good morning the committee will come to order before we begin our hearing many have heard that our former colleague and friend father robert jain and passed sunday january twenty eighth here in washington he was known as a tireless advocate for civil rights and social justice in this country and in the world is a passionate opponent of what he believed was an immoral war we were fighting in vietnam his principled stance and him widespread admiration as well as a prominent place president nixon's enemies list he was the first and last roman catholic priest to hold a seat in congress while he wore the club although he enjoyed strong support in his district and with undoubtably have been reelected he resigned with regret pain in his words after pope john paul the second issued a decree for building priests from holding legislative office his departure was a great loss to this body and to the american people and as a friend and colleague who lived true to his answered the highest calling of government service to direct us resources to improving people's lives and correcting social wrong in honor of his distinguished career and service i ask unanimous consent that thank you we're holding our first oversight hearing in the judiciary committee of the one hundred tenth congress many have joined me in expressing concern about the growing abuse of power within the executive branch this president has tried to take unto himself what has been termed an absolute authority on issues such as surveillance privacy torture enemy combatants and rendition today we're taking up the very important item of presidential signing statements which supposedly give him the power to ignore duly and and acted laws he h negotiated with the congress and signed into law all too often the administration has engaged in these practices under a veil of secrecy this is a constitutional issue that no self respecting federal legislature should tolerate and so today we announce that out of this oversight hearing we will begin an investigation of the specific use and abuse of presidential signing statements in particular i intend to ask the administration to identify each statutory provision that they have not agreed with in signing statements and to specify precisely what what they have done as a result but example if the president claims he's exempt from the mccain amendment ban on torture we need to know whether and where he has permitted we want to know what he has done to carry out his claims to be exempt from any other laws such as oversight and reporting requirements under the patriot act numerous of action obligations and the requirement that the government obtain a search warrant before opening the mail of american citizens and so i'm going to ask my staff along with that of my friend the ranking member lamar smith staff those two steps to meet with the department of justice and the white house so we can get to the bottom of this matter and we will will and we must do this and we're not going to take no for an answer we're co equal branch of government and if our system of checks and balances is going to operate it's imperative that we understand how the executive branch is in forcing or ignoring the bills that are signed into law last summer the american bar association appointed a distinguished task force which carefully studied the problem they found out as of last year president bush had challenged no fewer than eight hundred legal provisions far more than all previous presidents combined this is a total of one hundred and forty eight  sign in statements that we have here for our members examination republicans and democrats alike have reached a unanimous conclusion which was indorsed by the entire american bar association house of delegates this use of signing statements is contrary to the rule of law and our constitutional system of separation of powers today an oversight style we are here to explore that conclusion and then to take action we're talking about is this systematic extra constitutional of conduct by the white house the kind that threatens to deprive the american people of one of the basic rights of any democracy the right to elect representatives who determine what the law is subject only to the president's veto that does not mean having a president sign those laws but then say that he is through the carry them or not as only he sees fit that concludes my opening statement i'm pleased now to recognize a distinguished ranking member from texas lamar smith for his opening remarks you recognize or thank you mr chairman members of congress have a right to say what they think about a particular piece of legislation and the president too has the right to say what he thinks about a particular piece of legislation whenever the views of a member of congress or of the president conflict with how a federal court interprets a piece of legislation the courts will have the final say on what the law means the fact is the courts have rarely mention priest presidential signing statements and when they have mentioned them they cite them only when such statements support the interpreted view of the statute the court has already embraced the supreme court explicitly agreed with the presidential signing statement for the first time in united states versus love it in that case the course held that a provision of the urgent deficiency appropriation act of one thousand nine hundred three was unconstitutional and noted that president roosevelt had earlier reached the same conclusion in a signing statement recently lower courts have occasionally cited signing statements but only as affirmations of their own interpretations of the statutes presidential signing statements are a non issue critics have launched a massive fishing expedition but they have caught only the reddest of red herrings to see why one need look no further than the supreme court's decision just last year in hamdan versus rumsfeld at the end of june two thousand and six that much awaited supreme court decision completely ignored a bush administration signing statement asserting that the court  case so this hearing only consist of a critique of a side show that the courts themselves have barely glanced at when a presidential signing statement does not support what courts understand legislation to mean the courts ignore the signed statement altogether as a supreme court did last year they congressional research service report to congress issued september twentieth two thousand and six concluded that quote a bill that is signed by the president retains its legal effect and character their respective of any prevents much made in a signing statement and the names are available for interpretation and application by the courts the same report concluded that quote ultimately it does not appear that the courts have relied on site signing statements in any appreciably substantive fashion and quote opponents of the use of signing statements crying the president should  veto bills if they contain any sections the president thinks are unconstitutional and that if the president signs a bill he has to implement the whole bill until a court decides he does not have to but that would mean for example that the president would have to veto entire bill that funds the military and thereby deny the troops the support they deserve if the bill contains a single unconstitutional provision in such instances there is no reason the president should have to be to whole bill rather than simply state the constitutional objections to one small portion of it that the president acts on his signing statement in an unconstitutional way his position can be challenged in court but the fact remains that this hearing is based entirely on a hypothetical since no one can cite a single instance in which president bush has ever failed to implement a law this hearing apparently is motivated by the alarm some feel when a duly elected president says what he thinks a statute means through a presidential signing statement even when courts routinely ignore such statements or simply cite them when they agree with their own statutory interpretation yet the same critics have never expressed any alarm when the courts on their own cite foreign law to interpret domestic statutes in ways that are not supported by american voters and their doing elected representatives that this hearing folks is not on courts and judges but rather on the president's simple opinion about that legislation he is deciding to sign one has the distinct feeling that this is really a will recognize the chairman of the subcommittee on the constitution civil rights and civil liberties which you during that letter of new york for his opening statement thank you mr chairman mr chairman i think today's hearing is an important milestone for too long this is ministration has gotten a pass when it comes to congressional oversight those days are over and i want to commend you mr chairman for taking this early opportunity to resume the exercise of congress constitutional duty to act as a check on the executive branch is a core function established by the framers of our constitution to ensure that no president can exercise i've said it power the question of signing statements is an important one article one section seven of the constitution provides the president with the following options when presented with a bill passed by congress quote if you approve he can sign it but it's not easy to return it with it with its objections to that to that house in which originated unquote strikes me it's pretty clear the more critical concern i have that this president signing statements is there actual content to his broad and often unfounded assertions of presidential power and his repeated attempts to reinterpret was passed by congress against the obvious intent are the real dangers the president gets so yeah your day he does not get to rewrite the bill or to try to establish his own legislative history only the legislative branch makes legislative history hence the name i would hope that the courts would not be tempted to look to these statements as anything more than hortatory they have no significance in terms of understanding and interpret the legislation that most some of the signing statements could be considered due warning from the president that he intends to violate a law he has just signed that is something we and the american people should take very seriously of course we have more than just signing statements to demonstrate this is ministrations contempt for the rule of law it is when the president acts on his declaration that the law means something other than what congress intended that he goes from arrogance to lovelessness in many cases he has not even been forthright enough to let us know that he intends to violate the law we have found out by reading the newspapers the president is not shy about publicly declaring that he is not bound by the rule of law his repeated assertions for example that he does not need to obtain a warrant from the foreign intelligence surveillance court the spike the fact that the law specifically requires one is just one outrageous example the fact that the president authorized wireless surveillance in violation of the law threatens our democracy i would also remind people that pfizer is a criminal act and says that it is a felony for anyone under color of law meaning government officials to wiretap americans in the united states except under the provisions of that law i would again remind people that the statute of limitations of that law runs consider be beyond the lifetime of this administration i look forward to the testimony today but i again want to thank chairman conyers for beginning its chairmanship with this important inquiry our species beginning what i am confident will be a productive congress thank you mr chairman thank you very much and finally i recognize the ranking minority member of the subcommittee trent franks of arizona for his opening remarks and thank you mr chairman mr chairman members given the today's hearing focuses on the proper function of the executive under the u s constitution it's appropriate that we look to the constitution itself to be our guide to section one mandates that the president take a very specific oath of office justice to nevers of kung and federal judges and the oath is as follows i do solemnly swear that i will faithfully execute the office of president of the united states and will to the my ability preserve protect and defend the constitution of the united states the constitutional system of balances checks and balances among the three branches of government is fundamental to the american system of government and most of us learn how it works in basic high school civics class so let's consider the congress passes an unconstitutional law as it's sometimes done in the past according to the supreme court us juris prudence then what is the president to do can anyone seriously contend that the president has no choice but to enforce the young constitutional law upon the people could that possibly be what the framers intended and what of checks and balances are the people to be oppressed by an unconstitutional law unless it can be processed through the court system or does the president have the ability to exercise his judgment as to the constitutionally constitutionality of an act of congress and honest reading the presidential oath allows us only one conclusion that the president has a duty to the people to execute only that law which is constitutional conversely he has a duty to protect the people from the enforcement of an unconstitutional law indeed in the marbury decision chief justice marshall proclaimed quote a legislative act contrary to the constitution is not law presidential signing statements are valuable tools used since the early days of the republic to explain the executives understanding of the statute and its times to enable the president to announce his refusal to enforce a clearly unconstitutional statute according to the office of legal counsel under the clinton administration this practice is consistent with the views of the framers and presidential signing statements have been common in both the bush and clinton ministrations with mr clinton issuing approximately three hundred ninety one signing statements for obvious reasons presidential signing statements tend to be more common in times of war when the president must exercise his role as commander in chief in addition to his other roles and the majority has stated in the preparatory memorandum the signing statements may be used to invite judicial review and to attempt to influence what a court sees when examining the legislative history however the state has not proven out by our history and i echo the thoughts of ranking member lamar smith when he makes clear that the courts have not substantively relied on presidential signing statements to inform their decisions even laurence tribe has dismissed the supposed threat of signing statements as nothing more a flourish on the part of the chief executive therefore there seems to be no merit in the opposition's arguments and one must beg the question of why we are devoting a hearing to this issue if we are truly concerned about the court's relying upon sources of law other than us statutes then we would immediately move our examination to a more genuine threat to the constitution today and that is the u s courts increasing reliance on foreign law made by foreigners who are not elected for the people or by the people the united states and to not and who do not share our basic values thank you mr chairman but if you very much invite the rest of