TITLE: B-309928, Presidential Signing Statements--Agency Implementation of Ten Provisions of Law, December 20, 2007
BNUMBER: B-309928
DATE: December 20, 2007
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B-309928, Presidential Signing Statements--Agency Implementation of Ten Provisions of Law, December 20, 2007
B-309928
December 20, 2007
The Honorable John Conyers, Jr.
Chairman, Committee on the Judiciary
United States House of Representatives
The Honorable Robert C. Byrd
Chairman, Committee on Appropriations
United States Senate
Subject: Presidential Signing Statements--Agency Implementation of Ten
Provisions of Law
This letter responds to your request that we examine how agencies have
executed ten provisions of law to which the President took exception in
signing statements.[1] We contacted nine agencies responsible for
implementing the ten provisions to determine how the agencies were
carrying out the provisions. One of the ten provisions applies to two
different agencies, and two agencies were responsible for implementing two
different provisions. Accordingly, we examined agency implementation in
eleven instances.
We found that, in six of the eleven instances we examined, the responsible
agencies--the Department of Defense (DOD), the Office of the Director of
National Intelligence, the Special Inspector General for Iraq
Reconstruction, the Institute of Education Sciences, and the Nuclear
Regulatory Commission (NRC)--reported either that they had taken actions
to implement the provisions as written or that they had experienced no
interference in carrying out their responsibilities as required by law. In
two instances, the provisions--to be implemented by the Department of the
Interior (Interior) and the Department of Veterans Affairs (VA)--were not
triggered. In the remaining three instances, we found that the Department
of Energy (DOE) and the Federal Emergency Management Agency (FEMA) had not
yet implemented the provisions for which they are responsible, although in
all three instances each agency indicated that it was planning to
implement the provision.
Although we found that three provisions have not yet been implemented, we
cannot conclude that agency noncompliance was the result of the
President's signing statements.
BACKGROUND
You asked us to examine ten provisions to which the President took
exception in signing statements. These provisions are listed below,
arranged by the basis on which the President objected.[2]
Related to the Fifth Amendment
The Due Process Clause of the Fifth Amendment prohibits the federal
government from depriving any person of life, liberty, or property without
due process of law. [3] In the signing statements, the President stated
that the executive branch shall construe the provisions in the acts
relating to race, ethnicity, gender, and state residency "in a manner
consistent with the requirements of the Due Process Clause of the Fifth
Amendment."[4] The President objected to the following provisions on this
basis:
Section 623 of the Department of Homeland Security Appropriations Act,
2007, which requires FEMA to create a graduate-level homeland security
education program and to take steps to ensure diversity in the student
body. Pub. L. No. 109-295, 120 Stat. 1355, 1418 (Oct. 4, 2006).
Section 697 of the Department of Homeland Security Appropriations Act,
2007, which requires FEMA to create a registry of contractors willing to
perform debris removal, distribution of supplies, reconstruction, and
other disaster or emergency relief activities. Pub. L. No. 109-295, 120
Stat. 1355, 1461 (Oct. 4, 2006).
Section 8048 of the Department of Defense Appropriations Act, 2007,
which requires DOD contractors in Hawaii and Alaska to hire residents of
those states. Pub. L. No. 109-289, 120 Stat. 1257, 1284 (Sept. 29,
2006).
Section 1011(a) of the Intelligence Reform and Terrorism Prevention Act
of 2004, which requires the Director of National Intelligence to ensure
that the personnel of the intelligence community are sufficiently
diverse for purposes of collection and analysis of intelligence. Pub. L.
No. 108-458, 118 Stat. 3638, 3644 (Dec. 17, 2004).
Related to the Theory of the Unitary Executive
The second basis for the President's objections rests on the theory of the
unitary executive. Under this theory, the President, as head of the
executive branch, may control employees and officers of the executive
branch without outside interference. This theory is rooted in Article II
of the Constitution, which grants the President the executive power and
instructs the President to "take Care that the Laws be faithfully
executed."[5] The theory of the unitary executive holds that these
responsibilities necessarily vest in the President the power to control
executive branch employees and officers free of interference from the
other government branches.[6] The President objected to the following
provisions on this basis:
Section 629 of the Energy Policy Act of 2005, which grants additional
whistleblower protections to DOE and NRC employees and to NRC
contractors. Pub. L. No. 109-58, 119 Stat. 594, 785 (Aug. 8, 2005).
Section 186 of the Education Sciences Reform Act of 2002, which created
the Institute of Education Sciences and provides for the office to carry
out its mission free of interference from the Secretary of Education or
any other office of the Department of Education. Pub. L. No. 107-279,
116 Stat. 1940, 1973 (Nov. 5, 2002).
Section 108 of the Veterans Benefits Improvement Act of 2004, which
provides that VA may conduct a 3-year pilot program of training for VA
employees to become claims adjudicators. Pub. L. No. 108-454, 118 Stat.
