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42–902 2008

[H.A.S.C. No. 110–129]

THE IMPACT OF THE PRESIDENTIAL

SIGNING STATEMENT ON THE DEPARTMENT OF DEFENSE’S IMPLEMENTATION

OF THE FISCAL YEAR 2008 NATIONAL

DEFENSE AUTHORIZATION ACT

HEARING

BEFORE THE

OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE

OF THE

COMMITTEE ON ARMED SERVICES

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

HEARING HELD

MARCH 11, 2008

(II)

OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE

VIC SNYDER, Arkansas, Chairman

JOHN SPRATT, South Carolina

LORETTA SANCHEZ, California

ELLEN O. TAUSCHER, California

ROBERT ANDREWS, New Jersey

SUSAN A. DAVIS, California

JIM COOPER, Tennessee

HANK JOHNSON, Georgia

JOE SESTAK, Pennsylvania

W. TODD AKIN, Missouri

ROSCOE G. BARTLETT, Maryland

WALTER B. JONES, North Carolina

JEFF MILLER, Florida

PHIL GINGREY, Georgia

K. MICHAEL CONAWAY, Texas

GEOFF DAVIS, Kentucky

GREG MARCHAND, Professional Staff Member

THOMAS HAWLEY, Professional Staff Member

ROGER ZAKHEIM, Professional Staff Member

SASHA ROGERS, Research Assistant

(III)

C O N T E N T S

CHRONOLOGICAL LIST OF HEARINGS

2008

Page

HEARING:

Tuesday, March 11, 2008, The Impact of the Presidential Signing Statement

on the Department of Defense’s Implementation of the Fiscal Year 2008

National Defense Authorization Act ................................................................... 1

APPENDIX:

Tuesday, March 11, 2008 ........................................................................................ 39

TUESDAY, MARCH 11, 2008

THE IMPACT OF THE PRESIDENTIAL SIGNING STATEMENT ON THE

DEPARTMENT OF DEFENSE’S IMPLEMENTATION OF THE FISCAL

YEAR 2008 NATIONAL DEFENSE AUTHORIZATION ACT

STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Akin, Hon. W. Todd, a Representative from Missouri, Ranking Member, Oversight and Investigations Subcommittee ............................................................. 3

Snyder, Hon. Vic, a Represenative from Arkansas, Chairman, Oversight and

Investigations Subcommittee .............................................................................. 1

WITNESSES

Fein, Bruce, Constitutional Attorney, Bruce Fein & Associates, Member,

American Bar Association Task Force on Presidential Signing Statements ... 9

Halstead, T.J., Legislative Attorney, American Law Division, Congressional

Research Service .................................................................................................. 5

Kepplinger, Gary L., General Counsel, U.S. Government Accountability Office ......................................................................................................................... 7

Rosenkranz, Nicholas Quinn, Associate Professor of Law, Georgetown University Law Center, Washington, DC ...................................................................... 12

APPENDIX

PREPARED STATEMENTS:

Akin, Hon. W. Todd .......................................................................................... 45

Fein, Bruce ........................................................................................................ 87

Halstead, T.J. .................................................................................................... 48

Kepplinger, Gary L. .......................................................................................... 70

Rosenkranz, Nicholas Quinn ........................................................................... 95

Snyder, Hon. Vic ............................................................................................... 43

Tierney, Hon. John F. joint with Hon. Thomas H. Allen .............................. 108

DOCUMENTS SUBMITTED FOR THE RECORD:

[There were no Documents submitted.]

QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD:

[There were no Questions submitted.]

(1)

THE IMPACT OF THE PRESIDENTIAL SIGNING STATEMENT ON THE DEPARTMENT OF DEFENSE’S IMPLEMENTATION OF THE FISCAL YEAR 2008 NATIONAL DEFENSE AUTHORIZATION ACT

HOUSE OF REPRESENTATIVES, COMMITTEE ON ARMED SERVICES, OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE, Washington, DC, Tuesday, March 11, 2008.

The subcommittee met, pursuant to call, at 12:06 p.m., in room

2212, Rayburn House Office Building, Hon. Vic Snyder (chairman

of the subcommittee) presiding.

OPENING STATEMENT OF HON. VIC SNYDER, A REPRESENTATIVE FROM ARKANSAS, CHAIRMAN, OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE

Dr. SNYDER. The hearing will come to order.

Good afternoon. We appreciate you all being here today.

Our hearing topic today is on the impact of the Presidential signing statement on implementation of the National Defense Authorization Act for Fiscal Year 2008. And by far, though, our concern

about this issue is as we look ahead to future defense bills, as Mr.

Skelton is here with us, looking at how is this going to impact on

the drafting of this year’s defense bill.

I want to read this Presidential signing statement that the President issued on January 28, 2008, when he signed the National Defense Authorization Act for Fiscal Year 2008.

‘‘Today I have signed into law H.R. 4986, the National Defense

Authorization Act for Fiscal Year 2008. The act authorizes funding

for the defense of the United States and its interests abroad, for

military construction and for national security-related energy programs. Provisions of the act, including sections 841, 846, 1079 and

1222, purport to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations to take care

that the laws be faithfully executed to protect national security, to

supervise the executive branch and to execute his authority as commander in chief. The executive branch will construe such provisions in a manner consistent with the constitutional authority of

the President.’’ And that is the end of this statement.

Two things come to mind. First, there is no detail there at all

about any of those four provisions, about what that means. There

is no guidance to this committee, as drafters of the defense bill,

and so we are hoping to have some insight today from this hearing

on what that means.

And then the second concerning provision—the President’s statement clearly says ‘‘provisions including these four’’ and with the

2

clear statement being that perhaps there are another 500 provisions, perhaps there are another three provisions. It is not clear

from the statement what that means.

Because of the statements contained in the signing statement,

Chairman Skelton requested that this subcommittee hold a hearing

to ask a simple question of the Department of Defense: Are you implementing or planning to implement the law, this fiscal year defense bill, as Congress wrote it? Unfortunately, DOD declined to

provide a witness for today’s hearing.

We also invited the Department of Justice Office of Legal Counsel, but they declined, as well, because they don’t testify about specific provisions of law.

We are not the Judiciary Committee. Probably nobody here

wants to be in the Judiciary Committee. We are here because we

like working on defense issues, and we think it is very important,

writing defense bills. But we need some guidance about what does

this mean for future drafting of this bill.

I am a little bit—Dr. Gingrey and I had the great honor last

night of flying down and witnessing the launch of the space shuttle, which may account, if you see he or I nodding off, since we arrived back in D.C. at 6:30 this morning after being up all night.

It was the second one I went to. The first one I went to was when

Eileen Collins was the shuttle commander. And the thing fired up,

and with, I don’t know, just a few seconds to go, it just shut down,

because somebody had seen something and pushed a button that

said ‘‘stop.’’ And we did not see the launch. That was eight or nine

years ago.

Last night, we were watching it. It was just spectacular, and it

went without a hitch. And it was just a wonderful thing to see.

But it seems to me that, you know, nobody at NASA put a stickem note on the side of the space shuttle last night saying, ‘‘I may

have concerns about this. I will let you know. There are a millionplus moving parts in that thing; we have a problem with three of

them. We will let you know what those are down the line.’’ It is

either go or no-go. And we are trying to come to some edification

about how do we make our defense bill, which we all care about

on this committee, be a ‘‘go’’ situation.

We are pleased to have Mr. Skelton here with us today. There

is a lot of interest in these issues.

Mr. Tierney and Mr. Allen, who had worked on one of these provisions, the stand-alone bill which Mr. Skelton included in the underlying defense bill, the wartime contracting commission, are very

concerned about it, since one of the four provisions is their wartime

contracting commission bill. And I would ask unanimous consent

that Mr. Tierney and Tom Allen’s statement be included as part of

the record also.

And any written statements from members, including Mr. Akin

and Mr. Skelton, without objection, will be made part of the record.

I would now like to call on Mr. Akin.

Or should I tell another story, Todd, while you——

[The prepared statement of Dr. Snyder can be found in the Appendix on page 43.]

[The joint prepared statement of Mr. Tierney and Mr. Allen can

be found in the Appendix on page 108.]

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STATEMENT OF HON. W. TODD AKIN, A REPRESENTATIVE

FROM MISSOURI, RANKING MEMBER, OVERSIGHT AND INVESTIGATIONS SUBCOMMITTEE

Mr. AKIN. Filibuster another minute. [Laughter.]

No. Thank you very much, Mr. Chairman—and Mr. Senior

Chairman and Junior Chairman. We have got all kinds of chairmen here today.

And thank you to our guests and our witnesses.

The hearing addresses an important subject that merits the attention of this committee. And I think it is something that is just,

for all of us that once in a while have to deal with the law, it is

interesting to see how that works in this particular situation.

Presidential signing statements invoke the constitutional prerogatives of the legislative branch and the executive branch. The

House Armed Services Committee, in particular, carries out the

specified duty in Article I of the Constitution, and that is to provide

for the common defense and to raise and support armies and to

provide and maintain a navy and to make rules for the government

and regulation of the land and naval forces.

Similarly, the President has the responsibility outlined in Article

II to preserve, protect and defend the Constitution and to take care

that the laws be faithfully executed.

While we hope that these respective constitutional responsibilities of the legislative and executive branches do not conflict, the

reality is that there is frequently disagreement between the two

branches. In my view, this is a natural state of affairs that our

founders built in to our unique form of government.

The crucial question, therefore, is not if these conflicts are appropriate, as I believe these tensions are built in to our Constitution,

but how such disputes are addressed and resolved.

In my view, when the Congress and President do disagree about

the constitutionality of a specific provision of the law, the most important equity to be preserved is transparency and communication.

If the President believes his independent duties under the Constitution preclude him from implementing the law in the matter

Congress prescribed, then I want to know. What I do not want is

an executive that does not communicate with the Congress.

Therefore, it seems to me that the Presidential signing statements, like a statement of the Administration’s position Statements of Administration Policy (SAP) or so-called ‘‘heartburn letters,’’ are important tools of communication so that the legislative

branch knows which provisions of law will require increased oversight over executive implementation.

With request to fiscal year 2008 National Defense Authorization

Act (NDAA), the President highlighted four provisions in his signing statement. I think the prudent course for this committee is to

oversee the implementation of those provisions to ensure that they

are carried out consistent with our legislative intent.

My understanding is that measuring exactly how signing statements actually affect implementation is something that has not

been studied closely. I would like our witnesses to comment on this

point.

