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.