is uncertain, FEMA does not operate the disaster housing program
   pursuant to the type of expenditure plans typically applicable to a grant
   program with fixed costs.

   Under a separate statutory provision,[55] FEMA provides the committees
   with monthly reports detailing its spending under the disaster relief
   fund, including FEMA's expenditures for disaster housing. Since a key part
   of the provision was to submit for approval a proposal and an expenditure
   plan for housing, which FEMA did not do, we conclude that FEMA did not
   execute this provision as written.

   Provisions that direct agencies to act in accordance with a document that
   did not satisfy "the constitutional requirements of bicameralism and
   presentment."

   Community Planning and Development, Community Development Fund, Department
   of Housing and Urban Development Appropriations Act--Executed as Written

    

   This provision provided, among other amounts, $310 million for grants for
   the Economic Development Initiative (EDI). Department of Housing and Urban
   Development Appropriations Act, 2006, Pub. L. No. 109-115, title III, 119
   Stat. 2396, 2447 (Nov. 30, 2005). Congress directed the Department of
   Housing and Urban Development (HUD) to administer these grants in
   accordance with the terms and conditions specified in the statement of
   managers accompanying the act. Id.

   The President declared in his statement that the "executive branch shall
   construe [this provision] in a manner consistent with the bicameral
   passage and presentment requirements of the Constitution for the making of
   a law." Transportation Statement.

   HUD tells us that it has made EDI grants with funds provided by Public Law
   109-115 in accordance with the statement of managers, as amended by Public
   Law 109-234, the Emergency Supplemental Appropriations Act for Defense,
   the Global War on Terror, and Hurricane Recovery, 2006. Pub. L. No.
   109-234, sect. 7030(a). HUD executed this provision as enacted.

   Federal-Aid Highways, Emergency Relief Program, Emergency Supplemental
   Appropriations Act for Defense, the Global War on Terror, and Hurricane
   Recovery--Executed as Written

    

   This provision appropriated $702,362,500 in no-year funds for the Federal
   Highway Administration's Emergency Relief Program, to be expended for
   "expenses identified under `Formal Requests' in the Federal Highway
   Administration table entitled `Emergency Relief Program Fund
   Requests--updated 06/06/06.'" Pub. L. No. 109-234, title II, ch. 9, 120
   Stat. 418, 471 (June 15, 2006). The request table is a Federal Highway
   Administration (FHWA) compilation of outstanding state requests for
   emergency funding for highway repairs, updated as of June 6, 2006.

   The President's signing statement declared the "executive branch shall
   construe [this provision] in a manner consistent with the bicameral
   passage and presentment requirements of the Constitution for the making of
   a law." Supplemental Statement.

   According to FHWA, it has obligated funds appropriated by this provision
   only for expenses identified in the request table, with the exception of
   $4,916,356.60 expended for costs associated with a June 23, 2006, flood in
   Pennsylvania. Pennsylvania's request for Emergency Relief Funds to repair
   damage done by this storm did not appear on the request table, since the
   flood occurred after the date of the table's compilation. However, FHWA
   has independent statutory authority to make this obligation. If an
   emergency arises requiring FHWA's immediate attention but for which FHWA
   has no appropriation currently available, FHWA may obligate against
   existing highway aid appropriations to respond to the urgent emergency. 23
   U.S.C. sect. 125(c)(2). When FHWA next receives an appropriation, it
   reimburses the lending appropriation. Id. Using its authority under
   section 125(c)(2), FHWA used funds appropriated by Public Law 109-234 to
   respond to the Pennsylvania storm.[56] FHWA executed this provision as
   enacted.

   Section 716 of the Agriculture, Rural Development, Food and Drug
   Administration, and Related Agencies Appropriations Act--Not Executed as
   Written

    

   Section 716 provides that "notwithstanding any other provision of law,
   none of the funds appropriated or otherwise made available by this Act may
   be transferred to the Office of the Chief Information Officer without the
   prior approval [of the committees]."

   Agriculture, Rural Development, Food and Drug Administration, and Related
   Agencies Appropriations Act, 2006, Pub. L. No. 109-97, 119 Stat. 2120,
   2151 (Nov. 10, 2005). The President declared in his signing statement that
   the executive branch would "construe certain provisions of the Act that
   purport to require congressional committee approval for the execution of a
   law as calling solely for notification, as any other construction would be
   inconsistent with the constitutional principles enunciated by the Supreme
   Court of the United States in INS v. Chadha."

   According to the Department of Agriculture (USDA), it transferred funds
   appropriated or otherwise made available under this Act to the Office of
   the Chief Information Officer. USDA notified the committees of its intent
   to transfer such funds on December 16, 2005. On January 31, 2006, Senator
   Robert F. Bennett, Chairman, Subcommittee on Agriculture, Rural
   Development, and Related Agencies, Committee on Appropriations requested
   additional information regarding the transfers. USDA replied to Chairman
   Bennett's request on March 10, 2006, providing details on the transfers.

   USDA states that "[i]t has been our longstanding practice to notify the
   appropriations committees of all such proposed transfers, and, in the
   absence of objections, then to proceed as we have proposed." USDA also
   states that its "actions in this instance were in keeping with past
   practices followed consistently during this Administration and prior
   Administrations since at least the 1980s." USDA did not execute this
   provision as written.