3598, 3604 (Dec. 10, 2004).
Related to the Commander-in-Chief Power
The President's third basis of objection asserts congressional
interference with his power as Commander-in-Chief.[7] The President is the
head of the Armed Forces, and these objections claim interference with
this role on the part of Congress. The President objected to the following
provisions on this basis.[8]
Section 1205 of the Ronald W. Reagan National Defense Authorization Act
for Fiscal Year 2005, which requires DOD to issue guidance on how DOD
shall manage contractor personnel supporting deployed forces, and to
submit a report to the Armed Services committees regarding the guidance.
Pub. L. No. 108-375, 118 Stat. 1811, 2083 (Oct. 28, 2004).
Title III of the Emergency Supplemental Appropriations Act for Defense
and for the Reconstruction of Iraq and Afghanistan, 2004, which created
the Special Inspector General for Iraq Reconstruction and provides for
the office to be free from interference in conducting its investigations
from officials of the Coalition Provisional Authority, DOD, the
Department of State or the United States Agency for International
Development. Pub. L. No. 108-106, 117 Stat. 1209, 1234 (Nov. 6, 2003).
Related to the Appointments Clause
Another basis for the President's objections in his signing statements is
that one provision interferes with his authority under the Constitution's
Appointments Clause, which requires officers of the United States to be
appointed by the President, the courts, or executive department heads.[9]
In his signing statement, the President says that such provisions may not
disqualify from consideration for appointment individuals best suited to
fill a particular office, unless the office will perform "functions that
are advisory only."[10] The President objected to the following provision
on this basis:
Section 4 of the Rio Grande Natural Area Act, which creates the Rio
Grande Natural Area Commission. Pub. L. No. 109-337, 120 Stat. 1777,
1777-78 (Oct. 12, 2006).
We inquired as to how the responsible agencies were implementing these
provisions in light of the President's signing statements.[11] We
contacted nine agencies: DOD, Interior, VA, DOE, the Office of the
Director of National Intelligence, NRC, the Special Inspector General for
Iraq Reconstruction, FEMA, and the Institute of Education Sciences.
RESULTS
Two provisions, to which the President objected on Commander-in-Chief and
unitary executive grounds, respectively, restricted certain types of
interference with the activities of the two entities: the Special
Inspector General for Iraq Reconstruction and the Institute of Education
Sciences. The Office of the Special Inspector General for Iraq
Reconstruction reported that it has experienced no interference in the
conduct of its activities from any officers of the Coalition Provisional
Authority, DOD, the Department of State, or the United States Agency for
International Development. Similarly, the Director of the Institute of
Education Sciences stated that no Department of Education officials have
sought to comment on or disapprove publication of the Institute's
research.
In four instances, we found that agencies have taken actions to implement
the relevant provisions. The President objected to two of these provisions
on the basis of the Fifth Amendment; to one provision on the basis of the
Commander-in-Chief power; and the last provision on the basis of the
theory of the unitary executive. For the two provisions to which the
President objected on the basis of the Fifth Amendment, we found that the
Office of the Director of National Intelligence has taken steps to ensure
that the personnel of the intelligence community are sufficiently diverse
for purposes of the collection and analysis of intelligence. We also found
that DOD has issued regulations requiring each contract awarded in Alaska
and Hawaii to include a provision requiring the contractor to employ
residents of those states. Regarding the provision to which the President
objected on Commander-in-Chief grounds, DOD issued guidance on how DOD
will manage contractor personnel supporting deployed forces. Concerning
the provision to which the President objected based on the theory of the
unitary executive, NRC has notified its employees of additional
whistleblower protections they enjoy and has included a clause in its
contracts requiring that its contractors notify their employees that the
employees enjoy the same protections. While NRC has implemented the
relevant provision, it did so more than 2 years after the provision was
enacted.
Two provisions were not triggered. The President objected to these
provisions on the basis of the Appointments Clause and the theory of the
unitary executive, respectively. In the first instance, Interior has not
yet appointed members to a commission, so the provisions regarding the
qualifications and duties of the commission members have not yet been
triggered. In the other, VA decided not to develop a pilot program, so the
portion of the provision governing the reporting on the results of the
pilot program and making recommendations was not triggered.
Two agencies have not implemented three provisions we examined. The first
is DOE. The Energy Policy Act of 2005 extended additional whistleblower
protections to DOE employees and requires that DOE post information about
the new protections in DOE facilities. Pub. L. No. 109-58, sect. 629. The
President objected to this provision under the theory of the unitary
executive. DOE has not yet posted such information for its employees.
