Presidential Signing Statements: Agency Implementation of	 
Selected Provisions of Law (11-MAR-08, GAO-08-553T).		 
                                                                 
Both Republican and Democratic Presidents have issued signing	 
statements since the early nineteenth century. Signing statements
usually take the form of a presidential statement or press	 
release issued in connection with the President's signing of a	 
bill. Some signing statements praise the newly signed law and	 
those involved in its passage. In other signing statements,	 
Presidents have offered their interpretation of or explained how 
agencies will execute a new law. Presidents have also raised	 
constitutional concerns or objections to new statutes in signing 
statements. The Chairmen of the Senate Appropriations Committee  
and the House Judiciary Committee asked us to 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, to identify the presidential 
concern, and to determine how the agencies executed those	 
provisions. We also examined how the federal courts have treated 
presidential signing statements in their published opinions. In a
second request, the same requestors asked us to examine an	 
additional 10 provisions to determine how the agencies were	 
executing them. Based on this work, the Subcommittee invited	 
GAO's General Counsel to testify on the use of signing		 
statements.							 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-553T					        
    ACCNO:   A81273						        
  TITLE:     Presidential Signing Statements: Agency Implementation of
Selected Provisions of Law					 
     DATE:   03/11/2008 
  SUBJECT:   Appropriation acts 				 
	     Congressional/executive relations			 
	     Documentation					 
	     Executive agencies 				 
	     Federal agencies					 
	     Federal courts					 
	     Federal law					 
	     Federal legislation				 
	     Judicial opinions					 
	     Legal opinions					 
	     Noncompliance					 
	     Presidential budgets				 
	     Presidential messages				 

******************************************************************
** This file contains an ASCII representation of the text of a  **
** GAO Product.                                                 **
**                                                              **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced.  Tables are included, but    **
** may not resemble those in the printed version.               **
**                                                              **
** Please see the PDF (Portable Document Format) file, when     **
** available, for a complete electronic file of the printed     **
** document's contents.                                         **
**                                                              **
******************************************************************
GAO-08-553T

This is the accessible text file for GAO report number GAO-08-553T 
entitled 'Presidential Signing Statements: Agency Implementation of 
Selected Provisions of Law' which was released on March 12, 2008. 

This text file was formatted by the U.S. Government Accountability 
Office (GAO) to be accessible to users with visual impairments, as part 
of a longer term project to improve GAO products' accessibility. Every 
attempt has been made to maintain the structural and data integrity of 
the original printed product. Accessibility features, such as text 
descriptions of tables, consecutively numbered footnotes placed at the 
end of the file, and the text of agency comment letters, are provided 
but may not exactly duplicate the presentation or format of the printed 
version. The portable document format (PDF) file is an exact electronic 
replica of the printed version. We welcome your feedback. Please E-mail 
your comments regarding the contents or accessibility features of this 
document to [email protected]. 

This is a work of the U.S. government and is not subject to copyright 
protection in the United States. It may be reproduced and distributed 
in its entirety without further permission from GAO. Because this work 
may contain copyrighted images or other material, permission from the 
copyright holder may be necessary if you wish to reproduce this 
material separately. 

Testimony: 

Before the Subcommittee on Oversight and Investigations, Committee on 
Armed Services, House of Representatives: 

United States Government Accountability Office: 

GAO: 

For Release on Delivery Expected at 12:00 p.m. EST: 

Tuesday, March 11, 2008: 

Presidential Signing Statements: 

Agency Implementation of Selected Provisions of Law: 

Statement of Gary L. Kepplinger General Counsel: 

GAO-08-553T: 

GAO Highlights: 

Highlights of GAO-08-553T, a testimony before the subcommittee on 
Oversight and Investigations, Committee on Armed Services, House of 
Representatives. 

Why GAO Did This Study: 

Both Republican and Democratic Presidents have issued signing 
statements since the early nineteenth century. Signing statements 
usually take the form of a presidential statement or press release 
issued in connection with the Presidentï¿½s signing of a bill. Some 
signing statements praise the newly signed law and those involved in 
its passage. In other signing statements, Presidents have offered their 
interpretation of or explained how agencies will execute a new law. 
Presidents have also raised constitutional concerns or objections to 
new statutes in signing statements. 