   COMMANDER IN CHIEF, NATIONAL SECURITY, FOREIGN RELATIONS,

   AND LAW ENFORCEMENT

   Provision that the President contends encroaches on his authority to
   classify and control access to national security information

   Section 516 of the Department of Homeland Security Appropriations
   Act--Executed as Written

    

   Section 516 provides that the Office of Personnel Management's (OPM)
   authority to conduct personnel background investigations for certain
   entities of the Department of Homeland Security (DHS) be transferred to
   DHS. Department of Homeland Security Appropriations Act, 2006, Pub. L. No.
   109-90, sect. 516, 119 Stat. 2064, 2084 (Oct. 18, 2005). Section 516 also
   states in relevant part:

   "That [section 516] shall cease to be effective at such time as the
   President has selected a single agency to conduct security clearance
   investigations pursuant to section 3001(c) of the Intelligence Reform and
   Terrorism Prevention Act of 2004 (Public Law 108-458; 50 U.S.C. 435b) and
   the entity selected under section 3001(b) of such Act has reported to
   Congress that the agency selected pursuant to such section 3001(c) is
   capable of conducting all necessary investigations in a timely manner or
   has authorized the entities within the Department of Homeland Security
   covered by [section 516] to conduct their own investigations pursuant to
   section 3001 of such Act."

   Id. The Intelligence Reform and Terrorism Prevention Act of 2004 directed
   the President to select an executive branch entity to oversee security
   clearance investigations in the executive branch and to formulate uniform
   policies and procedures for the conduct of such investigations. 50 U.S.C.
   sect. 435b(b). Further, the Act directed the President, in consultation
   with this entity, to choose another entity to perform all security
   clearance investigations in the executive branch. 50 U.S.C. sect. 435b(c).
   The entity selected under section 435b(b) could also designate additional
   agencies to conduct investigations if that entity deems it necessary. Id.
   Thus, section 516 of the fiscal year 2006 Homeland Security appropriations
   act provides that DHS is to administer the powers transferred to it from
   OPM until the President has selected the entity to conduct security
   clearance investigations for the entire executive branch pursuant to
   section 435b(c), and the entity selected by the President pursuant to
   section 435b(b) has reported favorably to Congress on the entity selected
   under section 435b(c); or, DHS may keep such powers if the President has
   made his selection under section 435b(c) and the entity selected by the
   President under section 435b(b) has authorized DHS to conduct its own
   security clearance investigations for the entities named in section 516 of
   the appropriations act.

   The President declared in his signing statement,

   "To the extent that section 516 relates to access to classified national
   security information, the executive branch shall construe this provision
   in a manner consistent with the President's exclusive constitutional
   authority . . . to classify and control access to national security
   information and to determine whether an individual is suitable to occupy a
   position in the executive branch with access to such information."

   Statement on Signing the Department of Homeland Security Appropriations
   Act, 2006, 41 Weekly Comp. Pres. Doc. 1558 (Oct. 24, 2005) (Homeland
   Security Statement).

   DHS told us that the entities who received authority to conduct their own
   security clearance investigations are still doing so, pursuant to
   authorization under section 516 from OMB, the entity selected by the
   President under section 435b(b).

   By Executive Order No. 13,381, June 27, 2005, the President designated OMB
   as the agency to oversee security clearance policy in the executive branch
   under section 435b(b). This order also granted OMB authority to assign to
   any other agency "any process relating to determinations of eligibility
   for access to classified national security information."

   On June 30, 2005, OMB assigned to OPM the "responsibility for the
   day-to-day supervision and monitoring of security clearance
   investigations." OMB Memorandum No. M-05-17, Allocation of
   Responsibilities for Security Clearances under the Executive Order,
   Strengthening Processes Relating to Determining Eligibility for Access to
   Classified National Security Information, Attachment A, sect. 1(a) (June
   30, 2005). This fulfilled the President's responsibility under
   section 435b(c) to choose an entity to conduct security clearance
   investigations governmentwide.

   On September 27, 2006, OMB, the agency designated by the President under
   section 435b(b), granted to the DHS entities listed in section 516 the
   authority to continue conducting their own security clearance
   investigations. Letter from Clay Johnson III, Deputy Director for
   Management, OMB, to Kathy L. Dillaman, Associate Director, Federal
   Investigative Services Division, OPM, Sept. 27, 2006. Thus, because the
   President has made both of his selections required by section 435b(b), and
   OMB, the entity selected pursuant to section 435b(c), has authorized the
   DHS entities listed in section 516 to conduct their own investigations,
   section 516 has been satisfied. According to DHS, the DHS entities listed
   therein are thus conducting their own investigations under proper
   authority. Therefore DHS executed this provision was written.

   Provisions that mandate or regulate the submission to Congress or other
   entities of information that "could impair foreign relations"

    

   Section 514 of the Foreign Operations, Export Financing, and Related
   Programs Appropriations Act--Executed as Written

    

   Section 514 provides,

   "The Secretary of the Treasury shall instruct the United States Executive
   Directors of [various international financial institutions] to use the
   voice and vote of the United States to oppose any assistance by these
   institutions, using funds appropriated or made available pursuant to this
   Act, for the production or extraction of any commodity or mineral for
   export, if it is in surplus on world markets and if the assistance will
   cause substantial injury to United States producers of the same, similar,
   or competing commodity."

   Pub. L. No. 109-102, sect. 514.

   The President declared in his signing statement that because section 514
   "purport[s] to direct or burden the President's constitutional authority
   to conduct foreign relations . . . by purporting to direct the content of
   certain international negotiations," executive agencies "shall construe
   [section 514] as advisory." Foreign Ops Statement.

   On January 26, 2006, the Department of the Treasury (Treasury) sent
   letters to the United States Executive Directors of all but one of the
   institutions listed in section 514, instructing the Directors in
   accordance with section 514. According to Treasury, the institution that
   was not sent a letter, the North American Development Bank, does not have
   a United States Executive Director and is not in any way involved with the
   production or extraction of commodities or minerals for export. We
   conclude Treasury executed this provision as written.

