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PRESIDENTIAL SIGNING STATEMENTS UNDER THE

BUSH ADMINISTRATION: A THREAT TO CHECKS

AND BALANCES AND THE RULE OF LAW?

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JANUARY 31, 2007

Serial No. 110–6

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

(III)

C O N T E N T S 

JANUARY 31, 2007

OPENING STATEMENT 

Page 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 1

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Ranking Member, Committee on the Judiciary ......................... 2

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York ................................................................ 4

Prepared Statement of the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona .................................................................... 5

WITNESSES 

Mr. John P. Elwood, Deputy Assistant Attorney General, Office of Legal 

Counsel, United States Department of Justice 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 10

The Honorable Mickey Edwards, former Member of Congress from the State 

of Oklahoma, Aspen Institute 

Oral Testimony ..................................................................................................... 26

Prepared Statement ............................................................................................. 27

Ms. Karen J. Mathis, President, American Bar Association 

Oral Testimony ..................................................................................................... 28

Prepared Statement ............................................................................................. 31

Mr. Nicholas Quinn Rosenkranz, Associate Professor of Law, Georgetown 

University Law Center 

Oral Testimony ..................................................................................................... 43

Prepared Statement ............................................................................................. 45

Mr. Charles J. Ogletree, Jr., Jesse Climenko Professor of Law, Harvard 

Law School 

Oral Testimony ..................................................................................................... 62

Prepared Statement ............................................................................................. 63

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas .................................................................. 105

Prepared Statement of the Honorable Linda T. Sa ́nchez, a Representative 

in Congress from the State of California ........................................................... 107

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee ...................................................................... 107

Prepared Statement of the Honorable Luis V. Gutierrez, a Representative 

in Congress from the State of Illinois ................................................................. 107

Response to Post-Hearing Questions from John P. Elwood, Deputy Assistant 

Attorney General, Office of Legal Counsel, United States Department of 

Justice ................................................................................................................... 109

Response to Post-Hearing Questions from the Honorable Mickey Edwards, 

former Member of Congress from the State of Oklahoma, Aspen Institute 115

Response to Post-Hearing Questions from Karen J. Mathis, President, American Bar Association 116

Page

IV

Response to Post-Hearing Questions from Nicholas Quinn Rosenkranz, Associate Professor of Law, Georgetown University Law Cente 118

Response to Post-Hearing Questions from Charles J. Ogletree, Jr., Jesse 

Climenko Professor of Law, Harvard Law School 122

Newspaper article entitled ‘‘ ‘Signing Statements’ Are a Phantom Target,’’ 

by Laurence H. Tribe, August 9, 2006, The Boston Globe, submitted by 

the Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin ................................................................................ 124

Newspaper article entitled ‘‘Who’s Afraid of Presidential Signing Statements?’’ 

by Stanley Fish, February 4, 2007, The New York Times, ............................... 128

Newspaper article entitled ‘‘Guess who is opening, reading your mail; OUR 

OPINION: CONGRESS MUST HOLD HEARINGS ON SIGNING STATEMENTS,’’ January 9, 2007, The Miami Herald ................................................. 132

Newspaper article entitled ‘‘ENDING BACK-DOOR VETOES,’’ July 25, 2006, 

The Boston Globe .................................................................................................. 134

Newspaper article entitled ‘‘Veto? Who Needs a Veto?’’ May 5, 2006, The 

New York Times ................................................................................................... 135

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PRESIDENTIAL SIGNING STATEMENTS UNDER 

THE BUSH ADMINISTRATION: A THREAT TO 

CHECKS AND BALANCES AND THE RULE OF 

LAW? 

WEDNESDAY, JANUARY 31, 2007

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Committee met, pursuant to notice, at 10:22 p.m., in Room 

2142, Rayburn House Office Building, the Honorable John Conyers, 

Jr. (Chairman of the Committee) presiding. 

Mr. CONYERS. Good morning. The Committee will come to order. 

Before we begin our hearing, many have heard that our former 

colleague and friend, Father Robert Drinan, passed on Sunday, 

January 28th, here in Washington. Father Drinan served with us 

as a Member of the House and on this Judiciary Committee from 

1970 to 1981, later becoming a professor at Georgetown University 

Law Center, and he was known as a tireless advocate for civil 

rights and social justice in this country and in the world. He was 

a passionate opponent of what he believed was an immoral war we 

were fighting in Vietnam. His principled stands earned him widespread admiration as well as a prominent place on President Nixon’s enemies’ list. He was the first and last Roman Catholic priest 

to hold a seat in Congress while he wore the cloth, and although 

he enjoyed strong support in his district and would undoubtedly 

have been reelected, he resigned with ‘‘regret and pain,’’ in his 

words, after Pope John Paul II issued a decree forbidding priests 

from holding legislative offices. 

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 values, 

who answered the highest calling of government service to direct 

its resources to improving people’s lives and correcting social 

wrongs. In honor of his distinguished career and service, I ask 

unanimous consent that we hold a moment of silence for Father 

Drinan. 

[Moment of silence.] 

Mr. CONYERS. Thank you. 

We are holding our first oversight hearing in the Judiciary Committee of the 110th 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 absolute authority on issues such as surveillance, privacy, torture, enemy combatants, and rendition. 

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Today we are taking up the very important item of Presidential 

signing statements, which supposedly give him the power to ignore 

duly enacted laws he has 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 they have done as a result. 

Now, an example. If the President claims he is exempt from the 

McCain amendment ban on torture, we need to know whether and 

where he has permitted it. We want to know what he has done to 

carry out his claims to be exempt from many other laws such as 

oversight and reporting requirements under the PATRIOT Act, numerous affirmative action obligations and the requirement that the 

Government obtain a search warrant before opening the mail of 

American citizens. 

So I am going to ask my staff, along with that of my friend the 

Ranking Member Lamar Smith’s, staff—those two staffs—to meet 

with the Department of Justice and the White House so we can get 

to the bottom of this matter. And we will and we must do this, and 

we are not going to take ‘‘no’’ for an answer. We are a coequal 

branch of Government, and if our system of checks and balances 

is going to operate, it is imperative that we understand how the executive branch is enforcing 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 

800 legal provisions, far more than all previous Presidents combined. This is in a total of 148 signing statements that we have 

here for our Members’ examination. 

Republicans and Democrats alike have reached a unanimous conclusion which was endorsed 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, in an oversight hearing, we are here to explore that conclusion and then to take action. We are talking about a systematic 

extra-constitutional mode of conduct by the White House. The conduct 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 free to carry them out or not as only he sees fit. 

That concludes my opening statement. I am pleased now to recognize the distinguished Ranking Member from Texas, Lamar 

Smith, for his opening remarks. 

You are recognized sir. 

Mr. SMITH. Thank you, Mr. Chairman. 

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Members of Congress have a right to say what they think of 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 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 

that courts have rarely mentioned Presidential signing statements, 

and when they have mentioned them, they cite them only when 

such statements support the interpretive 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 v. Lovett. In that 

case, the courts held that a provision of the Urgent Deficiency Appropriation Act of 1943 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 v. 

Rumsfeld. At the end of June 2006, that much-awaited Supreme 

Court decision completely ignored a Bush administration signing 

statement, asserting that the court lacked jurisdiction over the 

case. 

So this hearing only consists of a critique of a sideshow 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 signing statement altogether as 

the Supreme Court did last year. 

A Congressional Research Service report to Congress issued September 20th, 2006 concluded that, ‘‘A bill that is signed by the 

President retains its legal effect and character irrespective of any 

pronouncements made in a signing statement, and remains available for interpretation and application by the courts.’’ The same report concluded that, ‘‘ultimately, it does not appear that the courts 

have relied on signing statements in any appreciably substantive 

fashion.’’

Opponents of the use of signing statements claim 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 an entire bill that funds the military, and thereby 

deny the troops the support they deserve if the bill contained a single unconstitutional provision. In such instances, there is no reason 

the President should have to veto the whole bill rather than simply 

state the constitutional objections to one small portion of it. 

If 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 

4

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 duly elected Representatives. 

Yet, this hearing focuses not on courts and judges, but rather on 

the President’s simple opinion about the legislation he is deciding 

to sign. One has the distinct feeling that this is really a policy debate. If critics of signing statements agreed with the President on 

policy, we simply would not be here today. 

Mr. Chairman, we have distinguished witnesses this morning, 

and I look forward to hearing from them and yield back the balance of my time. 

Mr. CONYERS. Thank you, Mr. Smith. 

I now recognize the Chairman of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Mr. Jerry Nadler of New 

York, for his opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Mr. Chairman, I think today’s hearing is an important milestone. 

For too long, this Administration has gotten a pass when it comes 

to congressional oversight. Those days are over. 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. 

It is a core function established by the framers of our Constitution to ensure that no President can exercise unfettered power. The 

question of signing statements is an important one. Article I, Section 7 of the Constitution provides the President with the following 

options when presented with a bill passed by Congress. 

‘‘If he approves, he shall sign it, but if not, he shall return it with 

its objections to that house at which it shall have originated.’’ That 

strikes me as pretty clear. 

The more critical concern I have about this President’s signing 

statements is their actual content. His broad and often unfounded 

assertions of Presidential power and his repeated attempts to reinterpret laws passed by Congress against the obvious intent are the 

real dangers. The President gets a yea or nay. 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 oratory. They have no significance in terms of understanding and interpreting the legislation. At most, some of these 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 Administration’s contempt for the rule of law. It is 

5

when the President acts on his declaration that the law means 

something other than what Congress intended that he goes from 

arrogance to lawlessness. 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 for the Foreign Intelligence 

Surveillance Court, despite the fact that the law specifically requires one, is just one outrageous example. The fact that the President authorized warrantless surveillance in violation of the law 

threatens our democracy. 

I would also remind people that FISA is a criminal act and says 

that it is a felony for anyone under the color of law, meaning Government officials, to wiretap Americans in the United States except 

under the provisions of that law. And I would again remind people 

that the statute of limitations of that law runs considerably beyond 

the lifetime of this Administration. 

I look forward to the testimony today, but I again want to thank 

Chairman Conyers for beginning his chairmanship with this important inquiry. It is an auspicious beginning to what I am confident 

will be a productive Congress. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you very much. 

Finally, I recognize the Ranking Minority Member of the Subcommittee, Trent Franks of Arizona, for his opening remarks. 

Mr. FRANKS. Thank you, Mr. Chairman. 

Mr. Chairman and Members, given today’s hearing focuses on 

the proper function of the Executive under the U.S. Constitution, 

it is appropriate that we look to the Constitution itself to be our 

guide. 

Article II, Section 1 mandates that the President take a very specific oath of office, just as do Members of Congress 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 best of my ability preserve, protect, and defend the Constitution of the United States.’’

The constitutional system of checks and balances among the 

three branches of Government is fundamental to the American system of Government, and most of us learned how it works in basic 

high school civics class. So let us consider, if the Congress passes 

an unconstitutional law, as it has sometimes done in the past, according to even the Supreme Court jurisprudence, then what is the 

President to do? Can anyone seriously contend that the President 

has no choice but to enforce the unconstitutional 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 constitutionality of an act of Congress? 

An honest reading of 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. 

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Indeed, in the Marbury decision, Chief Justice Marshall proclaimed, ‘‘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 Executive’s understanding 

of a statute and, at times, to enable the President to renounce 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 administrations, with Mr. Clinton issuing approximately 391 signing statements. And 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. 

Now, the Majority has stated in their 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, this statement is 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 this supposed, ‘‘threat’’ of signing 

statements as nothing more than 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 courts’ 

relying upon sources of law other than U.S. 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 upon foreign law, made by foreign rulers who are not elected 

for the people or by the people of the United States and who do 

not share our basic values. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you very much. 

I invite the rest of our Members to submit their statements for 

the record. 

Mr. ISSA. Mr. Chairman? 

Mr. CONYERS. Who seeks recognition? Yes, Mr. Issa. 

Mr. ISSA. A parliamentary inquiry. 

Don’t the rules allow us to make oral opening statements unless 

granted by unanimous consent? 

Mr. CONYERS. No, sir. I am afraid——

Mr. ISSA. So you are cutting off the opportunity for opening 

statements to be on the record here in public hearing? 

Mr. CONYERS. Well, I am not cutting them off. I am following the 

tradition for the last 40 years that I have been on the Committee. 

Mr. ISSA. Thank you, Mr. Chairman. 

Mr. CONYERS. We have a distinguished panel of witnesses, and 

I am grateful that they are 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 Elwood. He has previously held positions in the 

7

Solicitor General’s Office, the Criminal Division and the U.S. Attorney’s Office in Virginia. He clerked for the late Judge Daniel 

Mahoney of the U.S. Courts of Appeal for the Second Circuit and 

for Associate Justice Anthony M. Kennedy. 

Welcome, sir. 

Then we have our former colleague, the Honorable Mickey Edwards, a former Member of Congress from Oklahoma, who now lectures at Princeton University’s Woodrow Wilson School of Public 

and International Affairs and directs a program on political leadership for the Aspen Institute. He was a founding trustee of the Heritage Foundation as well as chairman of the American Conservative Union. Recently, he has served as a member of the American 

Bar Association’s task force on signing statements. 

Welcome, sir. Glad that you are back. 

Following him, we have Ms. Karen Mathis, a partner in the Denver office of McElroy, Deutsch, Mulvaney & Carpenter, and the 

current president of the American Bar Association, one of the many 

leadership roles that she has held in the ABA during her professional career. 

Welcome to the hearing. 

Our fourth witness this morning will be Nicholas Rosenkranz, 

Associate Professor of Law at Georgetown University. Professor 

Rosenkranz 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, sir. 

Finally, we have Charles Ogletree of Harvard Law School, where 

he holds the Jesse Climenko Professorship. He is the founding executive director of the school’s Charles Hamilton Houston Institute 

for Race 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. I ask that you summarize 

your testimony in the usual 5 minutes or less. We have a timing 

light that will assist you in that endeavor. 

Let us begin with Mr. Elwood. 

Welcome. 

TESTIMONY OF JOHN P. ELWOOD, DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, UNITED 

STATES DEPARTMENT OF JUSTICE 

Mr. ELWOOD. Thank you, Chairman Conyers, Ranking Member 

Smith and Members of the Committee. I appreciate the opportunity 

to appear today to discuss the use and legality of Presidential signing statements. 

The subtitle of today’s hearing asks whether the President’s use 

of such statements poses a threat to checks and balances and the 

rule of law. The answer to that question, I think, is clearly ‘‘no’’ for 

three reasons. 

First, such signing statements are traditional, dating back at 

least to 1821. Second, they are both lawful and appropriate. And 

third, far from being a threat to checks and balances, they are an 

essential part of a respectful constitutional dialogue——

8

Mr. NADLER. Mr. Chairman, would you ask the witness to speak 

a little closer to the microphone, please? 

Mr. ELWOOD. I would be happy to. I am sorry about that. Certainly. 

Third, far from being a threat to checks and balances, they are 

an essential part of a respectful constitutional dialogue among coequal branches of Government. 

Let me be clear from the outset. Article I of the Constitution 

gives Congress exclusive legislative power, a clear and unequivocal 

mandate. These statements do not subvert the authority of Congress nor do they arrogate to the executive branch any authority 

with which it is not constitutionally entrusted. 

Beginning in the early days of the Republic under 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. The use of such constitutional 

signing statements has greatly increased in recent decades, and 

such statements have been issued by every President since Franklin Roosevelt. Traditionally, Presidents 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 this long tradition reflects, signing statements are not acts of 

Executive defiance of Congress, nor are they an indication that the 

President will adhere to the laws selectively as he wishes. While 

signing statements often seek to preserve the Executive’s 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’s signing statements are consistent with those of 

his predecessors and give voice to views expressed by Presidents of 

both parties, including Presidents Truman, Eisenhower, Carter, 

and Clinton. In fact, after a detailed study, the Congressional Research Service concluded that, ‘‘It is important to note that the substance of President Bush’s signing statements do not appear to differ substantively from those issued by either Presidents Reagan or 

Clinton.’’

Professors Curtis Bradley of Duke Law School and Eric Posner 

of the University of Chicago noted that they were, ‘‘almost identical 

in wording,’’ 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, an exercise 

of the President’s obligation under Article II to take care that the 

laws be faithfully executed and to preserve, protect and defend the 

Constitution. In executing new laws, the President must interpret 

their meaning both standing alone and in light of supreme law, the 

Constitution. As the Supreme Court held in Boucher v. Synar, ‘‘Interpreting a law enacted by Congress to implement the legislative 

mandate is the very essence of execution of the law.’’ Moreover, the 

Congressional Research Service recently concluded that, ‘‘No constitutional or legal deficiencies adhere to the issuance of such statements.’’

9

During the Clinton administration, Assistant Attorney General 

Walter Dellinger noted that such statements were, ‘‘legitimate and 

defensible.’’ And Harvard Law School Professor Laurence Tribe recently said that such statements are, ‘‘constitutionally 

unobjectionable,’’ a judgment shared by Professors Bradley and 

Posner. 

Third, far from being a threat to the rule of law, these statements promote comity by publicly informing coequal 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 redressable issues. 

Signing statements seek to promote a dialogue between the 

branches of Government to ensure that the President faithfully 

executes the law while respecting Congress’ exclusive authority to 

make it. 

I thank the Committee for allowing me to testify, and I would be 

happy to answer any questions you may have. 

Mr. CONYERS. Thank you, sir. 

[The prepared statement of Mr. Elwood follows:]

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PREPARED STATEMENT OF JOHN P. ELWOOD


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Mr. CONYERS. The Honorable Mickey Edwards, welcome back 

here. 