Finally, there is the matter of whether courts will give weight to

signing statements in a manner similar to legislative history. My

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question for the witnesses, particularly Professor Rosenkranz, is

whether it is inappropriate for courts to consider the President’s

constitutional equities when interpreting a statute. Moreover, if

courts consult foreign sources of law when implementing U.S.

law—something I am deeply skeptical of—shouldn’t they take into

account at least a President’s statement?

Thank you again to our witnesses for being here today. I look forward to your testimony.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Akin can be found in the Appendix on page 45.]

Dr. SNYDER. Thank you, Mr. Akin. And I had to keep Mr. Skelton from lunging for your sandwich there, while you were doing

your statement.

We are honored to have Mr. Skelton, our full committee chairman. Mr. Skelton is recognized.

The CHAIRMAN. First, let me compliment you and congratulate

you on calling this hearing.

Being the lawyer that I am, it is important, when we pass laws,

that the Administration understands our intent. We do know the

English language pretty well and try to communicate that not just

in the legislative language but also in the report language. And, as

I say, with my background, I am concerned when signing statements leave the possibility of, ‘‘Part of this will not be fully enforced as you in Congress intend.’’ And that, of course, is the subject of this hearing.

I hope that you will shed light on where we could or should go

on this. We do our best to be clear in our language and make it

readable and understandable for the Administration to follow. We

intend for that to happen. That is our job, to provide for, raise and

maintain, as well as write the rules and regulations for the military. And that is what we do, and I think we have done a good job

through the years in that department.

I called the Deputy Secretary of Defense the other day, and I

called him again today, regarding this issue. And I have his permission to quote him exactly as to what he told me this morning

regarding this specific issue, and I share it with our panel.

‘‘The Department of Defense always obeys the law. Questions regarding the constitutionality of laws are the purview of the Justice

Department.’’

So there we are. And I hope that you can help us, because, in

the future when we pass law and do report language, we intend for

that to be fulfilled. Because that is our constitutional duty and the

constitutional duty of the commander in chief and those that work

for him, is to carry that out.

So, with that, I thank you again, Dr. Snyder, chairman of the

committee, and Mr. Akin, for calling this hearing, as well as the

other members of this committee. And I look forward to the witnesses. Thank you.

Dr. SNYDER. Thank you, Mr. Skelton.

Just to be sure everybody understands, that was Secretary England. You did not name a name, but you gave his title. I just wanted to be sure it was——

The CHAIRMAN. Secretary Gordon England.

5

Dr. SNYDER [continuing]. Secretary Gordon England, right.

Thank you, Mr. Skelton, for your great leadership on this committee.

Let me introduce our four witnesses. We have four great people.

We really appreciate you all being here this morning.

T.J. Halstead, legislative attorney, the American Law Division at

the Congressional Research Service; Gary L. Kepplinger, general

counsel for the U.S. Government Accountability Office; Bruce Fein,

constitutional attorney at Bruce Fein & Associates and a member

of the American Bar Association Task Force on Presidential Signing Statements; and Nicholas Quinn Rosenkranz, associate professor of law at Georgetown University Law Center.

And what we will do, gentlemen, is we will begin with Mr.

Halstead and move down the line, which is the order I introduced

you.

We will have the clock put on for five minutes. When you see the

red light go off, don’t panic. If you have got other things to say, we

want to hear from you. But it is to give you a sense of where you

are at in your time. And I would probably encourage you to err on

the side of brevity, so that we might get to the questions that members have. But feel free to ignore that red light.

Mr. Halstead.

STATEMENT OF T.J. HALSTEAD, LEGISLATIVE ATTORNEY,

AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH

SERVICE

Mr. HALSTEAD. Mr. Chairman, members of the subcommittee, my

name is T.J. Halstead. I am a legislative attorney with the American Law Division of the Congressional Rresearch Service (CRS).

And I thank you for inviting me to testify today regarding the impact of signing statements on national defense authorization acts.

As I explain more fully in my prepared statement, the initial step

the subcommittee is taking today to look at the practical impact of

a signing statement on a specific congressional enactment is a

sound approach from an institutional perspective.

I say this because, until recently, the congressional response to

signing statements has focused almost exclusively on the instrument of the signing statement itself, presumably motivated by the

current Administration’s utilization of these documents, to raise

numerous individual objections to statutory provisions, resulting in

challenges to well over 1,000 distinct provisions of law in the 157

statements that have been issued by President Bush.

However, there is no constitutional or legal impediment to the

issuance of signing statements in and of themselves. And when you

look at the language that typifies these statements, it becomes apparent that the objections that are raised are so generalized that

they constitute nothing more and nothing less than a broad assertion of Presidential authority over all aspects of executive branch

organization and operation.

The President’s signing statement accompanying the most recent

national defense authorization act provides a good example of this

dynamic. The President’s statement identifies four provisions of

law, as the chairman just noted, that the President deems constitutionally problematic.

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And the objections voiced are typical of those raised in signing

statements in other contexts, in that they consist of a generalized

declaration that the provisions—namely, sections 841, 846, 1079

and 1222—purport, again, to impose requirements that could inhibit the President’s ability to carry out his constitutional obligations to: one, take care that the laws be faithfully executed; two,

to protect national security; three, to supervise the executive

branch; and finally, impair the President’s ability to executive his

authority as commander in chief.

And, additionally, as in numerous other signing statements, the

statement is concluded with the declaration that the executive

branch shall construe those provisions in a manner consistent with

the constitutional authority of the President.

The nature of these objections is not clarified or substantiated

when you look at the actual text of the provisions that have been

objected to.

Section 841 establishes a legislative commission that is tasked

with studying agency contracting in Iraq and Afghanistan and is

similar in composition and authority to numerous other commissions that Congress has created in the past.

Section 846 strengthens whistleblower protections for contractors. And there is, likewise, ample precedent for the imposition of

such provisions by Congress.

Section 1079 imposes reporting requirements on certain elements

of the intelligence community. And it is, again, well-established

that Congress can impose direct reporting requirements of this

type.

Finally, Section 1222 prohibits the use of any funds appropriated

in the act to establish permanent military bases in Iraq or to exercise control over Iraq’s oil resources.

It seems that the President’s objection to this provision rests

upon a broad reading of his constitutional commander-in-chief powers, which are largely undefined in relation to the powers of Congress to control military operations. However, Congress’s power of

the purse would appear invested with the prerogative to impose

binding restrictions of this type on the use of appropriated funds.

Ultimately, the objections that are raised in the current act are

similar to previous signing statements, in that they do not contain

explicit, measurable refusals to enforce a law, but instead raise

challenges that are largely unsubstantive or are so general that

they appear simply to be hortatory assertions of executive power.

These broad assertions of authority carry significant practical

and constitutional implications for the traditional relationship between the executive branch and Congress. But those implications

will manifest themselves by virtue of the substantive actions taken

by the Administration to embed that conception of executive authority into the constitutional framework and not simply as the result of the President’s use of the instrument of the signing statement.

Moreover, I think it is unlikely that a reduction in the number

of challenges raised in signing statements, whether that is caused

by the imposition of procedural limitations or simply through political rebuke, will result in any change in a President’s conception

and assertion of executive authority.

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And, in light of that, I think these signing statements essentially

give you a roadmap of provisions of law that the President holds

in disregard, in turn affording Congress the opportunity, through

focused inquiries of the type this subcommittee is undertaking

today, to engage in systematic monitoring to more effectively assert

the constitutional prerogatives of Congress, as well as the

Congress’s oversight prerogatives, and to ensure compliance with

congressional enactments.

Mr. Chairman, I will conclude my statement there. I would be

happy to answer any questions you or other members of the subcommittee might have. And I look forward to working with all

members and staff of the subcommittee on this issue in the future.

[The prepared statement of Mr. Halstead can be found in the Appendix on page 48.]

Dr. SNYDER. Thank you, Mr. Halstead.

Mr. Kepplinger.

STATEMENT OF GARY L. KEPPLINGER, GENERAL COUNSEL,

U.S. GOVERNMENT ACCOUNTABILITY OFFICE

Mr. KEPPLINGER. Mr. Chairman, Mr. Akin, members of the subcommittee, thank you very much for inviting me to participate in

today’s hearing on Presidential signing statements.

I would like to focus my remarks on two issues that we examined

last year, at the request of Chairman Conyers and Chairman Byrd

of the Senate Appropriations Committee: First, what use and

weight has the Judiciary given signing statements? And second,

have agencies faithfully implemented statutory provisions to which

the President objected in signing statements?

Before discussing these issues, I would like to give some background regarding signing statements.

Historically, Presidents have used signing statements for a variety of purposes, most of them noncontroversial. Some signing statements praise new laws. Others applaud bipartisanship and cooperation that led to a law’s passage. These largely ceremonial

statements extolling the benefits of a bill are not, and have not

been, the cause of public consternation or debate.

Presidents, including the current President, have used signing

statements in more controversial ways. Presidents have used signing statements to offer a statutory interpretation of a provision or

to explain how agencies will execute the newly signed law. These

signing statements may be of no more public moment or controversy than the policy objectives than the policy objectives that

the law seeks to further.

Presidents also use signing statements to raise constitutional objections to provisions of law. These constitutional objections typically go to two types of statutory provisions: those which the President believes impinge on his constitutional prerogatives or those

that he believes impinge on the constitutional rights of our fellow

citizens.

These more controversial signing statements sometimes will announce a refusal to enforce or defend what the President views as

an objectionable provision. More frequently, however, the statements do no more than raise objections on broad, abstract grounds

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without explicitly directing the agencies not to enforce or defend

the laws.

They also frequently offer curative interpretations of objectional

provisions, directing implementation, as in the case of the signing

statement accompanying the National Defense Authorization Act,

‘‘consistent with the President’s views of his constitutional authority.’’

It is with respect to these more controversial uses of signing

statements that Congress’s constitutional role of enacting the laws

duly presented and signed by the President clearly intersect with

the President’s responsibilities to take care that the laws be faithfully executed.

Add to this the difficulties associated with satisfying Article III

standing requirements needed to judicially challenge implementation of many of these provisions, and one can easily appreciate

Congress’s and others’ frustrations with signing statements.

As CRS has reported, one of the objectives associated with the

Reagan Administration’s increased use of signing statements was—

and I will quote my friend here on the right—‘‘to establish the signing statement as part of the legislative history of an enactment

and, concordantly, to persuade courts to take the statements into

consideration in judicial rulings.’’