DOE's Web site and posters in DOE facilities do advise employees of their
whistleblower rights under the Whistleblower Protection Act of 1989 but do
not mention the additional protections now afforded DOE employees. DOE
says that its Web site and posters "should be updated with references to"
the new whistleblower protection provisions, but did not say when the
materials would be updated.
FEMA was responsible for implementing the remaining two provisions, both
of which the President objected to on Fifth Amendment grounds. One
provision requires FEMA to create a graduate-level homeland security
education program and to take reasonable steps to ensure diversity in the
program's student body. Pub. L. No. 109-295, sect. 623. FEMA created the
program but has not yet taken measures to ensure diversity within the
program. Instead, FEMA states that it currently ensures diversity within
the student body by following existing laws prohibiting discrimination.
FEMA says that the Department of Homeland Security's Office of the Chief
Learning Officer and the Training Leaders Council[12] are in the process
of developing guidelines to support diversity.
FEMA also was required to create a registry of contractors willing to
perform debris removal, distribution of supplies, reconstruction, and
other disaster or emergency relief services. Pub. L. No. 109-295, sect.
697. The registry must include for each contractor the name, location,
area served, type of services provided, and bonding level. FEMA has not
created this registry. FEMA states that an existing government-wide
registry already contains all of the required information except the areas
served and the bonding levels of the contractors. FEMA plans to add this
information to the existing registry in the future.
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. A complete summary of our findings with
regard to each of the ten provisions appears as an enclosure to this
letter. 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.
Sincerely yours,
Gary L. Kepplinger
Gary Kepplinger's signature
General Counsel
Enclosure
AGENCY ACTIONS
The following summary of agency action regarding the ten provisions we
examined is arranged by category of the President's objection. Although we
found that two agencies have not yet implemented provisions, we cannot
conclude that agency noncompliance was the result of the President's
signing statements. 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. We also have not evaluated the
effectiveness of the agency actions and programs described in this
summary.
PROVISIONS RELATED TO THE FIFTH AMENDMENT
Section 623 of the Department of Homeland Security Appropriations Act,
2007--Federal Emergency Management Agency
This provision instructed the Federal Emergency Management Agency (FEMA)
to create a graduate-level homeland security education program. Pub. L.
No. 109-295, sect. 623, 120 Stat. 1355, 1418 (Oct. 4, 2006). In relevant
part, the provision directed the Administrator to take "reasonable steps
to ensure that the student body represents racial, gender, and ethnic
diversity." Id.
Upon signing the act, the President stated, "The executive branch shall
construe provisions of the Act relating to race, ethnicity, and gender,
such as section[] 623 . . . of the Act, in a manner consistent with the
requirements of the Due Process Clause of the Fifth Amendment." Statement
on Signing the Department of Homeland Security Appropriations Act, 2007,
42 Weekly Comp. Pres. Doc. 1742 (Oct. 9, 2006).
According to FEMA, the Homeland Security Academy, managed by the
Department of Homeland Security (DHS) Chief Learning Officer, was
established in response to section 623. According to FEMA, students for
the program are currently chosen on the basis of five weighted criteria:
academic credentials, a self-assessment essay, experience narratives,
communication skills, and letters of recommendation. FEMA has not
developed mechanisms designed to ensure diversity in the student body.
Instead, FEMA says that diversity is ensured in this program by adhering
to existing prohibitions of discrimination by the federal government. As
cited by FEMA, these instruct agencies to provide training without regard
to race, creed, color, national origin, sex, or other factors unrelated to
the need for training.[13] FEMA states that these existing prohibitions of
government discrimination ensure the diversity called for by section 623.
FEMA says it does not have information about the current racial, gender,
or ethnic makeup of the student body.
FEMA states that the DHS Training Leaders Council and the Office of the
Chief Learning Officer are developing guidelines that will support racial,
gender, and ethnic diversity of the student body and of the candidate
selection panels. However, FEMA has not provided us with these guidelines
and has not provided a date when they may become effective. Based on the
foregoing, we conclude that FEMA has not yet taken "reasonable steps" to
ensure diversity as required by this provision.
Section 697 of the Department of Homeland Security Appropriations Act,
2007--FEMA
Section 697 requires FEMA to create a registry of contractors willing to
perform debris removal, distribution of supplies, reconstruction, and
other disaster or emergency relief activities. Pub. L. No. 109-295,
sect. 697(b)(1), 120 Stat. 1355, 1461 (Oct. 4, 2006). The provision
requires that the registry include for each contractor the name, location,
area served, type of good or service provided, and bonding level. Id.
sect. 697(b)(2)(A)-(E). The registry is also to include whether the
contractor is a small business concern, a small business concern owned and
controlled by socially or economically disadvantaged individuals, a small
business concern owned and controlled by women, or a small business
concerned owned and controlled by service-disabled veterans. Id. sect.