our members to submit their statements for the record and chairman who cutting them off i'm following the tradition for the last forty years that i've been on the committee chairman we have a distinguished panel o witnesses and i'm grateful that they're here this morning to help us consider this important subject the first witness is the deputy assistant attorney general with the office of legal counsel at the united states department of justice mr john l with ts previously help positions in the solicitor general's office the criminal division and the u s attorney's office in virginia the clerk for the late judge daniel mahoney of the u s court of appeals for the second circuit and for associate justice anthony kennedy welcome sir and then we have our former colleague the honorable mickey edwards former member of congress from oklahoma princeton's princeton university's woodrow wilson school of public and international affairs and directs a program on political leadership or the aspen institute he was a founding trustee of the heritage foundation as well as chairman of the american conservative union recently served as a member of the american bar associations task force on signing statements welcome sir glad that you're back following many leadership roles that she has held in the a b a during her professional career welcome to the hearing our fourth witness this morning will be nicholas rosencrantz associate professor of law georgetown university professor rosencrantz clerked for justice anthony kennedy and was attorney advisor in the justice department's office of legal counsel he also serves on the council on foreign relations welcome center and fin and justice professor ogletree began his legal career here in the district of columbia in the public defender service members of the panel each of your written statements will be made part of the record in its entirety and i ask that you summarize your testimony in the usual five minutes or less we have a timing light that will assist you in that endeavor  let's begin with mr welcome thank you chairman conyers ranking member smith and members of the committee appreciate the opportunity to appear today to discuss the use in the galaxy of presidential signing statements subtitle of today's hearing ask whether the president's use of such statements poses a threat to checks and balances and the rule of law the answer that question i think is clearly no for three reasons first such signing statements are traditional and getting back at least t certainly and third far from being a threat to checks and balances they are an essential part of a respectful constitutional dialogue among co equal branches of government let me be clear from the outset article one of the constitution gives congress exclusive legislative power a clear and unequivocal mandate he statements do not subvert the authority of congress nor do they arrogated the executive branch any authority with which it is not constitutionally entrusted beginning in the early days of the republican are presidents monroe and jackson and continuing under presidents lincoln and wilson presidents have long used signing statements to note constitutional issues raised by the law they use such constitutional signing statements has greatly increased in recent decades and such statements have been issued by every president since franklin roosevelt traditionally present have used them to provide guidance to executive branch employees about new laws they must implement and to communicate the president's constitutional views to members of congress and to the public as its long tradition reflects signing statements are not acts of executive defiance of congress nor are they an indication that the president will adhere to laws selectively as he wishes well signing statements often seek to preserve the executives role in our system of checks and balances the mere description of constitutional concerns about a provision does not imply that the law will not be enforced as written president bush signing statements are consistent with those of his predecessors and give voice to views expressed by presidents of both parties including president truman eisenhower carter and clinton in fact after a detailed study the congressional research service concluded that quote it is important to know that the substance of president bush's signing statements do not appear to differ substantively from those issued by either presidents reagan or clinton unquote professors curtis bradley of duke law school and the university of chicago know that they were quote almost identical in wording unquote to president clinton's statements contrary to recent claims the number of constitutional signing statements the president has issued is comparable to every president in a generation second this longstanding practice is clearly lawful and exercise of the president's obligation under article two to take care that the laws be faithfully executed and to preserve protect and defend the constitution and executing new laws the president must interpret their meaning both standing alone and in light of supreme law the constitution that the supreme court held in boucher to sign our quote and turpin a law enacted by congress to implement the legislative mandate is the very essence of execution of the law quote moreover the congressional research service recently concluded that quote no constitutional or legal deficiencies adhered to the issuance of such statements unquote during the clinton administration assistant attorney general walter dellinger noted that such statements were quote legitimate and defensible unquote and harvard law school professor lawrence tribe recently said that sex tapes are quote constitutionally unobjectionable unquote a judgment shared by professors bradley and posner third far from being a threat to the rule of law the state must promote comedy by publicly informing  equal branches of government of the president's constitutional views on the execution of new laws such statements do not seek to alter the constitutional balance among the branches nor could they under the constitution the legislative process and indeed government as a whole would suffer if the president withheld his views about constitutional concerns until the moment of enforcement or if his only option to express those views were to veto needed legislation reflecting months or years of work because of what are sometimes minor and regrettable issues signing statements seek to promote a dialogue between the branches of government to ensure that the president faithfully execute the law will respect and congress has exclusive authority to make it i thank the committee for allowing me to testify and i'd be happy to answer any questions you may have as we have known them in the past presidents typically accompany their signing of legislation with some tom ince expressing an opinion about the bills they've just signed into law the issue is not whether or not presidents have an equal right to be heard it's not about whether or not the courts should take a presidential opinion into a account when considering the intent of the law the question is far more fundamental and goes to the heart of what the congress of the united states is all about the question is whether or not the president the united states is above the law because the moment he signed the legislation that you have presented to him it is not merely a proposal not a bill not the statute it is the law and it is binding upon every citizen that the united states whether a street sweeper or the president the powers of the construct of the president are clearly delineated in the constitution no president is required to approve of an act of congress no president is required to sign an act of congress into law he may sign it making a law but he may refuse to sign it he may veto it he may refuse to have nothing to do with that at all but those are his only choices under article one section seven a president who finds a piece of the law unconstitutional has the authority the right the obligation under the constitution to veto and then the congress can reconsider what it wants to do about it at that point presidents like the rest of us are free to say whatever they want whenever they want but he may not choose whether or not to be bound by the law further there is a view of the presidency articulated by the current president which considers the executive branch to be a single unit under the sole direction of the president and according to this theory of the  unitary executive the legislative branch of government may not instruct the executive branch branch agencies in the performance of their duties so that when a president declares that he is not bound by the bills he signs into law he is saying in effect that none of the executive agencies are bound either the congress you all may require a federal agent see the report on some matter but that best that requirement simply becomes a suggestion and probably one that will not be taken too seriously it's been argued that some of the concerns that a few of us have expressed are exaggerated defenders of these presidential assertions claimed they know of no instance in which the president having declared himself not bound by a law has nonetheless refused to comply with it there are two answers to that first if agencies refuse to inform the congress as the attorney general just did in regards to the administration's agreements with the feis accord on electronic surveillance how can the congress or the public know whether or not the laws being complied with and second and more important any presidential assertion of the right to ignore the law must be challenged or it will become precedent future presidents may very well mr smith i agree with most of this president's policies i may not agree with the policies of the next president and future presidents can rely on that  unchallenged assertion to disobey future laws and if that happens the congress of the united states will become irrelevant and the basic structure of american government will have been fundamentally changed the voice of the people as expressed by their representatives in congress will have been considerably diminished one final point there is much discussion about the authority that is vested in the congress or the powers vested in congress or the rights of the congress but this is not a question of authority or powers or rights it's a question of duty and responsibility every member of congress took an oath and i stood beside some of you when you took that oath and i took that oath every member of congress takes an oath to fulfill very specific constitutional obligations under that constitution it is the obligation of the congress to determine what shall be law and why shall not be law it is the obligation of congress to act as a completely separate completely independent and completely equal branch of government regardless of whether the president is a party or another party it is your job to determine the law and ensure that the law is obey this congress must block any attempt by any president of any party to treat the people's representatives with contempt this congress must use its considerable powers to uphold appropriations to conduct hearings to compel testimony under oath to grant itself standing before the courts to ensure that the united states does not evolve into the system the founders feared and worked so hard and so long to avoid  good morning mr chairman ranking member smith members of the committee my name as you know is karen mathis i'm the president of the american bar association a practice law in denver colorado it's a great honor to be here with you today and represent the policy of our four hundred thirteen thousand members the a b a task force on presidential signing statements and separation of powers was appointed last year to examine the changing role of presidential signing statements in which united states presidents articulate their views of provisions in newly enacted laws and to consider such statements in light of the constitution and the law of the land members of the task force were composed  conservatives and liberals republicans and democrats individuals have had experience in government in the legislative branch the judiciary and in constitutional law a list of those committee members is appended to my written testimony at the a b a s august two thousand and six meeting our house of delegates adopted the unanimous recommendations of that task force as a comprehensive policy reflecting the views of the a b a on the use and potential misuse of presidential signing statements specifically the policy quote opposes as contrary to the rule of law and our constitutional system of separation of powers the misuse of presidential signing statements and quote that claim in those signing statements the authority l or i should say in intention to disregard or decline to enforce all or part the law the president has signed or to interpret such a law in a manner inconsistent with the clear intent of the congress in reaching this conclusion the task force expressed concern that the practice of issuing presidential signing statements that raise challenges to provisions of law has grown more and more common over the course of the last twenty five years the potential for misuse in the issuance of presidential signing statements has reached a point where it poses a real threat to our systems of checks and balances in the rule of law the founding fathers set forth in the constitution a thoughtful process for the enactment of laws as part of the delicate system of checks and balances the framers required that the president either sign or veto a bill enacted by congress in its entirety presidential signing statements that express an intent to disregard or that effectively rewrite laws are inconsistent with the single finely wrought and exhaustedly considered provision any attempt to refuse to enforce provisions of duly enacted laws or to reinterpret them contrary to their clear meaning can be viewed as an attempt to achieve a line item veto by other means if presidential signing statements no by a provision of  law without following constitutionally prescribed procedures that president is usurping the power of the legislative branch by denying congress the right to override a veto of that law in some instances a signing statement that declines in forcemeat of a provision on constitutional grounds would also abrogate the power of the judicial branch to make its own determination of constitutionality a b a policy goes beyond raising concerns about presidential signing statements and it presents practical recommendations designed to improve transparency in the process and to resolve any separation of powers issues that may accompany the use of presidential signing statements in the manner i've discussed these recommendations  directed to the practice is a various presidents and they represent a call to all presidents to fully respect our constitutional system of separation of powers these recommendations urged the president to number one communicate concerns about the constitutionality of any pending bills in congress before their passage and number two you can find that the content of signing statements to views regarding the meaning the purpose and significance of bills and to veto a bill that he believes is unconstitutional are for recommendations also urge congress to enact legislation that number one require president to submit a report to congress upon the issuance of signing statements that express the intent to disregard or decline to enforce a law that the president has