The Chairmen of the Senate Appropriations Committee and the House 
Judiciary Committee asked us to examine the fiscal year 2006 
appropriations acts and the Presidentï¿½s accompanying signing statements 
to identify the provisions in the acts to which the President took 
exception, to identify the presidential concern, and to determine how 
the agencies executed those provisions. We also examined how the 
federal courts have treated presidential signing statements in their 
published opinions. In a second request, the same requestors asked us 
to examine an additional 10 provisions to determine how the agencies 
were executing them. 

Based on this work, the Subcommittee invited GAOï¿½s General Counsel to 
testify on the use of signing statements. 

What GAO Found: 

In our opinions, we examined how agencies were implementing certain 
provisions to which the President objected in the signing statements. 
In developing our first opinion, we examined all the signing statements 
accompanying the fiscal year 2006 appropriations acts, identified 160 
specific provisions of law to which the President objected, and 
categorized each provision according to the nature of the Presidentï¿½s 
stated concern. The Presidentï¿½s objections to a majority of provisions 
fell under broad categories, four of which we summarize in the 
testimony: Presidentï¿½s theory of the unitary executive, Presidentï¿½s 
constitutional role, INS v. Chadha, and Fifth Amendment. 

We then chose 19 provisions to learn whether the agencies were 
executing the provisions as written. In considering which provisions 
would be appropriate for further inquiry, we excluded provisions for 
which it would be difficult to determine whether the President was 
executing the provision, either because of the breadth of the executive 
action covered or because the information would not be readily 
available due to national security or foreign relations concerns. GAO 
also looked at 10 other provisions from various laws identified by 
congressional requestors to which the President objected in order to 
ascertain how agencies were executing the provisions. 

In total, GAO examined how 21 agencies executed 29 different provisions 
of law. GAO determined that in all but 9 cases the agencies had either 
taken actions to execute the provisions as written, or conditions 
requiring agency action had not occurred. In the remaining 9 cases, GAO 
found that the agencies had not executed the provisions as written. We 
did not assess the merits of the Presidentï¿½s objections or examine the 
constitutionality of the provisions to which the President objected. 
Although we found that agencies did not execute 9 provisions as 
written, we could not conclude that agency noncompliance was the result 
of the Presidentï¿½s signing statements. We also examined the extent to 
which federal courts have relied on signing statements in their 
interpretation of federal statutes. GAO found that only in rare 
instances have courts treated presidential signing statements as 
authoritative sources of statutory interpretation. 

While GAOï¿½s prior work did not involve any provisions in the recently 
enacted National Defense Authorization Act (NDAA) for fiscal year 2008, 
three provisions in the NDAA to which the President objected are 
similar to provisions we examined in our earlier opinions. We found 
that agencies had not executed two of these earlier provisions as 
written. 

To reduce any effect signing statements may have on agency execution of 
statutes, Congress may wish to focus its oversight work to include 
those provisions to which the President objects to ensure that the laws 
are carried out. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?gao-08-553T]. For more information, contact 
Susan Poling at (202) 512-2667 or [email protected]. 

[End of section] 

Chairman Snyder, Representative Akin, and Members of the Subcommittee: 

We appreciate the opportunity to be here to participate in today's 
hearing on the use of presidential signing statements. Signing 
statements usually take the form of a presidential statement or press 
release issued in connection with the President's signing of a bill. 
Some signing statements praise the newly signed law and those involved 
in its passage. In other signing statements, presidents have offered 
their interpretation of or have explained how agencies will execute a 
new law. Presidents have also raised constitutional concerns or 
objections to new statutes in signing statements. These concerns or 
objections are rooted in the President's understanding of his 
constitutional role and powers. Not all laws have accompanying signing 
statements. 

My testimony today focuses on the practical consequences of the 
President's objections to particular provisions of certain acts, 
specifically, (1) categories of presidential concerns or objections, 
(2) agency actions, (3) courts' use of signing statements, (4) 
application of our findings to the 2008 National Defense Authorization 
Act, and (5) observations. These remarks are based on two legal 
opinions issued last year.[Footnote 1] In developing our first opinion, 
we examined the signing statements accompanying the fiscal year 2006 
appropriations acts, identified 160 specific provisions of law to which 
the President objected, and then categorized each of these provisions 
according to the nature of the President's stated concern. We then 
chose 19 provisions to find out whether the agencies were executing the 
provisions as written. In the second opinion, we examined 10 provisions 
identified by the requestors to which the President objected to 
determine how the agencies were carrying them out. 