   Section 631 of the Science, State, Justice, and Commerce Appropriations
   Act--Executed as Written

   Section 631 forbids the use of any funds to include in any new bilateral
   or multilateral trade agreements the text of paragraph 2 of article 16.7
   of the United States-Singapore Free Trade Agreement; paragraph 4 of
   article 17.9 of the United States-Australia Free Trade Agreement; or
   paragraph 4 of article 15.9 of the United States-Morocco Free Trade
   Agreement. Science, State, Justice, Commerce and Related Agencies
   Appropriations Act, 2006, Pub. L. No. 109-108, sect. 631, 119 Stat. 2290,
   2344 (Nov. 22, 2005). The President, in his signing statement, identified
   this provision as one that purported "to direct or burden the Executive's
   conduct of foreign relations, including the authority to recognize foreign
   states and negotiate international agreements on behalf of the United
   States." Statement on Signing the Science, State, Justice, Commerce, and
   Related Agencies Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1764
   (Nov. 28, 2005). The statement declared that the executive branch would
   view this provision as advisory. As of February 28, 2007,

   consistent with the act, the specified language has not appeared in any
   new bilateral or multilateral trade agreements. This provision was
   executed as enacted.

   Provision that impinges on the President's law enforcement authority

   Customs and Border Protection, Salaries and Expenses, Department of
   Homeland Security Appropriations Act--Not Executed as Written

    

   This provision provides, in relevant part, that the "Border Patrol shall
   relocate its checkpoints in the Tucson sector at least once every seven
   days in a manner designed to prevent persons subject to inspection from
   predicting the location of any such checkpoint." Pub. L. No. 109-90, title
   II, 119 Stat. at 2067.

   The President declared in his signing statement, "Decisions on deployment
   and redeployment of law enforcement officers in the execution of the laws
   are a part of the executive power vested in the President by Article II of
   the Constitution. Accordingly, the executive branch shall construe the
   relocation provision as advisory rather than mandatory." Homeland Security
   Statement.

   Customs and Border Protection (CBP) told us that "during fiscal year 2006,
   while the Border Patrol relocated its checkpoints in the Tucson sector
   frequently, relocation did not occur within seven days in every instance,
   as relocation within seven days was not always consistent with Border
   Patrol mission requirements." CBP says that relocating checkpoints
   "diverts resources away from CBP's critical border security mission,"
   because for several hours during redeployment, CBP has one less checkpoint
   devoted to border security.

   CBP also states that selection of checkpoint sites "entails significant
   public safety and engineering considerations, as well as consultation with
   the state transportation authority." Consequently, CBP has approved only
   one location for some of its checkpoints in the Tucson sector, so that
   relocation of these checkpoints to a suitable location is not possible.
   While these checkpoints were also operated in excess of seven continuous
   days, according to CBP, they often shut down for a "short period in an
   endeavor to satisfy the advisory provision" appearing in the 2006
   appropriations act. CBP did not execute this provision as written.

   OTHER CATEGORIES

   Provision relating to the Recess Appointment Power

   Section 809 of the Transportation, Treasury, Housing and Urban
   Development, the Judiciary, the District of Columbia, and Independent
   Agencies Appropriations Act--Executed as Written

   This provision prohibits the use of any appropriations from this or any
   other act for payment to "any person filling a position for which he or
   she has been nominated after the Senate has voted not to approve the
   nomination of said person." Pub. L. No. 109-115, sect. 809, 119 Stat.
   2396, 2497 (Nov. 30, 2005). Upon signing the act, the President addressed
   this provision in his signing statement, declaring, "The executive branch
   shall construe this provision in a manner consistent with the President's
   constitutional authority to make recess appointments." Transportation
   Statement. In the last 20 years, the Senate has voted not to approve the
   nomination of three people. During fiscal year 2006, none of them served
   in the position for which their nomination was not approved. Therefore
   this provision was executed as written.

   Provision relating to the Fifth Amendment

   Section 8020 of the Department of Defense Appropriations Act--Executed as
   Written

    

   This provision appropriated $8 million for incentive payments authorized
   by section 504 of the Indian Financing Act of 1974. Pub. L. No. 109-148,
   sect. 8020, 119 Stat. at 2702. Section 504 of the Indian Financing Act
   provides that an agency's contractor may be allowed additional
   compensation equal to 5 percent of an amount paid by the contractor to a
   subcontractor or supplier if that subcontractor or supplier is an Indian
   organization or Indian-owned enterprise. 25 U.S.C. sect. 1544. Public Law
   109-148 provided that DOD could also use the $8 million to make incentive
   payments to subcontractors at any level, in addition to prime contractors
   as authorized section 504.

   The President declared in his statement that the "executive branch shall
   construe [section 8020] in a manner consistent with the requirement to
   afford equal protection of the laws under the Due Process Clause of the
   Constitution's Fifth Amendment." Defense Statement. The Fifth Amendment
   prohibits the federal government from depriving any person of life,
   liberty, or property without due process of law. U.S. Const. amend. V.

   DOD states that it obligated $7.9 million of the $8 million appropriated
   for incentive payments. All payments went to prime contractors or
   subcontractors as authorized by section 504. DOD executed this provision
   as written.

           Presidential Signing Statements and Federal Court Opinions

   We examined how the federal courts have treated presidential signing
   statements in their published opinions. Our research revealed that federal
   courts infrequently cite or refer to presidential signing statements and,
   when cited or referred to, these signing statements appear to have little
   impact on judicial decisionmaking. One of the earliest court opinions to
   note the existence of a presidential signing statement was in 1899.[57] In
   our search of all reported federal court cases from 1945 to May 2007, we
   found approximately 137 federal court opinions citing or referring to
   presidential signing statements. These opinions cite or refer to
   presidential signing statements for a variety of purposes, ranging from
   providing support for a particular interpretation of a statutory provision
   to merely establishing the date of enactment.