signed including an explanation of those reasons for taking such a position which report will be made available in a database available to the public the last is to enable the congress the president or other individuals to seek appropriate judicial review when a president has discussed and signed a signing statement disregarding or declining to observe a law we hope these recommendations are you mr chair and your committee as well as congress executive vote thank you thank you so much professor rosen currents mr chairman mr smith members of the committee i thank  opportunity to express my views about presidential signing statements i largely agree with the position put forth by principal deputy assistant attorney general john ellwood earlier this morning out rather than reiterate his testimony i will just briefly make two points first i will explain that signing statements including those that mention constitutional provisions are generally nothing more than exercises of the uncontroversial power of the president to interpret the law in the course of executing events second i will discuss the possibility of legislative responses to this practice the most and the most common most important most uncontroversial function of presidential signing statements is to announce the president's interpretation of the law as the supreme court has explained interpret ing a law and acted by congress to implement the legislative mandate is the very essence of execution of the law and the president interpret statutes in much the same way that courts do with the same panoply of interpretive tools one such tool is of particular interest today the canon of constitutional avoidance this is the canon the president is applying when he says in signing statements that he will construe a particular provision to be consistent with a particular constitutional command it is crucial to understand what these statements do and do not say these statements and phatic we do not quote reserve the right to disobey the law close quote they do not declare that the statutes in acted by congress are unconstitutional in fact they declare exactly the opposite as president clinton's office of legal counsel has and these sorts of statements are quote analogous to the supreme court's practice of construing statutes if possible to avoid holding them unconstitutional in effect these statements say simply that if one possible meaning of a statute would render it unconstitutional then the president's out of respect for congress will presume a different constitutional meaning the clear and crucial implication of these statements that he will faithfully execute the laws as so interpret it now as you know representative jackson lee has introduced a bill on this topic which is pending before the house committee on oversight and government reform and i gather that other legislative proposals are under consideration i shall therefore address the balance of my testimony to the constitutionality and the wisdom of such proposals section three a of the pending bill would forbid the president to spend any money on signing statements this provision is arguably unconstitutional congress possesses broad power over appropriations of course but for congress to use its power of the purse to impede a coup or executive function crafted spending restriction and all section three b would limit the force of this provision to statements that are inconsistent with the intent of congress this limitation actually creates more problems than it solves even  congress could refuse to fund a core executive function altogether which is doubtful in itself it hardly follows the congressman manipulate the president's use of his discretion with a conditional appropriation if congress may not forbid the president from communicating his will to the executive branch still less may have forbade him from communicating some thoughts but not others section four of the bill is also constitutionally problematic it provides that president it provides that government entities shall not consider presidential signing statements when construing federal statutes to the extent this provision applies to executive branch officials it is almost certainly unconstitutional for the simple reason that it is inconsistent with the president's duty to take care that the laws be faithfully executed because it would close the ears of the executive branch to his interpretation of the law for that reason alone it would be unconstitutional a more difficult question is whether section four of the bill which again forbids governmental entities from a long time presidential signing statements may constitutionally applied to courts the question here is whether congress can tell courts what tools and methods to use when interpret in federal statutes i considered this question at length in the harvard law review five years ago and i concluded that the answer is generally yes congress does have power to tell courts what methods to use what interpret in federal statutes the only question remaining interpretation would be why i've written the congress should exercise this power but a crucial asked aspect of my thesis is that it should be approached comprehensive really for this reason i think any be adopted as part of a clearance and cohesive code of statutory interpretation in conclusion the reason brouhaha over presidential signing statements is largely unwarranted signing statements are an appropriate means by which the president fulfills his constitutional duty to take care that the laws be faithfully executed however i do applaud congress interest in the proper judicial use of presidential signing statements and i hope that this interest will blossom into a more comprehensive and  house judiciary committee today let me say at the beginning to start where you did by expressing my condolences for a father drawing in i actually very fond memory of thanksgiving this past november that he arrived in boston and i introduced him to my two granddaughters and it was amazing to see how he their eyes lit up watching this great man and his great service he was still teaching at georgetown at the time and still a great warrior so i to share them also this great massachusetts legislator in this great scholar and member of the faith i want to first say that i think it's very important and useful for this committee to look very carefully at the bill proposed by congresswoman sheila jackson lee and a comparable bill the senate by senator arlen specter i think it shows for the first time that congress is taking very seriously the exercise of executive power and using signing statements and it requires much more careful analysis than i think has ever happened before present to science statements reflect and important necessary line of authority given to the executive branch to clarify and address matters of constitutional magnitude they can promote transparency bicycling how the president plans to enforce or interpret the law they can also allow the president to more clearly define his perspective our understanding of the laws parameters  one of the reasons it is important to pursue this topic a presidential signing statements however is the unusually high number of both challenges laws of that have been passed by congress and exercise of signing statements i think if you put the five of us in the room for half an hour we can give you accurate numbers because the numbers that you've heard are widely disproportionate and often mis reported it's clear that president bush has signed over eleven hundred provisions challenging laws at the same time it's clear that he's issued a total of one hundred fifty signing statements in the numbers often suggested that it's higher i think our consensus would be if we had the opportunity to give you the real numbers i think would be helpful why is this important why should this congress be concerned about it one of the important things is that it's no question that every modern president reagan bush and clinton have used signing statements in the last twenty five years but what is remarkable is when you put the context of those signing statements according to several reports president reagan used in order to challenge congress authority the beadle seventy eight times thirty eight thirty nine times the actual last and thirty nine times their pocket beatles president george h w bush vetoed forty four bills with fifteen of them being pocket beatles president clinton and his two terms veto thirty seven bills including one pocket needle of president bush in the six years that he's been and the white house has only a single bill one of the fundamental questions posed by these actions is whether the president using the signing statement in order to expand the authority to direct a secular branch at the expense of the legislative process in other words is using the signing statements a way to declare a law non binding without having to face the public scrutiny that comes the veto or the possibility of a legislative override and the essential issue is three quick quick examples i want to point out the times i have left i have i take your attention to one law passed in two thousand and six the defense appropriations bill with a signing statement by one scholar a quote reads like a unilateral alteration the legislative bargain you may require that sen john mccain made it clear that torture should not be part of this and yet president bush's signing statement made it clear that he was not going to be bound by what the law said and that  one final example before my time runs out this congress passed just this past year the henry hyde united states india peaceful atomic energy cooperation act a very important piece of legislation and according to published reports in indian newspapers indian government consider the signing statement that accompanies the law announcing its administration retreat certain sections as merely advisory as an indication of how the united states klansmen target these sections you passed a law it is the law and we saw that great ceremony here some months ago but after that ceremony president bush made it clear by pointing to provisions of this law that they're merely advisory passed and submit it to him for signature what does that mean it means not only that will the indian government and other countries be confused by what we mean by the law but they'd have to fear that if someone else replaces president bush and the white house that that new president with a new signing statement can come up with a totally independent and unique  her protection with the law means one final area that's generated enormous amount of publicity is the issue of whether there's mail surveillance and i hope that the question is whether a chance to talk about how the president has interpreted that law to the detriment of congress's intent thank you very much the president claimed he could withhold information from congress that the justice department is required to provide the law if he decides that the disclosure would impair foreign relations or the deliber process of the executive has the administration with hill any information based on this state chairman conyers answer is no it hasn't i think this is an excellent example of how signing statements are not an indication of the law will not be enforced fully at the administration as has complied fully or is a department of justice has been cooperated fully with the inspector general's investigation there the use of national security letters  the purpose of the signing statement was it was a traditional one that has been made by presidents eisenhower and clinton he just simply to note as the supreme court held in the permanent the navy persists even the president has author worthy over declassification of national security information and he has a responsibility to make sure that it is it is safeguarded and it's simply his way of saying look i his president if you're not going to be implicated here and i understand you're you're legislating in light of that very much no we're not having hearings on any of the bills that deal with same statements today this is merely an oversight hearing professor  ogletree what really are the fundamental dangers as you see them posed by this more aggressive use of signing statements by the current bush administration where there are a number first it makes the idea of a veto the normal legislative process null and void for the president does not really bring to congress attention specific substantial objections to laws that are approved by congress number two right now no member of this congress has any idea where when and to what extent the president modifies a law that you pass there's not a ceremony there's not a report back to you if you look on the white house database of laws passed or anywhere else you'll have the version that you passed but you won't necessarily have the funds that you have to search for and the idea that there is no reporting a forty that requires the executive branch to let you know where ther concern in the third of the final say is that it really frustrates congress and chant and i think senator mccain in particular being a prisoner of war being someone very concerned about war someone who's even supporting the idea of more troops in iraq has still said torture should not be continents and yet if you look at the signing statement every street reaction to the law passed by this congress president bush's sighing statement undermines that intent which was clearly expressed by sen mccain and i assume supported by the members of congress voles three areas where i think there are grave concerns that require congress as a nonpartisan body to examine whether or not its legislative authority is being respected or undermine judiciary committee to proceed and this i've talked with mr smith are steps going over to try to pull together the one hundred forty eight signing statements that have already issued and hundreds of bills the laws that have been impacted but where do we go from here quickly the statements that expresses the intent to disregard a lot of declined to enforce that includes an explanation for the reasons and that come to congress so that congress knows as professor ogletree just said what those are the second thing that we have suggested is t legislation which would allow both the president and congress and perhaps third party entities to have an expedited judicial review in the event that you have signing statements ok final was happy to do so there is a slippery slope even in our recommendations that you have to consider very carefully we did say and that was about the by the a b a that require the president to submit a report to congress upon the issuance of statements that express the intent to disregard or decline to enforce a law now the president can say and will say i pin or force the law but under my terms so my sense is that there needs to be a sense of transparency that goes beyond the literal language because even our language which was broad in nature the president can in good faith say i'm following the law but i'm doing it as i've been checked and interpreted given my ledge of my executive authority i would ask that you be a little bit more exacting if that is the process to decide to pursue thank you so minutes ranking member mr smith can thank you mr chairman professor rosencrantz let me address my first question to you has signing statements ever had any impact in small number of cases a few supreme court cases a few non circular cases and there's no indication that the signing statements changed the results in any of those cases thus  it's quite a limited