TESTIMONY OF THE HONORABLE MICKEY EDWARDS, FORMER 

MEMBER OF CONGRESS FROM THE STATE OF OKLAHOMA, 

ASPEN INSTITUTE 

Mr. EDWARDS. Thank you, Mr. Chairman, Mr. Smith, Members 

of the Committee. Thank you for having me back. It is a pleasure 

to see so many old friends here. 

I think it is important to establish one thing at the outset. This 

is not about signing statements as we have known them in the 

past. Presidents typically accompany their signing of legislation 

with some comments expressing an opinion about the bills they 

have just signed into law. The issue is not whether or not Presidents have an equal right to be heard. It is not about whether or 

not the courts should take a Presidential opinion into account when 

considering the intent of a 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 of the United States is above the 

law, because the moment he signs the legislation that you have 

presented to him, it is not merely a proposal, not a bill, not a statute; it is the law, and it is binding upon every citizen of the United 

States, whether a street sweeper or the President. 

The powers 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 it 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 I, Section 7, a President who finds a piece of a law 

unconstitutional has the authority, the right, the obligation under 

the Constitution to veto it, 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 executive 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 agency to report on 

some matter, but at best that requirement simply becomes a suggestion and probably one that will not be taken too seriously. 

It has been argued that some of the concerns that a few of us 

have expressed are exaggerated. Defenders of these Presidential 

assertions claim 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 regard to the Administration’s agreements with 

27

the FISA Court on Electronic Surveillance, how can the Congress 

or the public know whether or not the law is being complied with? 

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—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 is 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 what shall not be law. 

It is the obligation of Congress to act as a completely separate, a 

completely independent, and a completely equal branch of Government regardless of whether the President is of your party or another party. It is your job to determine the law and to ensure that 

the law is obeyed. 

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 withhold appropriations, to conduct hearings, to compel testimony under oath, to 

grant itself standing before the courts to ensure that the United 

States does not devolve into a system the founders feared and 

worked so hard and so long to avoid. 

Thank you, Mr. Chairman. 

Mr. CONYERS. Thank you, Mr. Edwards. You have become the 

first person under my chairmanship to have exceeded your time, by 

7 seconds. 

Mr. EDWARDS. Ah. Well, I am sorry, Mr. Chairman. 

[The prepared statement of Mr. Edwards follows:]

PREPARED STATEMENT OF THE HONORABLE MICKEY EDWARDS,

FORMER MEMBER OF CONGRESS

Mr. Chairman, Mr. Smith, Members of the Committee: 

Thank you for inviting me. It is good to see so many old friends here. 

I think it’s important to establish one very important point at the outset. This 

is not really about presidential ‘‘signing statements’’ as most of us have known 

them. Presidents typically accompany their signing of legislation with some comments, written or spoken, expressing an opinion about the bills they’ve just signed 

into law. The issue here is not whether or not Presidents have an equal right to 

be heard, and it’s not really about whether or not the Courts should take a presidential opinion into account when considering the intent of a law, although I would 

think that to be a very iffy proposition and would hope the Courts would continue 

to think so, too. 

The question here is much more fundamental than those. The question is whether 

or not the President of the United States is above the law. Because the moment he 

signs the legislation that is presented to him, it is not merely a proposal; it is the 

law, and it is binding upon every citizen, whether a taxi driver, a street sweeper, 

28

or the President of the United States, because when it comes to the law, we are 

all equal and we are all equally bound. 

The powers 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 it law, but he may also refuse 

to sign it, to veto it, to refuse to have anything to do with making it the law. But 

those are his only choices, sign it (and be bound by it) or veto it, and hope his veto 

will not be overridden. The objection I would put before you is not to the use of presidential ‘‘signing statements’’—Presidents, like the rest of us, are free to say whatever they want whenever they want—but to assertions that the President may 

choose whether or not to abide by the law. 

Further, there is a view of the presidency, articulated by the current holder of 

that office, which considers the entirety of the Executive Branch of Government to 

be a single unit under the sole direction of the President. According to this theory 

of the ‘‘unitary executive’’, the legislative branch of government may not instruct executive branch agencies in the performance of their duties. Thus, 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 may require a 

federal agency to report on some matter, but at best that requirement would become 

simply a suggestion, and probably one that is not taken too seriously. 

It has been argued that the concerns some of us have expressed are exaggerated. 

Defenders of these presidential assertions claim that they know of no instance in 

which the President, having declared himself not bound by a law, has nonetheless 

refused to comply with it. To this there are two responses. 

The first is simple enough: if agencies refuse to inform the Congress—as, indeed, 

the Attorney General has recently refused to do in regard to the Administration’s 

purported agreements with the FISA court on the electronic surveillance of American citizens—how can the Congress or the public know whether or not the law is 

being complied with? 

But the second is even more important: a presidential assertion of the right to 

ignore the law must be challenged, and challenged forcefully, or it will become 

precedent. If the current President asserts that extra-constitutional authority, even 

though he may not himself fail to comply with the law, future Presidents may rely 

on that unchallenged assertion to disobey future laws. 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 vested in the Congress or the powers vested in the Congress or the rights of the Congress. But this 

is not a question of authority or powers or rights: it is a question of duty and of 

responsibility. Every member of Congress took 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 what shall not. It is the obligation of the Congress to act as a completely separate, completely independent, and completely equal 

branch of government, determining the law and ensuring that the law is obeyed. 

This Congress must—must—block any attempt by any President to treat the peoples’ representatives with contempt. This Congress must use its considerable powers—to withhold appropriations, to conduct hearings and compel testimony under 

oath, to grant itself standing before the Courts—to ensure that the United States 

does not devolve into the system the Founders feared and worked so hard and so 

long to avoid. Presidential signing statements may not sound like such a big deal, 

but they are declarations of the right of a President to be above the law, and that 

is a path that, once taken, will prove ultimately fatal to our democracy.

Mr. CONYERS. Ms. Mathis. 

TESTIMONY OF KAREN J. MATHIS, PRESIDENT,

AMERICAN BAR ASSOCIATION 

Ms. MATHIS. Good morning, Mr. Chairman, Ranking Member 

Smith, and Members of the Committee. 

My name, as you know, is Karen Mathis. I am the president of 

the American Bar Association. I practice law in Denver, Colorado. 

It is a great honor to be here with you today and to represent the 

policy of our 413,000 members. 

29

The ABA Task Force on Presidential Signing Statements and the 

Separation of Powers Doctrine 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 of both conservatives 

and liberals—Republicans and Democrats—individuals who have 

had experience in Government in the legislative and executive 

branch, the judiciary and in constitutional law. A list of those committee members is appended to my written testimony. 

At the ABA’s August 2006 meeting, our House of Delegates 

adopted the unanimous recommendations of that task force as a 

comprehensive policy reflecting the views of the ABA on the use 

and potential misuse of Presidential signing statements. Specifically, the policy, ‘‘opposes as contrary to the rule of law and our 

constitutional system of separation of powers the misuse of Presidential signing statements,’’ that claim in those signing statements 

the authority or, I should say, an intention to disregard or decline 

to enforce all or part of a law the President has signed or to interpret such 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 25 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 

and 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 this single, finely wrought, and exhaustively considered process. 

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 nullify a provision of the 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 enforcement of a provision on constitutional grounds would also abrogate the power of the 

judicial branch to make its own determination of constitutionality. 

ABA 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 have discussed. 

These recommendations are directed to the practices of various 

Presidents, and they represent a call to all Presidents to fully respect our constitutional system of separation of powers. These recVerDate 0ct 09 2002 12:08 Jun 13, 2007 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6601 F:\WORK\FULL\013107\32844.000 HJUD1 PsN: 32844
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ommendations urge the President to, number one, communicate 

concerns about the constitutionality of any pending bills in Congress before their passage and, number two, to confine the content 

of signing statements to views regarding the meaning, the purpose, 

and the significance of bills and to veto a bill that he believes is 

unconstitutional. 

Our four recommendations also urge Congress to enact legislation that, number one, requires the 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 of use to you, Mr. Chair, 

and to your Committee as well as to Congress and the Executive 

both. Thank you. 

Mr. CONYERS. Thank you so much. 

[The prepared statement of Ms. Mathis follows:]

31

PREPARED STATEMENT OF KAREN J. MATHIS


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Mr. CONYERS. Professor Rosenkranz. 

TESTIMONY OF NICHOLAS QUINN ROSENKRANZ, ASSOCIATE 

PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER 

Mr. ROSENKRANZ. Mr. Chairman, Mr. Smith, Members of the 

Committee, I thank the Committee for the opportunity to express 

my views about Presidential signing statements. 

I largely agree with the position put forth by Principal Deputy 

Assistant Attorney General John Elwood earlier this morning. 

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 it. 

Second, I will discuss the possibility of legislative responses to 

this practice. 

The most common, the most important, the most uncontroversial 

function of Presidential signing statements is to announce the 

President’s interpretation of the law. As the Supreme Court has explained, ‘‘[i]nterpreting a law enacted by Congress to implement 

the legislative mandate is the very essence of ‘execution’ of the 

law,’’ and the President interprets 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 emphatically do not, ‘‘reserve the right to 

disobey the law.’’ They do not declare that the statutes enacted by 

Congress are unconstitutional. In fact, they declare exactly the opposite. 

As President Clinton’s Office of Legal Counsel has explained, 

these sorts of statements are, ‘‘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, out of respect for Congress, will presume a different, constitutional meaning. The clear and crucial implication of 

these statements is that he will faithfully execute the laws as so 

interpreted. 

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 3(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 

44

impede a core Executive function would raise serious constitutional 

concerns. If Congress lacks the power to forbid the President from 

issuing signing statements altogether, as it almost certainly does, 

then it arguably lacks the power to achieve the same result with 

a cunningly crafted spending restriction. 

And while Section 3(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 if 

Congress could refuse to fund a core Executive function altogether, 

which is doubtful in itself, it hardly follows that Congress may manipulate the President’s use of his discretion with conditional appropriation. If Congress may not forbid the President from communicating his will to the executive branch, still less may it forbid 

him for communicating some thoughts but not others. 

Section 4 of the bill is also constitutionally problematic. It provides that Government entities shall not consider Presidential signing statements when construing Federal statutes. To the extent 

that 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 4 of the bill, which 

again forbids governmental entities from relying on Presidential 

signing statements, may constitutionally apply to courts. The question here is whether Congress can tell courts what tools and methods to use when interpreting Federal statutes. I considered this 

question at length in the Harvard Law Review 5 years ago, and I 

concluded that the answer is generally yes, Congress does have 

power to tell courts what methods to use when interpreting Federal 

statutes. 

The only question remaining is whether this particular rule of 

statutory interpretation would be wise. I have written that Congress should exercise this power, but a crucial aspect of my thesis 

is that it should be approached comprehensively. For this reason, 

I think that any rule on the matter should ideally be adopted as 

part of a coherent and cohesive code of statutory interpretation. 

In conclusion, the recent 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 general initiative of Federal 

rules of statutory interpretation. 

Thank you. 

Mr. CONYERS. Thank you very much. 

[The prepared statement of Mr. Rosenkranz follows:]

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PREPARED STATEMENT OF NICHOLAS QUINN ROSENKRANZ


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Mr. CONYERS. Professor Charles Ogletree. 

TESTIMONY OF CHARLES J. OGLETREE, JR., JESSE CLIMENKO 

PROFESSOR OF LAW, HARVARD LAW SCHOOL 

Mr. OGLETREE. Good morning, Congressman Conyers, and thank 

you for inviting me to appear before the House Judiciary Committee today. 

Let me say at the beginning, and to start where you did in expressing my condolences for Father Drinan. I actually have a 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 their eyes lit up watching this great man 

in his great service. He was still teaching at Georgetown at the 

time, and was still a great warrior. So I too share the loss of this 

great Massachusetts legislator and this great scholar and member 

of the faith. 

I wanted to first say that I think it is very important and useful 

for this Committee to look very carefully at the bill proposed by 

Congresswoman Sheila Jackson Lee and a comparable bill in 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 in using signing statements, and it requires a much more 

careful analysis than I think has ever happened before. 

Presidential signing statements reflect an important and necessary line of authority given to the executive branch to clarify and 

address matters of constitutional magnitude. They can promote 

transparency by signaling how the President plans to enforce or to 

interpret the law. They can also allow the President to more clearly 

define his perspective or understanding of the law’s parameters. 

One of the reasons it is important to pursue this topic of Presidential signing statements, however, is the unusual high number 

of both challenges of laws that have been passed by Congress and 

the exercise of signing statements. I think if you would put the five 

of us in a room for a half an hour we could give you accurate numbers, because the numbers that you have heard are widely disproportionate and often misreported. 

It is clear that President Bush has signed over 1,100 provisions 

challenging laws. At the same time, it is clear that he has issued 

a total of 150 signing statements, even though the number has 

often suggested that it is higher, but I think our consensus, if we 

had the opportunity to give you the real numbers, would be helpful. 

Why is this important, and why should this Congress be concerned about it? One of the important things is that there is no 

question that every modern President—Reagan, Bush, and Clinton—have used signing statements for the last 25 years, but what 

is remarkable is when you put that in context of those signing 

statements. According to several reports, President Reagan used, in 

order to challenge Congress’ authority, the veto 78 times, 39 times 

the actual veto laws, and 39 times they were pocket vetoes. President George H.W. Bush vetoed 44 bills, with 15 of them being 

pocket vetoes. President Clinton in his two terms vetoed 37 bills, 

including one pocket veto. President Bush in the 6 years that he 

has been in the White House only vetoed a single bill. 

63

So one of the fundamental questions posed by these actions is 

whether the President is using the signing statement in order to 

expand the authority of the executive branch at the expense of the 

legislative process. In other words, is he using the signing statement as a way to declare a law nonbinding without having to face 

the public scrutiny that comes with the veto or the possibility of 

a legislative override? 

And the essential issue is three quick examples that I want to 

point out in the time I have left. I will take your attention to one 

law passed in 2006, the Defense Appropriations bill, where the 

signing statement by one scholar, ‘‘reads like a unilateral alteration 

of a legislative bargain.’’ you may recall that Senator 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 in that provision. 

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, the Indian Government considered the signing statement 

that accompanied the law, announcing that the Administration 

would treat certain sections as merely advisory, as an indication of 

how the United States plans to interpret these sections. 

You have 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 

are merely advisory, what you had passed and submitted 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 will have to fear that if someone else 

replaces President Bush in the White House, that that new President with a new signing statement can come up with a totally independent and unique interpretation of what the law means. 

One final area that has generated an enormous amount of publicity is the issue of whether there is mail surveillance. And I hope 

during the questions we will have a chance to talk about how the 

President has interpreted that law to the detriment of Congress’ intent. 

Thank you very much. 

[The prepared statement of Mr. Ogletree follows:]

PREPARED STATEMENT OF PROFESSOR CHARLES J. OGLETREE, JR. 

Dear Congressman John Conyers and members of the United States House Committee on the Judiciary: 

My name is Charles J. Ogletree, Jr., and I am honored to have this opportunity 

to discuss the topic of presidential signing statements. 

I serve as the Jesse Climenko Professor of Law, and Executive Director of the 

Charles Hamilton Houston Institute of Race and Justice, at Harvard Law School. 

I have been a member of the Harvard Law School faculty for over twenty years. Additionally, I have had the honor and privilege of handling cases here in the District 

of Columbia during the early stages of my career, having represented clients in 

adult and juvenile proceedings in the local superior court and federal courts, as well 

as the courts of appeals. I have also had the honor of arguing cases before various 

state supreme courts and circuit courts, as well as the United States Supreme 

Court. At Harvard Law School, I teach the subjects of Criminal Law and Procedure, 

Professional Responsibility, and a host of clinical courses involving trial practice. 

64

1 A copy of my abbreviated biographical statement is attached. 

2For a thorough discussion of the history of presidential signing statements, see Phillip J. 

Cooper’s By Order of The President: The Use and Abuse of Executive Direct Action (2002). 

Moreover, I have had the honor of providing testimony, writing articles and books, 

and addressing matters of constitutional significance on a variety of occasions.1

I am also honored to be a member of the American Bar Association Task Force 

on Presidential Signing Statements and the Separation of Powers Doctrine, a committee that was convened last year by Michael Greco, immediate past President of 

the American Bar Association. The ABA Task Force, a bipartisan group of lawyers 

and jurists, released a report in July that was adopted by the American Bar Association at its annual meeting in August 2006. ABA President Karen Mathis has already discussed the Report and its approval. 

In my written and oral remarks today, I am not speaking on behalf of either the 

Harvard Law School or the ABA Task Force on Presidential Signing Statements and 

the Separation of Powers Doctrine. I am speaking in my individual capacity. 

Presidential signing statements reflect an important and necessary line of authority given to the executive branch to clarify and address matters of constitutional significance. They can promote transparency by signaling how the president plans to 

enforce or interpret the law. They can also allow the president to more clearly define 

his perspective or understanding of the law’s parameters.2 Official reports indicate 

that many former presidents have used signing statements in a wide range of legislative areas, and have generally done so without much objection or controversy. 

One of the reasons that it is important to examine this topic, however, is the unusually high number of signing statements that have been issued by President 

George W. Bush during his tenure in office. To be sure, the use of signing statements has been a staple of many presidents and reflects the Executive exercise of 

authority across ideological lines. At the same time there is a discernable pattern 

being employed by the current Administration and this pattern has resulted in unusual, and bipartisan concern. While it is true that former Presidents Reagan, Bush 

and Clinton relied upon presidential signing statements during the course of the 

past 25 years, the nature and extent of their use has been demonstrably greater 

under President Bush. 