In total, we examined how 21 agencies executed 29 different provisions 
of law. As explained in detail later in my testimony, we determined 
that in 16 cases the agencies had taken actions to execute the 
provisions as written. In 5 cases we found that the provisions were not 
triggered. In the remaining 9 cases we determined that the agencies had 
not yet executed the provisions or had not executed the provisions as 
written.[Footnote 2] In neither opinion did GAO assess the merits of 
the President's objections or examine the constitutionality of the 
provisions to which the President objected. Although we found that 
agencies did not execute some provisions as written, we could not 
conclude that agency noncompliance was the result of the President's 
signing statements. 

Background: 

Both Republican and Democratic Presidents have issued signing 
statements since the early nineteenth century. According to the 
Congressional Research Service, signing statements became increasingly 
common since the Reagan Administration and have been used by Presidents 
to raise constitutional objections to congressional 
enactments.[Footnote 3] 

Of particular concern to this committee is the statement issued by the 
President when he signed the National Defense Authorization Act for 
Fiscal Year 2008 (2008 NDAA).[Footnote 4] In it, the President objected 
to four provisions of law because they "purport to impose requirements 
that could inhibit the President's ability to carry out his 
constitutional obligations to take care that the laws be faithfully 
executed, to protect national security, to supervise the executive 
branch, and to execute his authority as Commander in Chief."[Footnote 
5] The President stated, "The executive branch shall construe such 
provisions in a manner consistent with the constitutional authority of 
the President."[Footnote 6] 

Presidential Concerns and Objections: 

In our prior work on signing statements, we categorized the provisions 
we examined by the specific wording the President used in his signing 
statement to identify his concern or objection. We found that the 
President's objections to a majority of provisions fell under broad 
categories, four of which I will briefly summarize.[Footnote 7] 

The President's Theory of the Unitary Executive: 

In signing statements the President has often objected to provisions on 
the ground that the provisions interfere with "the President's 
constitutional authority to supervise the unitary executive 
branch."[Footnote 8] The Constitution does not mention the "unitary 
executive," nor do the signing statements in which the term appears 
explain its meaning. 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[Footnote 9] and the President's duty 
to "take Care that the Laws be faithfully executed."[Footnote 10] The 
Office of Legal Counsel has asserted that because the Constitution 
entrusts the President with the executive power, executive branch 
employees and officers exercise this power through delegation from the 
President. Thus, the President has an exclusive right to supervise and 
rely on his subordinates which may not be burdened by the other 
branches of government without impermissibly interfering with the 
President's constitutional authority.[Footnote 11] Provisions to which 
the President objects on this ground require some action, such as 
transmittal of information to Congress or consultation with Congress or 
its committees. 

The President's Constitutional Role: 

Many of the President's objections relate to government functions for 
which the President asserts primary constitutional authority. For 
example, the President commonly objects to provisions regarding command 
and control of the Armed Forces and the handling of intelligence 
information on the grounds that such provisions impermissibly burden 
his authority as Commander-in-Chief.[Footnote 12] The President also 
asserts that his authority as Commander-in-Chief grants him control 
over the disclosure of information related to national 
security.[Footnote 13] 

The President has also asserted a primary constitutional role in the 
conduct of the foreign relations of the United States. No single 
constitutional provision establishes such authority, although 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.[Footnote 14] The President in his signing 
statements often objects to provisions that "purport to direct or 
burden the President's constitutional authority to conduct foreign 
relations."[Footnote 15] The President also has stated that decisions 
on deployment and redeployment of law enforcement officers are 
constitutionally vested in the President. The signing statement states 
that statutory provisions that dictate such decisions are advisory 
rather than mandatory.[Footnote 16] 

The U.S. Supreme Court Decision INS v. Chadha: 

In our previous work, we have identified 170 provisions to which the 
President objected in signing statements. The President objected to 70 
of these on the grounds that they were inconsistent with the 
Constitution's bicameralism and presentment clause, as interpreted by 
the U.S. Supreme Court in its 1983 decision Immigration and 
Naturalization Service v. Chadha.[Footnote 17] The bicameralism and 
presentment clause provides that before a bill becomes law it must pass 
both the House of Representatives and the Senate (bicameralism) and be 
presented to the President for his signature (presentment). At issue in 
Chadha was a statute allowing a resolution passed by the House of 
Representatives to override decisions of the Attorney General made 
pursuant to statutory authority. The Court held the statute 
unconstitutional as it allowed one house to overrule the executive 
branch's lawful action instead of requiring a bicameral vote to 
overturn the action, followed by presentment to the President for 
signature. 