As part of our work for Chairmen Byrd and Conyers, we surveyed Federal case law to determine how Federal courts have

treated signing statements. Our search, going back to 1945, found

fewer than 140 cases that cited two signing statements.

When cited, the signing statements rarely had any impact on judicial decisionmaking. Rather, courts cited to signing statements to

identify the date a bill was signed into law or to provide a short

summary of the statute. Sometimes courts have cited to signing

statements to note that the statement echoes views expressed

about a bill in congressional documents such as committee reports.

In sum, I think it fair to say that signing statements are not part

of the legislative history of a law and, hence, generally will not be

used in ascertaining Congress’s intent in enacting a law. Accordingly, courts only rarely give signing statements any interpretive

weight in their construction of the statute.

The second issue we looked at was whether agencies responsible

for provisions to which the President had raised constitutional objections had implemented the provisions as written. To do this

work, we looked at the implementation of 29 provisions of law. Parenthetically, one provision applied to two agencies, so we examined

agency action in 30 instances.

We contacted the responsible 21 agencies and requested and obtained information from them regarding their implementation. In

nine of the 30 instances we examined, the agencies responsible for

implementing the provision had not done so.

The provisions required a variety of actions on the part of the

agencies charged with their implementation. Five of the nine called

for agencies to receive congressional approval prior to spending

funds—the so-called Chadha provisions—or to provide Congress

with information of a certain nature or within a specific timeframe.

A couple limitations: We did not assess the merits of the President’s objections, nor did we analyze the constitutionality of the

9

provisions themselves. We also did not examine provisions to which

the President objected that dealt with matters of national security

or intelligence, given the difficulties obtaining sensitive information

from responsible agencies within the timeframes needed.

In addition, we offered no opinion on whether the President’s

signing statements actually caused the agencies in question not to

execute the provisions as written. Because agency noncompliance

could have resulted from a number of factors, we could not determine whether a cause-and-effect relationship existed between the

signing statement objections and agency implementation.

But apart from these limitations, the fact remains that, in nine

of 30 instances we examined, the responsible agencies had failed to

implement the statutory provisions according to the letter of the

law. Moreover, the President continues to issue signing statements

objecting to provisions that leave the Congress unsure whether the

President will carry out the laws as written.

The difficulties associated with obtaining judicial review that I

mentioned earlier should not deter Congress from investing its institutional capital to ensure agency compliance with its directions

through vigorous oversight. Indeed, while violations of the provisions we reviewed may not always involve matters of great public

policy, they do go directly to the tone and tenor of the institutional

dialogue between Congress and the executive branch needed for

Congress to effectively discharge its responsibilities.

Committee monitoring of agency implementation of statutory

provisions about which the President objects or raises concerns in

signing statements is a good first step in reasserting congressional

control. Depending on the facts and circumstances surrounding implementation, Congress has a variety of tools at its disposal to ensure its expressed will is honored in substance even if not in form.

The concludes my remarks. I would be happy to answer any

questions.

[The prepared statement of Mr. Kepplinger can be found in the

Appendix on page 70.]

Dr. SNYDER. Thank you, Mr. Kepplinger.

We have a motion to adjourn coming up. Mr. Fein, I think we

will have time for your opening statement, and if it, at some point,

appears we won’t, I will interrupt you. But let’s go ahead and try

to get your opening statement in now.

Mr. Fein.

STATEMENT OF BRUCE FEIN, CONSTITUTIONAL ATTORNEY,

BRUCE FEIN & ASSOCIATES, MEMBER, AMERICAN BAR ASSOCIATION TASK FORCE ON PRESIDENTIAL SIGNING STATEMENTS

Mr. FEIN. Thank you, Mr. Chairman and members of the committee.

The hearing today is a question of who exercises power. It is not

quibbles over language. The dispute between the executive branch

and this committee is a dispute over who gets to decide whether

we project military force abroad and we send men and women to

die for the United States of America.

I want to refer to a few historical precedents that underscore the

importance of the issue that you are examining.

10

Let’s go back to the Stuart days of the British monarch. There

was a huge dispute over King Charles I’s assertion of authority

unilaterally to level a ship tax to fight wars that Parliament opposed. This particular dispute ended up in court, and although

Charles I won the litigation, he lost his head soon thereafter.

The dispute over the authority of the executive to spend money

unilaterally in order to fight wars that Parliament opposed continued up through the reign of James II. And when he was overthrown, the English Bill of Rights of 1688—and they styled this

provision a bill of rights, like our first Bill of Rights—declared that

the king would have no power to spend any money to undertake

any initiative unless it had been explicitly approved by Parliament.

It was with that background that the founding fathers entrusted

the power of the purse to the Congress of the United States. They

feared that the executive would inflate danger in order to conduct

war abroad to migrate power to the executive, to create bogus and

imaginary fears in order to concentrate power and political popularity in the President. That is why James Madison characterized

in the ‘‘Federalist Papers’’ the power of the purse as the ‘‘invincible

instrument’’ that Congress had to redress grievances against the

President.

Now, we don’t need to be conjectural about what the Congress intended in the National Defense Authorization Act with regard to

permanent military bases in Iraq. Everyone knows the President is

now involved in negotiating, perhaps, permanent military bases in

Iraq, through executive order or otherwise. Now, that may well be

a good or a bad idea, but the founding fathers insisted that if Congress wanted to have its say, it should be obeyed.

Now, let’s look at the language of 1222. It is not ambiguous, unless we are in Humpty Dumpty, saying, ‘‘A word means whatever

I want it to mean.’’ The President says, well, he will construe section 1222 in a manner consistent with his constitutional authority.

What is there to construe? It says in plain language, ‘‘No monies

appropriated under the bill shall be used for the purpose of establishing permanent military bases in Iraq.’’ A schoolchild can understand that. There is no ambiguity. And there is nothing in the signing statement where the President says, ‘‘I don’t quite understand

what Congress is getting at’’—nowhere.

What he basically is saying is, ‘‘I am ignoring the law, because

I think my executive authority enables me to establish bases, to

spend money, whether Congress approves it or not, if I think it important for the national security.’’

You will notice the language of the signing statement is rather

sweeping. In fact, quite alarming, he says if anything would ‘‘impinge’’ upon the President’s ability to protect the national security,

he can ignore that particular provision. That creates a worry. Well,

the President may want to establish a new star wars. Congress

doesn’t appropriate funds. The President would say, ‘‘You are impinging on my ability to protect the national security. I will go

ahead and establish star wars anyway.’’

This issue is about the most important power any democracy can

exercise, the power to initiate and conduct war—underscore—and

send our brave men and women abroad to die. And the founding

11

fathers wanted this Congress to make the final judgment, not the

President of the United States.

And two centuries of practice vindicate that allocation. I remember in the Vietnam War days, the Congress of the United States

passed a law that said there is no money to carry the Vietnam War

into Laos or Cambodia or Thailand with ground troops, and President Nixon obeyed that. It wasn’t controversial; everyone said, certainly, Congress can have the authority under the power of the

purse to decide how far to extend the war.

This President, through this signing statement, is seeking to establish a revolutionary change in the idea of what our Constitution

is about.

And it is not just rhetoric. I want to call to mind our own revolutionary history. We protested the Stamp Act of 1765 as colonists

because we had no representation in the Parliament. Our argument was, ‘‘We are not required, and should not be required, to

obey laws where we have no role in their enactment.’’

The next year after the agitation succeeded and the stamp tax

was repealed, the Parliament enacted something called the Declaratory Act and said, ‘‘By the way, even though we have repealed the

stamp tax, we retain authority to legislate with you on any matter

whatsoever, even if you have no representation here.’’ And it was

that statement of authority that fueled the revolution that led to

the Declaration in 1776.

Suppose the President issues a signing statement that says, ‘‘I

am a monarch. I am like Louis XIV. I am the state.’’ Is Congress

supposed to sit idly by and say, ‘‘Well, let’s wait till the Reichstag

burns before we do anything’’? That is what this President is saying in that signing statement.

There is no ambiguity in 1222. He knows what it says: no permanent military bases in Iraq with money appropriated under the

statute. There is nothing to debate. And he says, ‘‘I have to construe it’’? And he will implement it in some way that is not clear

on its face?

And this is a pattern that has persisted from the Bush Administration from the outset. This signing statement is not in isolation.

And if the only remedy is you put a provision in the law that

says it is a criminal violation, you go to jail for ten years if you

spend money contrary to this, then there might be a little wakeup in the White House.

But I want to underscore again what this real debate is about.

It is over the power to send our men and women abroad to fight.

And the President is saying it is his unilateral decision, you have

no say.

Thank you.

[The prepared statement of Mr. Fein can be found in the Appendix on page 87.]

Dr. SNYDER. Thank you, Mr. Fein.

Professor Rosenkranz, we are going to wait until we come back

after the vote.

Mr. Skelton is not going to be able to join us after the vote, and

he wanted to make a brief statement.

Go ahead, Ike.

The CHAIRMAN. Thank you.

12

And I apologize, Professor Rosenkranz. I am sorry I won’t be able

to come back for it.

I just want to point out, because, at the end of the day, when we

are working with the chairman and the ranking member in the

Senate to try to close out every issue on the defense bill before we

all sign the statement approving the bill to go to the floor for a

final vote, we are working with a document that the President always furnishes us, a document spelling out certain issues that he

objects to and potentially would be veto subjects should we press

on.

As we know, we had a veto on an issue that was not brought to

our attention regarding a lien on Iraqi assets, but we very quickly

reworded that provision and passed the bill again and got it signed

into law—of course, with the signing statements, which are the

subject of discussion today.

We are cognizant, as a legislature, of the objections of potential

vetoes by a President. And the issues that were raised, my recollection is that they were not raised in the letter which is normally

sent to us prior to our conclusion of our negotiations with the Senate, which I find to be rather interesting.

But I appreciate you gentlemen taking the time and the effort to

give us your valued opinion. And I agree, this lawyer has a little

difficulty in understanding why something that is very, very clear

in the English language is not fully followed.

And, with that, Mr. Chairman, I appreciate your letting me

speak out of order.

Mr. Akin, thank you too.

Dr. SNYDER. Thank you, Mr. Chairman. We appreciate you being

here.

Professor Rosenkranz, if you will wait here in anticipation of

doing your statement, we should be back shortly.

I have asked the staff to let you read one of my Law Review articles, since you are legal scholars. You should find time to read this

in the time that we have for the recess. [Laughter.]

[Recess.]

Dr. SNYDER. I apologize. We will not be surprised if we have

other votes sometime in the next hour. We will just deal with that,

as you have before.