At the same time, President Bush has declined to use the traditional method employed when the president believes legislation is unconstitutional, the veto. According to several estimates, President Ronald Reagan vetoed 78 bills, including 39 actual vetoes and another 39 pocket vetoes. President George H. W. Bush vetoed 44 

bills, with 15 of them being pocket vetoes. During his two terms, President Bill Clinton vetoed 37 bills, including one pocket veto. In contrast, during his six years in 

office, President George W. Bush, to date, has only vetoed a single bill. The unprecedented juxtaposition of President Bush’s failure to exercise a single veto, yet issuing 

a substantial number of signing statements, has created considerable concern, and 

explains the broad and bipartisan response to his actions. 

One of the fundamental questions posed by these actions is whether the president 

is using the signing statement in order to expand the authority of the executive 

branch at the expense of the legislative branch. In other words, is he using the signing statement as a way to declare a law non-binding, without having to face the 

public scrutiny that comes with a veto, or the possibility of a legislative override? 

In order to get a clearer sense of whether this is the case, it is necessary to examine 

very carefully how the signing statements have been used. On the other hand, there 

are numerous signing statements, particularly in the past few years, which raise serious questions about the exercise of executive authority, and serious issues of constitutional magnitude. 

The essential issue is whether a president, who objects to a law being enacted by 

Congress through its constitutionally prescribed procedures, should either veto that 

law, or find other ways to challenge it. Using signing statements, rather than vetoes, calls into question the President’s willingness to enforce duly enacted legislation, and it also denies the legislative branch any clear notice of the executive 

branch’s intent to not enforce the law, or to override laws that could have been the 

subjects of vetoes. 

It is hoped that the House Judiciary Committee will closely examine these matters and examine these issues carefully. Among the matters to be considered are the 

following: 

A signing statement that suggests that all or part of a law is unconstitutional 

raises serious legal considerations. It has been exercised more recently in lieu of an 

actual veto. While the President has considerable powers of constitutional interpretation, those powers must be balanced with the authority granted to other branches 

of government, including the legislative and judicial branches. When the President 

65

3 Christopher Kelley, The Unitary Executive and the Presidential Signing Statement 8 (June 

1, 2006), available at http://www.users.muohio.edu/kelleycs/conproject.pdf. See also Kelley, Do 

You Wish to Keep Tabs on the Bush Administration’s Use of the Bill Signing Statement? (January 12, 2007), available at http://www.users.muohio.edu/kelleycs/

refuses to enforce a law on constitutional grounds without interacting with the other 

branches of government, it is not only bad public policy, but also creates a unilateral 

and unchecked exercise of authority in one branch of government without the interaction and consideration of the others. 

One scholar who has written in this area has noted that President Bush’s attachment of a signing statement to the 2006 Defense Appropriations Bill ‘‘reads like a 

unilateral alteration of the legislative bargain.’’ The signing statement announced 

that the executive branch would construe provisions relating to detainees ‘‘in a manner consistent with the constitutional authority of the President to supervise the 

unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power,’’ and thus read an ‘‘implicit exception’’ 

in the McCain Amendment’s prohibition on ‘‘cruel, inhuman or degrading treatment 

or punishnment.’’ Trevor Morrison, an assistant professor of law at Cornell, observed that the Administration had understood the aim of the Amendment and had 

threatened to veto it, but had changed course and decided to support the Amendment, ‘‘partly because there were clearly enough votes for Congress to overcome a 

veto, and partly because the Administration had obtained a number of concessions 

on related matters, including a set of provisions severely restricting the federal 

courts’ jurisdiction to review the detention of enemy combatants at Guantanamo 

Bay.’’

Of course, the deeper objection to the use of presidential signing statements is to 

what extent any administration is taking a hostile attitude with respect to how statutes should be interpreted. This excessive exercise of executive power, coupled with 

the failure to use the authorized veto power, creates serious issues of constitutional 

magnitude, and requires a legislative response. 

One example of the potential dangers in the use of Presidential signing statements is the recent passage of the ‘‘Henry Hyde United States-India Peaceful Atomic 

Energy Cooperation Act. According to reports published in Indian newspapers, the 

Indian government considers the signing statement that accompanied the law, which 

announced that the Administration would treat certain sections law as merely advisory, as an indication of how the United States plans to interpret those sections. 

Thus, even if signing statements are not enforceable, this raises the concern that foreign countries might have expectations that we will interpret laws as signing statements announces. Additionally, there is a real concern that a country like India 

would worry that a future president could choose to interpret the law differently. 

There are important lessons to be learned from these efforts and, at the same 

time a need for transparency, in the relationship between the complimentary 

branches of government. One of the critical issues that this committee must consider is whether and to what extent the President’s exercise of signing statements 

is influenced by the war on terrorism or other matters of national security. That 

certainly seems to be the case when one examines the application of signing statements on issues like the USA Patriot Act, or other provisions having to do with the 

detention of suspected terrorists for long periods of time without any form of judicial 

review. In fact, according to one analysis, the President has used signing statements 

to challenge the constitutionality of more than 1,000 provisions of bills adopted by 

Congress. On hundreds of occasions he has object on the grounds that provisions 

have interfered with his ‘‘power to supervise the unitary executive,’’ or with his ‘‘exclusive power over foreign affairs,’’ or with his ‘‘authority to determine and impose 

national security classifications and withhold information.’’ 3 Such examples require 

further probing by the Senate Committee on the Judiciary, and more detailed and 

persuasive explanations from the executive branch. 

What is clear, in going forward, is the reaction of large segments of the media, 

across the country, to the suggestion that the Bush administration has sought authority to examine the mail of America’s citizens. While the White House has declared their efforts as simply to ‘‘clarify existing law’’, the media have found this 

argument unpersuasive. Among a sampling of the responses are the following: 

Several major newspapers have published editorials opposing the signing statement and any new it might grant the administration to review mail without a warrant. Many of these editorials argue that if, as the Bush administration contends, 

the signing statement only restates current law, the administration need not have 

issued it. These editorials reflect a growing public wariness of any signing statement 

issued by the administration as an attempt to expand executive power. See, e.g.,

‘‘Mail Privacy; Bush Signing Statement Raises Questions,’’ SUN SENTINEL, (Ft. 

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Lauderdale, Fl), January 24, 2007 (‘‘The Constitution and the law are very clear: 

except in an emergency, a warrant is required before any government agent can 

open first-class mail. Such clarity requires nothing further from the president, and 

the president shouldn’t have to be told to respect the law.’’); ‘‘Don’t Open Personal 

Mail,’’ HARTFORD COURANT, January 19, 2007 (‘‘Congress should move quickly 

to remove any potential for overreaching on the part of the White House. If the administration’s intentions were pure, there would have been no need to issue a signing statement.’’); ‘‘Privacy and National Security,’’ DENVER POST, January 16, 

2007 (‘‘Remember, this is the same reasoning that saw no problem with warrantless 

wiretapping of domestic phone lines. And President Bush just last month issued one 

of his notorious signing statements, attempting to nullify the intent of legislation 

by saying federal officials could open U.S. mail without a warrant. Once you’ve 

issued a signing statement to undermine anti-torture legislation, as the president 

did last summer, the next ones come too easy); ‘‘Signing Statements: Pushing the 

Envelope,’’ MILWALKIE JOURNAL SENTINAL, January 16, 2007 (The Constitution requires a warrant for a reason: to provide a judicial check against despotism, 

in which the authorities can search your belongings willy-nilly. Congress must stop 

Bush’s apparent attempt to erode this check); ‘‘Postal Inspector Bush?,’’ CLEVELAND PLAIN DEALER, January 16, 2007 (If President Bush really means nothing 

new by his signing statement, he should withdraw it—and provide Congress credible 

assurances that he was merely asserting a right to open mail, not already exercising 

it’’). 

While it may be that the public concern in that area may be premature, it is also 

true that Congress should exercise its legislative function and at a minimum, consider devising a arrangement that requires the administration to issue annual reports on how often it opens mail without a warrant. This process has been suggested in recent public discussions and seems like a modest, but important, step forward. 

Given the seriousness of these endeavors, the controversy that they have created, 

and the need for clarity and direction going forward, I am pleased that the House 

Judiciary Committee has decided to examine these matters, and to exercise its legislative mandate to review the use of this important and often invisible exercise of 

Executive authority. 

Ultimately, it is an important moment in history for Congress to not only review 

the use and application of presidential signing authority, but to as well determine 

its own role and responsibility in carrying out the legislation mandate as authorized 

by the Constitution.

Mr. CONYERS. I thank all of the witnesses for an excellent discussion, and I yield myself 5 minutes. 

Mr. Elwood, in the signing statement on last year’s PATRIOT 

Act reauthorization, the President claimed he could withhold information from Congress that the Justice Department is required to 

provide by the law if he decides that the disclosure would impair 

foreign relations or the deliberative process of the Executive. 

Has the Administration withheld any information based on this 

signing statement? 

Mr. ELWOOD. Chairman Conyers, the answer is no, it has not. I 

think this is an excellent example of how signing statements are 

not an indication that the law will not be enforced fully. The Administration has complied fully, or the Department of Justice has 

been cooperating fully with the Inspector General’s investigation 

there of the use of national security letters. 

The purpose of this signing statement was—it was a traditional 

one that has been made by Presidents Eisenhower and Clinton. It 

is just simply to note, as the Supreme Court held in the Department of the Navy v. Egan, that the President has authority over the 

classification of national security information, and he has a responsibility to make sure that it is safeguarded, and it is simply his 

way of saying, ‘‘Look, I anticipate that this is not going to be implicated here, and I understand you are legislating in light of that.’’

Mr. CONYERS. Thank you very much. 

67

Now, we are not having hearings on any of the bills that deal 

with signing 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? 

Mr. OGLETREE. Well, there are a number. 

First, it makes the idea of a veto, the normal legislative process, 

null and void when 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 have passed. There is not a ceremony. There is not a report back to you. If you look on the White House database of laws 

passed or anywhere else, you will have the version that you passed, 

but you will not necessarily have the signing statement—you have 

to search for it—and the idea that there is no reporting authority 

that requires the executive branch to let you know where there is 

some modification, expansion or substantive change. To make a law 

advisory is a monumental change, and it has a public and, now we 

see, an international impact. Those are two areas where it is of 

grave concern. 

The third, the final area, I would say is that it really frustrates 

Congress’ intent—and I think Senator McCain in particular, being 

a prisoner of war, being someone very concerned about war, someone who is even supporting the idea of more troops in Iraq, has 

still said torture should not be countenanced. And yet if you look 

at the signing statement and the reaction to the law passed by this 

Congress, President Bush’s signing statement undermines that intent which was clearly expressed by Senator McCain and, I assume, supported by the Members of Congress. 

It is those 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 undermined. 

Mr. CONYERS. Thank you. 

My final question to you and Ms. Mathis and Mr. Edwards is any 

recommendations that you have for the House Judiciary Committee 

to proceed on this. 

I have talked with Mr. Smith about our staffs going over to try 

to pull together the 148 signing statements that have already 

issued and the hundreds of laws that have been impacted, but 

where do we go from here? Quickly. 

Ms. MATHIS. Mr. Chairman, the Task Force of the ABA adopted 

their recommendations and suggested that Congress do two things: 

that it enact legislation that requires the President to submit a report to Congress, upon the issuance of statements that express the 

intent to disregard a law or decline to enforce, that includes an explanation for the reasons, and that come to Congress so that Congress knows, as Professor Ogletree has just said, what those objections are. 

The second thing that we have suggested is that there be legislation that 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. 

68

Mr. CONYERS. Any final comment? 

Mr. OGLETREE. Yes, Congressman Conyers. I served on the ABA 

Task Force and 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 it was adopted by the ABA, that to require the 

President to submit a report to Congress upon the issuance of 

statements that expressed the intent to disregard or decline to enforce a law. 

Now, the President can say and will say, ‘‘I intend to enforce 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 am following the law, but I am doing it 

as I have interpreted it, given my executive authority.’’

I would ask that you be a little bit more exacting, if that is the 

process that you decide to pursue. 

Mr. CONYERS. Thank you so much. 

Ranking Member Mr. Smith. 

Mr. SMITH. Thank you, Mr. Chairman. 

Professor Rosenkranz, let me address my first question to you. 

Have signing statements ever had any impact in court? Are they 

ever given any weight in law, or are we really just spending time 

on much to do about nothing? 

Mr. ROSENKRANZ. To this point, Presidential signing statements 

have been cited in a very small number of cases, a few Supreme 

Court cases, a few ninth circuit cases, and there is no indication 

that the signing statements changed the result in any of those 

cases. So, thus far, it is quite a limited phenomenon in Federal 

court. 

Mr. SMITH. 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 I appreciated it. 

Mr. OGLETREE. Thank you. 

Mr. SMITH. For example, you used a couple of phrases in your 

statement that I thought were revealing. One was 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 both sides of the question. 

A colleague of yours, who, like you, is well-respected and wellknown, is Professor Tribe. He had this to say about Presidential 

signing statements, including President Bush’s. ‘‘it has never been 

the case that anyone has taken a signing statement as anything 

more than a flourish on the part of the Chief Executive’s rhetoric. 

It is 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? 

Mr. OGLETREE. Well, I disagree with Professor Tribe, and we 

have discussed this extensively. In fact, I think when he learned 

that I was on the ABA Task Force, that generated the tremendous 

interest in his later positions. But at the same time, if you look at 

the complete record of what Professor Tribe has said, he has drawn 

69

a distinction between what he saw going on with prior Presidents 

and his concern of 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 disagreed publicly with the ABA report. 

Mr. SMITH. Maybe like a lot of good lawyers, he can argue both 

sides as well. 

Mr. OGLETREE. He has done that well. 

Mr. SMITH. Thank you. 

Ms. Mathis, let me ask you a question, and this is in regard to 

the ABA Task Force on Presidential signing statements. The task 

force did not find any cases in which a court relied on a Presidential signing statement. 

Do you have any evidence that you can tell us about to today 

that a Presidential signing statement has affected judicial decisions? 

Ms. MATHIS. Congressman Smith, the task force was not charged 

with looking at that specific issue that you have just raised. 

Mr. SMITH. Do you have any evidence that Presidential signing 

statements have affected any judicial decisions yourself or as a result of the task force or as a result of any source whatsoever? 

Ms. MATHIS. No, I don’t personally. The task force did not look 

at it. 

Mr. SMITH. The Congressional Research Service report said that 

a bill that is signed by the President retains its legal effect and 

character, irrespective of any pronouncements made in a signing 

statement. 

Do you agree or disagree with that Congressional Research Service report? 

Ms. MATHIS. Again, the task force gave its reports prior to that 

report. Our task force did not look at this. However, I would 

say——

Mr. SMITH. Well, I didn’t ask whether you looked at it. I asked 

you whether you agreed with it. 

Ms. MATHIS. I am 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 ABA. So the policy of 

the ABA does not deal with that particular point. 

Mr. SMITH. And you do not have an opinion on whether you 

agree or disagree with that report? 

Ms. MATHIS. I do not have a representative opinion, no. 

Mr. SMITH. Thank you, Mr. Chairman. 

Mr. CONYERS. Mr. Jerry Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. 

I must say this is a very troubling topic, and it is not just the 

signing statements, it is what is behind them. 

Professor Ogletree, you said that when the President refuses to 

enforce the law on constitutional grounds without interacting with 

the other branches of Government, it is not only bad public policy, 

but also creates unilateral and unchecked exercise of authority in 

one branch of Government without the interaction and consideration of the others. 

70

Signing statements aside, with or without a signing statement, 

doesn’t the President have an oath under the Constitution, and if 

there is a law he feels unconstitutional, how can he possibly enforce it? 

Mr. OGLETREE. Well, you are right, he does take an oath and has 

an obligation. I think this President, and I would say more so than 

recent Presidents, has determined what he believes the law allows 

him to do. I think, as you can see from my statement, it is not 

clouded. The exercise of Presidential signing statements in the last 

several years, I would say, is impacted by the events of September 

11, 2001. 

Mr. NADLER. And by secrecy. 

Mr. OGLETREE. Exactly. That explains it, but it doesn’t justify 

the idea of not having a bipartisan effort between Congress and the 

executive branch to decide what the law will be. 

The biggest concern I have is since there really is no transparency, you don’t know. You don’t know if you pass a law today 

and it is signed, you don’t know what the ultimate law will be—

you know what the law will be, what it says, but you don’t know 

how it will be interpreted in ways that will have an impact. 

Mr. NADLER. But that is true regardless of signing statements. 

We pass a law today, President Smith 10 years from now could decide in some circumstance that we cannot foresee that his enforcement of that law would be unconstitutional, and it would be his 

duty, I think, not to enforce that law. What could we do to make 

that not just unilateral? 

Mr. OGLETREE. I think you have to have a reporting requirement 

so that each signing statement is available in a prompt and responsible, comprehensive way to Congress. 

Mr. NADLER. Thank you. 

Now, Ms. Mathis, you said in your testimony that the ABA recommends that the Congress enact legislation that enables the 

President and Congress and other entities or individuals to seek 

appropriate judicial review when the President expresses the intent 

in a signing statement to disregard or decline to enforce a law. 

How do you square that with the case in controversy requirement of the Constitution? In other words, is that asking the Supreme Court for an advisory opinion? 

Ms. MATHIS. Two things, Congressman. The first thing we are 

suggesting is that under Article I, Section 7, 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 expedited hearing. 

Certainly Congress needs to work with the executive branch to 

determine that it is not an unconstitutional review. The case in 

controversy issue raised, as well as standing, as well as ripeness, 

are all issues which would require careful thought and review to 

craft legislation which would allow such a review. 

Mr. NADLER. I agree with you on that. Congress could deal legislatively to some extent with the ripeness and standing provisions, 

but I am not sure that we could deal, short of constitutional 

amendment, with the case in controversy requirement. 

71

Ms. MATHIS. I think that the issue would become whether or not 

there is, in fact, de facto a case in controversy once there had been 

a signing statement as opposed to a veto. 