Many provisions to which the President objects on Chadha grounds 
require executive agencies to obtain congressional approval prior to 
making certain expenditures. Others direct agencies to submit reports 
to Congress for congressional approval. 

The Fifth Amendment: 

The Fifth Amendment to the Constitution prohibits the federal 
government from depriving anyone of life, liberty, or property without 
due process of law.[Footnote 18] The U.S. Supreme Court has held that 
if a law categorizes people by certain traits such as race, ethnicity, 
or gender, the law may implicate the Fifth Amendment.[Footnote 19] The 
President has noted in signing statements that the executive branch 
will construe provisions relating to race, ethnicity, or gender 
consistent with the Fifth Amendment's due process requirement.[Footnote 
20] 

Mr. Chairman, I would now like to turn to how GAO approached the work 
it issued to provide some perspective on what we found when we looked 
at presidential signing statements. 

Agency Actions: 

In our opinions, we examined how agencies were implementing certain 
provisions to which the President objected in signing statements. In 
developing our first opinion, we examined all the signing statements 
accompanying the fiscal year 2006 appropriations acts, identified 160 
specific provisions of law to which the President objected, and then 
categorized each of these provisions according to the nature of the 
President's stated concern. We then chose 19 provisions to learn 
whether the agencies were executing the provision as written. 

In considering which provisions would be appropriate for further 
inquiry, we excluded provisions for which it would be difficult to 
determine whether the President was executing the provision, either 
because of the breadth of the executive action covered by the provision 
or because the information would not be readily available due to 
national security or foreign relations concerns. As a result, we did 
not examine any provisions to which the President objected solely on 
the grounds that they interfered with his authority as Commander-in- 
Chief. We then chose a provision for each appropriation act and 
representing each type of objection from the President. These 19 
provisions represented at least one provision from each appropriations 
act for which the President issued a signing statement[Footnote 21] 
and, as far as possible, at least one provision representing the 
various grounds for objection we identified, as discussed above. In the 
second opinion, we examined 10 provisions identified by the requestors 
to which the President objected to determine how the agencies were 
carrying them out. 

For both opinions, we contacted the agencies responsible for 
implementing the provisions. Based on their responses, we determined 
that in 16 cases the agencies had taken actions to execute the 
provisions as written. In 5 cases we found that the provisions were not 
triggered. In the remaining 9 cases we determined that the agencies had 
not yet executed the provisions or had not executed the provisions as 
written.[Footnote 22] 

These nine instances are summarized below, sorted by the grounds on 
which the President objected. 

* Unitary Executive: Section 8100 of the Department of Defense, 
Emergency Supplemental Appropriations to Address Hurricanes in the Gulf 
of Mexico, and Pandemic Influenza Act directed the President to include 
in his budget for fiscal year 2007 separate budget justification 
documents for costs of the Armed Forces' participation in contingency 
operations.[Footnote 23] DOD submitted a separate budget justification 
document for contingency operations as part of its fiscal year 2007 
budget submission to Congress, but this document contained data only 
for operations in the Balkans and Guantanamo Bay. It did not contain 
information for operations in such locales as Iraq and Afghanistan. 

* Unitary Executive: DOD was required to respond to questions or 
inquiries from the Chairman of the Subcommittee on Military Quality of 
Life and Veterans Affairs, House Committee on Appropriations, within 21 
days.[Footnote 24] DOD identified two inquiries it received subject to 
this requirement. DOD responded to one such inquiry in 38 days. 

* Unitary Executive: The Energy Policy Act of 2005 extended certain 
whistleblower protections to Department of Energy (DOE) employees and 
required DOE to post information about the new protections in DOE 
offices.[Footnote 25] DOE had not yet posted such notification at the 
time of GAO's inquiry into the matter. 