697(b)(F).
Upon signing the act, the President stated, "The executive branch shall
construe provisions of the Act relating to race, ethnicity, and gender,
such as section[] 697 . . . of the Act, in a manner consistent with the
requirement of the Due Process Clause of the Fifth Amendment to the
Constitution." Statement on Signing the Department of Homeland Security
Appropriations Act, 2007, 42 Weekly Comp. Pres. Doc. 1742 (Oct. 9, 2006).
FEMA does not yet have a registry as required by this statute. FEMA states
that it intends to fulfill the requirements of this provision by working
with the DHS Office of the Chief Procurement Officer and the Office of
Federal Procurement Policy to modify the Central Contracting Registry
(CCR), which already exists. The CCR already contains information about
whether the contractors are small business concerns and whether they are
owned and controlled by socially or economically disadvantaged
individuals, by women, or by service-disabled veterans. According to FEMA,
the CCR will satisfy the requirements of section 697 once information
regarding the areas served by and bonding levels of contractors are added.
FEMA says it is "working to modify" the CCR, but gave no date as to when
this modification would be complete. Thus, FEMA has not yet implemented
this provision.
Section 8048 of the Department of Defense Appropriations Act,
2007--Department of Defense
Section 8048 provides that each contract the Department of Defense (DOD)
awards for construction or services performed "in a State . . . which is
not contiguous with another State and has an unemployment rate in excess
of the national average rate" shall include a provision requiring the
contractor to employ, for the purpose of performing that portion of the
contract in the particular state, individuals who are residents of those
states. Pub. L. No. 109-289, sect. 8048, 120 Stat. 1257, 1284 (Sept. 29,
2006). The Secretary of Defense may waive this requirement on a
case-by-case basis in the interest of national security. Id.
The President said in his signing statement that the "executive branch
shall construe provisions of the Act relating to race, ethnicity, gender,
and State residency, such as [section 8048], 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." Statement on
Signing the Department of Defense Appropriations Act, 42 Weekly Comp.
Pres. Doc. 1703 (Oct. 9, 2006) (emphasis added).
This is a recurring provision in the DOD authorization acts. It is
implemented in the Defense Acquisition Regulations System (DFARS) at
section 252.222-7000, which requires that each contract DOD awards in a
state contemplated by section 8048 contain a clause providing that the
contractor will employ individuals who are residents of the state as
called for by section 8048. The regulation has been in effect since August
2000.
DOD states that the number of contracts covered by section 8048 and its
predecessors likely exceeds 100,000. DOD says it has no means available to
electronically search the contracts to determine whether each contains the
clause called for by section 8048. DOD says a manual search of such a
large volume of contracts would be impractical. DOD states that it has
been unable to identify any waivers by the Secretary of Defense of the
requirement of section 8048. Based on the foregoing, we conclude that DOD
has implemented section 8048.
Section 1011(a) of the Intelligence Reform and Terrorism Prevention Act of
2004--Office of the Director of National Intelligence
Section 1011(a) amended the National Security Act of 1947 by striking
sections 102-104 of that Act and adding numerous new provisions,
including section 102A(f)(3)(A)(iv). Intelligence Reform and Terrorism
Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17,
2004). Section 102A(f)(3)(A)(iv) provides that the Director of National
Intelligence shall "ensure that the personnel of the intelligence
community are sufficiently diverse for purposes of the collection and
analysis of intelligence through the recruitment and training of women,
minorities, and individuals with diverse ethnic, cultural, and linguistic
backgrounds."
In his signing statement for the Act, the President stated that the
executive branch would "construe provisions of the Act that relate to
race, ethnicity, or gender in a manner consistent with the requirement
that the Federal Government afford equal protection of the laws under the
Due Process Clause of the Fifth Amendment to the Constitution." Statement
on Signing the Intelligence Reform and Terrorism Prevention Act of 2004,
40 Weekly Comp. Pres. Doc. 2993 (Dec. 27, 2004).
According to the Office of the Director of National Intelligence, it has
several initiatives in place meant to ensure a sufficiently diverse
workforce within the intelligence community for the purposes of collection
and analysis of information. These efforts have included the "Treat
Diversity as a Strategic Mission Imperative" initiative focusing on the
recruitment, employment, and retention of women, minorities, and heritage
community members. Part of the Director's Heritage Recruitment and
Retention Strategy is a requirements-driven approach to recruiting
individuals with heritage community languages or cultural, regional, or
ethnic knowledge. The Office of the Director of National Intelligence also
administers a scholarship program with emphasis on students from diverse
backgrounds, with awardees receiving a full-time position in the
intelligence community upon graduation from college. Based on the
foregoing we conclude that the Office of the Director of National
Intelligence has taken actions to implement this provision.