Mr. NADLER. Very good. 

Let me ask you one other question. Several people have said 

there ought to be reports on these. The United States Code, Section 

28 U.S.C 530D says the Attorney General shall submit to the Congress a report of any instance in which the Attorney General or 

any officer of the Department of Justice establishes or implements 

a formal or informal policy to refrain from enforcing, applying or 

administering any provision of any Federal statute, rule,’’ et cetera, 

et cetera, ‘‘on the grounds that such provision is unconstitutional.’’

Mr. Elwood, has the Attorney General been issuing such statements with regard to every Presidential signing statement, saying 

we have used this and have, in fact, not enforced this law or this 

provision because it is unconstitutional? Have we been getting 

those reports? 

Mr. ELWOOD. Congressman, two things. First of all, the Department of Justice recently reported to the Senate Judiciary Committee that it had complied fully with the terms of 530D. It hasn’t 

issued anything with respect to signing statements because, as I 

said earlier, a signing statement is not a policy of nonenforcement. 

Mr. NADLER. Okay. Let me ask my last question, because I see 

I have the yellow light. 

In view of this Administration’s penchant for secrecy, how can 

Congress and the American people challenge violations of law when 

they occur? If the President declines to enforce a provision of law 

on the grounds it is unconstitutional, but nobody knows about it, 

how is this other than untrammeled executive power that is 

unreviewable and unchallengeable, and that would be completely 

contrary to separation of powers and our general situation with 

limited government? 

In other words, how do you square the President’s ability or asserted ability not to enforce certain provisions of the law on the 

grounds that it is unconstitutional with the secrecy? 

Let me ask you, let me be more specific: Should the President, 

if he thinks that something is unconstitutional, be mandated to tell 

Congress that before he declines to enforce it, despite whatever he 

thinks about the classification of secrecy or national security? And 

if the answer is no, how do we prevent tyranny? 

Mr. ELWOOD. Congressman, I think that 28 U.S.C 530D provides 

sort of an effective notification mechanism, because anytime whatever agency would implement it, they would have an obligation 

under that provision. 

Mr. NADLER. Well, given what the President has just done, or the 

Attorney General rather——

Mr. CONYERS. Excuse me, the gentleman’s time has expired. 

Mr. NADLER. May I have 1 additional second? 

Mr. CONYERS. No, sir. 

Jim Sensenbrenner. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. I 

will stay within the 5 minutes. 

First of all, let me say that I don’t think Presidential signing 

statements are any big deal. They are extraconstitutional, but so 

72

are Committee reports that a majority of Committees in Congress 

submit on behalf of legislation trying to further clarify it. Those 

Committee reports are not voted on by the House of Representatives. They are not presented to the President, should a bill be enacted into law for his approval or veto. It is simply an opinion. And 

I think the President is entitled to his opinion just as much as 

every one of us are and 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 9th from Professor Lawrence Tribe, 

whom we all know is no conservative and definitely no strict constructionist of the Constitution, that says that the ABA Task Force 

report opposing the signing statements barks up a constitutionally 

barren tree. 

I would like to ask unanimous consent to include this article in 

the record at this point. 

Mr. CONYERS. Without objection, so ordered. 

[The information referred to can be found in the Appendix.] 

Mr. SENSENBRENNER. Now, Ms. Mathis, in the very first sentence 

of the ABA report on this issue, it approvingly quotes an article 

from the Boston Globe that states, ‘‘President Bush has quietly 

claimed authority to disobey more than 750 laws enacted since he 

took office.’’

But that statement by the Boston Globe reporter is false. In fact, 

on May 4, 2006, a full 3 months prior to the ABA’s issuing the report, the Boston Globe itself issued a correction in which it stated, 

‘‘Due to an editing error, the story misstated the number of bills 

in which Bush has challenged provisions.’’

Now, can you explain why in the editorial judgment of the ABA 

it was deemed appropriate to lead in its report with an approving 

quotation of a statement in the Boston Globe which the Globe itself 

had admitted was in error 3 months earlier? 

Ms. MATHIS. 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 150 signing statements issued, and that 

the total number of provisions are over 1,100. I cannot specifically 

state to you, because I was not on the task force, why we lead with 

that. 

Mr. SENSENBRENNER. Well, let me observe, in the words of law 

professors that I heard, when you use a quotation that has been 

retracted by the author, that is unlawyerlike, and I think that the 

American Bar Association was unlawyerlike because the retraction 

by the Boston Globe of the number in its article occurred 3 months 

before the task force issued its report. 

I would hope that the next time the ABA comes before this Committee, they would be more accurate in the sources that they use 

to quote in support of their positions. 

I yield the balance of my time to the Ranking Member from 

Texas Mr. Smith. 

Mr. SMITH. Thank you for yielding time. 

Ms. Mathis, let me follow up on a couple of questions here. First 

of all, going back to the task force, while you mentioned that it was 

bipartisan, Republicans, Democrats, conservatives, liberals, there 

73

doesn’t seem to be much diversity when it comes to philosophy, 

and, as I understand it, every member or almost every member of 

the task force had previously expressed disapproval of President 

Bush’s signing statements. 

You are welcome to counter that if you want to, but more specifically, Walter Dellinger, who was President Clinton’s legal advisor 

and who is considered an expert on such subjects, was he invited 

to join the task force? 

Ms. MATHIS. I can’t tell you, Congressman, if he was or not. I did 

not appoint the task force. I do note that one of the task force 

members is with us today, and that is the Honorable Mickey Edwards, who, as you will recall, served in this Congress as a Republican, and he stated himself that he agrees with this. 

Mr. SMITH. My point was the membership of the task force 

seemed to all be opposed to the President’s signing statements, 

and, therefore, you only heard perhaps one side of the issue. Do 

you have any evidence that members of the task force—or can you 

name any individuals of the task force who did not already oppose 

publicly the President’s signing statements? 

Ms. MATHIS. I am 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 task force went 

through that process. 

Mr. SMITH. Perhaps later on you can get back to me with the 

names of anyone who hadn’t already showed a bias. 

Mr. OGLETREE. 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 deliberations were confidential or private, they 

were intensely debated across theological points of view. 

Let me just finish my point. The concern was not just President 

Bush, but President Clinton, President Reagan. It was across ideological points of view, and it included members who had served in 

those Administrations and wanted to defend it. But I think there 

was a very different range of perspectives offered. 

Mr. SMITH. Maybe you were the exception, but maybe you didn’t 

become the exception on the basis of your testimony today. But my 

time is up. 

Mr. CONYERS. Mr. Robert Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I want to thank all of our 

witnesses. Let me just go through a couple of questions to see 

where we are. 

If a bill is presented to the President, it is a large bill and has 

a small provision in it that is unconstitutional, and the President 

wants to sign the bill, but says that provision is unconstitutional, 

and everybody knows it, should he be expected to enforce that provision because it is technically in the code? 

If everybody knows it is unconstitutional and, it is in fact unconstitutional, should he enforce it, or should he not enforce that position? 

Ms. MATHIS. 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 a bill is unconstitutional, sends it to Congress, 

74

and asks Congress to remedy that before the bill is sent to the 

White House for signing. In the event Congress fails to do that, Article I, Section 7 says the President has the right and certainly perhaps he would feel the duty to veto that bill. 

Mr. SCOTT. He signs it and says it is unconstitutional. Should he 

enforce that unconstitutional provision of the law? 

Ms. MATHIS. He shouldn’t sign it. He should veto it. 

Mr. SCOTT. Well, if he signs it. Sometimes you don’t have that 

option. If it is a big, huge omnibus bill, sometimes just the politics 

of it is such, Congress has adjourned and gone home, he can sign 

it or veto it, and he signs it, and it includes the welfare reform and 

a little charitable choice provision that President Clinton talked 

about. That was just almost an afterthought in terms of the overall 

bill. 

Should he enforce that part? He signed it. Should he enforce that 

unconstitutional part of the law? The better practice is to veto the 

bill, but he signed it. Now what? Does anybody think he ought to 

enforce an unconstitutional provision in the law? 

Mr. EDWARDS. May I address that? 

Mr. Scott, he will have violated his oath of office if he signs it 

believing it to be unconstitutional. I served in this body a long 

time, and the practice is, the reality is that if a President finds a 

part of the 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 in the offending provision 

being removed. 

Mr. SCOTT. You have been a legislator long enough to know what 

a poison pill is. You can stick some very popular unconstitutional 

stuff in a bill and expect the President is not going to veto it because you stuck something in there. 

Does anybody think if he does sign it, whether he violated his 

oath or not, he signed it, now, should he do something that everybody knows is unconstitutional? 

Mr. EDWARDS. Mr. Scott, he will have violated his oath, and he 

will be violating the law—he will violate his oath if he signs it. If 

he signs it and does not enforce it, he will be violating the law. 

There is no bill that is going to come before this Congress that 

is so urgent that it cannot wait a couple of days, whether it is 

water projects or veterans benefits, if it cannot wait long enough 

for the process of reconsideration to take place. 

Mr. SCOTT. We must be doing things different around here than 

they were doing when you were here. 

Mr. EDWARDS. That is obviously true. 

Mr. SCOTT. So everybody expects if he has signed the bill, he is 

expected to enforce unconstitutional provisions of that bill? 

Ms. MATHIS. I will say the next point that we made in our task 

force, Congressman, let’s say the President or someone missed 

something that 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. 

Mr. SCOTT. If it is constitutional, but he just didn’t like it, does 

his declaration in a signing statement have any impact on the ascertainment of whether or not the provision is constitutional? 

75

Ms. MATHIS. Well, there are two issues there. The first is whether or not the unitary executive is going to enforce an allegedly unconstitutional provision or perhaps he won’t and then the executive 

branch will not. 

The second issue is the transparency, and that is whether the coequal parts of our Government, namely this Congress, have the 

right to have a report, and, secondly, whether our judiciary branch 

has the right to ultimately determine constitutionality. So you have 

a number of issues. 

Mr. SCOTT. But if the President’s statement does not help ascertain whether or not the provision is constitutional, the courts have 

not put any weight on the President’s declaration that in his opinion it is unconstitutional? 

Ms. MATHIS. We don’t see it being that issue, we see it being the 

issue of the coequal branch of Government, the legislative branch, 

not knowing what the executive is not enforcing. It is very difficult 

to prove something which is not happening. 

Mr. SCOTT. Well, that is the next step. 

Let me just ask a follow-up, since I just have a couple of seconds. 

Ms. Mathis said that the case in controversy would exist at the 

signing statement. Does anybody disagree with that, in terms of 

getting judicial review? 

Mr. ROSENKRANZ. Yes, sir. I think it would be very difficult for 

Congress to create a case or controversy surrounding just the legality of a signing statement. I think a case or controversy wouldn’t 

exist until the President acted in some way. 

Mr. CONYERS. The gentleman’s time has expired. 

Members of the Committee, we have four votes, one 15-minute, 

three 5-minute. So the Committee will stand in recess until 12:30 

p.m. 

[Recess.] 

Mr. CONYERS. I thank the Committee and the witnesses for their 

patience. We were called back on an unscheduled vote. 

The Committee will come to order. The Chair recognizes Mr. 

Coble of North Carolina. 

Mr. COBLE. Thank you, Mr. Chairman. 

It is good to have you all with us today. 

Folks, what I am about to say is subject to personal interpretation, but it is my belief that courts either ignore or rely upon signing statements in a very unsubstantial way, and therefore it is my 

further belief that signing statements probably do not alter the 

law’s legal effect. 

Now, Professor Rosenkranz, let me ask you this: What legal 

value—strike that. First of all, do you agree with my interpretation? 

Mr. ROSENKRANZ. I agree with you, sir, that courts have thus far 

relied on signing statements very little. 

Mr. COBLE. What legal value then, Professor, do Presidential 

signing statements provide? 

Mr. ROSENKRANZ. Well, one function of Presidential signing 

statements is to instruct the executive branch in the President’s interpretation of the law, and that can be a valuable and important 

function of the signing statement. 

Mr. COBLE. I thank you. 

76

Mr. Edwards, I want to ask you a question, but I want to first 

say to Ms. Mathis, I want to associate with Mr. Sensenbrenner’s 

remarks about the inaccurate article that appeared under the title 

of the ABA Task Force. I think, Ms. Mathis, the ABA could and 

should have done better. I think there is no substitute for accuracy 

and truth, for what that is worth. 

Ms. MATHIS. Congressman, thank you for bringing that up, because I hoped to put on the record the fact that I did some research 

during the recess, and, in fact, the April 30th language that 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 30th, which was clarified and corrected on 

May 4th. 

So the ABA does, in fact, sir, stand by the quote. It was accurate. 

It never did change. 

Mr. COBLE. Thank you. 

Mr. Edwards, good to have you back on the Hill, by the way, and 

the rest of you as well. 

In your criticism of the President’s use of signing statements, Mr. 

Edwards, you argued that Congress has a constitutional duty and 

responsibility to ensure what shall be law and shall not. 

Do you agree and argue that the judiciary also has a similar constitutional duty and responsibility? 

Mr. EDWARDS. Certainly. Certainly. However, the judiciary—the 

justice—well, may I first go back to a point you made just an a moment ago, and then I will answer your question. It is true that a 

signing statement does not alter——

Mr. COBLE. Unlike the Professor, you are not going to agree with 

me, right, Mickey? But go ahead. 

Mr. EDWARDS. A signing statement does not change whether or 

not what was enacted into law is, in fact, law. The signing statement doesn’t change it. The signing statement only goes to the 

point of whether or not the President intends to comply with the 

law. That is what the issue is. 

The questions keep coming back to the issue of how the courts 

are going to interpret this. This isn’t a matter of the courts, it is 

a matter of whether or not the Congress of the United States decides, after deliberation, debate, discussion, hearings, to make 

something the law, and whether or not the President is then bound 

to comply with that. 

Mr. COBLE. With that, Mr. Chairman, I yield the balance of my 

time to the distinguished Ranking Member, if he wants to take the 

time. 

Mr. SMITH. I thank the gentleman for yielding. Mr. Chairman, I 

have more questions I would like to squeeze in before I know we 

have to go vote. 

Professor Rosenkranz, I wanted to follow up on some points that 

other witnesses have made earlier this morning. There has been a 

lot of talk about numbers. President Bush has had, I think, 150 

signing statements. President Clinton had 107 or thereabouts. 

When you look at the percentage of overall bills, they are about the 

same. 

77

But are numbers really relevant to the point, to the larger point, 

which is to say they are not binding; it doesn’t matter what number, how many there are; it doesn’t matter what they say; they still 

have no legally binding effect? Would you want to comment on the 

question of numbers and whether they are significant or not? 

Mr. ROSENKRANZ. Yes, sir. There has been quite a bit of confusion about the numbers, but you are quite right that the broader 

point is these statements are entirely proper and legitimate. So the 

President has every right and every obligation to announce his interpretation of the law that he is signing, and that is the central 

function of a Presidential signing statement, which this President 

has used, and which prior Presidents have used. 

Mr. SMITH. Mr. Elwood, do you have anything to add to that? 

Mr. ELWOOD. On the numbers issue, I think part of the confusion 

stems from the fact that the Boston Globe article, the first time it 

appeared, referred to 750 laws. I think it might be more accurate 

to say 750 provisions of law, since ERISA—it is one law. 

Mr. SMITH. Is the number important or relevant at all anyway? 

Mr. ELWOOD. I think the numbers—to begin with, I think they 

are entirely proper, so I don’t think it matters whether there are 

105 or 125, and I think that all of them are also close enough within the ballpark so that the current President’s practice doesn’t depart from the historical practice. 

Mr. SMITH. Thank you. 

Thank you, Mr. Coble. 

Mr. COBLE. I yield back, Mr. Chairman. 

Mr. CONYERS. Thank you. 

Ladies and gentlemen, yet another vote has been called. We have 

on our side of the aisle Mr. Schiff, Mr. Davis, Mr. Watt and, of 

course, Ms. Jackson Lee, and Mr. Feeney. I would leave it to you 

five to determine whether we can share the rest of the time among 

you, or would any of you want to come back to get your questions 

in? What is your pleasure? 

Mr. DAVIS. Mr. Chairman, can I ask one question of the Chair? 

Has the vote actually been called, or is it about to be called? 

Mr. CONYERS. I have been told it has been called. 

Ms. JACKSON LEE. No, it hasn’t been called. 

Mr. DAVIS. The bells aren’t on. It literally hasn’t been called at 

this point. 

Mr. CONYERS. Can someone check to see where we are on the 

vote? 

The next person then is Mr. Mel Watt of North Carolina. 

Mr. WATT. Thank you, Mr. Chairman. I will try to be brief. 

It should come as no surprise that since Representative Coble 

and I are both from North Carolina, we probably have been drinking out of the same well. As a legal matter, we might be closer together than people might think. As a legal matter. As a practical 

matter, though, I have some concerns about the way these signing 

statements have been employed by this Administration, and it is 

there that I start to raise questions. 

If the President has decided that he is going to be the final arbiter of the constitutionality of an issue, and he is going to act accordingly, two questions arise. Number one, what happens immediately after that? And on that, I would like Mr. Elwood to tell me 

78

what, if anything, the President or the Administration has done. 

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 2004, where Congress required 

the National Intelligence Director to recruit and train women even 

and minorities in order to diversify the Intelligence Community? 

I don’t argue with the President’s ability to sign a signing statement saying, I am going to interpret this in accordance with the 

Constitution, or whatever amendment of the Constitution he is relying on. What I want to know is what he did after he signed the 

signing statement. Has the Administration, in fact, done anything 

to diversify the Intelligence Community in terms of women and minorities? 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 is kind of the concern I have. It is not so much—and I 

am not even sure I agree that—I am kind of where Representative 

Scott was. How does one, once the President takes an action or 

doesn’t take an action that 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 maybe the other witnesses to address. 