Professor Rosenkranz, we look forward—did you all get to read

my Law Review article? [Laughter.]

Mr. ROSENKRANZ. Very well done.

Dr. SNYDER. I thought of it when I was leafing through somebody’s footnote that I want to ask about.

But Professor Rosenkranz.

STATEMENT OF NICHOLAS QUINN ROSENKRANZ, ASSOCIATE

PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC

Mr. ROSENKRANZ. Mr. Chairman, Representative Akin, members

of the subcommittee, I thank you for the opportunity to express my

views about the President’s statement upon signing the National

Defense Authorization Act.

In the past, I have testified about the propriety and utility of

Presidential signing statements generally, before both the House

13

and Senate Judiciary Committees. Today, I will discuss how those

general points apply to the particular signing statement at issue

here.

I will begin with some general observations about the propriety

of the signing statement, and then I will consider the specific sections of the bill that it mentions.

The most important word in this signing statement, the operative verb, is the verb ‘‘construe.’’ In this signing statement, as in

virtually all of this President’s signing statements, this verb signals the primary function of the signing statement: to announce to

the executive branch and to the public the President’s interpretation of the law.

The propriety of such an announcement should be obvious. It is

simply impossible, as a matter of logic, to execute a law without

determining what it means. As President Clinton’s Office of Legal

Counsel has explained, this is a generally uncontroversial function

of Presidential signing statements: to guide and direct executive officials in interpreting or administering a statute.

The President interprets statutes in much the same way that

courts do, with the same panoply of tools and strategies. His lawyers carefully study the text and structure of acts of Congress,

aided perhaps by dictionaries, linguistic treatises, other tools of

statutory interpretation. And, just like courts, they also apply wellestablished maxims of statutory interpretation, called canons.

Now, one canon, in particular, is of interest today. This is the

canon of constitutional avoidance. This is the canon that the President is applying when he says that he will interpret the National

Defense Authorization Act ‘‘in a manner consistent with the constitutional authority of the President.’’

Now, this statement emphatically does not declare the National

Defense Authorization Act, or any part of it, unconstitutional. In

fact, it declares exactly the opposite. As President Clinton’s Office

of Legal Counsel explained, these sorts of signing statements are

‘‘analogous to the Supreme Court’s practice of construing statutes,

if possible, to avoid holding them unconstitutional.’’

What this signing statement says, in effect, is that, if an ambiguity appears on the face of the National Defense Authorization Act

or becomes apparent in the course of execution, and if one possible

meaning of the statute would render it unconstitutional, then the

President will presume that Congress intended the other constitutional meaning, and he will faithfully enforce the statute as so understood.

So there is nothing inherently objectionable in the fact or in the

form of the President’s signing statements.

For the balance of my time, I will discuss the specific sections of

the act that the President chose to single out.

Section 841 creates a Commission on Wartime Contracting in

Iraq and Afghanistan and empowers the commission to demand a

wide variety of information from executive branch officials.

Section 846 provides increased protection for government contractors from reprisal for disclosure of certain sorts of information.

And section 1079 requires certain executive branch officials to

provide ‘‘any existing intelligence assessment, report, estimate or

legal opinion’’ to certain congressional committees upon demand.

14

Now, to the extent that these provisions apply to classified or

otherwise privileged information, they might raise significant constitutional concerns. As the Supreme Court has said, ‘‘The President’s authority to classify and control access to information bearing on national security flows primarily from the constitutional investment of power in the President and exists quite apart from any

explicit congressional grants.’’ The authority to protect such information falls on the President, as head of the executive branch and

as commander in chief.

This point is one of principle, and it is the sort of thing that

Presidents point out in order to preserve their constitutional prerogatives. But in practice, the signing statement is unlikely to have

a substantial effect on the implementation of these provisions. The

President generally complies, as a matter of comity, with these

sorts of provisions whether or not he believes that he is strictly

bound by them.

The final section singled out by the President provides that no

funds appropriated by this act may be spent to establish a permanent military base in Iraq or to control Iraqi oil resources. This provision implicates the relationship between Congress’s appropriations power and the President’s power as commander in chief.

Now, of course, Congress possesses broad power over appropriations, but this power is not unlimited. The power to withhold an

appropriation altogether does not necessarily imply the power to

appropriate money subject to limitless conditions.

For example, Congress probably cannot trench upon the core

functions of the executive branch with overly specific spending restrictions. And, in particular, arguably the Congress may not

trench upon the power of the President, as commander in chief,

with a spending restriction that amounts to a tactical battlefield

decision. Just as Congress cannot make specific tactical military

decisions by law, it, at least arguably, lacks the power to achieve

the same result indirectly with a cunningly crafted spending restriction.

But, again, I must emphasize, the President has not declared

this provision unconstitutional on its face in all applications and all

circumstances. And he certainly has expressed no intention to

spend money in any manner inconsistent with it.

All the President has done here is flagged a potential constitutional concern, one which the facts on the ground in Iraq might

never actually present. And he signals that, if necessary, he will interpret the provision in light of this constitutional constraint.

In conclusion, the President’s statement upon signing the National Defense Authorization Act is unremarkable in both form and

substance. For the most part, the constitutional issues identified

are both contingent and, to some degree, theoretical. In practice,

this signing statement is unlikely to substantially affect the implementation of the act.

Thank you.

[The prepared statement of Mr. Rosenkranz can be found in the

Appendix on page 95.]

Dr. SNYDER. Thank you all for all your thoughtful both oral

statements today and also your written statements.

Mr. Akin for five minutes.

15

Mr. AKIN. Thank you, Mr. Chairman.

It has been an interesting testimony to hear all of you share your

thoughts on this.

I guess the first thing I was struck by was the references, Mr.

Fein, at least flamboyant in your testimony, I think perhaps quite

a bit over the top perhaps—but seemed like the President was just

about to become King George and march out and declare himself

king over the whole world. But it seemed to me the exact opposite

case. It seems to me—Mr. Rosenkranz, I think you are brushing on

this—it seemed to, rather, signal a willingness of the executive

branch to work with the legislative branch.

My understanding is these statements don’t occur in a vacuum;

is that correct? In other words, there is an ongoing process between

the legislative and executive branch as bills are put together. And

as the executive branch says, ‘‘Oh, no, we are a little uncomfortable

with that,’’ you know, ‘‘If you do this, we are going to veto’’—so

there is this back-and-forth. It seems to me that that is far preferable than a polarized bulkhead where both people are, sort of,

lobbing bombs at each other.

So it seemed to me that the signing statements may be an indication of more a sense of cooperation than it is a sense of somebody

just, sort of, ‘‘my way or the highway’’ type of thing, and particularly in that there is a procedure. It is not just something that is

done. Is that right? It is a long-term process; you are going back

and forth. Is that right?

Mr. ROSENKRANZ. Agreed. This is a useful aspect of constitutional dialogue. This is a method that the President uses to express

his views to Congress, as well as to the executive branch, to let

them know what his concerns are.

Mr. AKIN. Right. Now, we heard that, I guess, the President had

done ‘‘close to a thousand’’ of these in the last seven-some years.

Is that right?

Mr. ROSENKRANZ. It is actually he has done 100-some signing

statements that we were told refer to 1,000-some provisions. I am

not sure about that statistic.

Mr. AKIN. Okay. Versus the previous Administration, how many

did they do?

Mr. ROSENKRANZ. I believe the number is quite comparable. I

don’t have that in front of me.

Mr. AKIN. The numbers that I heard was about three times as

many. So it is not something that is some new or unusual kind of

process.

Mr. ROSENKRANZ. Correct.

Mr. AKIN. So the question is, as you say, is it just simply like

a footnote, in a sense?

And then I guess the other question that was not answered was,

it didn’t seem like anybody was worried about these things from a

precedent or that some judge is going to look at them in some dispute down the line. I suppose it is a piece of evidence; it is not the

actual law itself. So there doesn’t seem to be concern in that regard.

I guess a question I have is, is there anything in these signing

statements that is, from a precedent point of view, any different

than anything that has been done in the past?

16

Mr. ROSENKRANZ. No, I don’t think there is. This signing statement and this President’s signing statements are quite similar to

the signing statements of President Clinton and of Presidents

stretching back for decades.

Mr. FEIN. Well, if I could interject, I do not think any other

President suggested that he, under his commander-in-chief powers,

could be required to construe a law as clear as 1222—it says in

plain language that you understand and that President Bush understands, ‘‘no money appropriated according to the authorizations

under the act shall be used to establish permanent military bases

in Iraq.’’

It is the first time I know of where a President has challenged

the power of the purse that is expressed in as clear and lucid language as that. And despite what you have suggested about a dialogue over ambiguous language, you will notice, in this signing

statement, President Bush never voices a syllable of uncertainty

about what section 1222 means. If you can find some ambiguity,

you are a better linguist than others.

Mr. AKIN. I hear what you are saying. And, again, I just think

the sum of this falls into the zone of exactly where is the legislative, where is the executive authority. And that is something we

have dealt with——

Mr. FEIN. But that doesn’t relate to ambiguity, Mr. Congressman. If the President thinks something unconstitutional, he can

veto it. He didn’t veto it. He signed it, which indicates he thought

he was executing his authority to defend the Constitution in signing the bill, not in flouting it.

Mr. AKIN. So your point is, then, that the President is—don’t you

think that, in vetoing it, it would have been a stronger statement

than in signing it?

Mr. FEIN. Fine, then the Congress can decide whether or not it

wants to override or otherwise. That is how political dialogue occurs.

Mr. AKIN. Right.

Mr. FEIN. And that happens. And he could say to Congress, ‘‘I

want you to delete this provision, because I think it infringes on

my constitutional power.’’ That is entirely appropriate, and Presidents in the past have done that and Congress has responded.

Mr. AKIN. Right. Well, he had a choice.

Yes, go ahead.

Mr. ROSENKRANZ. I should just say that there is nothing new or

revolutionary in the President’s suggestion that some conditions on

appropriations could trench on the President’s executive power.

The executive branch has been consistent in that position for at

least 70 years. I have a footnote in my written testimony that gives

you an enormous string cite, stretching back to the early 1900s,

with Office of Legal Counsel opinions making that very same point.

Mr. AKIN. Thank you.

Thank you, Mr. Chairman.

Dr. SNYDER. Mr. Akin, I want you to have time if Mr. Halstead

or Mr. Kepplinger have any response to you.