phenomenon in federal courts thank you professor ogletree first of all let me thank you for your written statement i thought it was restrained reasoned nuanced and  not strident and for those reasons appreciated it thank you for example i ought to say you used a couple of phrases in your statement that i thought were revealing  if you said even if signing statements are not enforceable and later on you said while it may be that the public concern in that case may be premature so i am hoping that you see those sides of the  question colleague of yours who like you is well respected and well known as professor tribe he had this to say about presidential signing statements including president bush's quote it's never been the case that anyone has taken a signing statement as anything more than a flourish on the part of the chief executive rhetoric it's a symbolic rhetorical announcement of the view the president intends to take do you think that professor tribe is wrong or is it possible he may be right well i disagree or try but we've discussed this extensively in fact i think when he learned that i was on the a b a task force that generated tremendous interest and his later positions but at the same time if you look at the complete record presser tribe has said he has drawn a distinction between what he saw going on with prior presidents and his concern about the exercise of authority by president bush so he has been critical in other areas and thinks that these are serious transgressions even though the idea of signing statements as a matter of law he does not find objectionable and he certainly has or as a result of any source whatsoever no i don't personally the task force did not look at it and they congressional research service report said that a bill that is signed by the president retains its legal effect in character irrespective of any pronouncements made in a signing statement do you agree or disagree with that congressional research service report again the task force gave its reports prior to that report our task force did not look at this however i would say i didn't actually you look at i ask you where you agree with it i'm here as i understand in a representative capacity let me make that clear if i may that i am testifying regarding our task force and the policy of the a b a and so the policy  that when the president refuses to enforce a law on constitutional grounds without interacting with the other branches of government not only bad public policy because it creates unilateral an unchecked exercise authority in one branch of government without the interaction in consideration of the other ninety statements side with or without a signing statement doesn't the president have an oath to the constitution and if there is a law that he feels unconstitutional how can he possibly inforce it well you're right he does have  obligation i think this president and i would say more so than recent presidents of determine what he believes the law allows him to do i think as you can see from my statement i'll just it's not c idea of not having a bipartisan effort between congress and the executive branch to decide what the law will be and the biggest concern i have is the sense that there really is no transparency and you don't know but i don't know if you article one section seven the proper use of presidential authority is to veto an unconstitutional bill secondly if he chooses not to do that and allow the congress to decide whether to override or not that veto then we believe that there does have to be some type of  d hearing certainly congress needs to work with the executive branch to determine that it is not an unconstitutional review and the case in controversy issue raised as well as standing and as well as rightness are all issues which would require careful thought and review to craft legislation which would allow such a review but well we knew we could we could we could congress agree with you on that congress could the legislatively to some extent with the right th the provisions and they're not sure that we could deal short of conflicts with controversy requirement i think that the issue would become whether or not there is de facto a case in controversy once there had been a signing statement as opposed to a veto says the attorney general should submit to the congress a report of any instance in which to drink general or any of the department justice establishes or implement a formal or informal policy to refrain from enforcing applying or administering any provision of any federal statute set  have in fact that it forced this law or this provision because our constitution we've been getting those reports congressman the two things first of all the department of justice recently reported to the senate judiciary committee that had complied fully with the terms of five thirty it hasn't issued anything with respect to signing statements because as i said earlier a signing statement is not a policy of non enforcement ok let me let me let me it's my very much mr chairman i'll stay within five minutes first of all let me say that i don't think presidential signing statements are any big deal they are extra constitutional but so are committee reports that a majority of a committee in congress submit in behalf of legislation trying to further clarify those committee reports are not voted on by the house of representatives they're not presented to the president should  into law for his approval or veto it simply is an opinion and i think the president is entitled to his opinion just as much as every one of us are every united states senator is as well  i also noted with great interest the op ed piece that appeared in the boston globe on august ninth from professor lawrence tribe whom we all know is no conservative and definitely no strict constructionist of the now ms mathis in the very first sentence of the a b a a report on this issue it approvingly quotes an article from the boston globe that states quote president bush has quietly claimed  disobey more than seven hundred fifty laws and acted since he took office but that statement by the boston globe reporter is false in fact and may for to espouse and then six the full three months prior to the a b s issuing the report the boston globe itself issued a correction in which it stated quote do an editing error the story misstated the number of bills in which were says challenge provisions  e can you explain why the in the editorial judgment of the a b a was deemed appropriate to lead in its report with an approving quotation of the statement in the boston globe which the globe itself admitted was in  three months earlier let me address your question congressman by using the words of professor ogletree many of us would disagree about how you calculate the number of signing statements and also the provisions of law the most recent data that i have is that there have been a total of one hundred fifty signing statements issued and that the total number provisions are over eleven hundred i cannot specifically state to you because i was not on the task force  y we need with that let me observe in the words of law professors that i heard when you use a quotation has been retracted by its author that is on lawyer like and i think that the american bar association was annoyer light because the retraction by the boston globe of the number in its article occur three months before the taskforce issued its report i would hope that the next time the a b a comes before this committee they would be more accurate in the sources that they use to quote in support of their positions you know the balance of my time to the ranking member texas mr smith thank you for using time this matches let me follow up on a couple questions here first of all going back to the task force well you mention that it was bipartisan republicans democrats conservatives liberals it doesn't seem to be much diversity when it comes to philosophy in a zeiner stand it every member or almost every member of the task force had previously expressed disapproval of president bush's signing statements you're welcome to counter that if you want to but more specifically walter go and you're who was president clinton's legal advisor and who is considered an expert on such subjects i don't know it was he invited to join the task force i can't tell you congressman if he was or not i did not appoint the task force i do know that one of the task force members is with us today and that's the honorable mickey edwards who as you will recall served in this congress as a republican he stated himself that he force who had not already opposed publicly the president saying today i'm not prepared to do that today what i can tell you congressman is there was open free and significant discussion there were no decisions made before the went through that process perhaps later on you can get back to me with the names of anyone who hadn't already showed a bias i can tell you that i didn't because i had not made any judgments or written anything about signing statements when i was appointed to the committee and i can tell you as well even though our maybe you didn't become an exception on the basis of your testimony today that my time is up mr robert scott thank you thank you mr chairman i think all of our witnesses let me just go through a couple of questions to see where we are  vilest president to the president that's a large bill and has a small provision in it that is unconstitutional and the president wants to sign the bill that says that provision is unconstitutional and everybody knows that should he be expected to enforce that provision because it's technically in the code anybody think if everybody knows it's unconstitutional and is in fact unconstitutional should he enforce it or should he not enforce that provision representative scott the report of the american bar association would say in that instance the system will work appropriately if number one the president expresses his views that a portion of the bill is unconstitutional send some to congress ask congress to remedy that before the bill is sent to the white house for signing in the event congress fails to do that article one section seven says the president has a right and certainly perhaps he would feel the duty to veto that bill he signs it and says it's unconstitutional what should he be inforced that provision unconstitutional provision of the law he shouldn't sign it he should leave if he signs it and that sometimes you don't have that option of it's a big huge sometimes just the politics of it as practice is the reality is that if a president finds a pariah a part of a bill to be unconstitutional he may tell the congress in advance that if you pass this bill in its present form i will veto it and most of the time that will result to legislate a long enough to know what a poison pill is you can stick some very popular stuff in a bill and expect the president's not going to veto it because you're stuck something in there does anybody think if he does sign it whe that he will be violating the law so you know there is no provision there is no bill that is going to come before this congress that is so urgent you know that it can wait a couple of days whether it's water projects or veterans benefits on the bill he's expected to and for the unconstitutional provisions of that bill i will say the next point that we made in our task force congressman is that let's say that the president or someone missed something it was clearly unconstitutional then under our recommendation that should have the right to go to an immediate judicial review and it should not be enforced if it is constitutional but he just didn't like it says declaration in a signing statement perhaps he he won't in the executive branch will not the second issue is the transparency and that is whether the co equal parts of our government namely this congress have the right to have a report and secondly whether our judicia branch has a right to ultimately determine constitutionality so i have a number of issues but if if if the prez the president's statement does not help ascertain whether or not the provision is  have not put any weight on the president's declaration that in his opinion it's unconstitutional we don't see it being that it should we see it being the issue of the co equal branch of government the legislative branch not knowing what the executive is not enforcing it's very difficult to prove something which is not happening that's that's that's the next step but let me just ask since i just have a couple seconds is that the said that the case in controversy  members of the committee we have four votes one fifteen minutes three five minutes and so the committee will stand in recess until two thirty p m thank you very much i hope that witnesses can remain with us effect professor rosencrantz let me ask you this what legal value will strike that first of all do you agree with my interpretation i agree with you sort of the courts have thus far relied on signing statements very little what legal value then professor does presidential sadik statements provide well one function of president rouhani statements is to instruct the executive branch in the president's interpretation of the law and that can be a valuable and important function signing statement i thank you mr wood i want to ask you a question but i want to first sight of this mathis i want to associate with the sensor going as remarks about the congressman i thank you for bringing that up because i had hoped to put on the record the fact that i did some research during the recess and in fact the april thirtieth language which we quoted is accurate sir it was actually a later article in which an editor at the boston globe changed the term from laws to bills and it was that later article not the april thirtieth which was clarified and corrected on may fourth ok well the a b a doesn't fax or stand by constitutional duty and responsibility to ensure what shall be law shall not would you have do you not agree do you agree and argue that the judiciary also has a similar constitutional duty and responsibility certainly certainly however the judiciary the justice very first go back to a point you made just a moment ago and then then then i'll answer not change whether or not what was enact it into law is in fact law the signing statement doesn't change the signing statement only goes to the point of whether or not the president intends to comply with the law that's what the issue is questions keep coming back to the issue of how the courts are going to interpret that this isn't a matter of the courts it's a matter of whether or not the congress of the united states decides after deliberation debate discussion hearings you in before i know we have to go professor rosencrantz i wanted to follow up on some points that other witnesses have made earlier this morning and there's been a lot of talk about numbers president bush has had i think one hundred fifty signing statements president clinton had one hundred  seven or thereabouts and when you look at the percentage or go over all bills about this thing but are numbers really relevant to the point to the larger point in any case which is the say they're not binding it doesn't matter what number or how many there it doesn't matter what they say they still have no legally binding effect which you want to comment on the question of numbers and whether they're significant or not yes or there has been quite a bit of confusion about the numbers but you're quite right that the broader point is these are these statements are entirely proper and legitimate so the president