With that, I think I will maybe yield back the balance of my 

time. 

You are here as a legal counsel for the U.S. Department of Justice, so you can speak for the Administration and find out what 

they did after this signing order, I take it? 

Mr. ELWOOD. Yes. I will definitely take a look into that, but if 

I could address some of the other points? 

Mr. WATT. Unless you know the answer to that question, I would 

rather have a researched answer than a surmise about what they 

did or did not do. 

Mr. ELWOOD. But if I could, just to make a couple of points about 

other things you said, the President does not mean—we don’t attempt through the signing statements——

Mr. WATT. I have heard that, Mr. Elwood. I take you at your 

word on that. In this particular case, I would like to know did he 

follow through and start to diversify, or did he use his interpretation of affirmative action and its constitutionality to refuse to do 

what Congress said? That is 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 am not trying to cut you off, I am just trying to make it 

convenient for my other colleagues not to keep you all here until 

after another vote. 

With that, I yield back the balance of my time. 

Mr. CONYERS. I thank the gentleman. 

Former speaker of the house of Florida, Mr. Feeney. 

Mr. FEENEY. I used to be somebody, Mr. Chairman. 

I will be brief, because I know we have two or three colleagues 

that would like to get in. 

79

I would like to ask Ms. Mathis from the ABA, isn’t the issue of 

Presidential signing statements really a bogeyman here? Isn’t what 

you are really concerned about is the President not enforcing part 

of a law, basically cherry-picking what he or she likes and doesn’t 

like? I know, Mr. Edwards, that is what I understood your point 

to be. Isn’t that your main concern? And even if you did away with 

signing statements, couldn’t Presidents just continue to ignore portions of laws they didn’t want to enforce? 

Ms. MATHIS. The concern of the task force and also of the ABA 

by the vote of its 546 members of the House of Delegates is much 

broader than that. The concern is the constitutional checks and 

balances because the Constitution clearly calls upon the President 

to veto a bill that he believes is unconstitutional. 

Mr. FEENEY. Let me ask you, because I want to follow up on that 

right there, suppose a portion of a bill is unconstitutional? Does everybody agree the President has an obligation to veto the entire bill 

if one portion is unconstitutional? 

Ms. MATHIS. First in our report we say the President should send 

his concerns to Congress and ask Congress to fix it. But if, in 

fact——

Mr. FEENEY. Well, the President doesn’t have the time to deal 

with——

Ms. MATHIS. But if, in fact, that flawed bill gets to the White 

House for signature, yes, he should veto it. 

Mr. FEENEY. Professor Rosenkranz, do you agree with that? If a 

small portion of the bill is unconstitutional, does the President 

have an obligation to veto the entire bill? 

Mr. ROSENKRANZ. Well, I think it is a difficult question as a matter of first principles, but it certainly has been the executive branch 

practice and the executive branch position for many, many years. 

Mr. FEENEY. At least since President Jackson, who famously vetoed a bill that the Supreme Court had already said was constitutional on the grounds he thought it was unconstitutional. 

Mr. ROSENKRANZ. That is true. But Presidents have, for many, 

many years, signed omnibus bills while also noting their constitutional objection to small portions of it. That has been long, longstanding executive practice. 

Mr. FEENEY. Ms. Mathis, because Mr. Edwards is not concerned 

about this Presidential signature or statement having any impact 

on the courts, but the bar is partly concerned about that; is that 

right? 

Ms. MATHIS. 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 a law in conjunction with his view of it. 

Mr. FEENEY. I understand that. 

Are you concerned at all on the impact the signing statement has 

on judicial interpretations? 

Ms. MATHIS. Well, it does abrogate the right of a court to look 

at it quickly, which is the third or fourth point that I made earlier. 

Mr. FEENEY. Mr. Edwards? 

80

Mr. EDWARDS. I am concerned about that. The intent of a piece 

of legislation is determined by the people who passed the legislation. My point earlier is the courts don’t seem to be giving much 

weight to whatever a President’s signing statement says. 

Mr. FEENEY. I want to ask you real quickly, Mr. Edwards, because we have got three different positions on judicial interpretation. One is represented by, for example, Judge Bork, who agrees 

with what you said, the intent——

Mr. EDWARDS. That would be the only time that Judge Bork and 

I have ever agreed on anything. 

Mr. FEENEY [continuing]. The intent of the Congress. But then 

you have Scalia. He is a textualist. He doesn’t care what the intent 

of Congress was. If we said 60 days, but then 90, he doesn’t care 

what we meant. Then you have the other; we have transnationalist 

judiciary and people citing foreign law, and it is the ‘‘other’’ that 

concerns me. I can understand the intent faction and the textual 

faction. 

I will finish with this. Mr. Elwood, because we are all concerned, 

we are Congress, we are jealous of our party, we are the republican 

branch, small r. We are all concerned with any President cherrypicking what parts of a given piece of legislation he or she wants 

to enforce. Whether they refuse to enforce it because of a signing 

statement or they secretly refuse to enforce, the impact is the 

same. They have undermined our will. 

What is the remedy that Congress or a citizen has if a President 

chooses to enforce certain provisions of a law, but deliberately refuses to enforce other provisions? And after you are done, I will 

yield back my time. 

Mr. ELWOOD. The remedy that a citizen would have is there may 

be circumstances where a citizen would be able to file suit because 

of enforcement or non enforcement. But I want to hasten to add 

that we do not view signing statements as cherry-picking the law. 

Simply expressing views about the constitutionality of a provision 

is not an indication that we won’t enforce it fully. And that is a 

point I really want to make sure that everyone appreciates today. 

Mr. FEENEY. Don’t you have the ability—I mean, in the first 

place, who asked you, I guess is one question? I know Presidents 

have been doing this forever, but if there is a real case in controversy, don’t you have the ability at all times to file an amicus 

brief stating your opinion when it really matters? 

Mr. ELWOOD. I am not sure I understand the question. I mean, 

if the constitutionality of a provision of law is before a court, that 

is true, the President and the executive branch can always file an 

amicus brief on that behalf. 

One other point I wanted to make, though, in response to Ms. 

Mathis, who has said repeatedly about how we should be providing 

our views beforehand, I just wanted to point out that that is 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 views letters and SAPs. So although signing 

statements are part of the constitutional dialogue between the 

branches, they are not the only part, and we do plenty before the 

81

law is actually enacted, too, to let Congress know about the views 

of the executive branch. 

Mr. CONYERS. The gentleman’s time has expired. 

I yield now to the gentlelady from Texas, Ms. Sheila Jackson 

Lee. I leave to the discretion of my two distinguished colleagues 

whether we should try to get all of our time in so that we can cast 

our ballot, or shall we come back. I leave that to your considered 

judgment, because this is a very important subject. 

Mr. SCHIFF. Mr. Chairman, is the panel able to stay? 

Mr. CONYERS. We will come back. Let’s go with the gentlelady 

from Texas. We can get those 5 minutes in. 

Ms. JACKSON LEE. 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 has 

been extremely thoughtful; however, I think it is key that we recognize the responsibility of the United States Congress, and as our 

beloved constituent has just said, has responsibility to protect the 

Constitution. 

I would like to simply say that many of you know I have authored H.R. 264, and I might say to the president of the ABA, I 

am quite interested in the language that you have utilized in your 

report, because I think the more thoughtful we can be and the 

more that we can expand the legislation and make it responsible, 

the better off the constitutional premise of three branches of Government would be protected. 

I will say this, that the Constitution makes no such provision for 

signing statements. They do protect veto messages. And we are literally blocked from that constitutional act by a signing statement. 

I want to refresh the memory of the panelists to know that it was 

then legal advisor Alito who thought creatively under the Reagan 

administration to make the signing statements a little bit more 

stronger. 

The sense of concern under this present Administration, and it 

shouldn’t be a Republican or Democratic, is that in addition to the 

signing statements, there have been 800 constitutional challenges. 

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 am not going to adhere to it.’’ that is a dangerous precedent. So I raise these questions. 

I would also like to note that pursuant to my legislation and 

talks about appropriations, if the Congress has a constitutional authority to 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 frail in my legislation as it relates 

to the appropriations process. We might look at it in a different direction, but, frankly, I think it is worth discussing. 

What I would raise with the president of the ABA is the fact that 

you didn’t appoint them, but you had a task force, and I assume 

that scholarly lawyers and practicing lawyers, those that practice 

before the Supreme Court, those that have a consciousness about 

the Constitution, thought it was a serious enough concern to organize a task force. Is that my understanding? 

Ms. MATHIS. That is correct. The task force was authorized by 

the Board of Governors of the American Bar Association, about 38 

82

people representing all areas of the United States and certain specialty practices. 

Ms. JACKSON LEE. 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 suggestions, but 

in actuality they have offered recommendations; is that not correct? 

Ms. MATHIS. It is, Congresswoman. I think it is important to 

note also that regardless of the individuals, and you did properly 

state both conservatives, Republicans and Democrats, liberals and 

scholars who are on that, that their report went to a 546-person 

House of Delegates, and there is 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 Bar Association, not just the task 

force. 

Ms. JACKSON LEE. To be challenged, to suggest there was a bias, 

what you are saying is ultimately that report was adopted by a 

very diverse group of lawyers and members of the House of Delegates. 

Ms. MATHIS. It was, after vigorous debate. 

Ms. JACKSON LEE. Professor, may I have a yes or no answer on 

this? Would you welcome the suggestions and legislative fix that 

has been suggested by the president of the ABA? Yes or no? 

Mr. ROSENKRANZ. Is that directed to me? 

Ms. JACKSON LEE. Yes. Yes or no. Would you welcome the legislative fixes or fix that have been offered by the ABA? 

Mr. ROSENKRANZ. No, I don’t think that is positive. 

Ms. JACKSON LEE. Thank you. 

Congressman Edwards, time is short, and I am 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 is not 

helpful to us as a Committee. 

Would you be able to expand on your agreement or disagreement 

with the suggested fixes by the ABA, or your parameters, and I 

think you said them before, of how we should look at this in the 

next step? Because I don’t want this to be, as you represent, another party, but this is not a partisan issue. It is, I think, a constitutional issue. 

Mr. EDWARDS. I strongly support the suggestions of the task 

force and of the entire American Bar Association, which did adopt 

this. 

If there is a dispute between the legislative branch and the executive branch over the constitutionality of a provision, and the 

President asserts 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 constitutionality, and the Congress might as well go home. 

Ms. JACKSON LEE. I look forward to working with these various 

panelists, Mr. Chairman, and I hope that H.R. 264 can be expanded and revised and that we move forward. I thank the Chairman very much. 

I yield back. 

Mr. CONYERS. Ladies and gentlemen, we apologize. This is very 

rarely occurring in the House, where successive roll call votes 

occur. I don’t know if it is because it is this subject matter the 

83

Committee is entertaining here in the Judiciary room or some 

other reason, but we do have two very distinguished Members, 

maybe three now, that wish to be heard. So for this last vote, we 

will have to stand in recess one additional time. I apologize for this 

inconvenience. 

[1:40 p.m.] 

Mr. CONYERS. The Committee will come to order. 

The Chair recognizes the gentleman from California, Mr. Lungren. 

Mr. LUNGREN. Oh, thank you very much, Mr. Chairman. I appreciate that. 

In the past couple of years, it has been a privilege for me to work 

with the ABA and the ACLU on matters where I thought we needed to refine some decisions made by the Administration—the 

Thompson memo, which was a continuation of something that had 

begun in an earlier Administration; and decisions, apparently eminent decisions, by the Sentencing Commission with respect to, in 

both cases, attorney-client privilege and attorney work product, 

where 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 here, I must say that I think we are making more out of it 

than there is here. 

There has been the suggestion—and I have 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, 

Ms. Mathis, about the President should just go ahead and veto 

things—assume something that some States have, which is the 

Single Subject Rule. 

We are not confined to a Single Subject Rule here in the Congress. We often present the President with a bill that is huge and 

may be 99.9 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 or the Senate has put something in which 

is arguably unconstitutional. 

And I have heard it on the floor where Members have said—and 

I know Mickey has heard this, too—where Members have said, 

‘‘Gee, there is a problem with this. It may be unconstitutional,’’ and 

another Member says, ‘‘Well, we will let the courts decide that,’’ 

which I always thought was the easy way out. 

And we were probably a little lazy in doing that sort of thing, 

but I do not 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 is the case. This is actually the reverse of some 

of the comments that I heard early on, which were that somehow 

this is hidden—well, with all due respect to the Chairman, talking 

about the continuation of the secrecy of the Administration. 

84

What is secret about stating what your problems are, and isn’t 

it something that you would like to have? I think the ABA recommendation was that somehow it 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 look at it. 

So, from the ABA’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 99.9 percent pure? 

Ms. MATHIS. First, Congressman, let me state how much I appreciate—and I know the legal profession does—all of the work that 

you have done with our organization and many others on attorneyclient privilege, and I want to thank you sincerely. 

With regard to your question—I think there were four or five, 

and I may miss one, so please——

Mr. LUNGREN. I sometimes do that. 

Ms. MATHIS. That is quite all right, and we are not in a court 

of law, so I will try to answer all of them. 

The first issue is on the 98 percent good, 2 percent, we are not 

sure. I would just suggest that the United States Supreme Court 

held that a line-item veto was unconstitutional in Clinton v. New 

York in 1998, and so the 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—2 percent—is not right and then directs the executive branch not to enforce it, that is the essential equivalent of a 

line-item veto, and that a cleaner—our suggestion is that 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 the proposed legislation; but if it does get to the White House 

for signature and it is 2 percent wrong, indeed, yes, veto it. 

We also had a case in point with the last session where there 

would be cases that the veto would come back to Congress very 

quickly with a message, and Congress would, within days, decide 

if it was going to override or not. So the first——

Mr. LUNGREN. I am just going to interrupt for a second and ask, 

what about the canon of constitutional avoidance? 

Ms. MATHIS. Well, that is a canon that we look at when we have 

got it at the Judiciary, and I will respectfully suggest to you that 

there are actually three different places we have to look. And many 

of the questions today have concentrated on the judicial branch, 

and in responding to your question right now, I 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; it does 

not abrogate the third branch’s entitlement to decide that 2 percent 

of a law is, in fact, unconstitutional. 

The issue becomes, if the veto is not used, Congress does not 

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, and we have no intention of following it because 

85

of the constitutional requirements,’’ it is our suggestion that this is 

stripping from Congress its rights. 

Mr. LUNGREN. Doesn’t that set up the case in controversy that 

you need to——

Mr. CONYERS. The gentleman’s time has, unfortunately, expired. 

The gentleman from California, Mr. Howard Berman. 

Mr. BERMAN. Well, it is a fascinating subject. 

I do not have any questions. I just have to comment that my 

friend from California talked about Members of Congress who say, 

‘‘Ah, let the court decide this constitutional question,’’ and he remarked that it seemed a rather lazy way of doing it. 

How would you describe the Congress Member who says, ‘‘Let 

the court decide it,’’ and then when the court decides it, attacks the 

courts for judicial activism? 

Mr. LUNGREN. Would the gentleman yield? 

Mr. BERMAN. I would be happy to. 

Mr. LUNGREN. I think that is the ultimate in legislative laziness. 

I think we ought to be sharper than that. I do not like to ascribe 

motivations to Members, but I do think that is the case. 

Would the gentleman yield for a moment? 

Mr. BERMAN. Sure. 

Mr. LUNGREN. One of the concerns I have in the way that we 

have looked at this is that, in the case where they were talking 

about what the proper relationship in enacting a law is, they 

talked about three parts—they talked about bicameralism, they 

talked about presentment, and they talked 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-presentment,’’ where he makes the decision as to whether or 

not to sign the bill and it becomes law that way or else he vetoes 

it, and then you override the veto. 

In his decision to sign the bill or not to sign the bill and make 

it law—I would not call it ‘‘quasi-legislative’’; let us 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 is worth, as we do 

when we have both Committee reports accompanying it and engage 

in colloquies on the floor of the House to give our reading, our 

sense of it? 

I know Justice Scalia has said, Look, if it is not within the four 

corners of the document we call the law, we ought not to consider 

it; and frankly, I happen to think he is right on that. But the fact 

of the matter is, why is this so different from what we do? 

Mr. BERMAN. Would the gentleman——

Mr. LUNGREN. I am yielding back my time to you, yes. 

Mr. BERMAN. What if through that interpretation that he is giving, that legislators do all the time, he is also signaling to the 

agencies charged with enforcing the law that his interpretation, 

rather than the legislative history, the plain reading of the statute, 

the Committee reports, is the correct interpretation? 

Mr. LUNGREN. Well, if the gentleman would yield. 

Mr. BERMAN. Sure. 

Mr. LUNGREN. My point would be—I mean, if on its face what 

the President says absolutely contradicts the clear meaning of the 

86

law and/or does not appear to be a constitutional impediment to it, 

frankly, he would be exposed for that; but my point is, this is out 

in the open. It is 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 is what I do not understand. It is either you are 

worried about secrecy or you are worried about something else. I 

mean, here he is being up front about how he thinks this is. 

Mr. BERMAN. I do not know if I have a minute left, but, Mr. Edwards, would you like to get into this since you have a perspective 

here? 

Mr. EDWARDS. Thank you, Congressman. 

You know, when the President—the signing statements, who 

cares? Who cares about the signing statements? The signing statements, if they are a statement by the President of ‘‘here is my opinion about this bill,’’ nobody cares. The President has the right to 

do that. 