   Presidential signing statements can be characterized as either
   nonconstitutional or constitutional. Some nonconstitutional signing
   statements describe or praise the accompanying law, while others explain
   the President's understanding of the law or its purpose, or declare how
   the executive is to implement the law. Signing statements raising
   constitutional concerns or objections take exception to the
   constitutionality of a provision or provisions and can declare that the
   law will be executed in a certain manner because of constitutional
   concerns.

   Included in the 137 federal court opinions are five Supreme Court
   opinions. In Hamdan v. Rumsfeld, Justice Scalia's dissent criticizes the
   Court's use of legislative history.[58] As part of this criticism, Scalia
   points out that the Court "wholly ignores the Presidential signing
   statement" and quotes the signing statement to show that it does not
   support the result in that case.[59] In United States Department of
   Commerce v. United States House of Representatives, Justice Stevens's
   dissent cites a signing statement issued by President Ford, in conjunction
   with a legislative history source, to make a claim about consensus of
   legislative intent.[60] The remaining three Supreme Court cases,

   United States v. Lopez,[61] Bowsher v. Synar,[62] and Immigration &
   Naturalization Service v. Chadha[63] are discussed below in the section on
   constitutional signing statements.

   NONCONSTITUTIONAL SIGNING STATEMENTS

   Courts have varied in their use of nonconstitutional signing statements in
   their opinions. In some cases, judges have cited signing statements simply
   to identify the date a bill was signed into law.[64] Courts also have
   referred to signing statements as a way of providing a short summary of a
   statute, [65] the purpose of a statute, [66] or the underlying policy
   behind a statute.[67] When construing a statute, courts occasionally cite
   to signing statements in their discussion of the legislative history or
   intent of the law. When signing statements are used in this manner, courts
   often note that the presidential signing statements "echo" the views
   expressed in congressional documents, such as committee reports.[68] About
   40 court opinions have used signing statements in conjunction with
   legislative history documents.

   Cases containing citations to the signing statements of three acts in
   particular--the act disapproving the amendments to the Sentencing
   Guidelines,[69] the Antiterrorism and Effective Death Penalty Act
   (AEDPA),[70] and the Civil Rights Act of 1991 (CRA)[71]--account for over
   a third of all the cases in which courts have cited or referred to signing
   statements. Over a dozen court opinions have cited or referred to
   President Clinton's statement upon signing into law the statute
   disapproving the recommendations of the Federal Sentencing Commission. The
   courts have used this signing statement to reinforce or supplement
   legislative history sources in cases challenging the disparity between
   sentences for crack and powder cocaine convictions. Both the congressional
   documents setting forth congressional intent and the signing statement
   have been cited to support the view that the intent of the statute was to
   adjust but not end the disparity in the law.[72]

   Courts have cited or referenced President Clinton's statement accompanying
   AEDPA in at least 13 opinions.[73] Among other things, the act limits the
   authority of the federal courts to entertain an application for a writ of
   habeas corpus on behalf of a person held in custody by a state.[74] Many
   courts have cited or referenced President Clinton's introductory remarks
   explaining the purpose of the act: "I have long sought to streamline
   Federal appeals for convicted criminals sentenced to the death penalty.
   For too long, and in too many cases, endless death row appeals have stood
   in the way of justice being served."[75] One federal court noted,
   "Although the President's statement is not evidence of congressional
   intent, we refer to it because we agree with his interpretation of the
   plain language of [the provision], and we find no other contrary
   interpretation in the legislative history."[76]

   President George H.W. Bush's signing statement accompanying CRA[77]
   appears in approximately 24 court opinions. The President's signing
   statement sought to influence the execution and interpretation of CRA by
   adopting the position of Senator Dole that, among other points, CRA was
   intended to be applied prospectively only.[78] One federal district court,
   struggling to determine if CRA applies retroactively, considered the
   President's signing statement, combined with an EEOC policy statement and
   a highly conflicted legislative history, as part of its statutory
   construction analysis.[79] However, the majority of courts have accorded
   the signing statement, along with all of CRA's legislative history, little
   weight.[80] Only a small number of the many federal court decisions
   involving the CRA mention the signing statement at all. One court
   expressed its opinion thus: "We give little credence to President Bush's
   statement accompanying his signing of the bill. . . . It is not the
   President's place to write federal statutes."[81] Another court observed,
   "Designating his own party leader's statements to the record as the sole
   authoritative statements seems suspect."[82]

   CONSTITUTIONAL Objections or concerns in SIGNING STATEMENTS

   In approximately 20 opinions, the courts cite or refer to signing
   statements involving constitutional issues. In some cases, a court has
   noted the position taken by the President in his signing statement as
   background to the case. In other cases the court has noted that its
   conclusion that a particular provision is unconstitutional was shared by
   the President, as expressed in his signing statement. The courts have also
   used a signing statement to show that a particular provision with
   constitutional implications might be implemented in a way that would make
   the matter in question nonjusticiable. The constitutional signing
   statements cited by the courts address the separation of powers between
   Congress and the President, foreign relations, and federalism limits on
   congressional authority.