has every right and every obligation to announce his interpretation of the laws that he is signing and that is the central function of a presidential signing statement which this president has used in which prior presidents of use and this rail would you have anything to add to that  night on the numbers the issue i think part of the confusion stems from the fact that the boston globe article the first time it appeared referred to seven hundred fifty laws and i think it might be more accurate to say seven hundred fifty provisions of law since arista isn't you know however i mean five hundred is the number put in a relevant at all anyway i think that the numbers are to begin with i think that they're entirely proper and so i don't think it matters whether they are one hundred five or one hundred twenty five a d i think that all of them are also close enough within the ballpark that this current president's practice doesn't depart from the historical practice ok thank you thank you mr goble you know backwards chairman ladies and gentleman yet another vote has been called we have on our side of the mr shift mr davis mr watt and of course miss jack feeney and i would leave that to you to determine whether we can share the rest of the time among you or or that you would any of you would want to come back to get your questions in what's what's the pleasure to share my class a lot of question of the chair absolutely has the vote actually been called or is about to be  called i've been told it's been called about the way these signing statements have been employed by this administration then yes they are that i start to raise questions  the president has decided that he's going to be the final arbiter of the constitutionality of an issue and he's going to act accordingly  done and you don't necessarily have to tell me right now but if you can send this information to us what did the president  do after he signed the signing statement in the aftermath of the intelligence reform and terrorism prevention act of two thousand and four where congress required the national intelligence director to recruit and train women and minorities in order to diversify the intelligence community i don't argue with the president's ability to sign did after he signed the sonic statement has the administration in fact done anything to diversify the intelligence community in terms of women and minorities and if you can provide that answer to us you can do it in writing and i won't take up any more time so that's kind of the concern i have is not so much and i'm not even sure i agree that  kind of where representative scott was how this one wants the president takes an action or deadened taking action that is is clearly inconsistent with the intent of congress how do we expedite getting that considered by the court so that there can be a resolution of that that would be the second thing that i would ask  justice so you you can speak for the administration and find out what they did after the signing order was was taken yes out i'll definitely take a look into that but if i could the other point if i let you know the answer to that question i'd rather have a researched answer than a some ideas about what they did or did not do but if i could just make a couple of points about other things you said the president does not mean  and start to diversify or did he use his interpretation of affirmative action and its constitutionality to refuse to do what congress said that's really more important to me than some general notion about whether the president does or does not intend to comply with the constitution i kind of start with the assumption that all of us have that obligation so  i'm not trying to catch you off i'm just trying to make it convenient for my other colleagues not to keep you all here until after another vote and with that i'll yield back and i think the gentleman former speaker of the house of florida mr  you're really concerned about is a president not enforcing part of a law they sickly cherry picking what he or she likes and doesn't like you know mr edwards that was was in this to your point to be isn't that your main concern and even if you did away with citing statements much broader than that the concern is the constitutional checks and balances concerned that the constitution clearly calls upon the president to veto a bill that he believes is unconstitutional let me ask you that because i would follow up on that right  there supposing a portion of a bill is unconstitutional does everybody agree that the president has an obligation to veto the entire bill if one portion is unconstitutional first in our report we say the president should send his concerns to congress and ask congress to fix an obligation to veto the entire bill but i think it's a difficult question is not our first principles but it certainly has been executive the executive branch practicing the executive branch position for many many years but has at least since president jackson right who famously veto that the supreme court had already said was constitutional well that's on the grounds that he thought of going custer's that's quite true but presidents have for many many years signed on to miss bills while also noting their constitutional objection to small portions of it that's been long  longstanding executive practice in this mathis because the thread was not concerned about this presidential signature or statement having any impact on the courts but the bar is partly sort of about  that right the issue that we have is the constitutional separation of checks and balances between the co equal branches so that if a president signs number one a bill into law in which he believes part of it is unconstitutional then under the signing statements we believe that in fact he is directing the executive branch to enforce the law in conjunction with his view of it i'm saying that are you concerned at all on the impact the signing statement has on judicial intent of a piece of legislation is determined by the people who passed the legislation and by by point earlier as you know the courts don't seem to be giving much weight to whatever president citing state what i want to ask you because real quickly evers because we've got three different positions on judicial interpretation one is represented by for example judge for congress with what you said the intent of the that would be the only time judge bork and i have ever read the intent of the congress but then you've got scalia who talks about rules he doesn't care what the intent of congress was if we said sixty days but ninety he didn't care what we meant and then you've got the other we've got transnational as judiciary and people fighting for the law and it's the other the concerned me i can understand the picking what parts of a given piece of legislation he or she wants to enforce we refuse to enforce because a signing statement where they secretly refused and forced the impact is the same they've undermined our will what is the remedy that congress or a citizen has if maybe a circumstance where a citizen would be able to file suit because of enforcement or non enforcement but i want to i want to hasten to add that we do not view signing statements as cherry picking the law simply expressing constitutional abuse about the constitutionality of a provision is not an indication we wanted to force it fully and that's a point i really want to make sure everyone appreciates today don't you have the ability i mean in the first place who asked you i guess was one question out of court in the presence of doing this forever but if there's a real case in controversy don't you have the ability to all times to follow them because pretty stating your opinion what really matters i'm not sure i understand the question i mean if there is a if the constitutionality of a provision of law is before a  court that is true the president and the executive branch can always follow and i because pretty fun on that one other point i want to make though in response to this is mathis has said repeatedly about how we should be providing our views beforehand and i just wanted to point out that that's something that we routinely do a significant portion of the office of legal counsel is devoted principally to providing views letters on the constitutionality of various provisions of law which we provide both in the form of usually letters and s although signing statements are part of the constitutional dialogue between the branches they're not the only part and we do plenty before the law is actually enacted to delight congress no but the use of the executive branch this gentleman so are able to stay we will come back but let's let's go with the gentle lady from texas we can get those five minutes and thank you very much mr chairman i think this is a very important hearing let me indicate that i think the testimony of the witnesses been extremely thoughtful however i think it is key that we recognize that the responsibility of the united states congress and  constituent has just said has a responsibility to protect the constitution i'd like to simply say that many of you know that i have authored h r two sixty four and i might say to present the a b a i am quite interested in the language that you have utilized in your report because i think the more thoughtful we can be and more we can expand the legislation to make it responsible the better off the constitutional premise of three branches of government will be protected i will say this is that the constitution makes no such provision for signing statements they do protect the toe messages and we are literally blocked from the constitutional act by signing statement i want to refresh the memory of the panelists to know that it was statements they've been eight hundred constitutional challenges and one of the most i think serious ones was the provision by mccain regarding torture and the plain statement of the administration by the president that i'm not going in here to it that's a dangerous precedent so i would i brace these questions and i'd also like to know that pursuant to my legislation that talks about appropriations if the congress has a constitutional authority to cut wars for cut funds for a war such as the vietnam war and some are contemplating even the iraq war then i would argue that there is not anything constitutionally frale in my legislation as relates to the appropriations process we might look at it in a different direction but frankly i think that it is discussion discussing what i would raise with the president of the a b a is the fact that you're you didn't appoint them but you had a task force and i assume that scholarly lawyers and practicing lawyers those who practice before the supreme court those who have a consciousness about the constitution thought it was a serious enough concern to organize a task force that monday standing that's correct the task force is authorized by the board of governors the american bar association about thirty nine people representing all areas and united states and certain special friend they could have concluded that they would do nothing meaning that they could have concluded their report could have said it is not sufficient for us to offer suggestion but in actuality they have offered recommendations is that not correct it is congresswoman i think it's important to note also that regardless of the individuals and you did properly state both conservatives republicans and democrats liberals and scholars who were on that that their report went to a five hundred thirty five person house of delegates and there's every political stripe and some who have no stripes in that house and it was adopted it is now the official policy of the american virus and so to be challenges as force and forgive me time is to be challenge to suggest the two are there was a bias what you're saying is ultimately that report was adopted by very diverse group of lawyers and members of the house  sorry i would you welcome and would you welcome the legislative fixes or fix that been offered by the a b a no i don't think thank you congressman edwards i think the time is short i'm sort of speeding through this and i  think the professor has been thoughtful but i think his position is no legislative fix whatsoever and that's not helpful to us as a committee would you be able to expand on your agreement or disagreement with the to just the fixes by the a b a or or your parameters and i think you said it before of how we should look at this in the next step because i don't want this to be is as you represent another party but this is not a partisan issue it is i think a constitutional issue  i strongly support the suggestions of the task force and of the entire american bar association which which did adopt this if there is a dispute between the legislative branch of the executive branch over the constitutionality of a provision and the president of it's that he will decide whether or not constitutionally it is viable and the congress does nothing we have essentially made the executive the final arbiter of what is and what is not gentlemen we apologize this is very rarely occurring in the house where successive brokaw votes occur i don't know if it's because it's the subject matter is the committee is entertaining here  the judiciary room or some other reason but we do have two very distinguished members maybe three now that wish to be heard and so for this last  we will have to stand in recess one additional time i apologize  in the past couple of years it's been a privilege for me to work with the a b a and the a c l u on matters where i thought we needed to refine some point decisions made by the administration the th which is a continuation of something that had begun in early administration and decisions apparently eminent decisions by the sentencing commission with respect to in both cases attorney client  privilege and attorney work product were basically i thought that the actions put a chilling effect on the relationship of attorneys and clients that was not helpful in that regard or frankly for the better  public policy of encouraging corporations to consult with attorneys to make sure they were doing the proper thing but but here i i must say that i think we're making more out of it then there is here there's been a suggestion and i've been one of those who has even told the president himself that i thought he ought to exercise the veto pen a little more often but the suggestion has been made that the only option he has is to exercise the veto when confronted with a bill that is presented to him that is multifaceted and it seems to me that at least in the statements that you make mismatch this about the president should just go ahead and veto things assume something that some states have which is the single subject rule we're not confined to a single subject rule here in the congress we often present the president with a bill that  huge and maybe maybe ninety nine point nine percent clean so to speak with things that are very important to the rest of the nation and some committee or subcommittee of the house something in which is arguably unconstitutional and i've heard it on the floor where members have said and i know mickey service to our members have said yeah there's a problem with this it may be unconstitutional another member said well we'll let the courts decide that which i always thought was the easy way out and we were probably the lazy and that sort of thing but i don't think the president compromises his constitutional obligation by signing a bill that he thinks is needed and finding some parts of it that may be