PROVISIONS RELATED TO THE THEORY OF THE UNITARY EXECUTIVE
Section 629 of the Energy Policy Act of 2005--Department of Energy and
Nuclear Regulatory Commission
This provision amended section 5851 of title 42 of the United States Code
to extend certain whistleblower protections to employees of the Department
of Energy (DOE) and the Nuclear Regulatory Commission (NRC), as well as
employees of NRC contractors and subcontractors.[14] Pub. L. No. 109-58,
sect. 629, 119 Stat. 594, 785 (Aug. 8, 2005). Section 5851 provides that
no employer covered by the statute may discharge or otherwise discriminate
against an employee who notifies an employer of an alleged violation of
the Atomic Energy Act of 1954 or the Energy Reorganization Act of 1974,
refuses to engage in a practice made illegal by either of those acts,
testifies before a federal or state proceeding regarding any provision of
those acts, commences or causes to commence a proceeding for the
administration of enforcement of any requirement imposed under those acts,
or participates in such a proceeding. 42 U.S.C. sect. 5851(a)(1). Section
5851 also requires that all employers covered by the statute prominently
post information about the statute in their facilities. 42 U.S.C.
sect. 5851(i). Any employee who believes that he or she has been
discriminated against in violation of the statute may file a complaint
with the Department of Labor (DOL). 42 U.S.C. sect. 5851(b)(1). After DOL
receives such a complaint, it notifies the agencies. Id.
In his signing statement the President said that the "executive branch
shall construe [section 629], as [it] relate[s] to dissemination of
official information by employees of the Department of Energy and the
Nuclear Regulatory Commission, in a manner consistent with the President's
constitutional authority to supervise the unitary executive branch."
Statement on Signing the Energy Policy Act of 2005, 41 Weekly Comp. Pres.
Doc. 1267 (Aug. 15, 2005).
Although the law was enacted in August 2005, DOE says that is has not yet
notified its employees that they are covered by the whistleblower
protections of section 5851. DOE's Web site and posters in DOE facilities
advise employees of their whistleblower rights under the Whistleblower
Protection Act of 1989 but do not mention the additional protections
afforded by section 5851.[15] DOE acknowledges that its Web site and
posters "should be updated with references to the provisions of section
[5851]," but did not state when it plans to effect such an update.
NRC told us it has notified its employees that they are covered by section
5851. However, NRC says that it did not provide its employees with this
information until September 2007, more than 2 years after passage of
section 629. NRC says it posted information in its facilities in January
and February 2007 regarding some of the whistleblower protections enjoyed
by NRC employees. According to NRC, staff responsible for these postings
believed the postings informed NRC employees of their new rights under
section 5851. On August 10, 2007, DOL promulgated regulations that
included an example of a posting which would satisfy the statutory
requirement.[16] NRC says its legal staff examined its postings in
September 2007 after receiving our inquiry regarding NRC's implementation
of section 629. The legal staff determined that its postings did not, in
fact, inform NRC employees of their new rights under section 5851.
According to NRC, it promptly revised the postings to conform to the
example in DOL's regulations.
NRC also issued an internal memorandum on July 13, 2006 stating that all
contracts executed by NRC must include a clause informing contractors that
they are covered by section 5851, and instructing contractors to inform
their employees of the protections of section 5851. This memorandum also
provides for modification of existing contracts to include this clause.
According to NRC, it has not received any whistleblower complaints from
DOL since passage of the Energy Policy Act. DOE reports that DOL has
notified DOE of six complaints since passage of the Energy Policy Act.
None of the six complaints have resulted in a finding of discrimination by
DOE but DOE settled one case and two are still being appealed.
We conclude that NRC has implemented section 629, albeit in an untimely
fashion, and DOE has not implemented section 629.
Section 186 of the Education Sciences Reform Act of 2002--Institute of
Education Sciences
The Education Sciences Reform Act of 2002 established the Institute of
Education Sciences. Pub. L. No. 107-279, sect. 111, 116 Stat. 1940, 1944
(Nov. 5, 2002). The Institute's mission "is to provide national leadership
in expanding fundamental knowledge and understanding of education from
early childhood through post-secondary study." Id. To carry out this
mission, the Institute compiles statistics, develops products, and
conducts research and evaluation in the educational arena. Id.