* Primary Constitutional Role: The Department of Homeland Security 
Appropriations Act, 2006, required the Customs and Border Patrol (CBP) 
to relocate its checkpoints in the Tucson sector every 7 days to 
minimize detection of the checkpoints.[Footnote 26] CBP did not 
relocate its checkpoints in this manner. CBP told us that such 
relocations were not always consistent with CBP's mission requirements, 
because its checkpoints were stationary and could not be relocated to 
other spots. 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. 

* Chadha: The Pension Benefit Guaranty Corporation (PBGC) was required 
to obtain approval from the Office of Management and Budget (OMB) and 
the congressional appropriations committees before incurring 
obligations greater than $296,978,000 for administrative 
expenses.[Footnote 27] Although PBGC obtained OMB approval as required 
by statute, PBGC only notified the committees after incurring 
obligations for administrative expenses beyond the specified level. 

* Chadha: The Department of Agriculture was required to obtain prior 
approval from the congressional appropriations committees for a 
transfer of funds to the Office of the Chief Information 
Officer.[Footnote 28] The Department did not seek approval as required 
by statute, but it did notify the committees prior to transferring the 
funds and responded to a subsequent congressional request for 
information. 

* Chadha: The Federal Emergency Management Agency (FEMA) was required 
to submit for appropriations committee approval a proposal and 
expenditure plan for housing.[Footnote 29] FEMA did not submit such a 
plan because, according to FEMA, it does not normally produce such 
plans. 

* Fifth Amendment: FEMA was directed to take reasonable steps to ensure 
diversity in the student body of a new graduate-level homeland security 
program.[Footnote 30] The program was designed to provide educational 
opportunities to senior federal officials and selected state and local 
officials with homeland security and emergency management 
responsibilities.[Footnote 31] Fourteen months after this provision was 
enacted, FEMA had not taken steps to ensure diversity in the student 
body. 

* Fifth Amendment: FEMA was required to create a registry of 
contractors willing to perform certain disaster or emergency relief 
services.[Footnote 32] The registry was to list, among other 
information, whether the contractor is a small business owned and 
controlled by socially or economically disadvantaged individuals or 
women, among others.[Footnote 33] Fourteen months after this provision 
was enacted, FEMA had not yet created this registry. 

Of the 29 provisions we looked at in our previous work, 3 involved DOD. 
We found that DOD did not execute 2 of these provisions as written, as 
noted in the first two bullets above. The President objected to both of 
these provisions on unitary executive grounds. 

We also examined one provision that DOD did implement as written, 
section 1205 of the 2005 national defense authorization act.[Footnote 
34] The provision required the Secretary of Defense to issue guidance 
on how DOD would manage contractor personnel who support deployed 
forces. 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."[Footnote 35] 
We found that DOD's issuance of Instruction 3020.41 and revised 
Instruction 7730.64 satisfied the statutory requirement.[Footnote 36] 

Federal Courts Have Rarely Used Signing Statements to Aid Their 
Interpretation of the Law: 

As part of our first signing statements opinion, we examined the extent 
to which federal courts have referred, or cited, to signing statements. 
We found that between 1945 and May 2007, 137 federal court decisions 
referred in some way to signing statements. The courts have used the 
signing statements for various purposes, such as supplementing 
legislative history, establishing a law's enactment date, or as factual 
evidence that the President objected to a provision. Only in rare 
instances have courts treated signing statements as sources of 
statutory interpretation. 

For example, a federal district court used President George H. W. 
Bush's signing statement accompanying the Civil Rights Act of 
1991[Footnote 37], combined with an EEOC policy statement and a highly 
conflicted legislative history, to interpret whether that Act applied 
retroactively.[Footnote 38] 

National Defense Authorization Act for Fiscal Year 2008: 

In his signing statement accompanying the 2008 NDAA, the President 
proclaimed that: 

"Provisions of the Act, including sections 841, 846, 1079, and 1222, 
purport to impose requirements that could inhibit the President's 
ability to carry out his constitutional obligations to take care that 
the laws be faithfully executed, to protect national security, to 
supervise the executive branch, and to execute his authority as 
Commander in Chief. The Executive Branch shall construe such provisions 
in a manner consistent with the constitutional authority of the 
President."[Footnote 39] 

The President's objections were general, conditional ("could inhibit"), 
and did not relate particular objections to the four provisions listed. 
Indeed, the signing statement suggests that the President objects to 
numerous provisions in the 2008 NDAA, and the four listed provisions 
are but examples. 