If the President is saying, you know, that he and his executive 

branch—his executive branch, unitary executive—does not intend 

to comply with this, does not believe it is appropriate, if he uses 

the veto, he will probably prevail, because he will 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 are saying—you are not saying both of you 

have a say in what is constitutional. The Congress says, ‘‘We think 

this is constitutional.’’ the President says, ‘‘I think it is not.’’ there 

is no response. He is the final word. He has trumped the legislative 

branch. He has trumped the judicial branch. He is the final word 

if Congress does not do something to enforce its will. 

Mr. CONYERS. The gentleman yields back his time. 

The gentleman from Virginia, Mr. Forbes. 

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. DAVIS. Could I ask a question of the Chair before Mr. Forbes 

proceeds? I have 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, I think, have come back four different times to ask 

questions, could I make a request of the Chair that after Mr. 

Forbes’ questions we suspend seniority and proceed with Mr. Schiff 

and then myself? 

Mr. CONYERS. We will take it under consideration——

Mr. DAVIS. Thank you, Mr. Chairman. 

Mr. CONYERS. Mr. Forbes. 

Mr. CONYERS [continuing]. If there is no objection, of course. 

Mr. FORBES. Thank you, Mr. Chairman. 

Mr. Chairman, I want to first congratulate you on this being 

your first hearing that you are presiding over as Chairman, and it 

is unfortunate that this hearing really seems to be more about politics than policy because, as I have listened to all of the testimony, 

there does not seem to be a big quarrel about signing statements. 

It is just you do not like what the President has to say, and I still 

cannot see much difference in the President’s putting it in a signing statement versus his coming out in a press conference and saying the exact same thing. 

87

But be that as it may, I know Mr. Ogletree is gone now, but I 

wrote down the quote he made in response to Mr. Nadler’s question 

at 11:25 where he says, ‘‘This President, more than others, has interpreted what the law allows him to do.’’

I think that is what we want the Presidents to do. I do not think 

we want them to walk around in the dark not knowing what they 

believe the law allows them to do and does not allow them to do. 

Ms. Mathis, as I look at your coming here today as President of 

the ABA—basically all three witnesses are a product of the ABA—

the task force you are representing in 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 mentioned 

was that you did not 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. Greco was the President at the time of the American Bar 

Association, who did the appoint this task force; and within 2 

weeks of appointing the task force, he said that he was on a mission and basically equated President Bush to becoming another 

King George III. 

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 these same articles it points out that for 

the last 16 years, your members have been the largest contributors 

to the Democratic Party, and at no time in that period of time were 

less than 70 percent of your contributions going there. 

But my question to you today, as President of the American Bar 

Association now, would be, President Clinton issued 105 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? 

Ms. MATHIS. Congressman, I believe you were out of the hearing 

room when I clarified the record, and if I may, sir, that—in fact, 

the first statement in the task force report is accurate. The April 

30th 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 4th. 

So we do stand by the report. I had the opportunity to check during the recess, sir. 

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 task force went to the full 546-person board 

of—excuse me—House of Delegates, which is a very broad group of 

lawyers throughout the United States. It includes Republicans; it 

includes Democrats; it includes Independents; it includes people 

who have no political persuasion. It was vigorously debated, and it 

became the policy of the ABA. 

Prior to that action in August of 2006, it was just a task force 

report. There are many task force reports of the ABA that never 

become policy. Some do; some do not. 

With regard to your earlier statement, let me say that the task 

force and the ABA have looked at the signing statements as they 

88

have been used in the last 25 years, beginning with President 

Reagan, and in fact, this report is very specifically not aimed at a 

particular President. It is aimed at all Presidents. 

Mr. FORBES. Ms. Mathis, I would love—and we can chat a little 

bit later. Can you just answer my question on whether or not any 

task force was appointed to look at President Clinton’s signing 

statements when he made those? 

Ms. MATHIS. Not only was it not done then, but it has been reported in the task force itself, and there are specific examples in 

the task force of where President Clinton misused signing statements. 

Mr. FORBES. But you did not appoint any during his Presidential 

term——

Ms. MATHIS. I did not appoint any, and I still have not. 

Mr. FORBES [continuing]. Nor did any of your predecessors? 

Ms. MATHIS. No. 

Mr. FORBES. Good. 

The last question——

[Disruption in Committee room.] 

Mr. CONYERS. Let us have order, please. 

Excuse me. Could I ask the officers to please escort our visitor 

from the Committee room so that we may continue our hearing? 

Ms. MATHIS. I apologize, Mr. Forbes. Could you repeat your question? 

Mr. FORBES. It would have been difficult for you to hear. 

Mr. Chairman, may I follow up with the last question? 

Mr. CONYERS. Yes, please. 

Mr. FORBES. Mr. Chairman, I just have one question because I 

know my time is about out. 

You know, I hear a lot about this statement, he could make a 

statement, and nobody can come back, but couldn’t he also do that 

at a press conference? You have not really addressed the difference 

between his coming out and making a written statement somewhere else. 

What is the difference between his 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 puts in a statement to the Congressional Record? 

Can you differentiate those for me, please? 

Ms. MATHIS. I will try, and I think I can. 

I believe that the task force is very clear on this, that the President has the same first amendment right that you do, Congressman, and I do, and may say whatever he chooses to. 

The effect, however, of a 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, then that is an issue. 

It is an issue about which we have some concern, and we think 

it creates the potential for an unbalancing of the checks and powers. We think that the four recommendations we have made are 

there to help with transparency. As an earlier Member said, you 

can go to the White House daily information, and that is true, but 

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then it gets lost; there is no public database unless you know what 

the law is you are looking for that has a signing statement. 

So the four things we have recommended are: Send your objections to Congress; do it in a timely manner. I understand from our 

representative from the Office of Legal Counsel that is happening. 

If a bill gets to you and you find 2 percent of it is unconstitutional——

Mr. FORBES. Ms. Mathis, I would love to hear it, but my time is 

out. 

So, Mr. Chairman, thank you. 

Mr. CONYERS. I thank the gentleman. 

And I now turn to the gentleman from Georgia, whom we welcome as a new Member to the Committee, and ask if he will yield 

to Mr. Adam Schiff, the gentleman from California. 

Mr. JOHNSON. Well, I am tempted to ask for what purpose. I 

have got another Committee meeting to get to myself, so I will be 

brief. How is that? 

Mr. CONYERS. The gentleman is recognized. 

Mr. JOHNSON. All right. Thank you. 

I do not mean to be obstinate in any way, but at any rate, I just 

simply want to state that, you know, this is my first Committee 

hearing. I am a new Member of Congress. I believe that one of the 

reasons I am here is that Americans across the board want their 

Congress to be more proactive, exercise their authority to provide 

oversight and investigations when necessary, and I believe that is 

what we are doing today, Mr. Chairman, is exercising our power 

to oversee the President’s use—and some may say misuse—of the 

Presidential signing statement. 

Without characterizing it either way, I will say that certainly 

these witnesses who have appeared here today particularly, or in 

particular, the ABA should not be accused of any bad motives in 

making their appearance. I assume everyone here today is here for 

the protection 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. 

I will say that the ABA recommendations as to some kind of 

statement by the executive branch when it uses this signing statement to instruct its branches as to how to interpret statutory law, 

I think are eminently reasonable, that the President report in detail to the Congress whenever he so instructs his departments; and 

also, I believe that there should be some judicial avenue of 

preclearance, if you will, for any presidential construction of statutes. 

With that having been said, I will yield the balance of my time. 

Mr. CONYERS. Mr. Franks, the gentleman from Arizona. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, we live in an era when 60 days before an election 

some of our campaign laws say that we cannot even mention a candidate’s name in a political advertisement, and it seems like we are 

doing a great deal to thwart political speech as it is. 

I wonder if it is wise for us to begin then to thwart the political 

free speech of the one person who is elected by all of the people in 

this country, and I certainly think that that is one of the issues 

that is here today. 

90

The second issue is that just by a cursory glance at history, we 

find that at some point one of the major branches of Government 

has been wrong, obviously. You know, the Supreme Court at one 

time in their Dred Scott decision rendered an entire race of people 

outside the scope of humanity. 

And that was a wrong decision, and if it had not been for the fact 

that the other branches pulled against that, then the Constitution 

itself could have been abrogated in the most serious way. And of 

course, because they did, our country ended what was the practice 

of slavery for 6,000 years in human existence. 

And so, as we really begin to look at our three branches of Government here, we have to necessarily realize that there is going to 

be some overlap and some gray areas, and the tendons that hold 

those three branches together are sometimes going to be pulled and 

stressed. And it occurs to me that that is precisely where we are 

here today, where we are doing everything that we can to allow the 

different branches of Government to express their commitment to 

the Constitution. And if, indeed, the President is held by the Constitution to faithfully execute the laws of the land, it should be remembered that the Constitution is the ultimate law of the land, 

and 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? 

I will let the gentleman that raised his hand here answer the 

question. 

Mr. EDWARDS. Congressman, thank you. 

Unfortunately, because—you have to have shorthand. If you are 

saying that you are having a hearing about something, you have 

to put a label on it, and so this hearing is about, ‘‘Signing Statements,’’ but that is not what this hearing is about. That is a label. 

This hearing is about Presidential assertions of the right not to 

comply with the law. That is what the hearing is about, a President asserting—whether it is in a signing statement or 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, he will decide whether it is constitutional, and he will 

decide whether or not to comply with it. That is the problem. 

To go to the point you are making, the problem you have here 

is that there is no recourse. If there is a veto, there is recourse. If 

the President says, ‘‘I do not believe we should comply with this, 

the unitary executive branch does not have to comply with this,’’ 

you know, there is no veto. That is it. He is the final word. So what 

do you do? 

Mr. FRANKS. 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, or perhaps even by someone overriding his veto. Sometimes 

those things happen outside his scope, and as a matter of just common reality, sometimes a President is forced to make a decision between which law to obey, and sometimes he is forced to look at the 

Constitution as the higher law. And I know——

Mr. EDWARDS. Is he the final word? 

91

Mr. FRANKS [continuing]. It is a challenging situation, but regarding the recourse, if I could ask any member of the panel, do 

you not think that there is some recourse in the courts and otherwise if, indeed, the President—if it is believed that he has overstepped his bounds? 

Yes, sir. 

Mr. ROSENKRANZ. I think there often is some recourse. Many of 

these questions will find their way into court ultimately. 

I would just like to say, in response to this characterization of 

the President’s signing statements as declarations that parts of 

statutes are unconstitutional, I think it is a serious 

mischaracterization of what the huge majority of this President’s 

signing statements actually say. 

Mr. FRANKS. No doubt. 

Mr. ROSENKRANZ. The huge bulk of this President’s signing statements, the huge bulk of every President’s signing statements, are 

about interpretation of the law, interpretation of the statute. Not 

‘‘I think this provision is unconstitutional,’’ but rather, ‘‘I am giving 

you my understanding of what these words mean; and given that 

understanding, I am going to enforce that understanding of those 

words.’’

Mr. FRANKS. Mr. Chairman, I would just want to, in closing here, 

emphasize this gentleman’s point that the President oftentimes is 

doing what he truly believes is right under the Constitution, to enforce and interpret the Constitution the way he sees fit. Anything 

else would be malfeasance on his part. 

Mr. CONYERS. I thank the gentleman. 

Mr. FRANKS. Thank you. 

Mr. CONYERS. I recognize now Mr. Adam Schiff, the gentleman 

from California. 

Mr. SCHIFF. I thank the Chairman. I thank you for your efforts 

to get us in earlier as well. 

I want to ask Mr. Elwood a question, actually one specific and 

one more general, and it has to do with the PATRIOT bill. 

We recently, I guess last year, had the reauthorization of the PATRIOT bill signed into law. Many of us worked on that and felt 

that it made important improvements both in security and in oversight. It was not a perfect bill, and there is 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 a measurable improvement 

to public safety and that we were doing so well within constitutional guidelines. 

A couple of the sections in that bill, 106(a) and 119, were part 

of the bill months before the negotiations began or remained unchanged throughout the negotiations over the reauthorization. I am 

not aware of any objection that was made to those provisions, and 

in fact, the Attorney General testified ad nauseam how important 

oversight was in terms of the reauthorization of the PATRIOT bill. 

Nonetheless, we get the signing statement in which the President states that the executive branch will construe the provisions 

of this bill calling for furnishing information to entities outside of 

the executive branch such as these Sections 106(a) and 119 in a 

manner consistent with the President’s constitutional authority to 

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supervise the unitary executive branch and to withhold information, the disclosure of which—blah, blah, blah. 

The President also dismissed section 756(e)(2), which requires 

the Attorney General to submit to Congress recommendations for 

further legislation, using similar language, the President essentially stating that he will withhold the information requested by 

Congress when he decides unilaterally that he will do so, regardless of the express requirements of the law that he was signing. 

My two questions are this, and if you cannot answer it today—

and I do not expect that you will—I will ask that we have you submit to the Committee an answer to the question. 

Has the President, has the executive branch, withheld the information called for by Congress under the PATRIOT bill under a 

claim of this signing statement that, under his unitary authority, 

he is not required to submit fully the information Congress required? That is my first question. 

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 are not 

providing us the information that we called for under the PATRIOT bill? How are we to know if you are getting that call wrong? 

Mr. Davis and I were both part of the Justice Department. We 

both recognized that the attorneys there are hardworking and diligent and doing the best they can, but we also recognized they are 

not infallible, because we were there, and Mr. Davis knows he was 

not infallible when he was there. I was the only infallible attorney 

there, and I am no longer there. 

So how are we to do our job if you arrogate yourself the power 

to decide when the scope of what we have asked you intrudes upon 

your authority? 

Mr. ELWOOD. I think that this is an excellent example of something I have been trying to illustrate today, which is, simply because the President states sort of constitutional views on an area 

of the law, it does not mean that we are not going to comply fully. 

And it is my understanding, I specifically inquired——

Mr. SCHIFF. It does not necessarily mean that, but it could mean 

that. 

Mr. ELWOOD. No. But the point I want to make is that the President—simply because he is announcing his views, it does not mean 

that he is not going to comply fully. 

As it happens, I have inquired, and the Department of Justice is 

complying with those provisions; it is cooperating in the Inspector 

General’s investigation. 

Mr. SCHIFF. 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 unitary executive branching? 

Mr. ELWOOD. That is my understanding, and I want to make a 

point here, which is that President Eisenhower and President Clinton made precisely identical signing statements, which is not to say 

we are not going to comply. We are saying that we are——

Mr. SCHIFF. I just want to pin this down though. 

93

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? 

Mr. ELWOOD. My understanding is that the Government, the Department of Justice, is cooperating fully with those provisions. That 

is correct. 

Mr. SCHIFF. That does not answer my question. 

Mr. ELWOOD. That is my understanding, yes, Congressman. 

Mr. SCHIFF. Has the Administration withheld anything under 

that provision? Under that signing statement language, have they 

withheld anything? 

Mr. ELWOOD. It is my understanding that they have not, Congressman. 

Mr. SCHIFF. And how would the Congress find out if they were? 

Mr. ELWOOD. I think through oversight. I think that in a case 

like that, when the President says that he is going to——

Mr. SCHIFF. Does the Administration feel any obligation to notify 

Congress that we are making a claim of executive privilege, of national security, and we are not turning over information called for 

under this legislation? 

Mr. ELWOOD. Yes, I think that they would notify you if they were 

not going to share it with everyone; and I think they would say 

that there are certain things we are holding back. And I also do 

not know that they would say, we are not withholding it at all; I 

think they would just put special procedures on any information 

that was subject to—that it was classified and subject to additional 

sorts of constraints in its handling. 

Mr. CONYERS. The gentleman’s time has expired, and I recognize 

the gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Mr. Chairman, thank you very much. I appreciate your holding this hearing. I am pleased that you are engaged 

in oversight, but I am, quite frankly, surprised that this was the 

topic of the first hearing as well. 

This is an interesting academic discussion. I listened intently 

this morning to the testimony of all of the witnesses, and it was 

not until we got to Professor Ogletree, who mentioned two signing 

statements where he called into question whether the actions of the 

President were appropriate. Until then, I had heard nothing that 

contradicted the long history of the use of signing statements for 

very appropriate purposes, as Professor Rosenkranz has aptly stated, ‘‘to elucidate the President’s understanding of the law that has 

been passed by the Congress.’’

We have seen an increase in the number of signing statements 

over the years. I would say that is entirely because the amount and 

complexity of legislation passed by the Congress has increased over 

the years, and signing statements by Republican and Democratic 

Presidents have increased correspondingly. 

In a moment, I will give Professor Rosenkranz an opportunity—

oh, actually, Mr. Elwood an opportunity to talk about those two 

issues—the torture legislation and the legislation regarding nuclear 

controls, the nuclear agreement with India. 

But, first, I would like to call your attention to what former Assistant Attorney General Dellinger in the Clinton administration 

noted about signing statements. He said, ‘‘One of the most conVerDate 0ct 09 2002 12:08 Jun 13, 2007 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6601 F:\WORK\FULL\013107\32844.000 HJUD1 PsN: 32844
94

troversial purposes of Presidential signing statements is to create 

legislative history in an attempt to guide the courts when they interpret the legislative intent behind statutes.’’ however, as Congressman Smith has pointed out, the courts have rarely, if ever, 

given any credence to these 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 have 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 interpreting 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 examining the practice of the courts, including the Supreme Court’s increasingly citing 

foreign laws and regulations when interpreting statutes enacted by 

the Congress. 

So I would like to ask Professor Rosenkranz if you find this 

prioritization troubling as well. Do you believe that the Supreme 

Court’s citation of foreign precedence is at least, if not more, detrimental to U.S. sovereignty than Presidential signing statements? 

Mr. ROSENKRANZ. I do agree with you, sir. 

I think that that issue—I think the citation to foreign law and 

foreign judgments raises an issue of democratic self-governance 

that 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. 