Section 186(a) of the Education Sciences Reform Act provides the Director
of the Institute the power to conduct and publish research "as needed to
carry out the priorities of the Institute without the approval of the
Secretary [of Education] or any other office of the Department [of
Education]." Section 186(b) also requires the Institute to provide its
publications in advance to the Department of Education and submit the
publications to rigorous peer review.
In his signing statement, the President said:
"The executive branch shall construe [section 186] in a manner
consistent with the President's constitutional authority to supervise
the unitary executive branch . . . . In addition, the Director of the
Institute of Education Sciences shall implement section 186(a) of the
Act subject to the supervision and direction of the Secretary of
Education."
Statement on Signing Legislation to Provide for Improvement of Federal
Education Research, Statistics, Evaluation, Information, and
Dissemination, and for Other Purposes, 38 Weekly Comp. Pres. Doc. 1995
(Nov. 11, 2002).
According to the Director, he "has not sought the approval of the
Secretary [of Education] or other officials with respect to conducting
particular research projects or with respect to publishing any item." The
Director has sought the Secretary of Education's approval of broad
programs through the annual budget process. Nevertheless, neither the
Secretary nor any other Department of Education official has sought to
approve or disapprove an Institute item prior to publication, according to
the Director. Nor has the Secretary or any other Department official
sought to edit or change an item prior to its publication. Consistent with
section 186(b), the Institute provides its publications in advance to the
Department, but advance copies "are in final form and not subject to
editing or revisions as a result of comments by the Secretary or other
officials in the Department." Based on the foregoing, we conclude that no
interference prohibited by this provision has occurred.
Section 108 of the Veterans Benefits Improvement Act of 2004--Department
of Veterans Affairs
Section 108 provides that the Secretary of Veterans Affairs (VA) "may
conduct" a 3-year pilot program of on-the-job training for VA employees to
become qualified claims adjudicators for compensation, dependency and
indemnity compensation, and pension. Pub. L. No. 108-454, sect. 108, 118
Stat. 3598, 3604 (Dec. 10, 2004) (emphasis added). Section 108 also
required the Secretary, within 3 years of the program's establishment, to
submit an initial report to Congress assessing the program's usefulness in
recruiting and retaining VA personnel and the program's value as a
training program. Within 18 months of submitting the initial report, the
Secretary was to submit a final report to Congress, including
recommendations with respect to continuation of the pilot program and
expansion of the types of claims VA employees should be trained to
adjudicate.
The President said in his signing statement that section 108--
"purports to require the Secretary of Veterans Affairs to make a
recommendation to the Congress on whether to continue a specified pilot
project beyond its statutory expiration date, which would require
enactment of legislation. . . . The executive branch shall implement
[section 108] in a manner consistent with the President's constitutional
authority to supervise the unitary executive branch and to recommend for
the consideration of the Congress such measures as the President judges
necessary and expedient."
Statement on Singing the Veterans Benefits Improvement Act of 2004, 40
Weekly Comp. Pres. Doc. 2933 (Dec. 13, 2004).
Section 108 provides the Secretary of VA with discretion to conduct the
pilot program; it does not mandate the program. VA states that it has no
plans to conduct the pilot program. Therefore, the provisions of this Act
addressed in the accompanying signing statement were not triggered.
PROVISIONS RELATED TO THE COMMANDER-IN-CHIEF POWER
Section 1205 of the Ronald W. Reagan National Defense Authorization Act
for Fiscal Year 2005--DOD
Section 1205 requires the Secretary of Defense to issue guidance on how
DOD shall manage contractor personnel who support deployed forces. Pub. L.
No. 108-375, sect. 1205, 118 Stat. 1811, 2083 (Oct. 28, 2004). The
guidance was to address 10 specific issues, as identified in section
1205(b). The Secretary of Defense also was to submit a report on the
guidance to the congressional Armed Services committees.
The President noted in his signing statement that the "executive branch
shall construe . . . [section 1205] . . . in a manner consistent with the
President's constitutional authority as Commander in Chief and to
supervise the unitary executive branch." Statement on Signing the Ronald
W. Reagan National Defense Authorization Act for Fiscal Year 2005, 40
Weekly Comp. Pres. Doc. 2673-74 (Nov. 1, 2004).
DOD issued Instruction 3020.41 on October 3, 2005, almost a year after the
in response to section 1205. Instruction 3020.41 addresses 9 of the 10
specific issues listed in section 1205(b). DOD addressed the tenth issue
in Table E4.T1 of DOD Instruction 7730.64, issued on December 11, 2004. On
January 23, 2006, DOD submitted a report to the congressional Armed
Services committees regarding this guidance, as directed by section 1205.
We conclude that DOD has implemented this provision.