unconstitutional and gives us notice that he believes that's the case this is actually the reverse of some of the comments that i heard early on which were that somehow this is hidden or with all due respect to the chairman talking about  continuation of the secrecy of the administration what is secret about stating what your problems are and isn't that something that you would like to have and i think the a b a recommendation was to somehow be put on some database as i understand it they are immediately available at the white house web site which is available to anybody who wants to to look at it so from the a b a s perspective don't you see  a problem with the way that the president is confronted with something if he has something as i say which is ninety nine point nine percent pure first congressman let me state how much i appreciate and i know the legal profession does all of the work that you have reverse of the comment is that if you have a signing statement which in fact purports to state that a certain part of that law two percent is not right and then directs the executive branch not to enforce it that's the essential equivalent of a line item veto and that a cleaner our suggestion is a cleaner way to do that is number one do what mr elwood earlier suggested and that is continue to tell congress what might be wrong with proposed legislation but if it does get to the white house for signature and it is two percent wrong indeed yes veto it we also have a case in point with the last session where there would be cases that the veto would come back to congress very well that's a that's a cannon that we look at when we've got it at the judiciary and i respectfully suggest to you that there are actually three different places we have to look and many of the questions they have concentrated on the judicial branch and in responding to a question right now am dealing with the constitutional right and responsibility of the executive branch and that is to veto the second branch i would suggest honorably to you is the legislative branch and then finally the third is the judicial branch and everyone could believe that something is constitutional or does not abrogate the third branches entitlement to to decide that two percent of the law isn't back unconstitutional the issue becomes if the veto is not used congress doesn't have the right to override and that is taking away a constitutionally mandated right of congress if instead you have a signing statement which then goes out to the executive branch agencies and says we believe that this is unconstitutional we who who say and let the court decide this constitutional question and he remarked to me that a rather lazy way of doing it how would you describe the  congress member who says that's a court decides it and then when the court decides it attacks the courts for judicial activism gentleman you i'd be happy to i think that's the ultimate in legislative laziness i think we ought to be sharper that we have looked at this is that in the side in our case where they were talking about what the proper relationship and acting a law is they talked about three parts they talked about by camel ism they talked about present but they talk about execution and here it seems to me the president has a legitimate role in the execution part which unless you want to call it not execution but post present in the where he makes the decision as to whether or not to sign the bill that's and it becomes law that way or else be chosen the override the veto in his decision to write to sign the bill or not sign the bill and make it law that's i wouldn't call it legislative quasi legislative let's just call it post presentment at that point in time why should not the president have the ability to give his interpretation for whatever it's worth as we do when we both have committee reports accompanying it and engage in colloquy is on the floor of the house to give our reading our sense of it i know justice scalia has said look if it's not within the four corners of the document we call the law we ought not to considered frankly i happen to think he's right on that but the fact of matter is why is this so different than what would we do with the gentleman  through that interpretation that he is giving legislators do all the time he is associate going to the agencies charged with enforcing the law that  his interpretation rather than the legislative history the playing reading of the of the statute the committee reports is the correct interpretation of the general view my point would be i mean if on its face what the president says absolutely contradicts the clear meaning of the law and there does not appear to be a constant impediment to it frankly he would be exposed for  t but but my point is this is out in the open it's better to have that as part of a signing statement than it is people whispering in the corridors of hud or someplace else i mean that's wh don't understand it's either you're worried about secrecy or you're worried about something else i mean here he's been up front about why he thinks this is good i just never i don't have a minute left but mr edwards would you like to nobody cares the president has the right to do that if the president is saying that he and his executive branch his executive branch unitary executive does not intend to comply with this doesn't believe it's appropriate if he uses the veto he will probably prevail because he'll come back to the congress and it would take two thirds of each house you know to override the president's veto but otherwise you're saying you're not saying both of you have a say in what's constitutional the congress says we think this constitutional the president says i think it's not there is no response he's the final word the strength the legislative branches trump the judicial branch he's the final word if the congress doesn't do something to enforce its will the gentleman yield back his time the gentleman from virginia mr forbes thank you mr chairman i asked a question of the chair from mr forbes percy's has a quick question of the chair given that there is apparently some possibility that there will be continuing procedural votes in the afternoon and given that mr schiff and i think come back four different times to ask questions can i make a request of the share that after first congratulate you on this being your first hearing that you're presiding over as chairman and it's unfortunate that this hearing really seems to be more about politics than policy because as i've listened to all the testimony doesn't seem to be a big quarrel about signing statements it's just you don't like what the president has to say and asto can't see much difference in the president putting it in the signing statement versus him coming out in a press conference and saying the exact same thing but the that as it may dark not knowing what they believe the law allows him to do and doesn't allow him to do and miss mathis as i look at you coming here today as president of the a b a basically we have three all three witnesses are a product of the a b a the task are representing them coming here and i know you testified earlier in response to mr sensenbrenner and his concern about basing comments on articles in the newspaper that may be not particularly accurate but one of the things you also mention was that you didn't appoint this task force but in point of fact according to one of those articles which may or may not be accurate in the miami daily business review michael s correct was the president at the time of the american bar association who did appoint this task force and within two weeks of appointing the task force he said that he was on a mission and basically acquitted president bush as becoming another king george the third so i think he was prejudiced a little bit at the time that he was appointing this task force as to maybe what his intentions were especially given the fact in the same articles it points out that the last sixteen years your members have been the largest contributors to the democratic party and in no time and that her time were less than seventy percent of your contributions go in there but my question to you today would be as president of the american bar association now president clinton issued one hundred  signing statements can you give me the dates of any special task forces or committees that were designated to look at any of the signing statements during his term in office congressman i believe you are out of the hearing room when i clarify the record if i may sir  in fact the first statement in the past force report is accurate the s report in the globe was never changed it was a later article in which a globe editor changed the word law to bills which was in fact corrected on may fourth so we do stand by the report i had the opportunity to check during the recess or secondly i do not disavow in any way shape or form the task force despite the fact it was my predecessor who appointed them i believe you also missed the point that i was able to make a little earlier that that pass force went to the full five hundred thirty five person board of the house of delegates which is a very broad group of lawyers throughout the united states it includes republicans it includes democrats includes independents it includes people who have no political suasion it was vigorously debated and it became the policy of the a b a prior to that action  august of two thousand and six it was just a task force report there are many task force reports of the a b a they never become policy some do some don't with regard to your earlier statement let me say that the task force and the a have looked at the signing statements as they have been used in the last twenty five years beginning with president reagan and in fact this report is very specifically not aimed at a president it is aimed at all presidents love and you can  better can you just answer my question on whether or not any task force was appointed to look the president to president clinton's signing statements when he made this not only was it not done then but it has been reported in the task force itself and there are specific examples in the pas force of where president clinton this used signing statement but you didn't want any during his presidential term i didn't appoint any or did i haven't read it nor did any of your predecessors no good and the last question can you define can you different can you ivanov have one question because i know my time's about out you know i hear a lot about the statement he did make a statement nobody can come back but could you also do that at a press conference and you know you haven't really addressed the difference between him coming out making a written statement somewhere else what's the difference between him doing that or for example you know you heard mr sensenbrenner talk about putting in committee reports what about a member who goes down to the floor and goodson a statement to the congressional record can you differentiate those for me please and i will try and i think i can i believe and the task force is very clear on this that the president has the same first amendment right that you do congressman do and they say whatever he chooses to the effect how ever  specific set of language in a signing statement in a unitary president theory is that when he says there are certain aspects of this bill which we believe are unconstitutional and we intend not to enforce them and that is then sent or is available for the executive branch and that is an issue it's an issue about which we have some concern and we think it creates the potential for an end balancing of checks and powers we think that the four recommendations we've made are there to help with transparency as an earlier member said you can go to the white house daily information and that's true but then it gets lost there's no public database unless you know what the law is you're looking for it that has a signing statement so the four things we've recommended are send your objections to congress do it in a timely manner i understand from our representative from the legal council that's happening  to state that you know this is my first committee hearing him a new member of congress i believe that one of the reasons why i'm here is that americans across the board wanted the congress to be more proactive exercise their authority to provide oversight and investigations when necessary and i believe that's what we're doing today mr chairman is is exercising our power to oversee the president's use and some may say misuse of the of the presidential signing statement without characterizing it either way i will say that  that certainly these witnesses who have appeared here today particularly all in particular the a b a should not be accused of any bad motives in making their parents assume everyone here today is here for the protection of of our government the protection of the three branches of government and the balance of power amongst them and so i want to laud everyone for coming and i will say that the a b a recommendations as to some kind of statement by the executive branch when when it uses this signing statement to instruct its branches as to how to interpret statutory low i think is imminently reasonable that the president report detailed report in in detail to the congress whenever he so instructs his department and also i believe that there should be some judicial avenue of pre clearance if you will for any presidential  construction of statutes and that having been said of the balance of my time mr franks the gentleman from arizona well thank you mr chairman mr chairman you know we live in an era when sixty days before an election a similar campaign law say that we can't even mention a candidate's name in a political advertisement and seems like we're doing a great deal  o for political speech as it is now i wonder if it's if it's wise for us to begin then to swart the political free speech of the one person that is elected by all of the people in this country and i certainly think that that's one of the issues that is here today the second issue is it just by a cursory glance at history we find that at some point one of the major branches of government had been wrong obviously you know the supreme court at one time in the dred scott decision rendered an entire race of people outside the scope of humanity and that was a wrong decision and if it hadn't been for the fact that to the other branches pulled against that then the constitution itself could have been abrogated in the most serious way course because they did our country ended what was the practice of slavery for six thousand years in human existence and so as we we really begin to look at our three branches of government here we have to necessarily realize that there's going to be some overlap and some gray areas in the tendons and holes the whole those three branches to get together or sometimes going to be pulled and stressed in occurs to me that that's precisely where we are here today where we're doing everything we can to allow the different branches of government to express their commitment to the constitution and if indeed the the president is held by the constitution faithfully execute the laws of the land it should be remembered that the constitution is the ultimate law of the land when he looks at one particular statute and says well you know this is against the constitution isn't he as a matter of constitutional principle required to subordinate himself to the higher authority which is the constitution itself and i'll let the gentleman raise his hand here answer the question