Three of the provisions in the 2008 NDAA to which the President 
objected are similar to provisions we examined in our prior work. For 
example, section 1079 of the 2008 NDAA requires certain members of the 
intelligence community to respond to Armed Services Committee requests 
for existing intelligence assessments, reports, estimates, or legal 
opinions within 45 days, subject to presidential assertion of 
privilege.[Footnote 40] In our previous work, we examined a provision 
with time frames that required DOD to respond to certain questions or 
inquiries from a congressional committee within 21 days. We determined 
that DOD had not executed this provision as written because it 
responded to one of the two inquiries covered by the provision in 38 
days. 

Section 846 of the 2008 NDAA increased certain whistleblower 
protections for DOD contractors.[Footnote 41] In our work we examined a 
provision extending certain whistleblower protections to employees of 
the Department of Energy. At the time of our work, we found that the 
Department of Energy had not implemented this provision. 

Another provision that the President objected to in the 2008 NDAA was 
section 841, establishing a Commission on Wartime Contracting in Iraq 
and Afghanistan.[Footnote 42] Section 841 specifies that congressional 
leaders will appoint six of the eight Commission members, and the 
President will appoint the remaining two in consultation with the 
Secretaries of Defense and State. As part of our earlier work, we 
examined a provision establishing the Rio Grande Natural Area 
Commission.[Footnote 43] The Secretary of the Interior was directed to 
appoint all nine Commission members, each of whom was to have certain 
qualifications. The President objected to this provision on the grounds 
that it might impinge on his powers under the Appointments Clause of 
the Constitution. We learned that 2 years after the provision 
establishing the Rio Grande Natural Area Commission was enacted, its 
members still had not been appointed. 

Given our findings regarding these similar provisions, the Subcommittee 
may wish to stay abreast of DOD's implementation of the provisions in 
the 2008 NDAA to which the President objected in his signing statement. 

Concluding Observations: 

In summary, Mr. Chairman, we found that many agencies executed the laws 
as written, some provisions were not triggered and, in some instances, 
agencies did not execute the laws as written. In our 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. 

Our inquiry was limited to only 30 instances of agency action and did 
not include a close examination of provisions involving national 
security, intelligence, or foreign relations matters, because of our 
limited access to such information and the time constraints on our 
work. We found that in 9 of these 30 instances, agencies had not 
executed the provisions as written. Importantly, we also found that 
federal courts are not using signing statements as common sources of 
authority for statutory interpretation. 

To reduce any effect signing statements may have on agency execution of 
statutes, Congress may wish to focus its oversight work to include 
those provisions to which the President objects to ensure that the laws 
are carried out. We note that the Attorney General is required to 
submit a report to Congress of any instances in which the Attorney 
General or the Department of Justice implements a formal or informal 
policy to refrain from enforcing or defending a federal law or 
regulation on the grounds that such provision is 
unconstitutional.[Footnote 44] This reporting requirement also extends, 
albeit more narrowly, to the President himself with respect to any 
unclassified executive order or similar memorandum, and to the heads of 
executive agencies and military departments that establish or implement 
a nonenforcement policy.[Footnote 45] 

Mr. Chairman, this concludes my prepared statement. I would be happy to 
respond to any questions that you or the committee may have. 

GAO Contacts And Staff Acknowledgments: 

For further information about this testimony please contact Susan A. 
Poling, Managing Associate General Counsel, at 202-512-2667 or at 
[email protected]. Other key contributors to this statement were Pedro 
Briones, Carlos Diz, Wesley Dunn, and A.J. Stephens. 

[End of section] 

Footnotes: 

[1] Presidential Signing Statements Accompanying the Fiscal Year 2006 
Appropriations Acts, B-308603, June 18, 2007; Presidential Signing 
Statements--Agency Implementation of Ten Provisions of Law, B-309928, 
Dec. 20, 2007. 

[2] One provision we examined for our second opinion applied to two 
different agencies, so we examined agency action in 30 instances rather 
than 29. 