Mr. GOODLATTE. And increasingly the courts, including the Supreme Court, have turned to foreign judicial precedence 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. Elwood if he wants to add anything to that and 

also if he would care to comment on the two points that Professor 

Ogletree raised about the nuclear agreement with India and about 

the torture issue. 

Mr. ELWOOD. I agree with Professor Rosenkranz. This is something the Attorney General has spoken about and feels very strongly about. 

On the McCain amendment and the Hyde Act, I wanted to say 

about the McCain amendment that I think this is another excellent 

example of how just because the President states his constitutional 

views does not mean he is not going to enforce it. 

He said both before and after signing the McCain Act that he 

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 an amendment we 

strongly support, and we will make sure it is fully effective. They 

asked him, well, why did you make the signing statement then, 

and he said that the reason I make signing statements like that 

95

in the foreign affairs area and the war powers area is just to say 

that conducting war is the responsibility of the executive branch, 

not of the legislative branch. 

So it is just a general statement. Look, these are matters that 

are very important to the executive. So, you know, keep that in 

mind. These are areas where we have special importance, special 

prerogatives. 

I also wanted to point out that President Clinton in the Cuban 

Liberty and Democratic Solidarity Act, even though he supported 

that legislation, issued a very similar signing statement there saying that the President’s authority also in foreign affairs was very 

powerful. 

As for the Hyde Act, if I might be allowed, it is a very, very technical point. The legislation adopted by Congress said that any 

transfers of nuclear material had to be consistent with guidelines 

of this nuclear producer’s group. 

The Government consistently has complied with these guidelines 

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 is ceding legislative 

power to foreign bodies, and that was it. It was just a technical 

point, but the Government consistently has only transferred in 

compliance with those guidelines throughout history, and we are a 

member of that group, in fact. 

Mr. CONYERS. The gentleman’s time has expired. 

The Chair recognizes the gentleman from Alabama, Mr. Artur 

Davis. 

Mr. DAVIS. Thank you, Mr. Chairman. 

Ms. Mathis, you made the correct point several times that the 

broad focus of this hearing is obviously not whether or not the 

President can make an oral statement. He can make any oral 

statement he wants and any written statement he wants. The 

broad question is the scope of the President’s interpretive power, 

his power to interpret the Constitution, and I want to direct my 

questions along that angle. 

Mr. Elwood, 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 his line of questions, he was making the 

point that sometimes the President’s interpretation of the Constitution or his interpretation of a statute could lead him to shield information or to withhold information from Congress or from the public 

domain that could prevent a case of controversy from ever being 

generated. So I want to go back to that line of questions. 

In the context of the authorization that this Congress provided 

after 9/11, the use-of-force authorization against Afghanistan, we 

know that several times the President has said—and I do not know 

if he has done it in the context of a signing, statement, but several 

times he has said orally, and members of your administration have 

made the representation in an amicus brief—that that was a broad 

delegation of authority to the President; and among the instances 

of that broad delegation would be FISA, or not necessarily following certain provisions of FISA, among—another instance of the 

broad delegation the President claims has to do with the detention 

of individuals at Guantanamo. 

96

The point that I think Mr. Schiff was making is that if the President interprets a statute, or even the Constitution, in a manner 

that leads him to act and leads him to prevent the information 

from being released into the public domain, that itself is problematic. The only reason that we know and now have the potential for 

a case in controversy around the FISA statute is because of the 

New York Times, frankly, not because someone could go out and 

file a lawsuit, and not because Congress exercises oversight authority. 

You referred to the oversight authority. It is darned near impossible to exercise it when the President does not share with us when 

he is exceeding the scope of the statute. So that is the point he was 

making. 

The second observation—Mr. Elwood, this is a question to you. 

Is it your position, is it your administration’s position that if the 

President of the United States believes that a statute is unconstitutional that he is within his constitutional prerogative not to follow 

it? Is that your position? 

Mr. ELWOOD. You have made two points. 

Mr. DAVIS. Well, I would like you to respond to that one, though, 

first. 

Mr. ELWOOD. Okay. It is the position of the Administration and 

it is the position consistently of executive branches as long as I can 

remember that if an act of Congress is—the first thing you do is, 

if it is capable——

Mr. DAVIS. Be quick because our time is running. 

Mr. ELWOOD. If there is any construction you can give it to make 

it constitutional, you do that first. 

Mr. DAVIS. But if, for whatever reason, the President finds it unconstitutional and cannot find a save in construction, is it your position the President is not following the statute? 

Mr. ELWOOD. Yes. The Attorney General——

Mr. DAVIS. Now let me ask you—it is my time. You have said, 

‘‘yes’’; let me follow up on that. 

We had a governor of Alabama named George Wallace back in 

the 1960’s. Perhaps you have heard of him. 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 were unconstitutional, and he informed the people of Alabama that he would not 

enforce provisions of the Civil Rights Act and the Voting Rights 

Act, that Alabama was a separate sovereign State, and as the sovereign of Alabama, that he was not going to follow an unconstitutional law or provision. 

Tell me how that is different from the President’s position. 

Mr. ELWOOD. I think that the position is—I mean, for one thing, 

I want to emphasize that any time when the President or a member of the executive branch decides not to enforce a law because 

they think it is unconstitutional they have to report that to Congress under 28 U.S.C. 530D, and I think that, as a matter of principle, it is different. 

To begin with, this President has made every effort, whenever 

there is any sort of construction you can give it that is constitutional, to fully implement it. 

Mr. DAVIS. That is not my question. 

97

As a matter of constitutional doctrine, what is the difference—

and forget Alabama. Any State. 

What if the governor of Arizona decides she does not like a new 

immigration bill that Congress may pass and decides, ‘‘I think it 

is not constitutional. I am not going to follow it’’? 

Mr. ELWOOD. 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 is——

Mr. DAVIS. Is the executive branch not subject to the notion of 

a law having a certain supremacy that would control executive interpretation? I thought the Judiciary was the interpretive body in 

our tripartite structure. 

Mr. ELWOOD. Every branch of Government is responsible for interpreting. Congress interprets the Constitution when it passes 

laws, and that is the reason why——

Mr. DAVIS. If the Supreme Court makes an interpretation, can 

the President challenge that interpretation? 

Mr. ELWOOD. If the Supreme Court has interpreted a law or has 

interpreted the Constitution, then that is binding on Congress and 

the President in both of those instances. And I would just simply 

say that that is the—the difference is that the Constitution specifically charges every branch of Government. 

Mr. DAVIS. Why would a President’s interpretive power exceed 

the legislative branch’s interpretive power? 

Mr. ELWOOD. It does not. Every branch of Government is expected to adhere to the Constitution. All of the members of the 

three branches take an oath of office, and all of them are expected 

to, independently, if the court has——

Mr. DAVIS. Ms. Mathis, would you like to comment on any of 

that? 

Mr. CONYERS. The gentleman is advised that his time has expired. 

Mr. DAVIS. I apologize, Mr. Chairman. 

Mr. CONYERS. That is quite all right. 

The gentleman from Texas, Mr. Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. I very much appreciate the time. 

These signing statements, from the testimony, from what I am 

reading, seem to indicate that you have an executive branch that 

says what they believe a law means how it will be carried out, and 

of course, one of the alternatives is if we allow unelected, unaccountable bureaucrats sitting in some office somewhere to come up 

with regulations of their own interpretation without guidance from 

the President. So I can see how it might have merit. 

Now, we do know some Administrations enforce some laws. Some 

ignore them. I know Chuck Colson—for example, I understand he 

went to prison back in 1970’s for having one FBI file in the White 

House. And yet, during the Clinton administration, there were 

1,000 or so files, FBI files, in the White House; and that Department of Justice under President Clinton chose not to enforce those 

laws. 

So, instead of someone going to prison or people going to prison 

for thousands of years, nobody had anything happen to them for 

those gross violations of the law. 

98

But anyway, in my remaining time, there are some signing statements signed by the President that have disturbed me, and I wanted to just read some of them into the record. 

‘‘Several provisions in the act, specifically Section 603 and 605 

and 302(b) could be taken to direct how the Nation’s foreign affairs 

should be conducted. The Constitution, however, vests the President with 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 be advisory and direct all executive branch officials to do likewise.’’

Oh, well, that was President Clinton. 

‘‘Section 1104 of this bill raises a constitutional concern insofar 

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 precatory, which, as I understand 

the meaning, just means ’wishful thinking.’’

Oh, that was President Clinton. 

‘‘Section 313 of the Legislative Branch Appropriations Act will establish in the legislative branch a Center For Russian Leadership 

Development. The Department of Justice advises me, however, 

that, because the program is not administered by the executive 

branch, it is unconstitutional.’’

The President just called it ‘‘unconstitutional.’’ oh, that was 

President Clinton. 

‘‘I would interpret this provision consistent with my constitutional authority to conduct the foreign relations of the United 

States and my responsibilities as commander in chief.’’

Gee, that was President Clinton also on a different—each of 

these is a different signing statement. 

Here is one. 

‘‘to the extent that this provision can be read to direct the Secretary of State to take certain positions in communications with 

foreign governments, it interferes with my sole constitutional authority over the conduct of diplomatic negotiations. Therefore, the 

provision will be treated as precatory, or wishful thinking.’’

Oh, that was President Clinton, too. Here is another one. 

‘‘there are a number of provisions in the act that may raise constitutional issues. These provisions will be treated in a manner 

that is consistent with the Constitution.’’

That was President Clinton, too. 

This, unlike the others, is in the same signing statement. ‘‘this 

provision unconstitutionally constrains the President’s authority 

with respect to the conduct of diplomacy, and I will apply this provision consistent with my constitutional responsibilities.’’

That President said it was just unconstitutional. Can you believe 

that? Isn’t that something? That was a rhetorical question. 

‘‘I shall interpret and implement Section 8115 consistent with my 

constitutional authority to conduct the foreign relations of the 

United States and as commander in chief and chief executive and 

not in a manner that would encumber my constitutional authority.’’

That was President Clinton. 

Another: ‘‘So that this provision cannot be construed to detract 

from my constitutional authority and responsibility to protect naVerDate 0ct 09 2002 12:08 Jun 13, 2007 Jkt 000000 PO 00000 Frm 00102 Fmt 6633 Sfmt 6601 F:\WORK\FULL\013107\32844.000 HJUD1 PsN: 32844
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tional security and other privileged information as I determine necessary, and so’’—the arrogance from this President, for goodness 

sakes—‘‘. . . and so that the provision does not require the release 

of information that is properly classified, I direct it be interpreted 

consistent with my constitutional authority.’’

That was President Clinton, too. 

Another: ‘‘I am also concerned that Section 8117 of the act contains certain reporting requirements that could interfere materially 

with or impede this country’s ability to provide necessary support 

to another nation or international organization. In connection with 

peacekeeping or humanitarian assistance activities otherwise authorized by law, I will interpret this——’’

Mr. CONYERS. The gentleman’s time has expired. 

Mr. GOHMERT. Okay. Thank you, Mr. Chairman. 

I do have a stack of these, and I appreciate the opportunity to 

read those into the record. Thank you. 

Mr. CONYERS. You are welcome. 

I recognize now the gentlelady from Florida, Ms. Wasserman 

Schultz. 

Ms. WASSERMAN SCHULTZ. Thank you, Mr. Chairman. 

You know, Mr. Chairman, I note that it is not surprising, given 

the Republican leadership when they ran this institution and given 

their total abdication of our constitutional role of oversight and exercising our constitutional right on the system of checks and balances in that oversight, that while President Clinton was in office, 

the Judiciary Committee did not have any hearings on signing 

statements or ask the Administration at the time why they were 

exceeding their authority. And I think it is important to note, as 

former Congressman Edwards pointed out, that this is not a partisan issue. 

I would take as much issue with President Clinton’s signing 

statements as I do with President Bush’s, and I think that to a person on this Committee that has concern over it that that would be 

the case. 

My question for Mr. Elwood is, I am one of the non-attorneys of 

the Committee, and sometimes—although I generally understand 

what goes on in our proceedings, I think the general public sometimes, you know, feels like we are speaking in the clouds, so I want 

to bring it underneath the clouds for a second and speak about a 

particular signing statement that maybe is less esoteric, but no less 

dire in terms of comparing it to the PATRIOT Act, but the one that 

related to the Homeland Security Appropriations Act of 2007. 

Section 503(c)(2) was a provision that dealt with the issue of 

qualifications of the FEMA Administrator, and if you will recall, 

the FEMA Administrator during Hurricane Katrina was Secretary 

Brown, and if you will recall, his prior experience was being the 

head of the Arabian Horse Association, and there was some significant concern about his qualifications, and they were generally 

going forward about the qualifications of the FEMA Administrator, 

of what the FEMA Secretary’s should be, and also the reporting 

and a lot of the other issues. 

But in that section of the bill, Congress included a provision that 

required the President to adhere to certain qualifications in the individual who was being considered for that post. When that law 

100

passed, the relevant section of the signing statement that the 

President issued said as follows: 

‘‘Section 503(c) of the Homeland Security Act of 2002, as amended by Section 611 of the act, provides for the employment and certain duties as the Administrator of the Federal Emergency Management Agency. 

‘‘Section 503(c)(2) vests in the President authority to appoint the 

Administrator by and with the advice and consent to 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 best qualified by experience and knowledge to fill the office.’’

He goes on to say, ‘‘The executive branch shall construe—’’ not 

may construe, might necessarily construe, but ‘‘shall construe. . . 

Section 503(c)(2) in a manner consistent with the appointment 

clause of the Constitution.’’

Now, if you review that section of the law, that is not what Congress instructed the President to do, and I am wondering why it 

would be in the President’s authority to just decide to differently 

implement—not interpret, but differently implement—Congress’ direct instructions as to the qualifications of the FEMA Administrator henceforth, after the passage of that law. 

Mr. ELWOOD. Two points. 

First of all, whenever the President is implementing the law, he 

must first interpret it, and when he interprets it, he must interpret 

it in light of the Constitution. And all three branches have to do 

that. 

Ms. WASSERMAN SCHULTZ. Mr. Elwood, I know you have repeatedly said that, but that is not the President’s role. That is the judicial branch’s role. It is the President’s job to implement the words 

in the law as Congress has passed them, and if he does not agree—

or she, hopefully, one day—does not agree with the words in the 

law, then it is his responsibility to veto them, as Mr. Edwards has 

said. 

Mr. ELWOOD. I would disagree with you. 

It is the long-held position of the executive branch—and the Supreme Court has indicated in Myers v. United States where they 

upheld the President’s ability to not abide by the Tenure of Office 

Act there, which was another restriction on the President’s removal 

power, not appointment. But it held there that the President 

could—despite a law saying that he could not—remove people in 

his Cabinet without Senate approval, the Court held that that was 

unconstitutional; and not one of the nine members of the Court 

said that the President was at fault for not enforcing that. 

Ms. WASSERMAN SCHULZ. That deals with tenure in office. That 

doesn’t deal with the qualifications. Congress does have the right 

to specifically determine the qualifications OF an individual the 

President is considering. We can constrain the President in that regard. Do you disagree? Then you can go to court. 

Mr. ELWOOD. There are limits on what the Congress can do in 

that regard. There is another school of thought that just as people 

have been saying the only thing the Constitution says, it says you 

can only veto or sign it, those are your only choices, but similarly, 

some people interpret the Constitution to say that because the SenVerDate 0ct 09 2002 12:08 Jun 13, 2007 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6601 F:\WORK\FULL\013107\32844.000 HJUD1 PsN: 32844
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ate can confirm or deny confirmation to a person that that is the 

only role for Congress in determining the qualifications of a person. 

There is a body of law that says Congress can set qualifications, 

but it can’t set so many qualifications that it limits the President’s 

ability to appoint essentially someone of his choosing. 

Now, finally, I do want to note the President continues to apply 

the law as written. I will note that R. David Paulison, the person 

who was appointed, was somebody who oversatisfied the conditions. 

He has 30 years in law enforcement. 

Ms. WASSERMAN SCHULZ. Let me just interrupt you there. He is 

a constituent of mine. He lives in my district. He lives down the 

street from me. So I am fully aware of his qualifications and fully 

support him, and I am glad to see he is heading up the Federal 

Emergency Management Agency. 

That is not my point. My point is that the President in this instance may not have decided to go with someone outside of Congress’ instruction, but it was inappropriate for him to indicate in 

his signing statement that he could have. 

Mr. CONYERS. The gentlelady’s time has expired. 

Ms. WASSERMAN SCHULZ. Thank you, Mr. Chairman. 

Mr. CONYERS. I recognize our final Member for the day, Mr. 

Ellison of Minnesota. 

Mr. ELLISON. Thank you, Mr. Chairman. One of the advantages 

of being last is you get to hear everything that has gone on before. 

So I would like to just ask this question. 

It appears to me that as we have listened to the testifiers, and 

thank you very much for your testimony, that signing statements 

at worst, from the perspective of at least Mr. Rosenkranz, are just 

basically the opinion of the President and 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 signing statements? Why do we 

need them, if they are really no more than I guess a flourish, as 

Professor Tribe said? Mr. Rosenkranz, could you address that? 

Mr. ROSENKRANZ. 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 law. 

I just want to comment on the characterization of a moment ago. 

It is simply not the case that the President’s job does not include 

interpretation of the law. 

Mr. ELLISON. Excuse me, sir, did I ask you that? I don’t believe 

that was my question, was it? 

Mr. ROSENKRANZ. No, sir. 

Mr. ELLISON. Was that the question? Are you addressing my 

question? 

Mr. ROSENKRANZ. I am trying to address your question, yes, sir. 

Mr. ELLISON. Please continue then. 

Mr. ROSENKRANZ. The President—an important function of the 

President in executing law, he is interpreting it, and therefore instructing the executive branch in his interpretation of it. 