congressman thank you unfortunately because you have to have shorthand if you're if you're saying that you're having a hearing about something you have to put a label on it and so this hearing is about quote signing statements but that's not what this hearing is about that's that's that's a label this hearing is about presidential assertions of the right to not comply with law that's what the hearing is about a president asserting whether it's in signing state in a speech or anywhere else that as the president he will be the final determiner of whether something is constitutional not the congress you know nothing he will decide whether or not it's constitutional and he will decide whether or not to comply that's the problem and to go to the point you're making the the problem you have here is that there is no recourse if there is a veto there is a recourse if the president says i don't believe we should comply with this the unitary executive branch doesn't have to comply with this there's no veto that's it is the final word so when you chairman reclaiming my time here i appreciate the gentleman's point the challenge is that the president many times is dealing with laws that come into place not necessarily by his veto or lack thereof but  perhaps even by someone overwriting his veto sometimes those things happen outside the scope and as a matter of just common reality sometimes the president is forced to make a decision between which law to obey and sometimes he's forced to look at the constitution as the is the higher law and i know it's a it's a challenging situation but regarding the recourse if i could ask any and any member of the of the  not think that there is some recourse in the courts and otherwise if indeed the president if it's believed that he's overstepped his bounds and yes there i think there often is some recourse many of these questions will find their way into court ultimately i just like to say in response to this characterization of the president signing statements as declarations that parts of statutes are unconstitutional i think it's a serious mischaracterization of what the huge majority of this president signing statements actually say you know the huge bulk of this president signing statements you spoke of every president signing statements or about interpretation of the law if your petition of the statute or not i think this provision is unconstitutional but rather i'm giving you my understanding of what these words mean and given not understanding i'm going to enforce that understanding of those were so mr chairman i just want to in closing here a question actually one specific one more general it has to do with the patriot bill we recently i guess last year had the reauthorization patriot bill signed into law many of us worked on that and felt that it made important prove ment's both in security and an oversight that wasn't perfect bill in this more that could be done but many of us on this committee pushed for oversight provisions that would give us greater confidence that we were not intruding on people's civil liberties with no measurable improvement to public safety and that we were doing so well within constitutional guidelines  a couple of sections in that bill as one of six and one one nine were part of the bill months before the negotiations began to remain unchanged throughout the negotiations over the reauthorization i'm not aware of any objection that was made to those provisions and in fact the attorney general testified that nazia him how important oversight was in terms of the reauthorization of the patriot bill and nonetheless we get the signing statement in which the president states that the executive branch can strip the provisions of this bill calling for furnishing information to entities outside of the executive branch such as the sections one of six a and one nineteen in a manner consistent with the president's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which blah blah blah the president also dismissed section seven fifty sixty two which requires attorney general to submit to congress recommendations for further legislation using similar language president sensually stating that he will withhold information requested by congress when he decides that  when he decides unilaterally that he will do so regardless of the express requirements of the law he was signing my two questions or this first and if you can answer today and i don't expect that you will ask that we have you submit to the committee and that's the question has the president has exacted branch withheld the information called for by congress under the patriot bill under a claim of this signing statement that under his unitary authority is not required to submit fully the information congress acquired that's my first question and second how is congress to know how are we to uphold our constitutional responsibility  if the executive unilaterally decides the scope of the laws that we pass how are we to know if you're not providing us the information that we called for under the patriot bill how are we didn't know if you're getting that call wrong mr davis and i were both part of the justice department we both recognize that the attorneys there are hard working diligent doing the best they can but we also recognize they're not infallible because we were there and and mr davis knows he was not infallible when he was there i was the only infallible attorney there and i'm no longer there so how are we to do our job if you arrogance yourself the power to decide when the scope of what we've asked you intrudes upon your authority i think that this is an excellent example of something i've been trying to illustrate today which is simply because the president states sort of constitutional views on an area the law does not mean that does does not mean that he's not going to comply fully as it happens i have inquired and he has come and the department of justice is complying with those provisions it is it is cooperating in the internal in the inspector general's investigation can you tell us then that there is no part of the information congress has sought under this provision of the patriot bill that the executive has withheld because it believes that it would compromise national security that it would violate principles of unit executive branch that's my understanding i want to make a point here which is that presidents president eisenhower president clinton made precisely identical signing statements which is not to say we're not going to and i were saying that you want to pin this down the so you can say here with confidence that the executive branch has withheld nothing that is within the plain language of that statute under claim of this signing statement my understanding is that the government is the department of justice cooperat they withheld anything it's my understanding that they have not a congressman and how would the congress find out if they were i think through oversight i think over th in a case like that when that when the when the president says that he's going to that he was the is the administration feel any obligation to notify congress that we are making the claim of executive privilege of national security and we are not turning over information call for under this legislation yes i think that they would notify you if they were not going to share with everyone i think that say there are certain things we're holding back and i also don't know that they would say we're not withholding it at all i think they would just put special procedures on any information chairman thank you very much i appreciate your holding this hearing i'm pleased that you're engaged in oversight but quite frankly surprised that this was the topic of the first hearing as well this is interesting academic discussion i listen intently this morning to the testimony of all the witnesses and it wasn't until we got to professor ogletree who mentioned to signing statements where he called into question whether the actions of the president were appropriate till then i had heard nothing  that contradicted the long history of the use of signing statements for very appropriate purposes as professor rosencrantz has aptly stated to elucidate the president's understanding of the law that's been passed by the congress and we've seen an increase in the number of signing statements of the years i would say that's entirely because the amount and complexity of legislation passed by the congress has increased over the years and signing statements by republican the legislation regarding nuclear controls the nuclear agreement with india but first i'd like to call your attention to what former assistant attorney general del injure in the clinton administration noted about signing statements he said one of the most controversial purposes of presidential signing statements it's really a legislative history in an attempt to guide the court to nature put the legislative intent behind statutes however as  congressman smith has pointed out the courts have rarely if ever given any credence to the signing statements and increasingly they give less and less credence to our own version of signing statements which mr sensenbrenner correctly pointed out are our own legislative histories instead they've looked to the actual statutes and interpreted those as they appropriately should much more troubling to me is the inclination of the courts to cite foreign law and trends when interpret ing statutes foreign laws were passed by foreign officials who were never elected by u s citizens at least the president is elected by the american citizens and is examining these laws in the framework of the u s constitution i find it troubling that the new majority would prioritize oversight on presidential signing statements above examine the practice of the courts including the supreme court increasingly citing foreign laws and regulations when interpret ing statutes and acted by the congress so i'd like to ask professor professor rosencrantz if you find this prioritization troubling as well do you believe that the supreme court's citation of foreign precedents is at least if not more detrimental to u s sovereignty than presidential signing statements i do agree with you sir i think that that issue i think the situation to foreign law and foreign judgments raises an issue of democratic self governance this issue really does not so the american people are of course quite interested in the distribution of powers between the three branches of this government but far more so they are interested in being governed by one of these three branches rather than by foreign governments and increasingly the courts including the supreme court have turned to foreign judicial precedents in interpreting the meaning of our own constitution which i and justice scalia and a number of other members of the bench have found to be  a very disturbing practice let me ask mr ellwood if you want to add anything to that and also if you'd care to comment on the two points that professor ogletree raised about the nuclear agreement with india and about the  with professor rosencrantz this is something the attorney general has spoken about and feels very strongly about on the mccain amendment on the hyde act i wanted to say about the mccain amendment i think this is another excellent example of how just because the president faces constitutional views doesn't mean he's not going to enforce it he said both before and after signing the cain act the agreed with it that it was good legislation and that he intended to implement it fully in fact he said shortly after making the signing statement the mccain amendment is and then we strongly support and we'll make sure it's fully effective i asked him why did you make the signing statement that he said the reason i make signing statements like that in the form of foreign affairs area and more powers area he just does say that conducting war is a response quoting the executive branch not the legislative branch so it's just a general statement look these are matters that are very important executive so you know keep that in mind these are areas where we have special importance special progressives i also want to point out that president clinton in the cuban liberty and democratic solidarity act even though he supported that legislation issue a very similar signing statement there saying that the president president's office already also in foreign affairs was very powerful as for the hyde act if i might be allowed it's a very very technical point the legislation adopted like congress said that any transfers of nuclear material had to be consistent with guidelines of this nuclear producers group the government consistently has complied with the he's got lines throughout history and the basic point was a technical one which is that if you make  the legality of the transfer turn on what these guidelines say at some point in the future it's ceding legislative power to foreign bodies and that was it was just a technical point but the government consistently has only transferred in consistent in compliance times that the broad focus of this hearing is obviously not whether or not the president can make an oral statement he can make an oral statement he wants a written statement he wants the broad question the scope of the president's interpretive power  power to interpret the constitution i want to wreck my questions along that angle what you made an assertion that i think is somewhat remarkable and i want to go back to it when my colleague from california was asking you because a lot of questions he was making the point that sometimes the president's interpretation of the constitution or is in sharper taishan of a statute could lead him to shield information or to withhold information from congress or from the public domain and that could prevent a case in controversy for being generated so i want to go back to that lot of questions in the context of the authorization that this congress provided it after nine eleven the authorization against afghanistan we know that several times the president has said and i don't know if he's done in the context of signing statement but several times c s a or ling and members of your administration have made the representation and amatus brief that that was a broad delegation of authority to the president and among the instances of that broad delegation with a five or not necessarily following certain provisions five among them another instance of the broad delegation the president claims has to do with the detention of individuals have kuantan about the points i think mr schiff was making is that if the president interprets a statute or even the constitution and a manner that leads him to act and leads him to prevent information released into the public domain that itself is problematic the only reason that we know and now have a potential for a case in controversy around the five to statute is because of the new york times frankly not because someone could go out and file a lawsuit or not because congress exercises oversight of the wording you referred to the oversight authority it is darn near impossible to exercise it when the president doesn't share with us when he's exceeding the scope of the statute so that's the point he was making the second observation mr with this is a question to you hundred sixty s perhaps you are part of this congress passed a voting rights act and passed a civil rights act and the governor of my state stated that he felt that both one constitutional and he informed the people of alabama that he would not enforce provisions of the civil rights act of the voting