Mr. HALSTEAD. Just if you are curious about the statistics on

signing statements, Congressman, the breakdown from the research that we have conducted, as well as from what we have seen

17

in academic work on the subject, is that President Bush, to date,

has issued 157 signing statements compared to, for instance, in the

Clinton Administration, 381 signing statements.

So certainly you see a larger number of signing statements from

the Clinton Administration, in terms of just signing statements in

and of themselves. Where the——

Mr. AKIN. I think that was the number that I had heard, was

like 100/300.

Mr. HALSTEAD. Right.

And the distinction comes into play when you look at the number

of individual objections to provisions of law that are contained in

a signing statement. And so, when you look at that category, of the

157 signing statements that President Bush has issued, roughly

122 of those contain some type of constitutional objection, not just

of one type but of multiple provisions of law within that particular

enactment. And so that goes to a situation where you have roughly

78 percent of signing statements from the Bush Administration

containing some type of constitutional objection to over 1,000 particular specified provisions of law.

When you look at the Clinton signing statements, of those 381

statements, 70 of those statements raised some type of constitutional or legal objection, for a ratio of 18 percent compared to 78

percent.

But one of the things that we have stressed and I lay out in my

paper on the subject is that the focus on numbers is largely misplaced; that what you are really looking at are assertions and exercise of Presidential authority over a broad spectrum of issues.

Mr. AKIN. Yes. Good. Well, I appreciate the statistics on that.

And it is interesting, you know, the idea of a permanent base,

you know? What exactly is permanent and what is not permanent?

I think you could debate that some.

Thank you, Mr. Chairman.

Dr. SNYDER. Thank you, Mr. Akin.

I will take my five minutes now.

One of the issues that we have, Professor Rosenkranz, is, as with

Mr. Skelton’s presence here today, we are trying to learn from this.

You talk about the dance between the executive and legislative.

The problem is, we didn’t learn much. I mean, what have we

learned?

In your statement, you talk about how it is a chance to seek to

learn the interpretation of the law. We didn’t learn anything. You

just list these statements. And, in fact, the total is not a thousand

provisions of law—not from the defense bill, but four from this

year’s defense bill. And I have got the chairman of the committee

saying, ‘‘Help us,’’ you know? Mr. Skelton doesn’t want to do unconstitutional things. Help us.

You suggest that the Congress could go back and do a clarifying

law. But where? Where is the information from the executive

branch that says, ‘‘We have really got a problem understanding

whether you mean red light or green light’’? Where is the need for

clarifying law?

As you all were talking with Mr. Akin about vetoing the bill, the

President did veto this bill. This bill was vetoed and was modified

in response to the President’s veto over language involving litigaVerDate 22-MAR-2001 09:39 Nov 21, 2008 Jkt 042902 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 C:\DOCS\110-129\071160.000 HAS2 PsN: HAS2
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tion against the government of Iraq, and they were concerned that

there would be revenues taken.

So the President knows how to use a veto pen on the defense bill,

but, in the course of that, there wasn’t any, ‘‘Oh, by the way, this

could be a good chance to clean up these other provisions. Here are

my specific concerns.’’ There wasn’t anything like that.

So you use the words ‘‘useful’’ or ‘‘unremarkable.’’ Well, no, actually, four provisions of our bill that members care about, including

Mr. Tierney and Mr. Tom Allen from Maine, we don’t know where

it goes.

Now, we do have Secretary England’s statement that, ‘‘The Department of Defense always obeys the law. Questions regarding the

constitutionality of laws are the purview of the Justice Department.’’ I think they are very clear, both publicly now but also informally, they intend to follow the law. We have seen specific information. But what about the President’s appointments on the commission, the Tierney commission? And the information we received, via

the staff, is that they fully intend to meet the deadline for their

two appointments. So, you know, where is the usefulness of this,

other than it creates uncertainty about what we are doing?

I wanted to ask, I guess for the panel, we have now, in this defense bill, four provisions, and then we have a total of a thousand

provisions. What does it mean for a President to sign a bill if he

flat-out believes there is an unconstitutional provision? Not just

creates certain uncertainties, but flat-out believes there is—what

does it mean if a President signs a bill which he believes is—well,

let’s start with Mr. Halstead and go down the line here.

Mr. HALSTEAD. Well, that is a very robust area of academic debate, the notion of whether a President should or, some would

argue, is he constitutionally required to veto a law that contains

a provision he thinks is unconstitutional. And we do not have any

dispositive treatment of that issue from the courts.

In current practice, you, for instance, have a situation where

large omnibus bills are passed by Congress and then signed into

law by the President. And in many of those bills, there are legislative veto provisions that Congress includes, that basically state

that one house of Congress can invalidate an executive branch action under certain circumstances.

There is a Supreme Court case from 1983, INS v. Chadha, that

states that that is unconstitutional. Congress cannot exercise its

legislative power in that fashion. Nonetheless, Congress has utilized the legislative veto provision in possibly over a thousand instances since the decision in Chadha.

And so, for instance, if you have a requirement, a constitutional

requirement, that the President is to veto any law that he believes

contains an unconstitutional provision, any time you were to see

that type of inclusion by Congress, which we see quite commonly,

the President would be required to veto an omnibus bill because of

that one provision.

And while, from a theoretical perspective, perhaps you could

argue that is the way it should be done, that the President should

always veto a bill that he thinks is unconstitutional, from a practical perspective it is not done and would also potentially significantly impair the legislative process as it has evolved today.

19

So it carries from very significant ramifications, both from a

practical and constitutional perspective.

Mr. KEPPLINGER. Mr. Chairman, I tend toward the view that the

President’s decision about whether to veto a bill or not is a function

of any number of different factors.

I hearken back to World War II when Franklin Delano Roosevelt

was faced with, I think, an emergency appropriation act which was

needed to maintain the war effort during the war. And there was

a particular provision in that bill that was an attainder. It identified employees in the State Department and basically said, ‘‘You

can’t pay them anymore,’’ to the point of them removing their jobs.

Well, the signing statement that President Roosevelt issued at

the time was, he said, you know, ‘‘The House insisted, the Senate

yielded, and I yield too as well, but I am not going to yield without

putting on the records my strong belief that this provision is unconstitutional.’’

The process that the President and the Administration followed

after that was to enforce the law. The individuals were not paid.

They were then injured to the extent that they could have resort

to the Federal courts, where the matter was adjudicated.

The Administration did not defend that particular statute, because of its views on the constitutionality of it. To me, that was a

not-inappropriate outcome, under those circumstances.

Mr. FEIN. The President takes an oath to seek to uphold and defend the Constitution in all his official acts. A signing statement

is an official act. Signing a bill is an official act. If the President

believes that he is putting into law something that would be unconstitutional, he is obliged, if he is going to be faithful to his oath,

to veto it.

Congress can override the veto. It can acquiesce in the President’s decision to delete the offending provision. But the President

then is scrupulously honoring his constitutional obligation.

That was the understanding President Washington had. He said

a President had a duty either to veto or sign a bill in its entirety.

And President Washington had been President of the Constitutional Convention, and I think his views of what Presidential authority required are due enormous deference.

Finally, I think that this issue relates to the legislative power of

the Congress, in the sense that you all know that you think, by

bundling together different provisions, you may be able to force the

President into a politically awkward position where he may have

to sign the bill even if he dislikes some provisions. Well, by authorizing a signing statement that says I am really not going to enforce

those that I think are unconstitutional in his unilateral authority,

he is basically removing that leverage you have over him to sign

it or take nothing.

And that is an important authority you have in the legislative

maneuvering with the executive branch that the founding fathers

intended to stay here, because they wanted the popular branch of

government to be dominant in deciding the policies of the United

States.

Mr. ROSENKRANZ. I should say first that the case that you posit

is extremely rare. So in the vast majority of signing statements,

even ones that reference the Constitution or constitutional conVerDate 22-MAR-2001 09:39 Nov 21, 2008 Jkt 042902 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 C:\DOCS\110-129\071160.000 HAS2 PsN: HAS2
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cerns, they take the form of this signing statement, which is to say

they are exercises of the canon of constitutional avoidance. They

are statements about interpretation of the statute, not at all declarations that any provision of the statute is unconstitutional.

So——

Dr. SNYDER. No. And, in fact, I didn’t ask about if the President

signs a bill in which he attaches a signing statement that says it

is unconstitutional. It was more a question of if he knows it is unconstitutional, regardless of whether there is a signing statement

or not.

Mr. ROSENKRANZ. Correct. In rare cases, the President may be

presented with a bill in which he thinks a provision is flatly unconstitutional—that is, cannot be saved by interpretation, cannot be

construed in a way to make it constitutional, it is flatly unconstitutional—but it is part of an enormous omnibus bill that is hugely

important, perhaps important to national security.

And the FDR example is a perfect example. So, from at least the

time of FDR and the lend-lease bill, the executive branch has taken

a position that, in such circumstances, presented with an enormous

bill with perhaps a small unconstitutional provision, and the bill

itself is of huge important significance to national security, the

President has claimed the power to sign such a bill and decline to

enforce the unconstitutional provision.

Again, I would say it is very rare. But the executive branch has

asserted that power since the 1940’s at least.

Dr. SNYDER. It is probably much more common for Members of

Congress to vote for bills in which they think there is unconstitutionality at play.

Mr. Jones for five minutes.

Mr. JONES. Mr. Chairman, thank you.

And, Mr. Fein, did you work in the Reagan Administration?

Mr. FEIN. Yes. And I was a strong proponent of executive power

there.

Mr. JONES. Right. Well, I wanted to get that. I have seen you on

TV a few times and just really wanted all, both Democrats and Republicans, to know that you were in the Reagan Administration,

you were a legal advisor in some capacity.

The issue I have—and I really appreciate the intellectual discussion today. I am not sure I fit in that, but I have enjoyed it and

I have learned a great deal, so I would say thank you, from this

panel as well as you, the presenters.

The issue that many people have, quite frankly, as you know—

and this is a little bit away from the Department of Defense (DOD)

bill—but the Congress itself—and I am not sure that the President

issued a signing statement—but the Congress, in an overwhelming

vote, almost 410 to three or four, said that we were opposed to Secretary Peters’ allowing Mexican trucks to have free access to America.

And I will tell you, because I have heard this back home—and,

again, Mr. Chairman, it may be a little bit off the subject—back

home that people, in my district at least, just don’t understand how

the will of Congress has been vacated as it relates to Mexican

trucks having free access to America.

21

And this does go back, in a way, to the issue of signing statements for this reason—and I understood and appreciated the history that you shared with us, and the discussion about the fact

that, you know, this is a way that the President has some authority to not veto a bill but to say that on certain aspects of a bill he

is not going to follow the wishes or the dictates of Congress.