[3] Library of Congress, Congressional Research Service, Presidential 
Signing Statements: Constitutional and Institutional Implications, No. 
RL33667 (Sept. 17, 2007), at 2. According to CRS, as of September 17, 
2007, President Bush had issued 152 signing statements, 118 of which 
(78%) raised constitutional concerns or objections. In comparison, 
President Clinton issued 381 statements in 8 years, 70 of which (18%) 
raised constitutional concerns, and President George H. W. Bush issued 
228 signing statements over 4 years, 107 of which (47%) raised 
constitutional concerns or objections. Id. 

[4] Pub. L. No. 110-181, 122 Stat. 3 (Jan. 28, 2008). 

[5] President Bush Signs H.R. 4986, the National Defense Authorization 
Act for Fiscal Year 2008 into Law (Jan. 28, 2008) available at 
[hyperlink, http://www.whitehouse.gov/news/releases/2008/01/20080128-
10.html] (last visited Mar. 7, 2008). 

[6] Id. 

[7] Other presidential objections are discussed in greater detail in 
our two opinions. 

[8] See, 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). 

[9] U.S. Const. art. II, ï¿½ 1, cl. 1. 

[10] U.S. Const. art. II, ï¿½ 3. 

[11] 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 [hyperlink, 
http://www.usdoj.gov/olc/crsmemoresponsese.htm] (last visited Feb. 22, 
2008); 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 (1988). 

[12] See, e.g., 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) (stating that "the executive branch shall construe 
[two provisions regarding command and control relationships within the 
Armed Forces] as advisory, as any other construction would be 
inconsistent with the constitutional grant to the President of the 
authority of Commander in Chief"). 

[13] See, e.g., Statement on Signing the Department of Homeland 
Security Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1558 
(Oct. 24, 2005) (declaring that "the executive shall construe [a 
provision relating to access to national security information] in a 
manner consistent with the President's exclusive constitutional 
authority . . . to classify and control access to national security 
information"). 

[14] U.S. Const. art. II, ï¿½ 2, cl. 2; ï¿½ 3. 

[15] Statement on Signing the Foreign Operations, Export Financing, and 
Related Programs Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 
1718 (Nov. 21, 2005). 

[16] Statement on Signing the Department of Homeland Security 
Appropriations Act, 2006. 

[17] 462 U.S. 919 (1983). 

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

[19] Johnson v. California, 543 U.S. 499 (2005) (race); League of 
United Latin American Citizens v. Perry, 548 U.S. 399 (2006) 
(ethnicity); United States v. Virginia, 518 U.S. 515 (1996) (gender). 

[20] See, e.g., 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). 

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

[22] One provision we examined for our second opinion applied to two 
different agencies, so we examined agency action in 30 instances rather 
than 29. 

[23] Pub. L. No. 109-148, ï¿½ 8100, 119 Stat. 2680, 2721 (Dec. 30, 2005). 

[24] Military Quality of Life and Veterans Affairs Appropriations Act, 
2006, Pub. L. No. 109-114, ï¿½ 126, 119 Stat. 2372, 2380 (Nov. 30, 2005). 

[25] Pub. L. No. 109-58, ï¿½ 629, 119 Stat. 594, 785 (Aug. 8, 2005). 

[26] Pub. L. No. 109-90, title II, 119 Stat. 2064, 2067 (Oct. 18, 
2005). 

[27] Department of Labor, Health and Human Services and Education, and 
Related Agencies Appropriations Act, 2006, Pub. L. No. 109-149, title 
I, 119 Stat. 2833, 2837 (Dec. 30, 2005). 

[28] Agriculture, Rural Development, Food and Drug Administration, and 
Related Agencies Appropriations Act, 2006, Pub. L. No. 109-97, ï¿½ 716, 
119 Stat. 2120, 2151 (Nov. 10, 2005). 

[29] Emergency Supplemental Appropriations Act for Defense, the Global 
War on Terror and Hurricane Recovery, 2006, Pub. L. No. 109-234, title 
II, ch. 4, 120 Stat. 418, 459 (June 15, 2006). 

[30] Department of Homeland Security Appropriations Act, 2007, Pub. L. 
No. 109-295, ï¿½ 623, 120 Stat. 1355, 1418 (Oct. 4, 2006). 

[31] Id. 

[32] Id. ï¿½697, 120 Stat. at 1461. 

[33] Id. 