   In Immigration & Naturalization Service v. Chadha, the Supreme Court held
   that the exercise of a legislative veto was unconstitutional because it
   violated the bicameralism and presentment requirements of the
   Constitution.[83] The Court stated that determining the constitutionality
   of a statute is a decision for the courts, rejecting a suggestion that a
   law is shielded from judicial review because it was passed by Congress and
   signed by the President. The Court went on to note that "in any event,
   eleven Presidents, from Mr. Wilson to Mr. Reagan, who have been presented
   with this issue have gone on record at some point to challenge
   Congressional vetoes as unconstitutional."[84] The Court, however, did not
   rely on the existence of the signing statements in reaching its decision.
   Nor did the Supreme Court rely on a signing statement in reaching its
   decision in Bowsher v. Synar. In that case, the Supreme Court held the
   Gramm-Rudman-Hollings Act unconstitutional because it permitted an officer
   controlled by Congress to execute the laws.[85] In describing the
   background of the case, the Court noted that the signing statement
   accompanying the Act asserted that the Act was unconstitutional because it
   would allow the Comptroller General to have supervisory authority over the
   President.[86]

   Citations to a series of signing statements with a common constitutional
   objection also appeared in Federal Election Commission v. National Rifle
   Association Political Victory Fund.[87] In its discussion of a statutory
   restriction on the President to select no more than three FEC
   Commissioners from one party, the court discussed how Presidents have, in
   signing statements, expressed the view that legislative restrictions on
   the appointment power are advisory and not binding on the President.[88]
   The court considered these signing statements in the larger context of the
   appointment process and concluded that it was not clear that the statute
   at issue actually restricted the President in choosing who to appoint.
   Thus, the court found that the challenge to an action taken by the FEC was
   not justiciable on the grounds that the statute unconstitutionally
   restricted the President's power to appoint FEC Commissioners.[89]

   Signing statements have also appeared in a number of cases in the foreign
   relations area. One such example is Zivotofsky ex rel. Ari Z. v. Secretary
   of State. In Zivotofsky, the court was presented with the issue of whether
   a particular provision of the Foreign Relations Authorization Act, Fiscal
   Year 2003, entitled a plaintiff born in Jerusalem to have "Israel" listed
   on his U.S. passport as his place of birth. [90] While on its face, the
   statute provided for such a listing, the court pointed out that the
   President had declared in his signing statement that this provision of the
   Act interfered with the President's constitutional authority to conduct
   the nation's foreign affairs and to determine the terms on which
   recognition is given to foreign states.[91] In light of these
   constitutional concerns, the circuit court directed the district court to
   develop a more complete record and determine whether the case presents a
   political question that is nonjusticiable.[92] In another case, Southern
   Offshore Fishing Ass'n v. Daley, a court held that the enforcement of a
   statute directing an executive officer to pursue certain international
   fishing agreements was a nonjusticiable political question.[93] The court
   referred to the signing statement in which the President had said that the
   act encroached on the President's authority to conduct foreign
   relations.[94]

   In United States v. Lopez, the Supreme Court held that the enumerated
   powers of Congress, in particular, Commerce Clause authority, did not
   permit Congress to enact the Gun-Free School Zone Act (GFSZA).[95] The
   Court held that the Act's provisions criminalizing possession of handguns
   near schools violated constitutional principles of federalism. The Supreme
   Court noted that President George H.W. Bush's signing statement condemned
   the Act as "inappropriately [overriding] legitimate State firearms laws
   with a new and unnecessary Federal law."[96] Following Lopez, a few lower
   courts have cited and discussed signing statements in federalism
   cases.[97] In one such case, the court distinguishes the reasoning of the
   Supreme Court in Lopez from the views of President Bush as expressed in
   his signing statement.[98]

   In another case, in which the constitutionality of the Anti Car Theft Act
   of 1992 was challenged on federalism grounds, the court's decision
   compared President George H.W. Bush's signing statement for the Anti Car
   Theft Act with the signing statement for GFSZA. Although not central to
   the court's analysis, it noted that, while the President voiced federalism
   concerns over GFSZA, he did not voice a federalism objection with regard
   to the Anti Car Theft Act, which made carjacking a federal offense.[99]
   The court upheld the Anti Car Theft Act as within Congress's power.

   CONCLUSION

   Federal courts infrequently cite or refer to presidential signing
   statements in their published opinions, and these signing statements
   appear to have little impact on judicial decisionmaking. When they do cite
   signing statements, it is for a variety of reasons. The most common use of
   a signing statement is to supplement discussion of legislative history
   such as committee reports. Courts have also cited signing statements
   independently from citations to legislative history sources for purposes
   as varied as establishing the date of a bill's signing to providing
   interpretative guidance. Courts have used signing statements raising
   constitutional issues as background or context in some decisions, but each
   of these cases presents a unique set of issues and the signing statements
   are cited or referred to in different ways. Courts have cited
   constitutional signing statements in cases involving separation of powers
   principles, foreign relations matters, and federalism constraints. The
   federal courts have only in rare instances treated presidential signing
   statements as an authoritative source of statutory or constitutional
   interpretation.

   ------------------------

   [1] This group includes at least one provision from each appropriations
   act and at least one provision from the various categories of presidential
   concern or objection we identified. A detailed scope and methodology
   appears at Enclosure I.

   [2] For an example, see page 10.

   [3] President Jackson's statement declared that a road, which Congress
   meant to run from Detroit to Chicago, would not extend beyond the
   Territory of Michigan. This statement sparked criticism by the House of
   Representatives as being an item veto of some of the bill's provisions.
   Louis Fisher, Constitutional Conflicts Between Congress and the President,
   128 (1991); Library of Congress, Congressional Research Service (CRS),
   Presidential Signing Statements: Constitutional and Institutional
   Implications, No. RL33667 (Apr. 13, 2007), at 2.