And this would be my question, and it is something that one of

you said. How do we get, legally speaking, a better check and balance?

I mean, when I look at—Senator McCain says, ‘‘If I am the President, I will never sign a signing statement,’’ according to this report. In addition, Mr. Obama and Mrs. Clinton say, if they become

the President, that they have been disappointed with how much it

has been used by this Administration.

Is there any way to get Congress back into this process, so that

we don’t have a President, no matter who he or she might be in

the future, that can just use their signing statement—and, Mr.

Halstead, I believe you said, and said correctly—and this will be

my last point—and you gave the exact figures about the fact that

George W. Bush, 107, of which 47 express constitutional objections

or other concerns. President Clinton had 70, which was 18 percent

of all those he signed, were constitutional concerns or objections.

And then President George W. Bush, 118, which is 78 percent of

his 152 or 154—that 78 percent are constitutional objections or concerns.

If this is going to be such a way of life for the Congresses of the

future and the Presidents of the future, is there any way to get any

type of—or to strengthen the checks and balances or the limits to

how a President can just bypass the will of Congress with signing

statements? I don’t know.

If everybody would answer that, I would appreciate it.

Mr. HALSTEAD. There is very little that can be done to formally

constrain the President from issuing a signing statement. I mean,

the notion that Congress could somehow prohibit the President

from issuing a signing statement I think is a nonstarter.

Some of the legislative proposals that are out there would, for instance, prohibit the use of any appropriated funds for the President

to issue a signing statement. And that gets to Professor

Rosenkranz’s notion of, are there unconstitutional restrictions that

Congress can impose via the appropriations power. That might

theoretically be one of those instances. But even more fundamentally, there is nothing that would prevent the President from walking down to the corner drugstore, buying his own pen and paper

and saying, ‘‘Here you go. Here is your signing statement.’’

So from that perspective, for Congress to robustly assert its own

prerogatives, I think it is essential—and this inquiry today I think

is a good example of this—to have a systematic, regular exercise

of Congress’s oversight prerogatives, to ensure that the executive

branch is, in fact, complying with congressional enactments.

And I think that is fundamentally the way that goal will be accomplished. There is very little that you can do to prevent a President from issuing a signing statement or even fundamentally

change his conception of his powers. But you can work to ensure

22

that those enactments that are in question are, in fact, being carried out.

Mr. FEIN. But I think you can add sunshine to this by requiring,

by statute, that all decisions by the President or the executive not

to enforce a law be either published in the Federal Register or be

systematically reported to Congress in a way that enables the press

and the public to know exactly what is going on.

The hearings can be hit or miss, and they don’t attract the same

kind of attention. And then you could require that it be put on special pages or access to the Internet, so every time that there is this

decision to ignore a law, everyone knows what is going on.

And then it would enable some reactive legislative to be specially

targeted to that one provision. Then you could use the appropriation powers—no money of the United States shall be used not to

enforce X, Y or Z statute that has been flagged.

Mr. KEPPLINGER. As I think Mr. Akin and also Dr. Snyder have

observed, one of the benefits, if you will, of signing statements is

that they will enhance transparency and accountability. That presumes, however, that they are stated with enough specificity so

that you understand what the particular concerns are and you are

not left guessing.

If you have that particular scenario, then I think a robust—to

use T.J.’s word—vigorous oversight can be very, very helpful. And

certainly, our limited analysis of the implementation of provisions

in the 2006 Appropriations Act tells me that one should not assume

compliance, one needs to stay on top of these matters of interest.

And you can use these signing statements as a yellow or red flag

to help you in that particular area.

I would also point out that there is presently on the statute

books in title 28, I think it is 530D, a requirement that the attorney general—and it also extends to, in certain limited circumstances, to the heads of the agencies—report when they are

going to adopt a formal or informal program of nonenforcement of

a particular statutory provision.

Dr. SNYDER. Although we don’t think that has been used. And

that provision was accompanied by a signing statement.

Mrs. Davis for five minutes.

Mrs. DAVIS OF CALIFORNIA. Thank you, Mr. Chairman.

I would like to follow up a little bit more on this discussion. And

I think we have a vote, so I am going to be quick.

When you talk about being more proactive—and I think you basically said part of this is really monitoring very closely any outcomes as a result of the signing statement.

Is there anything, though, just going back, I think, to what Mr.

Halstead said—in this dance between the President and the Congress and I guess the Administration in some way, do you see anything in that process that should be looked at that could be more

helpful? Whether or not there is a notice given that—in order to

have a signing statement that relates to a certain piece of the legislation, at least some notice would need to be given up front.

Is that way out of line? Can you speak to that a little bit, trying

to help us through that?

The other thing to just help me understand a little bit better is,

where do these signing statements emanate from? I mean, is this

23

somebody in the Administration who is the point person, who is

looking to try and make those decisions? And I think some of you

have experience with this. Where is it that we should be, I guess,

focusing our efforts as we are working through some of this legislation, in particular?

Mr. ROSENKRANZ. Well, I guess I would say first, I think the

committee may be frustrated, to some extent, by how vague this

particular signing statement is. So it is quite true that in this signing statement it is difficult to know exactly what the constitutional

objections are.

On this question of separation-of-powers dialogue, I quite agree,

I think it would be better if the President were more specific in

these signing statements.

On the other hand, you have to understand that the President

is interpreting laws ex ante, before any enforcement has happened,

unlike courts, which are presented with actual cases and controversies. It is a much harder project to spot constitutional objections on

the plain face of a statutory text than it is when you have actual

parties in front of you and the thing has been enforced. This is a

reason why the President is not as precise as we might like sometimes in his signing statements.

It is nevertheless possible to read these things very carefully in

light of prior Office of Legal Counsel opinions, prior Presidential

signing statements, and figure out quite what the constitutional objections are and, ideally, to anticipate them for subsequent legislation.

Mr. FEIN. But some of these signing statements are not susceptible to after-the-fact redress, if you will.

Suppose Congress enacts a law similar to 1222 and says, ‘‘There

shall be no money appropriated to bomb nuclear facilities in Iran.’’

The President issues a signing statement, well, he hasn’t done it

yet. So then he bombs the nuclear facilities, says, ‘‘I don’t have to

obey that.’’ Well, then do you hold an oversight hearing to decide,

gee, whether he had authority to do that? The harm is already

done. And that is especially true in national security affairs.

Suppose President Nixon said, ‘‘I am not going to obey the limitations on taking the Vietnam War into Laos or Cambodia.’’ He goes

in there with 500,000 troops, and then you hold a hearing afterwards? I mean, that is ridiculous.

And one of the dangers about this particular signing statement

is that it is so vague, because it suggests there is an unlimited

power.

Mrs. DAVIS OF CALIFORNIA. But that is largely by design.

Mr. FEIN. Of course it is. These people who write these statements—because I was in Office of Legal Counsel, which writes

these statements—they aren’t sitting there, you know, saying,

‘‘Well, let’s write this off in five minutes.’’ They sit and think about

this. Read all the books that have been written by those who

served in the Administration. Of course it is calculated.

And you will notice the language: anything that impinges upon

what the President thinks are his powers to execute his authority

as commander in chief over national security. Well, that covers virtually everything under the sun. ‘‘I think I need money in order to

build an anti-satellite program. I will just spend it on my own.’’

24

Mrs. DAVIS OF CALIFORNIA. Mr. Kepplinger, did you have a—you

seem to be responding—is there a way of getting in there before—

you know, triggering that early on?

Mr. KEPPLINGER. Well, I mean, somebody had already mentioned

the statement of administrative positions when you are drafting a

bill. And one would hope that any Administration is closely working with the Congress, if it has any constitutional concerns, before

the bill is enacted. I mean, I would think that would be kind of a

basic show of respect between equal bodies of our government.

With respect to what particular measures should be brought to

bear, it is always a function of the circumstances. But I would remind Mr. Fein that there were all sorts of hearings in anticipation

of some of the limitations on President Nixon’s authority that led

to public awareness of the bombings and the incursions into Cambodia.

But if, for example, there is a clear restriction on the use of appropriated funds, there are remedies.

Thank you, sir.

Dr. SNYDER. We had better—we are short on time, Mrs. Davis.

And it is one vote. Again, a motion to adjourn. We should be

back. If any of you need to use phones or have some privacy, the

staff would be glad to help you.

[Recess.]

Dr. SNYDER. Dr. Gingrey, you are looking very alert, for having

been up all night seeing the space shuttle, and I applaud you for

hanging on.

Dr. GINGREY. Looks can be mighty deceiving, Mr. Chairman,

mighty deceiving indeed. [Laughter.]

Dr. SNYDER. Dr. Gingrey for five minutes.

Dr. GINGREY. Thank you, Mr. Chairman.

Mr. Fein, your opening remarks, statement, in regard to 1222 in

particular, you made a very emphatic statement, that there was no

ambiguity whatsoever and that there was no way that the President could misinterpret the precepts of 1222.

And you also stated in a recent op-ed in the Washington Times

that, ‘‘A combination of congressional inertness and imbecility,

when confronted with signing statements like the one attached to

the most recent defense authorization act’’—and I am assuming

you reference mainly 1222——

Mr. FEIN. Yes.

Dr. GINGREY [continuing]. Has crippled the power of the purse to

check executive abuses and craving for perpetual war.’’

Now, I presume that you are referencing this President and his

craving. I presume that—you have made a statement also about

sending troops to their death, or something to that effect.

Mr. FEIN. Well, when they fight, they usually die.

Dr. GINGREY. I am paraphrasing a bit, but, I mean, you can clarify if you wanted.

But I think the question I want to ask you, after I make this

point—the President, I think, could interpret 1222 in a way to say,

‘‘What is the definition of a permanent base?’’ It was very clear, no

permanent bases; no money shall be used in this appropriate to establish permanent bases in Iraq. Well, is that a base that is there

25

five years? Would that be permanent? One ten years, would that

be permanent?

Mr. FEIN. Of course not.

Dr. GINGREY. One six months, would that be permanent? If you

will let me finish.

So I think what we need to keep in mind is that veto is not the

only exchange that a President can have with the legislative

branch. And certainly, the opportunity—and some of your colleagues on the panel I think have pointed this out very clearly—

that the opportunity, once something occurs, to say, well, you

know, is this constitutional or is this not constitutional—and so, I

think that I disagree with you quite emphatically in regard to this

President and his intent.