Title III of the Emergency Supplemental Appropriations Act for Defense and
for the Reconstruction of Iraq and Afghanistan, 2004--Special Inspector
General for Iraq Reconstruction
Title III of the Emergency Supplemental Appropriations Act for Defense and
for the Reconstruction of Iraq and Afghanistan, 2004, created an Inspector
General of the Coalition Provisional Authority. Pub. L. No. 108-106, title
III, 117 Stat. 1209, 1234 (Nov. 6, 2003). Section 3001(e)(2) of the Act
states, "Neither the head of the Coalition Provisional Authority, any
other officer of the Coalition Provisional Authority, nor any other
officer of the Department of Defense, the Department of State, or the
United States Agency for International Development shall prevent or
prohibit the Inspector General from initiating, carrying out, or
completing any audit or investigation, or from issuing any subpoena during
the course of any audit or investigation."
The Presidential signing statement addressing the Act states that title
III of the Act will be construed in "a manner consistent with the
President's constitutional authorities to conduct the Nation's foreign
affairs, to supervise the unitary executive branch, and as Commander in
Chief of the Armed Forces." Statement on Signing the Emergency
Supplemental Appropriations Act for Defense and for the Reconstruction of
Iraq and Afghanistan, 2004, 39 Weekly Comp. Pres. Doc. 1549 (Nov. 10,
2003). Specifically, the signing statement directs the Inspector General
to refrain from "initiating, carrying out, or completing an audit or
investigation, or from issuing a subpoena, which requires access to
sensitive operation plans, intelligence matters, counterintelligence
matters, ongoing criminal investigations, by other administrative units of
the Department of Defense related to national security, or other matters
the disclosure of which would constitute a serious threat to national
security. The Secretary of Defense may make exceptions to the foregoing
direction in the public interest." Id.
According to the Office of the Special Inspector General for Iraq
Reconstruction, which is the successor to the Inspector General of the
Coalition Provisional Authority, no party within the federal government
has prevented or attempted to prevent the Special Inspector General from
initiating, carrying out, or completing an audit or investigation or from
issuing a subpoena. The Office stated that it has not been denied access
to any information on the basis that it related to "sensitive operation
plans, intelligence matters, counterintelligence matters, ongoing criminal
investigations by other DOD administrative units related to national
security, or other matters the disclosure of which would constitute a
serious threat to national security." Nor has it refrained from any
investigation on the basis of the signing statement or the grounds cited
therein. The Office advised us that, as an investigative agency, it has
withheld actions on the request of other law enforcement agencies to avoid
interference in other law enforcement agencies' investigations. Based on
the foregoing, we conclude that no interference prohibited by this
provision has occurred.
PROVISION RELATED TO THE APPOINTMENTS CLAUSE
Section 4 of the Rio Grande Natural Area Act--Department of the Interior
The Rio Grande Natural Area Act established the Rio Grande Natural Area
(Natural Area) and the Rio Grande Natural Area Commission (Commission).
Pub. L. No. 109-337, sections 3-4, 120 Stat. 1777, 1777-78 (Oct. 12,
2006). The Commission is to advise the Secretary of the Interior
(Secretary) with respect to the Natural Area and to prepare a management
plan relating to nonfederal land in the Natural Area. Id. sections
3(b)(2), 6(b)(2)(A). This management plan is to be submitted to the
Secretary, who then may approve or disapprove of the plan. Id. sect.
6(b)(2)(B)(i). If the Secretary disapproves it, he is to notify the
Commission of the reasons for disapproval and allow the Commission an
opportunity to make revisions. Id. sect. 6(b)(2)(B)(ii). The Commission
also has the power to call hearings, enter into cooperative agreements,
and assist the Secretary in implementing the management plan. Id. sect. 5.
Commission meetings are to be held quarterly, to be open to the public,
and are to be announced by published notice in advance. Id. sect. 4(g).
The Commission is to prepare its management plan for nonfederal lands by
October 12, 2010. Id. sect. 6(a).
The Act directed the Secretary to appoint the nine Commission members,
each of whom is to have certain qualifications. Id. sect. 4(c). One member
is to represent the Colorado State Director of the Bureau of Land
Management. Id. sect. 4(c)(1). One member is to be the manager of the
Alamosa National Wildlife Refuge, ex officio.[17] Id. sect. 4(c)(2). Three
members are to be appointed based on the recommendation of the Governor of
Colorado, of whom one member would represent each of the following: the
Colorado Division of Wildlife, the Colorado Division of Water Resources,
and the Rio Grande Water Conservation District.[18] Id. sect. 4(c)(3). The
remaining four members are to represent the general public, be citizens of
the local region of the Natural Area, and to "have knowledge and
experience in the fields of interest relating to the preservation,
restoration, and use of the Natural Area." Id. sect. 4(c)(4).