Mr. ELLISON. So, in other words, in your view, does the signing 

statement actually in any way alter or modify the statute as passed 

by Congress? 

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Mr. ROSENKRANZ. No, it does not. 

Mr. ELLISON. 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 Congress passed? 

Mr. ROSENKRANZ. He could do that. 

Mr. ELLISON. And in that case, we wouldn’t have to worry about 

whether or not the signing statement has changed the law that 

Congress has passed? Would you agree? 

Mr. ROSENKRANZ. Well, we would then be having a hearing about 

press releases, I guess. 

Mr. ELLISON. Maybe not. We don’t really have hearings about 

press conferences, not to my knowledge. But in that case, we at 

least would not have to worry about whether or not the President 

was executing the law as passed by Congress. Is that right? 

Mr. ROSENKRANZ. 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 expressed in a signing statement or a press release or anything else. 

Mr. ELLISON. Mr. Elwood, why do we need to have signing statements if they simply are an expression of an opinion and don’t really change the law as passed by Congress? 

Mr. ELWOOD. They are an expression, as Professor Rosenkranz 

indicated, they are an expression of the President to the people in 

the executive branch of how the law will be administered. Several 

Presidents in addition have used it to conduct sort of a dialogue 

with Congress. I suppose that could be done through a press release as well. 

Mr. ELLISON. I was going to say, the President has a lot of ways 

to carry on a dialogue with Congress, including having the Committee chairs come to his office to talk about the law. 

I believe you made the point that there is no case in which the 

President has refused to carry out the statute. It is simply an expression of opinion. So in that case, Mr. Edwards, would you care 

to comment on why simply eliminating signing statements would 

not be a good idea? 

Mr. EDWARDS. Congressman, it doesn’t matter to me whether we 

have signing statements 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. 

I must say, I have got to say this, Mr. Chairman, it sounds to 

me like I walked in accidentally to a meeting of the national committees and am shocked by the number of Members of this Committee who can’t get beyond their party affiliation. 

I was 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 party, this is Constitution, and the Constitution is more 

important than whether or not we are defending a President of our 

party. I am really bothered by the tone that I have heard today. 

Mr. CONYERS. I would like to advise the gentleman—I will give 

you the last question. You waited the longest. 

Mr. ELLISON. I was simply going to direct a question to Mr. Edwards again. You know, again, as has been pointed out clearly, 

103

President Clinton has used these 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 Americans not be better served if we simply eliminated 

these signing statements and therefore we would have a much 

more straight up and down, clearer delineation of constitutional 

roles? What is your screw on that? 

Mr. EDWARDS. 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 then allows the Congress to override 

it. 

The problem with the signing statements serving as instruction 

about whether we will comply or not means that the Congress does 

not have the final say and the President has the final say as to 

what is constitutional, in which case the whole structure of the 

Constitution has just been undermined for the sake of party unity. 

Mr. CONYERS. On behalf of all of the Members of the Judiciary 

Committee, we are deeply indebted to you, the witnesses, Ms. 

Mathis, Mr. Elwood, Mickey Edwards, Professor Rosenkranz, for 

your dedication and your contribution. We deeply appreciate it. 

Without objection, the hearing record will be open for a period 

of 1 week to allow additional materials to be submitted for the 

record, including Members’ opening statements, and written questions for our witnesses, which we will ask them to answer promptly 

so they can be included in part of the record. 

Additionally, I ask unanimous consent to submit all 148 copies 

of the President President Bush’s signing statements into the 

record. 

This is the beginning of our oversight efforts. I look forward to 

the continued cooperation——

Mr. GOHMERT. Mr. Chairman, reserving the right to object? 

Mr. CONYERS. Yes? 

Mr. GOHMERT. Could I also ask unanimous consent that we could 

submit all of the signing statements by President Clinton to show 

that bipartisanship that former Congressman Edwards was talking 

about? 

Mr. CONYERS. We would be delighted. If you get those up and 

submit them for the record, we will include them as well. 

Mr. GOHMERT. I knew you would be that fair. Thank you. 

Mr. CONYERS. They will be an important part of the record. 

[Note: Due to the large number of pages of the signing statements of Presidents Bush and Clinton, these documents are not 

printed in this hearing record, but a copy of these statements has 

been retained in the official Committee hearing file. These documents are also available at http://www.presidency.ucsb.edu/

signingstatements.php.] 

Mr. CONYERS. Ladies and gentlemen, we have had a long day, 

but I think it is an important day, and I think this is a highly appropriate subject for our oversight hearings to begin in the 110th 

Congress. The Committee stands adjourned. 

[Whereupon, at 2:45 p.m., the Committee was adjourned.] 

(105)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Mr. Chairman, I move to strike the last word. I thank the Chairman and the 

Ranking Member and I welcome each of the witnesses comprising this most distinguished panel. I am very much looking forward to their testimony and the opportunity to engage in serious discussion on a most serious subject. 

Might I also take this opportunity to congratulate you, Mr. Chairman, on your assuming the gavel of this august committee. You have led our side with grace, wisdom, and good cheer for many years now and I am delighted to know that the full 

committee will now be benefiting from your boundless energy, seriousness of purpose, and unshakeable commitment to justice. 

Judging by the subject chosen for the very first hearing that you have presided 

over as Chairman, you are living up to expectations. Those of us on this side of the 

dais know you as person who never takes his eyes off the prize, who always see the 

big picture, who recognizes what is important where others only see what may be 

unusual. 

Such is the case with presidential signing statements. To some, the topic may 

seem abstract or esoteric or arcane. But you and I and most members of this Committee understand that what has been going on in this Administration for the past 

six years regarding the misuse and abuse of signing statements poses, as the American Bar Association’s Task Force on Signing Statements has observed, ‘‘a real 

threat to our system of checks and balances and the rule of law.’’

It is for this reason that in the last Congress I introduced H.R. 5684, the ‘‘Congressional Lawmaking Authority Protection Act’’ or CLAP Act of 2006, which (1) 

prohibited the expenditure of appropriated funds to distribute, disseminate, or publish presidential signing statements that contradict or are inconsistent with the legislative intent of the Congress in enacting the laws; and (2) bars consideration of 

any signing statement by any court, administrative agency, or quasi-judicial body 

when construing or applying any law enacted by Congress. I am proud to say that 

the Chairman was one of the original co-sponsors of my bill. 

I have reintroduced this legislation in substantially the same form in the 110th 

Congress, except that the new bill, H.R. 264, makes clear that the limitations of the 

law do not apply to presidential signing statements that are not inconsistent with 

the congressional intent. This is not a hard test to administer. Like the late Justice 

Potter Stewart said about obscenity: ‘‘it may be hard to define, but you know it when 

you see it!’’

As an aside Mr. Chairman, might I say this to those who would question whether 

the Congress has the power to ban the use of appropriated funds to publish or distribute signing statements: regardless of whether it is wise to do so, if no one seriously can question Congress’ constitutional authority to terminate a president’s use 

of appropriated funds to wage military operations, a fortiori, Congress has the constitutional authority to withhold from the president funds needed to distribute a 

signing statement that undermines the separation of powers! 

Let me state clearly and for the record my concern with the abuse and misuse 

of presidential signing statements, especially by the current president. 

Presidential signing statements seek to alter Congress’ primacy in the legislative 

process by giving the President’s intention in signing the bill equal or greater standing to Congress’ intention in enacting it. This would be a radical, indeed revolutionary, change to our system of separated powers and checks and balances. 

Bill signing statements eliminate the need for a president ever to exercise the 

veto since he could just reinterpret the bill he signs so as to make it unobjectionable 

to him. Such actions deprive Congress of the chance to consider the president’s obVerDate 0ct 09 2002 12:08 Jun 13, 2007 Jkt 000000 PO 00000 Frm 00109 Fmt 6601 Sfmt 6621 F:\WORK\FULL\013107\32844.000 HJUD1 PsN: 32844
106

jections, override his veto, and in the process make it clear that the president’s position is rejected by an overwhelming majority of the people’s representatives. Since 

few presidents wish to suffer a humiliation so complete and public they have strong 

incentive to work closely with the Congress and are amenable to negotiation and 

compromise. This is precisely the type of competitive cooperation the Constitution 

contemplates and which bill signing statements threaten! 

Although presidents have used signing statements since the Monroe Administration, they really came to prominence during the administration of Ronald Reagan, 

who issued 276 signing statements, 71 of which (26%) questioned the constitutionality of a statutory provision. The Reagan Administration’s goal, as articulated 

by then-Office of Legal Counsel lawyer, now Associate Justice Samuel Alito, was to 

establish the signing statement as part of a statute’s legislative history which courts 

would use in interpretation. This met with limited success because while the Court 

referenced signing statements in two major cases, there is no indication that it accorded them any weight. 

President George H.W. Bush issued 214 signing statements during his single 4-

year term raising 146 constitutional objections. President Bill Clinton issued 391 

but raised only 105 constitutional objections. Thus, out of a total of 881 signing 

statements, 322 constitutional objections were raised to the bills signed by Presidents Reagan, the first Bush, and Clinton during the twenty (20) year span from 

1981–2001. 

The record of the Bush Administration is dramatically different and confirms our 

worst fears. In less than six years, the current occupant of the White House issued 

more than 125 signing statements, raising more than 800 constitutional objections 

by himself. As the ABA Task Force put it: 

From the inception of the Republic until 2000, Presidents produced signing statements containing fewer than 600 challenges to the bills they signed. According to 

the most recent update, in his one and a half terms so far, President George W. 

Bush (Bush II) has produced more than 800. 

Mr. Chairman, according to Professor Christopher Kelley, an expert on presidential signing statements, as of January 12, 2007, President Bush has issued 150 

signing statements challenging 1,149 provisions of law. 

Not coincidentally, President Bush’s signing statements have challenged the constitutionality of extremely high-profile laws such as the reporting provisions under 

the USA PATRIOT Act of 2005, and the McCain Amendment prohibiting torture. 

The president’s statements have essentially asserted that President Bush does not 

believe that he is bound by key provisions of the legislation. They seek to further 

a broad view of executive power and President Bush’s view of the ‘‘unitary executive,’’ pursuant to which all the powers lodged in the Executive and administrative 

agencies by Congress is somehow automatically and constitutionally vested in the 

President himself. 

In general, President Bush’s signing statements do not contain specific refusals 

to enforce provisions or analysis of specific legal objections, but instead are broad 

and conclusory assertions that the president will enforce a particular law or provision consistent with his constitutional authority, making their true intentions and 

scope unclear and rendering them difficult to challenge. 

What makes President Bush’s use of presidential signing statements doubly problematic is his demonstrated and documented reluctance to raise his constitutional 

objections in a veto message to Congress, as contemplated by the Constitution. Indeed, to date, more than half-way through his second term, President Bush has only 

vetoed a single bill (embryonic stem cell), notwithstanding the more than 1,000 constitutional objections he has raised during this same period of time. 

It seems obvious to intelligent observers that the president is trying to game the 

system and frustrate the system of checks and balances so carefully crafted by the 

Framers. Rather than risk a showdown with the Congress over some claimed constitutional right he thinks he possesses but cannot articulate or defend in the light 

of day, President Bush simply signs the law as if he accepts its constitutional validity and then when no one but Vice-President Cheney is watching issues a signing 

statement saying he will comply with the law only to the extent he feels legally 

bound to do so, which of course, he doesn’t. 

This sort of presidential shenanigan would embarrass and anger the Founding 

Fathers. Embarrass them because the action is cowardly, which was hardly to be 

expected of the Chief Executive of the United States. It would anger them because 

it makes a mockery of the system of checks and balances they so carefully crafted. 

So thank you again, Mr. Chairman, for convening this timely and important hearing. I am looking forward to hearing from the witnesses and considering their responses to the subcommittee’s questions. 

Thank you. I yield the balance of my time.

107

PREPARED STATEMENT OF THE HONORABLE LINDA T. SA ́ NCHEZ, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Thank you Chairman Conyers and Ranking Member Smith for holding today’s 

hearing on this extremely important issue. I also thank the distinguished witnesses 

who have agreed to testify here today. 

In addition to creating new laws, Congress has a responsibility to monitor how 

those laws are being executed. The Framers of the U.S. Constitution were very careful to develop a system of checks and balances and Congress must ensure that that 

system is not circumvented. 

The Constitution is clear in assigning to Congress the power to write the laws and 

to the President a duty ‘‘to take care that the laws be faithfully executed.’’ Accordingly, the President has the constitutional authority to veto a bill in its entirety or 

sign it into law. 

By repeatedly declaring that he does not need to execute a law, or parts of a law, 

he believes is unconstitutional, the President is usurping the roles of both the Legislature and the Judiciary. 

Congress spends a substantial amount of time negotiating and deliberating legislation before it arrives on the President’s desk. For the President to then pick and 

choose which parts of a bill he would like to enforce is just another way for this 

Administration to make unilateral decisions that dramatically affect the American 

people. 

The President’s signing statement on H.R. 6407, the ‘‘Postal Accountability and 

Enhancement Act’’ is a perfect example of this. There he used such broad language 

that it could be interpreted to allow citizens’ mail to be opened without a warrant. 

Additionally, I do not believe that the practice of selectively picking and choosing 

which parts of a bill will actually be enforced as law is substantially different from 

a line item veto, which the Supreme Court has squarely held unconstitutional in 

Clinton v. City of New York. 

This President’s use of signing statements seems to demonstrate that the Administration believes that the executive branch is superior to the other branches of government, rather than co-equal. 

I applaud the American Bar Association for establishing the bi-partisan task force 

on Presidential Signing Statements, and I hope this hearing will draw even more 

attention this very important issue. 

Thank you, Mr. Chairman. 

PREPARED STATEMENT OF THE H

fONORABLE STEVE COHEN, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TENNESSEE

The constitutional separation of powers acts as the first line of defense for our 

liberty. President Bush’s abusive use of signing statements to suggest that he would 

not enforce or comply with duly enacted laws passed by Congress is an affront to 

this principle. Today’s oversight hearing is a long overdue step in confronting just 

one of the President’s arrogant and egregious attempts to undermine the constitutionally mandated balance of power among the branches of government. 

PREPARED STATEMENT OF THE HONORABLE

fLUIS V. GUTIERREZ, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF ILLINOIS

Mr. Chairman, I thank you for holding this important hearing to examine the use 

of presidential signing statements by the Bush Administration. This hearing demonstrates your leadership and commitment to fulfilling our crucial oversight responsibilities. 

I also want to thank the witnesses today for being here and adding to this important debate. I am pleased that we have invited both administration officials, as well 

as legal and constitutional experts to examine this important issue. 

Today, we are faced with an ever-increasing amount of signing statements that 

question the constitutionality of duly enacted laws or statutes therein. President 

Bush has often used the practice of signing statements to challenge laws he has 

signed by declaring he will only enforce them in a manner that concurs with his 

interpretation of the constitution and his vision of the so-called unitary executive 

branch. 

As many of our witnesses have shared in their written testimony, these signing 

statements pose a grave threat to the separation of powers among the three 

108

branches of government. They endanger the legislative branch’s constitutionally 

granted power to write laws. For example, in his signing statements accompanying 

the PATRIOT Act and legislation on the treatment of detainees or the ability of the 

federal government to open our mail, the President has time and again sought to 

expand the Administration’s power under the guise of fighting the War on Terror. 

Today, we have the opportunity to further explore whether this is a practice in 

which Congress needs to intervene. I look forward to my colleagues’ questions and 

again thank the panelists for being here.

109

1The letters and reports referenced in Mr. Elwood’s responses have been retained in the official Committee hearing file but because of the volume of the information, they are not being 

inserted in the printed hearing record.

RESPONSE TO POST-HEARING QUESTIONS FROM JOHN P. ELWOOD, DEPUTY ASSISTANT

ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, UNITED STATES DEPARTMENT OF

JUSTICE 1


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RESPONSE TO POST-HEARING QUESTIONS FROM THE HONORABLE MICKEY EDWARDS, 

FORMER MEMBER OF CONGRESS FROM THE STATE OF OKLAHOMA, ASPEN INSTITUTE


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RESPONSE TO POST-HEARING QUESTIONS FROM KAREN J. MATHIS, PRESIDENT, 

AMERICAN BAR ASSOCIATION


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RESPONSE TO POST-HEARING QUESTIONS FROM NICHOLAS QUINN ROSENKRANZ, 

ASSOCIATE PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTE


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RESPONSE TO POST-HEARING QUESTIONS FROM CHARLES J. OGLETREE, JR., JESSE

CLIMENKO PROFESSOR OF LAW, HARVARD LAW SCHOOL


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NEWSPAPER ARTICLE ENTITLED ‘‘ ‘SIGNING STATEMENTS’ ARE A PHANTOM TARGET,’’ BY

LAURENCE H. TRIBE, AUGUST 9, 2006, THE BOSTON GLOBE, SUBMITTED BY THE

HONORABLE F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF WISCONSIN


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NEWSPAPER ARTICLE ENTITLED ‘‘WHO’S AFRAID OF PRESIDENTIAL SIGNING

STATEMENTS?’’ BY STANLEY FISH, FEBRUARY 4, 2007, THE NEW YORK TIMES


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NEWSPAPER ARTICLE ENTITLED ‘‘GUESS WHO IS OPENING, READING YOUR MAIL; OUR 

OPINION: CONGRESS MUST HOLD HEARINGS ON SIGNING STATEMENTS,’’ JANUARY 9, 2007, THE MIAMI HERALD


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NEWSPAPER ARTICLE ENTITLED ‘‘ENDING BACK-DOOR VETOES,’’ JULY 25, 2006, 

THE BOSTON GLOBE


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NEWSPAPER ARTICLE ENTITLED ‘‘VETO? WHO NEEDS A VETO?’’ MAY 5, 2006, THE NEW

YORK TIMES


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Æ


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