And if you can maybe specify to us even just one or two instances

in which you think the President did something unconstitutional in

regard to ignoring a statute or a part of a statute that we sent to

him that he signed and that he ignored the precepts of.

Mr. FEIN. Let me first explain permanent war. That is what we

are in at present, Mr. Congressman. The standard that the Administration has established for permanent war is that if there is any

homo sapien anywhere in the Milky Way that threatens an American with a terrorist act, we are at war. And there has been no suggestion that there is any benchmark of terrorism that will ever be

satisfied that ends the war. So we are in permanent war.

Second, with regard to——

Dr. GINGREY. Also permanent war with Korea, as an example?

We have 35,000 troops there. Are we at permanent war?

Mr. FEIN. I think that there is a truce that has been there since

1953, negotiated by then-President Eisenhower.

Anyway, this is something that is new, with regard to a tactic

that will never bring a state of war to an end. And that is global,

because terrorists fight everywhere. It is not country-specific.

Now, with regard to provisions of the law that the President may

ignore, he oftentimes doesn’t flag them, but we know that, with regard to the Foreign Intelligence Surveillance Act, he did decide to

flout that particular statute for at least five and a half years.

When the Congress passed the Protect America Act that is now

being debated for extension that you may be involved in, this was

in August of 2007, I was invited to the Justice Department, asked

to help try to interpret some ambiguous provisions in implementation. I said, well, will the President comply with the law? Well, he

would like to comply, but if he thinks he needn’t comply because

it is important to violate it to gather foreign intelligence, he still

had authority to do that. I said, well, will you tell us if he decides

to violate the law? No, he is not going to flag that.

So, simply because we don’t have in the New York Times or The

Washington Post yet a disclosure doesn’t mean that the law isn’t

being violated.

And I called to your attention, Mr. Congressman, the years that

we had these hearings, then chaired by Senator Frank Church, and

there were companion hearings in the House by Otis Pike, which

disclosed 30 or 40 years of illegal spying that was never disclosed:

opening mail, intercepting international telegrams and otherwise.

26

The problem is, everything isn’t done in the sunshine; we don’t

know, which is a worrisome element. And when you ask questions

of this Administration, they say, ‘‘State secrets, executive privilege,

we won’t tell you.’’

You now, even two years after the New York Times disclosed the

warrantless surveillance program, don’t know what its complete

ramifications are. So you can’t be definitive in giving an answer,

whether the President has flouted the laws that Congress has

passed.

Dr. GINGREY. Mr. Chairman, I see that my time has expired. I

just would wonder if Mr. Fein’s level of cynicism toward this President extends to other Administrations as well.

Mr. FEIN. Certainly other Administrations was what caused Congress to enact the Foreign Intelligence Surveillance Act, and that

is why we have checks and balances. It is the founding fathers who

said we don’t have angels; that is why ambition has to be made to

counteract ambition. It is not cynicism, it is human nature. Absolute power corrupts absolutely, whether you are in the legislative

branch or executive.

Dr. SNYDER. Mr. Conaway for five minutes. Then we will go to

Mr. Andrews.

Mr. CONAWAY. Thank you, Mr. Chairman.

And I hate to act like we are piling on, Mr. Fein, but the phrase,

‘‘permanent war,’’ where is that in 1222?

Mr. FEIN. No, Congressman, I didn’t intend to insinuate that language was in 1222——

Mr. CONAWAY. I only get five minutes.

While trying not to confirm your imbecility—opinion of Congress

with my comments, I would like to finish having an exchange with

you.

Your unflappable certitude that there is no ambiguity in 1222

is—as an example, Fort Ord, in California, would have at one point

in time been a permanent base. Reese Air Force Base, in Lubbock,

Texas, would have been a permanent base. Webb Air Force Base

in Texas would have been a permanent base. They no longer exist

in those forms.

‘‘Control over oil resources,’’ does that mean if we have a squad

or a platoon guarding a particular switching station or a pipeline,

that we can’t do that because that would be exercising control? If

we try to encourage the Iraqi legislature to spend the money in certain ways, are we controlling those oil resources?

So, while you—again, I am not a linguist. I come from a part of

the country where O-I-L can sometimes be a two- and three-syllable word. I wouldn’t presume to be a linguist of any standing whatsoever. Even as naive and uninformed as I am, I can conjure up

some ambiguity there that a crafty plaintiff’s lawyer might like to

take that side of the case.

So when you are so strident in your opinion that there is absolutely no room for a second interpretation of two words, ‘‘permanent basing,’’ you know, there is nothing permanent with a facility

in Iraq that would ultimately be turned over to the Iraqis, that was

of concrete and it would look like permanent structures, that would

be for the benefit of our military using it temporarily until it was

27

turned over to them—would that violate this permanent stationing

clause?

That is just editorial comments. You have had a chance for your

editorial comments.

You did make one comment about sunshine—you know, President announcing it—I guess your a favorite of the Post or the

Times as being the official sunshine of the world. I am not.

But what role would hearings like this have if we found some expenditures for permanent stationing or control that we, in our collective imbecility, thought were in violation of the law, and hauled

the folks in here that actually were charged with spending that

money? Is that sunshine that you would accept?

Mr. FEIN. Of course. In fact, it is regrettable we don’t have Administration officials today testifying about the alleged ambiguity

that you find in the statute. But the President didn’t suggest, in

the signing statement, that he didn’t understand what 1222 meant.

Mr. CONAWAY. Well, I don’t know that we alleged any ambiguity,

but apparently the President does.

Mr. FEIN. He didn’t say that it was—do you find the word ‘‘ambiguity’’ in the signing statement, sir?

Mr. CONAWAY. No.

Mr. ROSENKRANZ. Congressman, I think you are quite right that

even the clearest provision can—ambiguity can lurk even in what

seems like the clearest provision on its face.

And the way that a provision of law will interact with the Constitution, whether it will perhaps raise a constitutional concerns, is

going to turn on facts on the ground. So it is very hard to know

ex ante whether any given provision is going to raise a constitutional concern, in light of what facts might arise in Iraq, as you

point out.

So the President is really just using these statements to flag the

possibility that, given a certain set of facts, a certain interpretation

of the statute might raise constitutional concerns. That is all these

statements really do.

Mr. CONAWAY. I want to make one final comment. I suspect

every single once of us thinks our constitutional responsibility varies. And for it to be implied or stated flat-out that I or my colleagues breached our constitutional responsibilities because we

voted for something that isn’t perfect, isn’t—you know, something

certainly as large as the Defense Authorization Act or the large

omnibus bills, that we somehow breached our constitutional duty—

or that the President, for that matter, breached his constitutional

duty by pointing that out is very in the extreme.

Mr. FEIN. I never said that, sir.

Mr. CONAWAY. Well, that is what I heard.

Mr. FEIN. Well, you heard something I didn’t say.

Mr. CONAWAY. Here is the developing status of forces agreement,

which we typically do. Is there no possibility that 1222 couldn’t be

limiting in that regard?

Mr. FEIN. Congress has the authority to limit what the executive

can do. That is part of our Constitution.

Mr. CONAWAY. I appreciate your open-mindedness to other people’s opinion.

I yield back.

28

Dr. SNYDER. Mr. Andrews for five minutes.

Mr. ANDREWS. Thank you.

I thank the panelists. I apologize for not being present for your

oral testimony, but I read what you had to say.

I think what we are having here is a discussion about two points

there is broad agreement on. I don’t think anybody disagrees the

President has the authority to interpret ambiguous statutory language and give his own interpretation in direction the executive

branch. And I think just about everybody would say here the President has no constitutional authority to disregard a specific statutory mandate.

But, Professor Rosenkranz, I want to test with you how far we

can stretch this interpretation-of-ambiguity idea. Is it your position

that the President can issue a signing statement in which he disregards a statutory directive only when he thinks it is ambiguous,

or any time he feels like it?

Mr. ROSENKRANZ. There are two different kinds of constitutional

signing statements the President can issue. One concerns ambiguity in statutes, and in those you usually find the word ‘‘construe’’

or ‘‘interpret.’’

Mr. ANDREWS. Right.

Mr. ROSENKRANZ. ‘‘I will construe or interpret this statute consistent with some constitutional provision.’’ That is the vast majority of signing statements.

A small number of signing statements are triggered when there

is no ambiguity and this provision is flat-out unconstitutional. He

cannot find a constitutional reading of it. There the signing statement might say——

Mr. ANDREWS. Let me ask you a couple hypotheticals. I was a

law student. I have always wanted to ask law professors

hypotheticals. So this is a great moment for me. [Laughter.]

What if we passed a statute that said the President shall build

a missile defense shield capable of knocking down an incoming

Inter-Continental Ballistic Missile (ICBM), and the President says,

‘‘I am not going to do that. I actually think that makes the country

less secure, not more secure, so I am not going to do it. I am going

to direct the Secretary of Defense not to implement the planning

for this weapons system,’’ and he does so by signing statement? Is

that a valid exercise of Presidential prerogative?

Mr. ROSENKRANZ. Well, again, I would have to understand, is

that the entire bill, or is that a small provision of an enormous bill?

Mr. ANDREWS. It is a paragraph of an enormous bill, just like the

four instances under question here.

Mr. ROSENKRANZ. So, if the President believed that that provision was constitutionally problematic, he could flag that

constitutional——

Mr. ANDREWS. Is it only if he believes it is constitutionally problematic, or he just doesn’t like it?

Mr. ROSENKRANZ. He has no power to do that if he just doesn’t

like it. Only if there is a constitutional——

Mr. ANDREWS. In four instances—okay. In the four instances that

are before us, did the President find each of these provisions constitutionally problematic, or did he just not like them?

29

What was constitutionally problematic about the provision that

says that we should not have a permanent base in Iraq?

Mr. ROSENKRANZ. He made crystal-clear that his objections here

are constitutional objections. And——

Mr. ANDREWS. What were those objections? Constitutionally,

what were they?

Mr. ROSENKRANZ. In 1222, his objection, perhaps—well, the signing statements aren’t crystal-clear on this point, but——

Mr. ANDREWS. I would argue it doesn’t say. I am sorry, what

were you going to say?

Mr. ROSENKRANZ. The signing statement does specify that it is

a constitutional objection. The constitutional objection I infer is an

objection to appropriating money with conditions that impinge on

the commander-in-chief powers.

Mr. ANDREWS. But it is kind of contradictory, because one of the

arguments you make in favor of the robust use of signing statements is that it lays out the rationale for a Presidential decision.