Upon signing this act, the President noted in his signing statement that
the--
"Act limits the qualifications of the pool of persons from whom the
Secretary may select appointees to the Commission in a manner that rules
out a large portion of those persons best qualified by experience and
knowledge to fill the positions, which the Appointments Clause of the
Constitution does not permit if the appointees exercise significant
governmental authority. To faithfully execute the Act to the maximum
extent consistent with the Appointments Clause, the executive branch
shall construe the provisions of the Act specifying functions for the
Commission as specifying functions that are advisory only."
Statement on Signing the Rio Grande Natural Area Act, 42 Weekly Comp.
Pres. Doc. 1815 (Oct. 16, 2006).
According to the Department of the Interior (Interior), the Secretary has
not yet appointed any of the nine members of the Commission. On September
20, 2007, the Rio Grande Water Conservation District forwarded to the
Secretary the names and qualifications of six individuals for the four
positions on the Commission representing the general public. The Governor
of Colorado has not yet submitted any recommendations for the State of
Colorado's three appointments to the Commission. Interior states that one
position will be filled by an employee of the Colorado Office of the
Bureau of Land Management and one position will be filled by the manager
of the Alamosa National Wildlife Refuge, ex officio. Interior notes that
the Rio Grande Water Conservation District has advised Interior that it
has had difficulty finding volunteers to serve as unpaid members of the
Commission. Since the Commission, as yet unformed, has had no meetings and
has taken no actions, it is premature to determine whether the Commission
will take on functions that are advisory only. Therefore, the provisions
of this Act addressed in the accompanying signing statement have not yet
been triggered.
------------------------
[1] For information on presidential signing statements generally and those
accompanying the fiscal year 2006 appropriations acts and how the federal
courts have treated signing statements in their published opinions, see
B-308603, June 18, 2007.
[2] Our June 18, 2007 opinion, B-308603, discussed in detail most of these
bases of presidential objection or concern found in the signing statements
at issue here.
[3] U.S. Const. amend. V.
[4] See, e.g., Statement on Signing the Department of Homeland Security
Appropriations Act, 2007, 42 Weekly Comp. Pres. Doc. 1742 (Oct. 9, 2006).
[5] U.S. Const. art. II, sect. 3.
[6] 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 December 12, 2007).
[7] U.S. Const. art. II, sect. 2, cl. 1.
[8] The President also objected to these provisions under the theory of
the unitary executive.
[9] U.S. Const. art II, sect. 2, cl. 2.
[10] Statement on Signing the Rio Grande Natural Area Act, 42 Weekly Comp.
Pres. Doc. 1815 (Oct. 16, 2006).
[11] For a complete description of the scope and methodology used for this
opinion, see the scope and methodology of our first opinion on
presidential signing statements, B-308603, June 18, 2007.
[12] The Training Leaders Council consists of senior training leaders from
each of the Department of Homeland Security's components as well as
representatives from several department-level headquarters staff and
support organizations. GAO, Department of Homeland Security, Strategic
Management of Training Important for Successful Transformation, GAO-05-888
(Washington, D.C.: Sept. 2005), at 15-16.
[13] 5 U.S.C. sect. 2301(b); 5 C.F.R. sect. 410.302(a)(1); Exec. Order No.
11,348, Providing for the Further Training of Government Employees, 32
Fed. Reg. 6335 (Apr. 20, 1967).
[14] Employees of DOE contractors were already covered by section 5851.
[15] The Whistleblower Protection Act forbids retaliation by an agency
against an employee who discloses information that the employee believes
shows a violation of any law, rule or regulation or shows gross
mismanagement, fraud, waste, or abuse. 5 U.S.C. sect. 2302. Individuals
may file complaints under the act with the Merit Systems Protection Board
or the Office of Special Counsel. 5 U.S.C. sect. 7701; 5 U.S.C. sections
1211-1215. Section 5851, as discussed above, protects employees with
regard to the Atomic Energy Act and Energy Reorganization Act and covers
actions outside the scope of the Whistleblower Protection Act.
[16] 29 C.F.R. pt. 24, app. A; 72 Fed. Reg. 44,963 (Aug. 10, 2007).
[17] This term means "by virtue or because of an office." Black's Law
Dictionary 616 (8^th ed. 2004). Whichever individual filling the post of
manager of the Alamosa Wildlife Refuge is thus automatically a member of
the commission.
[18] The Rio Grande Water Conservation District is a governmental entity
created by the Colorado General Assembly to manage water resources in
Colorado's San Luis Valley Rio Grande Water Conservation District,
History, available at www.rgwcd.org/Pages/History.htm (last visited Dec.
12, 2007).