   [4] Congress criticized President Monroe for not following the law, and he
   responded with a statement declaring that he, the President, had the
   constitutional authority to appoint officers, not Congress. Christopher
   Kelley, A Comparative Look at the Constitutional Signing Statements: The
   Case of Bush and Clinton (Apr. 2003) (paper presented at the 61^st Annual
   Meeting of the Midwest Political Science Association, available at
   http://mpsa.indiana.edu/conf2003papers/1031858822.pdf (last visited
   June 14, 2007)), citing Christopher May, Presidential Defiance of
   "Unconstitutional" Laws: Reviving the Royal Prerogative, 116 (1998).

   [5] For a brief history of presidential signing statements, see CRS No.
   RL33667, at 2-10.

   [6] Statement by President William J. Clinton upon Signing H.R. 3610, 32
   Weekly Comp. Pres. Doc. 1935 (Sept. 30, 1996).

   [7] CRS No. RL33667, at 27. According to CRS, President Reagan issued 276
   signing statements over eight years, 71 of which (26 percent) raised
   constitutional concerns or objections. President George H. W. Bush issued
   214 signing statements over four years, 146 of which (68 percent) raised
   constitutional concerns or objections. President Clinton issued 391
   statements in eight years, 105 of which (27 percent) raised constitutional
   concerns or objections. President George W. Bush has issued 149 signing
   statements, 127 of which (85 percent) raised constitutional concerns or
   objections. Id. at 2.

   [8] On June 27, 2006, the Senate Committee on the Judiciary of the 109^th
   Congress held a hearing on presidential signing statements. On January 31,
   2007, the House Committee on the Judiciary of the 110^th Congress also
   held a hearing on signing statements.

   [9] The President did not issue a signing statement for the Legislative
   Branch Appropriations Act for fiscal year 2006.

   [10] Hereinafter "signing statements" refers to these 11 signing
   statements unless otherwise noted.

   [11] For more views of the executive branch on some of these issues, see
   The Constitutional Separation of Powers Between the President and
   Congress, 20 Op. Off. Legal Counsel 124 (1996); Common Legislative
   Encroachments on Executive Branch Authority, 13 Op. Off. Legal Counsel 248
   (1989).

   [12] "The executive Power shall be vested in a President of the United
   States of America." U.S. Const. art. II, sect. 1, cl. 1.

   [13] U.S. Const. art. II, sect. 3.

   [14] Letter Opinion for the General Counsel, Department of Health and
   Human Services, Authority of Agency Officials to Prohibit Employees from
   Providing Information to Congress, OLC Opinion, May 21, 2004, available at
   www.usdoj.gov/olc/ crsmemoresponsese.htm (last visited June 14, 2007).

   [15] Statute Limiting the President's Authority to Supervise the Director
   of the Centers for Disease Control in the Distribution of an AIDS
   Pamphlet, 12 Op. Off. Legal Counsel 47, 48 (1988).

   [16] For example, Christopher S. Yoo, Steven G. Calabresi, Laurence D.
   Nee, and Anthony J. Colangelo have published a four-part series defending
   the unitary executive theory by detailing how each presidential
   administration has interpreted and applied the theory. Steven G. Calabresi
   and Christopher S. Yoo, The Unitary Executive During the First
   Half-Century, 47 Case. W. Res. L. Rev. 1451 (1997); Steven G. Calabresi
   and Christopher Yoo, The Unitary Executive During the Second Half-Century,
   26 Harv. J.L. & Pub. Pol'y 667 (2003); Christopher S. Yoo, Steven G.
   Calabresi, and Laurence D. Nee, The Unitary Executive During the Third
   Half-Century, 1889-1945, 80 Notre Dame L. Rev. 1 (2004); Christopher S.
   Yoo, Steven G. Calabresi, and Anthony J. Colangelo, The Unitary Executive
   in the Modern Era, 1945-2004, 90 Iowa L. Rev. 601 (2004).

   [17] Agriculture, Rural Development, Food and Drug Administration, and
   Related Agencies Appropriations Act, 2006, Pub. L. No. 109-97, sect. 719,
   119 Stat. 2120, 2152 (Nov. 10, 2005).

   [18] Foreign Operations, Export Financing, and Related Programs
   Appropriations Act, 2006, Pub. L. No. 109-102, sect. 534(k), 119 Stat.
   2172, 2210 (Nov. 14, 2005).

   [19] Department of the Interior, Environment, and Related Agencies
   Appropriations Act, 2006, Pub. L. No. 109-54, sect. 101, 119 Stat. 499,
   520 (Aug. 2, 2005).

   [20] See, e.g., 12 Op. Off. Legal Counsel at 47; May 21, 2004, OLC
   Opinion.

   [21] Statement on Signing the Transportation, Treasury, Housing and Urban
   Development, the Judiciary, the District of Columbia, and Independent
   Agencies Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1800 (Dec.
   5, 2005); Statement on Signing the Military Quality of Life and Veterans
   Affairs Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1799 (Dec. 5,
   2005) (Veterans Affairs Statement); Statement on Signing the Departments
   of Labor, Health and Human Services, and Education, and Related Agencies
   Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1920 (Jan. 2, 2006)
   (Labor Statement). These statements object to such provisions because they
   "could impair foreign relations, national security, the deliberative
   processes of the Executive, or the performance of the Executive's
   constitutional duties."

   [22] Veterans Affairs Statement.

   [23] U.S. Const. art. II, sect. 2, cl. 1.

   [24] Statement on Signing the Foreign Operations, Export Financing, and
   Related Programs Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1718
   (Nov. 21, 2005); Veterans Affairs Statement;  Statement on Signing the
   Science, State, Justice, Commerce, and Related Agencies Appropriations
   Act, 2006, 41 Weekly Comp. Pres. Doc. 1764 (Nov. 28, 2005).