rights act that alabama was a separate sovereign state as a sovereign of alabama that he was not going to follow an unconstitutional law provision something else different than presidents position the i think that the position is i mean for one thing i want to emphasize that when the any time when the president or a member of the executive branch aside not to enforce a law because i think it's unconstitutional they have to report that to congress under twenty five thirty and i think that as a matter of principle it's it is different that good to begin with this president has made every effort whenever there is any sort of construction you can give it  constitutional to fully implement it and that is not my question what is a matter of constitutional doctrine what is the difference and the governor of forget alabama any state what if the governor of arizona decides he doesn't like a new immigration bill the congress might pass and decide i think it's not constitutional i'm not going to follow it i would say that the one difference is that the governor of any state is subject under the supremacy of the law to federal law and it's news executive branch not up to the notion of law having a certain supremacy that control executive interpretation i thought the judiciary was the interpretive body in our tripartite structure and every branch of government is responsible for interpreting congress interpret and tirpitz the constitution when it passes laws and that's the reason why graham court makes an interpretation can the president allen's interpretation of the if and if the supreme court has interpreted the law or as interpret the constitution and that is binding on congress and the president and both of those instances and i would just simply say that that is the the difference is that the constitution specifically why would a president separate of power it's the legislative branches interpret it power it doesn't every every branch of government is expected to add here to the constitution all of the members of the three branches take an oath of office all of them are expected to independently of the court has met with would you like to comment on any of them would the gentleman be advised of his time  executive branch that says what they believe along manes how they carried out and of course one of the alternatives is we allow unelected unaccountable bureaucrats in some office somewhere to come prison back in the seventy's for having one f b i file in the white house and yet in the clinton administration there were thousand or so files f b i files in the white house and that department of justice and president clinton chose not to enforce those laws instead of someone going to prison the people going to prison for thousands of years nobody said anything at doing for those gross violations of the law but anyway in our remaining time there are some signing statements signed by president that have disturbed me and i wanted to just read some of them into the record quote several provisions in the acts specifically section six zero three and six zero five and three zero two b could be taken to direct how the nation's foreign affairs should be conducted the constitution however best present with space special authority to conduct the nation's foreign affairs my constitutional authority over foreign affairs necessarily entails discretion over these matters accordingly i shall construe these provisions to big advisory and direct all exact branches officials to do likewise oh well that's president clinton section level no for this bill raises a constitutional concern as far as it could be read to interfere with my constitutional authority to determine when and whether to recommend legislation to congress i will therefore treat it as placatory which is understand the meaning just needs wishful thinking oh that was president clinton section thirteen three thirteen alleged branch appropriates portion that was stablish in the legislative branch a center for russian leadership development the apartment of justice advises m however that because the program is not administered by the executive branch it's unconstitutional present just call it on cost that was president clinton i will interpret this provision consistent with  constitutional authority to conduct the foreign relations of the united states and my responsibilities commander g g that was president clinton also different each of these are different signing statements and here's one to the extent that this interpret and implement section eighty one fifth inc consistent in our constitutional authority to conduct the formulation united states and as commander in chief and chief executive and not in a manner that wouldn't cumber not constitutional authority that was this provision cannot be construed to detract from our constitutional authority and responsibility to protect national security and other privileged information as i determine very and so that this arrogance from this president goodness sakes and so that the provision does not require the release of information that is properly classified i directed me to tarp and interpreted consistent with not constitutional that i know that it isn't surprising given the republican leadership when they ran this institution has given their total abdication of our constitutional role of oversight and exercising our constitutional right on the fifth of checks and balances in that oversight that while president clinton was in office in office the judiciary committee didn't have any hearings on signing statements or ask the administration at the time why they were exceeding their authority and i think it's important to no as former congressman edwards pointed out that this is not a partisan issue i would take as much issue with president clinton signing statements as i do with president bush's and i think that that to the person on this committee that had concern over it that that would be the case and my question for mr ellwood is i'm one of the non attorneys of the committee and sometimes i'll go out i generally understand with what goes on in our proceedings i think the general of comparing it to the patriot act but the one that related to the homeland security appropriations act of two thousand and seven section five zero three c two was a provision that dealt with the issue of qualifications of the fema administrator and if you recall the few minutes traitor during hurricane katrina was was secretary brown and that if you recall that his prior experience was being the  and a lot of the other issues but in that section of the bill congress included a provision that required the president do it here to certain qualifications in the individual who was being considered for that post w law passed the relevant section of the signing statement that the president issued said as follows section five zero three c of the home of security act of two thousand and two as unended by section six eleven of the act provides for the appointment and certain duties of the administrator of the federal emergency management agency section five zero three three two vet and the president authority to appoint the administrator by and with the advice and consent of the senate but purports to limit the qualifications of the pool of persons from whom the president may select the appointee in a manner that rules out a large portion of those persons that qualified by experience and knowledge to fill the office he goes on to say the executive branch shall construe not nathan's to night not necessarily construed but shall construe in five zero three season two in a manner consistent with the appointment clause of the constitution now if you review that section of the law that's not what congress instructed the president to do and i'm wondering why it would be in the president's authority to just decide to differently implement not interpret but differently implement congress's direct instructions as to the qualifications of the stigma administrator henceforth after the year that the passage of that law two points first of all whenever the judicial branch as well it is the president's job to inter to to implement the words in the law law as congress has passed that and if he doesn't agree or she hopefully one day doesn't agree with the words in the there which was another restriction on the president's removal power not appointment but held there that the president could do despite a law saying that he could not read remove people in his cabinet with on senate approval the court held that it was unconstitutional and that one of the nine members of the court said the president was at that although not a forcing that i do know that deals with tenure in office that doesn't deal with the qualifications congress does have the right to specifically determine the qualifications that an individual the president is considering need to have we can constrain the president in that regard there are there are do you disagree then you can go to court there are limits on what the what the congress can do in that regard there's another school of thought that just as people have been saying the only thing the constitution says that they says you can only veto or sign it does your only choices but the similarly some people interpret the constitution to say that because the senate can confirm or deny a confirmation to a person that that is the only role for congress in determining the qualifications of a person and there is a there is a body of law that says congress can set qualifications but it can't set so many qualifications it limits the president's ability to appoint  you know essentially someone of his choosing now finally i do want to notice that this the president continues to apply continues to apply the laws written i will note that our david paulison the person who was appointed was somebody who  over satisfy the conditions yes thirty years in law enforcement that let me add many years and i thought emergency management of mine live in my district was down the street from me so i'm fully aware of his qualifications and fully support him and i'm glad to see that he's heading up the federal emergency management agency that's not my point my point is is that the president in this instance may not have have decided to go with someone outside of congress's instruction but it was inappropriate for him to indicate in his signing statement one of the advantages of the last is you get to hear everything is going on before and so i'd like to just ask this question it appears to me that as we listen to the testifiers and thank you very much for your testimony that signing at worst from the perspective of least mr rosenkranz or just basically the opinion of the president don't have the effect of law and then on the other side may have the effect of law but we don't really know so my question is this why don't we just get rid of signing statements what is the real value of citing statements why do we need them if they're really no more than a i guess  flourish as professor tribe said mr rosenkranz could you just well again i think that presidential signing statements can serve an important function which is again to instruct the executive branch in the president's interpretation of the wall i just want to comment on characterization of a moment ago simply not the case that the president's job does not include  is a signing statement that in your view does the siding statement actually in any way alter or modify the statute is passed by congress no it does not ok so if it does not change what congress has done why can't the president simply issue a press release or hold a press conference on his view on what the law or what congress passed you could do that and in that case we wouldn't have to worry about whether or not the signing conferences not my knowledge but in that case he's at least would not have to worry about whether or not the president was executing the laws passed by congress the right in a presidential signing statement or in a press release the president may express his view about what a statute means and the executive branch is duty bound to follow the president's interpretation of the law whether express of the sonic statement or a press release or anything else why do we need to have signing statements if they simply are expression of an opinion and don't really don't change the laws pass i believe you've made the point that there's no case in which the president has refused to carry out the statute it is simply a voice of expression of opinion and so in that case  mr edwards would you care to comment on why we have to have or why simply eliminating the signing statements wouldn't be a good idea congressman and it doesn't matter to me whether we have signed the status or don't have signing statements what matters to me is whether or not a president can declare can assert that he does not have to comply with an act of congress that has been signed into law by himself and i must say  i've got to say this mr chairman i have sounds to me like i walked in accidentally to a meeting of the national committees and i'm shocked by the number of members of this committee who can't get beyond their party affiliation i was a political a foreign policy adviser to president bush's campaign i worked for president bush i supported him and i voted for him this is not a party this is constitution and the constitution is more important than whether or not we are defending a president of our party and i am really bothered by by the tone that i've heard today i would like to advise the gentleman give you the last question your way to the longest and i was simply going to direct the question to mr edwards again you know again without has been pointed out clearly president clinton has used these the signing statements other presidents have used them in the past there is a veto which is available which is well within the constitutional structure would would americans not be better served if we simply eliminated the signing statements and therefore we would have a much more straight up and down clear delineation of constitutional roles what is your view on the i don't i don't think the president should be muzzled the president should certainly have the right to express his opinion any way he wants the constitution provides him that opportunity through a veto which that allows the congress to override a problem with the signing statements serving as instruction about whether we will comply or not you know means that the congress does not have the final say as the president has the final say as to why discuss issues in which case the whole structure of the constitution has just been undermined in the sake of party unity on behalf of all of the members of the judiciary committee we are deeply indebted to you the witnesses mismatches mr wood mickey edwards professor rosencrantz for your dedication and your contributions we deeply appreciated without objection the hearing record will be open for a period of one week to allow additional materials be submitted for the record including members opening statements written questions for our witnesses which we will ask them to answer promptly so they can be included in part of the record and viciously unanimous consent to submit all one hundred forty eight copies of the president's president bush's signing statements into the record this is the beginning of our oversight of as i look forward to the continued ladies and gentlemen we've had a long day but i think it's an important day and i think it's an this is a highly appropriate subject for our oversight hearing to begin in the one hundred tenth congress the committee