[34] Ronald W. Reagan National Defense Authorization Act for Fiscal 
year 2005, Pub. L. No. 108-375, ï¿½ 1205, 118 Stat. 1811, 2083 (Oct. 28, 
2004). 

[35] 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). 

[36] B-309928 at 15. 

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

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

[39] President Bush Signs H.R. 4986, the National Defense Authorization 
Act for Fiscal Year 2008 into Law. 

[40] Pub. L. No. 110-181, ï¿½ 1079, 122 Stat. 3, 334 (Jan. 1, 2008). 

[41] Pub. L. No. 110-181, ï¿½ 846, 122 Stat. at 241. 

[42] Pub. L. No. 110-181, ï¿½ 841, 122 Stat. at 230. 

[43] B-309928 at 16-17. 

[44] 28 U.S.C. ï¿½ 530D. For examples where the Department of Justice has 
submitted litigation reports to Congress under section 530D, see Letter 
to the Honorable Patrick J. Leahy, Chairman, Committee on the 
Judiciary, U.S. Senate, from Richard A. Hertling, Acting Assistant 
Attorney General at 103-8, January 18, 2007, responding to Questions 
for the Record for Attorney General Alberto Gonzales, Senate Judiciary 
Committee DOJ Oversight Hearing on July 18, 2006. 

[45] President Bush objected to 28 U.S.C. ï¿½ 530D in a signing statement 
when he signed the provision into law and stated that "[t]he executive 
branch shall construe section 530D of title 28 . . . in a manner 
consistent with the constitutional authorities of the President to 
supervise the unitary executive branch and 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 21st Century Department of Justice Appropriations 
Authorization Act, 38 Weekly Comp. Pres. Doc. 1971-73 (Nov. 11, 2002). 
Interestingly, the Office of Legal Counsel, citing to a prior, narrower 
version of section 530D, states that the Attorney General "must" notify 
Congress if the Attorney General decides not to defend the 
constitutionality of certain provisions. Memorandum Opinion for the 
Attorney General, Recommendation that the Department of Justice not 
defend the Constitutionality of Certain Provisions of the Bankruptcy 
Amendments and Federal Judgeship Act of 1984, 8 Op. O.L.C. 183 (1984). 

GAO's Mission: 

The Government Accountability Office, the audit, evaluation and 
investigative arm of Congress, exists to support Congress in meeting 
its constitutional responsibilities and to help improve the performance 
and accountability of the federal government for the American people. 
GAO examines the use of public funds; evaluates federal programs and 
policies; and provides analyses, recommendations, and other assistance 
to help Congress make informed oversight, policy, and funding 
decisions. GAO's commitment to good government is reflected in its core 
values of accountability, integrity, and reliability.  

Obtaining Copies of GAO Reports and Testimony: 

The fastest and easiest way to obtain copies of GAO documents at no 
cost is through GAO's Web site [hyperlink, http://www.gao.gov]. Each 
weekday, GAO posts newly released reports, testimony, and 
correspondence on its Web site. To have GAO e-mail you a list of newly 
posted products every afternoon, go to [hyperlink, http://www.gao.gov] 
and select "E-mail Updates."  

Order by Mail or Phone: 

The first copy of each printed report is free. Additional copies are $2 
each. A check or money order should be made out to the Superintendent 
of Documents. GAO also accepts VISA and Mastercard. Orders for 100 or 
more copies mailed to a single address are discounted 25 percent. 
Orders should be sent to:  

U.S. Government Accountability Office: 
441 G Street NW, Room LM: 
Washington, D.C. 20548:  

To order by Phone: 
Voice: (202) 512-6000: 
TDD: (202) 512-2537: 
Fax: (202) 512-6061:  

To Report Fraud, Waste, and Abuse in Federal Programs:  

Contact:  

Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]: 
E-mail: [email protected]: 
Automated answering system: (800) 424-5454 or (202) 512-7470:  

Congressional Relations:  

Ralph Dawn, Managing Director, [email protected]: 
(202) 512-4400: 
U.S. Government Accountability Office: 
441 G Street NW, Room 7125: 
Washington, D.C. 20548:  

Public Affairs: 

Chuck Young, Managing Director, [email protected]: 
(202) 512-4800: 
U.S. Government Accountability Office: 
441 G Street NW, Room 7149: 
Washington, D.C. 20548: 

*** End of document. ***