   [25] Veterans Affairs Statement.

   [26] U.S. Const. art. II, sect. 2, cl. 2; sect. 3.

   [27] Statement on Signing the Department of Homeland Security
   Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1558 (Oct. 24, 2005).

   [28] U.S. Const. art. I, sect. 7, cl. 2.

   [29] Id.

   [30] Statement on Signing H.R. 2361, 41 Weekly Comp. Pres. Doc. 1243 (Aug.
   2, 2005).

   [31] U.S. Const. art. II, sect. 2, cl. 3.

   [32] Statement on Signing the Transportation, Treasury, Housing and Urban
   Development, the Judiciary, the District of Columbia, and Independent
   Agencies Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1800 (Dec.
   5, 2005).

   [33] U.S. Const. amend. V.

   [34] We did not investigate provisions to which the President objected on
   the grounds that they impinged upon his general authority as Commander in
   Chief. See Scope and Methodology, Enclosure I.

   [35] Pub. L. No. 109-54, sect. 101.

   [36] Pub. L. No. 104-38, 109 Stat. 334 (Oct. 30, 1995); Statement by
   President William J. Clinton Upon Signing S.1254, 31 Weekly Comp. Pres.
   Doc. 1961 (Nov. 6, 1995).

   [37] Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996); Statement by
   President William J. Clinton upon Signing S.1965, 32 Weekly Comp. Pres.
   Doc. 719 (Apr. 29, 1996).

   [38] Pub. L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991); Statement of
   President George Bush upon Signing S. 1745, 27 Weekly Comp. Pres. Doc.
   1701 (Nov. 21, 1991).

   [39] Pub. L. No. 109-55, 119 Stat. 565 (Aug. 2, 2005).

   [40] E.g., Statement on Signing the Departments of Labor, Health and Human
   Services, and Education, and Related Agencies Appropriations Act, 2006, 41
   Weekly Comp. Pres. Doc. 1920 (Jan. 2, 2006).

   [41] E.g., Statement on Signing the Transportation, Treasury, Housing and
   Urban Development, the Judiciary, the District of Columbia, and
   Independent Agencies Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc.
   1800 (Dec. 5, 2005).

   [42] The President identified 70 provisions in this category.

   [43] Pub. L. No. 109-102, 119 Stat. 2172, 2186-87 (Nov. 14, 2005).

   [44] Pub. L. No. 109-114, sect. 107, 119 Stat. 2372, 2377 (Nov. 30, 2005).

   [45] Department of Defense, Emergency Supplemental Appropriations to
   Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act,
   2006, Pub. L. No. 109-148, div. A, title X, 119 Stat. 2680, 2739 (Dec. 30,
   2005).

   [46] Hamdan v. Rumsfeld, ___ U.S. ___, 126 S. Ct. 2749 (2006).

   [47] Pub. L. No. 109-366, 120 Stat. 2600 (Oct. 17, 2006).

   [48] As noted, we determined that information on provisions purportedly
   impinging on the President's general authority as Commander in Chief would
   be not be readily available due to national security or foreign relations
   concerns.

   [49] Transportation, Treasury, Housing and Urban Development, the
   Judiciary, the District of Columbia, and Independent Agencies
   Appropriations Act, 2006, Pub. L. No. 109-115, sect. 809, 119 Stat. 2396,
   2497 (Nov. 30, 2005).

   [50] Citations for the Appropriations Acts and the provisions cited
   therein can be found in Enclosure III.

   [51] Indicated in bold are the 19 statutory provisions we selected to
   determine how the agencies were executing the law.

   [52] We determined that information on these provisions would not be
   readily available due to national security or foreign relations concerns.
   See Enclosure I.

   [53] The total here is greater than 160 because the President objected to
   some provisions multiple times. The provision in the Defense
   Appropriations Act relating to detainees is not included because it had
   been overtaken by subsequent events. See Scope and Methodology, Enclosure
   I.

   [54] The November 16, 2005, notification concerned Fiscal Year 2005
   Economic Support Funds and the July 31, 2006, notification concerned
   Economic Support Funds from Fiscal Years 2005 and 2006.

   [55] Department of Homeland Security Appropriations Act, 2007, Pub. L. No.
   109-295, sect. 528, 120 Stat. 1355, 1383 (Oct. 4, 2006). This reporting
   requirement amends the reporting requirement of section 548 in Pub. L. No.
   109-90, which amended the reporting requirement found in the Second
   Emergency Supplemental Appropriations Act to Meet Immediate Needs Arising
   From the Consequences of Hurricane Katrina, 2005, Pub. L. No. 109-62, 119
   Stat. 1990, 1991 (Sept. 8, 2005).

   [56] FHWA interprets section 125(c)(2) as granting FHWA the flexibility it
   needs to respond to disasters as they occur, without waiting for
   appropriations to become available at a later time.

   [57] See Christopher S. Kelley, A Comparative Look at the Constitutional
   Signing Statement: The Case of Bush and Clinton (Apr. 3-6, 2003)
   (presented at the 61^st Annual Meeting of the Midwest Political Science
   Association). The case was La Abra Silver Mining Co. v. United States, 175
   U.S. 423, 454 (1899) (the Court noted a presidential practice of sending a
   message to Congress upon signing a bill into law).

   [58] ___ U.S. ___, 126 S. Ct. 2749, 2816 (2006) (Scalia, J., dissenting).

   [59] Id. at 2816.

   [60] 525 U.S. 316, 361 n.6 (1999) (Stevens, J., dissenting).

   [61] 514 U.S. 549, 561 n.3 (1995).

   [62] 478 U.S. 714, 719 n.1 (1986).

