[Public Papers of the Presidents of the United States: George W. Bush (2005, Book II)]
[December 30, 2005]
[Pages 1901-1903]
[From the U.S. Government Publishing Office www.gpo.gov]



Statement on Signing the Department of Defense, Emergency Supplemental 
Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic 
Influenza Act, 2006
December 30, 2005

    Today, I have signed into law H.R. 2863, the ``Department of 
Defense, Emergency Supplemental Appropriations to Address Hurricanes in 
the Gulf of Mexico, and Pandemic Influenza Act, 2006.'' The Act provides 
resources needed to fight the war on terror, help citizens of the Gulf 
States recover from devastating hurricanes, and protect Americans from a 
potential influenza pandemic.
    Sections 8007, 8011, and 8093 of the Act prohibit the use of funds 
to initiate a special access program, a new overseas installation, or a 
new start program, unless the congressional defense committees receive 
advance notice. The Supreme Court of the United States has stated that 
the President's authority to classify and control access to information 
bearing on the national security flows from the Constitution and does 
not depend upon a legislative grant of authority. Although the advance 
notice contemplated by sections 8007, 8011, and 8093 can be provided in 
most situations as a matter of comity, situations may arise, especially 
in wartime, in which the President must act promptly under his 
constitutional grants of executive power and authority as Commander in 
Chief of the Armed Forces while protecting certain extraordinarily 
sensitive national security information. The executive branch shall 
construe these sections in a manner consistent with the constitutional 
authority of the President.
    Section 8059 of the Act provides that, notwithstanding any other 
provision of law, no funds available to the Department of Defense for 
fiscal year 2006 may be used to transfer defense articles or services, 
other than intelligence services, to another nation or an international 
organization for international peacekeeping, peace enforcement, or 
humanitarian assistance operations, until 15 days after the executive 
branch notifies six committees of the Congress of the planned transfer. 
To the extent that protection of the U.S. Armed Forces deployed for 
international peacekeeping, peace enforcement, or humanitarian 
assistance operations might require action of a kind covered by section 
8059 sooner than 15 days after notification, the executive branch shall 
construe the section in a manner consistent with the President's 
constitutional authority as Commander in Chief.
    A proviso in the Act's appropriation for ``Operation and 
Maintenance, Defense-Wide'' purports to prohibit planning for 
consolidation of certain offices within the Department of Defense. Also, 
sections 8010(b), 8032, 8037(b), and 8100 purport to specify the content 
of portions of future budget requests to the Congress. The executive 
branch shall construe these provisions relating to planning and making 
of budget recommendations in a manner consistent

[[Page 1902]]

with the President's constitutional authority to require the opinions of 
the heads of departments, to supervise the unitary executive branch, and 
to recommend for congressional consideration such measures as the 
President shall judge necessary and expedient.
    Section 8005 of the Act, relating to requests to congressional 
committees for reprogramming of funds, shall be construed 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.
    The executive branch shall construe section 8104, relating to 
integration of foreign intelligence information, in a manner consistent 
with the President's constitutional authority as Commander in Chief, 
including for the conduct of intelligence operations, and to supervise 
the unitary executive branch. Also, the executive branch shall construe 
sections 8106 and 8119 of the Act, which purport to prohibit the 
President from altering 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.
    The executive branch shall construe provisions of the Act relating 
to race, ethnicity, gender, and State residency, such as sections 8014, 
8020 and 8057, 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.
    The executive branch shall construe Title X in Division A of the 
Act, relating to detainees, in a manner consistent with the 
constitutional authority of the President to supervise the unitary 
executive branch and as Commander in Chief and consistent with the 
constitutional limitations on the judicial power, which will assist in 
achieving the shared objective of the Congress and the President, 
evidenced in Title X, of protecting the American people from further 
terrorist attacks. Further, in light of the principles enunciated by the 
Supreme Court of the United States in 2001 in Alexander v. Sandoval, and 
noting that the text and structure of Title X do not create a private 
right of action to enforce Title X, the executive branch shall construe 
Title X not to create a private right of action. Finally, given the 
decision of the Congress reflected in subsections 1005(e) and 1005(h) 
that the amendments made to section 2241 of title 28, United States 
Code, shall apply to past, present, and future actions, including 
applications for writs of habeas corpus, described in that section, and 
noting that section 1005 does not confer any constitutional right upon 
an alien detained abroad as an enemy combatant, the executive branch 
shall construe section 1005 to preclude the Federal courts from 
exercising subject matter jurisdiction over any existing or future 
action, including applications for writs of habeas corpus, described in 
section 1005.
    Language in Division B of the Act, under the heading ``Office of 
Justice Programs, State and Local Law Enforcement Assistance,'' purports 
to require the Attorney General to consult congressional committees 
prior to allocating appropriations for expenditure to execute the law. 
Because 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, the executive branch shall construe the provision to require 
only notification. At the same time, the Attorney General shall, as a 
matter of comity between the executive and legislative branches, seek 
and consider the views of appropriate committees in this matter as the 
Attorney General deems appropriate.
    Certain provisions in the Act purport to allocate funds for 
specified purposes as set forth in the joint explanatory statement of

[[Page 1903]]

managers that accompanied the Act or other Acts; to make changes in 
statements of managers that accompanied various appropriations bills 
reported from conferences in the past; or to direct compliance with a 
committee report. Such provisions include section 8044 in Division A, 
and sections 5022, 5023, and 5024 and language under the heading 
``Natural Resources Conservation Service, Conservation Operations'' in 
Division B, of the Act. Other provisions of the Act, such as sections 
8073 and 8082 in Division A, purport to give binding effect to 
legislative documents not presented to the President. The executive 
branch shall construe all these provisions in a manner consistent with 
the bicameral passage and presentment requirements of the Constitution 
for the making of a law.

                                                          George W. Bush

 The White House,

 December 30, 2005.

Note: H.R. 2863, approved December 30, was assigned Public Law No. 109-
148.