   [63] 462 U.S. 919, 942 n.13 (1983).

   [64] Saleh v. United States Department of Justice, 962 F. 2d 234, 238 n.7
   (2^nd Cir. 1992).

   [65] Often the overall intent of the statute is not in dispute, and the
   signing statement is just a concise, convenient source. E.g., Williams v.
   United States, 240 F.3d 1019, 1023-24 (Fed. Cir. 2001) (summarizing the
   Ethics Reform Act of 1989); Clinton v. Babbit, 180 F.3d 1081, 1087 n.4
   (9^th Cir. 1999) (summarizing the Navajo-Hopi Land Dispute Settlement Act
   of 1996).

   [66] E.g., Pigford v. Glickman, 206 F.3d 1212, 1215 n.3 (D.C. Cir. 2000)
   (stating the purpose of a statute waiving the statute of limitations on
   USDA discrimination complaints from the 1980s is to "address the
   long-standing discrimination claims of many minority farmers").

   [67] E.g., United States v. Yacoubian, 24 F.3d 1, 8 (9^th Cir. 1994)
   (listing presidential policy objectives met by a statute).

   [68] E.g., Duffield v. Robertson Stephens & Co., 144 F.3d 1182, 1196 (9^th
   Cir. 1998). See also United States v. Venture, 338 F.3d 1047, 1053-54
   (9^th Cir. 2003); Burrus v. Vegliante, 336 F.3d 82, 89 (2^nd Cir. 2003);
   Thrifty Oil Co. v. Bank of America National Trust and Savings Ass'n, 322
   F.3d 1039, 1056 n.22 (9^th Cir. 2003); Calloway v. District of Columbia,
   216 F.3d 1, 15 (D.C. Cir. 2000) (Ginsburg, J., dissenting).

   [69] Pub. L. No. 104-38, 109 Stat. 334 (Oct. 30, 1995); Statement by
   President William J. Clinton upon Signing S.1254, 31 Weekly Comp. Pres.
   Doc. 1961 (Nov. 6, 1995).

   [70] Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996); Statement by
   President William J. Clinton upon Signing S.1965, 32 Weekly Comp. Pres.
   Doc. 719 (Apr. 29, 1996).

   [71] Pub. L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991); Statement of
   President George Bush upon Signing S. 1745, 27 Weekly Comp. Pres. Doc.
   1701 (Nov. 21, 1991).

   [72] E.g., United States v. Castillo, 460 F.3d 337, 347 (2^nd Cir. 2006);
   United States v. Petersen, 143 F. Supp. 2d 569, 578 (E.D. Va. 2001).

   [73] Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996).

   [74] Id. sect. 104; 28 U.S.C. sect. 2254.

   [75] E.g., Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1067 n.6
   (6^th Cir. 1997) (the portion of the decision for which the signing
   statement was cited was effectively overruled by Lindh v. Murphy, 521 U.S.
   320); Hill v. Butterworth, 133 F.3d 783, 784 (11^th Cir. 1997), vacated,
   Hill v. Butterworth, 147 F.3d 1333 (11^th Cir. 1998); Stewart v. Gillmore,
   No. 97 C 6672 (N.D. Ill. Nov. 5, 1997).

   [76] Love v. Morton, 112 F.3d 131, 137 (3^rd Cir. 1997).

   [77] Pub. L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991).

   [78] Statement of President George Bush upon Signing S. 1745, 27 Weekly
   Comp. Pres. Doc. 1701 (Nov. 21, 1991).

   [79] Ribando v. United Airlines, Inc., 787 F. Supp. 827, 832 (N.D. Ill.
   1992).

   [80] See, e.g., Butts v. City of New York Department of Housing
   Preservation and Development, 990 F.2d 1397, 1405-06 (2^nd Cir. 1993).

   [81] Estate of Reynolds v. Martin, 985 F.2d 470, 477 n.8 (9^th Cir. 1993).

   [82] Petitti v. New England Telephone and Telegraph Co., No. 89-3951, n.6
   (D. Mass. Nov. 16, 1992).

   [83] 462 U.S. 919 (1983).

   [84] The Court cited President Roosevelt's statement upon signing the
   Lend-Lease Act of 1941 as an example of one instance where a President
   went "on the record." Id. at 942.

   [85] 478 U.S. 714 (1986).

   [86] 478 U.S. 714, 719 n.1 (1986).

   [87] 6 F.3d 821 (D.C. Cir. 1993).

   [88] Id. at 824-25.

   [89] However, the court held against the FEC on different grounds, that
   the inclusion of the Secretary of the Senate and the Clerk of the House of
   Representatives as ex officio members of the Commission violated
   separation of powers principles. Id. at 826-28.

   [90] 444 F.3d 614 (D.C. Cir. 2006).

   [91] Id. at 616.

   [92] Id. at 619.

   [93] 995 F. Supp. 1411 (M.D. Fla. 1998).

   [94] Id. at 1427-28.

   [95] 514 U.S. 549 (1994).

   [96] Id. at 561.

   [97] Brzonkala v. Virginia Polytechnic Institute and State University, 169
   F.3d 820 (4^th Cir. 1999); United States v. Bishop, 66 F.3d 569 (3^rd Cir.
   1995).

   [98] In Brzonkala, the appellants tried to distinguish GFSZA from the
   Violence Against Women Act (VAWA), the statute at issue in their case, by
   arguing that VAWA did not override otherwise applicable state laws, while
   GFSZA did. The Brzonkala court rejected the appellant's argument and
   stated that the appellant misattributed President's Bush's views as
   expressed in his signing statement with the Supreme Court's views.
   Brzonkala, 169 F.3d at 841.

   [99] Bishop, 66 F.3d at 585.