And I think there is something to that. But now you are telling us

that you had to infer what the constitutional objection was.

Shouldn’t the President, at the very least, be explicit about the

basis of his constitutional objection?

Mr. ROSENKRANZ. Congressman——

Mr. ANDREWS. I think he just disagrees with the idea of permanent bases in Iraq, which is his prerogative, in which case he

should veto the bill.

Mr. ROSENKRANZ. Congressman, I agree with you that these

signing statements should be drafted as clearly as possible. But it

is at least clear on this one point, that it is a constitutional objection, not an objection based on policy.

Mr. ANDREWS. What is it? What is the constitutional objection to

the bases in Iraq?

Mr. ROSENKRANZ. Again, I think the constitutional objection is

that——

Mr. ANDREWS. You think? Or you can get it from reading the

four corners of the statement?

Mr. ROSENKRANZ. I can get it from reading the four corners of

the statement. I believe that what the President is driving at is

that appropriations bills cannot be subject to any and all conditions, that there may be some restrictions——

Mr. ANDREWS. I would——

Mr. ROSENKRANZ [continuing]. On what Congress can do in attaching conditions.

Mr. ANDREWS. You are a vigorous advocate of your position. I

just disagree with you, because I think our Constitution is not built

on nuance or what we think someone said. We pass statutes that

say certain things, and the President either vetoes those statutes

or signs them. And his job is to execute.

Now, where there is ambiguity, I agree with you, you need to explicate that. But I think what we really have here is a use of the

signing statement process to express policy disagreements, not constitutional disagreements.

And I have searched these four signing statements high and low,

and, boy, it is hard to find many shards of constitutional law in

there. I mean, I know he wants, probably, permanent bases in Iraq.

30

He doesn’t like this vigorous role for the Inspector General (IG). I

think I know why, given the fiasco we have had in Iraq. He doesn’t

like the mandate that intelligence reports be shared with us when

we ask for them. He doesn’t like the commission on wartime contracting.

But not liking something is a political decision, not a constitutional one. And I think the remedy is vetoing the bill, not saying

you are just not going to enforce it.

Mr. ROSENKRANZ. Again, Congress, the signing statement is only

two paragraphs long, and it is crystal-clear that it is making a constitutional objection, not a policy objection.

Mr. ANDREWS. But what is it? What is the constitutional objection?

Mr. ROSENKRANZ. The constitutional objection is that certain provisions of this bill may impinge on the President’s——

Mr. ANDREWS. But specifically on the base issue, what is the constitutional objection? Did he say, ‘‘I think it is in the national security interest to maintain a base there permanently, and as commander in chief I have made that judgment and you are impairing

it’’? Did he say that?

Mr. ROSENKRANZ. He said implicitly that this provision could

constitute a condition on spending——

Mr. ANDREWS. Sort of like the implicit power for indefinite wiretapping under the Fourth Amendment. I just don’t agree with you.

A vigorous defense, you get an A in the class, but I don’t agree.

[Laughter.]

Dr. SNYDER. Mr. Akin.

Mr. AKIN. I don’t have any additional questions.

Dr. SNYDER. We will go around again here, with the three of us.

I wanted to read a little bit, if I might, from the statement by

Tom Allen and John Tierney that was made a part of the record

earlier. Toward the beginning of the statement, they say, ‘‘We are

baffled that the nature and foundation of the President’s objection

to the establishment of a bipartisan commission to weed out waste,

fraud and abuse by government contractors carrying out missions

in the name of the U.S. people and at their expense. We find it

deeply troubling that the President’s signing statement suggests

that the Administration may hinder the work of this anticorruption

commission. As a result, we offer this testimony in the hope that

the Administration will clarify its intentions and clearly inform

U.S. taxpayers that it will fully support the work of this vital commission.’’ That is that paragraph.

And then toward the end of the statement, again quoting from

Congressman Allen and Congressman Tierney, ‘‘It is our sincere

hope that the President’s signing statement is merely boilerplate

rather than an indication that the Administration will not fully

support the establishment and work of the wartime contracting

commission. On behalf of the U.S. taxpayers, we will closely monitor the Administration’s action in the coming days and weeks.

And, with like-minded colleagues, we will use all congressional

rights and powers at our disposal to both ensure that the American

people receive a full accounting of the President’s intentions and,

at the end of the day, ensure this commission is quickly constituted

31

and able to fully conduct its important work.’’ That is the end of

the quote.

I may address this to you, Mr. Halstead, and for anyone else. I

mean, I think you have referred to this issue that we may just

want to take signing statements and say, ‘‘This will be our menu

for oversight.’’

And we didn’t make a big fuss today when the DOD said they

didn’t want to come here. They make the argument, ‘‘Look, we are

not here to do the esoterics of constitutional law.’’ We will make a

big fuss if we have a hearing, if Mr. Akin and I decide to have a

hearing, or Congressman Tierney, who is the chairman of the oversight committee on national security for the Government Reform

Committee under Mr. Waxman, if he decides to have an oversight

hearing on this specific provision and DOD says, ‘‘We don’t think

we are going to send witnesses,’’ I guarantee you that Members of

Congress are going to go ballistic. Because it will be about a specific provision of law we expect them to carry out.

What do you think about this idea that, in fact, what they have

done is the President has given us a menu for oversight and we

need to drill down in these areas?

Mr. HALSTEAD. I think that is—it is a point that I have made

over the last couple years, as I have been addressing the controversy over Presidential signing statements, because there you

have a discrete example in a signing statement regarding a discrete provision of law that creates this task force to study contracting in Iraq and Afghanistan.

From a constitutional perspective, I think anybody would be

hard-pressed to attack the constitutionality of this commission. It

is not an entity that wields any degree of executive authority, so

there are not Appointments Clause implications in that regard.

It doesn’t even have subpoena authority, which—it is well-established that legislative commissions can wield subpoena authority.

But this entity does not even have that.

Dr. SNYDER. One provision in it, it calls for the——

Mr. HALSTEAD. For the release of information upon request?

Dr. SNYDER [continuing]. That no longer requires it to have a

couple appointments.

Mr. HALSTEAD. Right.

Dr. SNYDER. So another possibility in this is we will fine-tooth

through this stuff and figure out ways, do we need to write things

differently. And we might say, well, to hell with them. You know,

it is partly courtesy, partly we would benefit, from having people

that both the Secretary of State and the Secretary of Defense wanted. But if it creates these kinds of problems, let’s do a commission

without the input of the executive branch. That doesn’t seem a

helpful result either.

It seems like one response to this may be we will write things

differently in a way that is not helpful to the executive branch, nor

helpful to national security. Do you see that as a possibility also?

Mr. HALSTEAD. That is one potential. Again, from a constitutional perspective, there would be nothing to impair or prevent this

commission from being purely a legislative commission in appointment.

32

It does carry significant practical implications for the work of the

commission, because, as a matter of comity, this notion of having

a hybrid legislative Presidential appointment gives an imprimatur

to this body that it has both executive and legislative officials, or

appointees, who share a common goal in identifying issues surrounding contracting in Iraq and Afghanistan.

Dr. SNYDER. I think one of the things—Mr. Andrews left, but the

issue about fleshing these things out. I mean, we did have a veto

of this bill. There was a veto message that said specifically why the

bill wasn’t liked. It would have been a perfect time to say, ‘‘Oh, by

the way, there are four other provisions that I mention in my signing statement. These are the potential areas of concern we have.

It would probably be better that you would draft these in such a

way that we will not have to specifically enumerate them as potential problems with interpretation.’’

But that wasn’t done. I mean, it doesn’t seem, Mr. Rosenkranz,

to help your case, in terms of them trying to get better clarification

of language, if it is not even included in the veto message.

Mr. ROSENKRANZ. But, Mr. Chairman, the fact of a signing statement flagging certain potential constitutional issues does not necessarily mean that something has gone wrong. It doesn’t necessarily tell us that something is wrong with the drafting of the bill

or that the bill should have been clearer or something like this.

You just have to imagine, in an enormous bill, its interaction

with facts on the ground, potentially infinite. So it is unsurprising

to find that a provision of a huge bill, under some set of circumstances, might raise a constitutional issue, and the President

just flagging that that is a possibility under some set of facts.

Dr. SNYDER. Yes, but that is—well, my time is—but that is not

helpful at all, is it? I mean, to say, ‘‘including these provisions.’’ It

is not helpful at all to say every provision of law may, at some

point, depending on facts on the ground, have constitutional problems.

I can probably take any provision of law, and even my 25 years

removed from going to law school, be able to come up with a set

of facts that would bring about constitutional issues. I can do that,

I think, with about any provision of law. I don’t think that is helpful.

The other thing about this—and then we will go to Mrs. Davis—

is this is coming at a time when this Congress, in a bipartisan

manner, really appreciate the work of Secretary Gates and Secretary England. There is just a night-and-day experience, in terms

of our confidence in the Pentagon, the transparency, the information we get, the responsiveness. And so, this was clearly unresponsive.

I mean, we can nitpick it and say, ‘‘Yeah, they are just mentioning it is a potential problem’’—well, no, that is not helpful.

And, frankly, I think those guys—I don’t know—I think they

didn’t have anything to do with it. I think somewhere some lawyers

were sitting there saying, ‘‘We need to cite some of these things because we are trying to stake out executive branch authority. And

even though we know they are going to be enforced, we are going

to throw these few provisions in there anyway.’’ I mean, it is difficult to interpret in any other way.

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Mrs. Davis.

Mrs. DAVIS OF CALIFORNIA. Thank you, Mr. Chairman.

Thank you, again, for all of you being here.

Professor Rosenkranz, you said that basically this is rhetorical,

that the statements are rhetorical. I think that is what you said.

Mr. ROSENKRANZ. I don’t think they are quite rhetorical. They

are the President signalling possible constitutional issues with the

bill and suggesting that he is going to interpret the bill consistent

with his constitutional obligations. So I wouldn’t call them quite exactly just rhetoric.

Mrs. DAVIS OF CALIFORNIA. Okay. I think you did say rhetorical,

but I may be mistaken.

At what point would it not be rhetorical? Where would you draw

the line?

Mr. ROSENKRANZ. Again, I don’t think that I said these are rhetorical. And I don’t think they are quite just rhetorical. I think they

are signalling one of the tools that the President will use when he

tries to interpret this act.

Mrs. DAVIS OF CALIFORNIA. Would anybody else like to weigh in?

I mean, where would you begin to say, okay, this goes beyond it

being a statement that he is signalling? Where is he not signalling?

I mean, do you think, is there something more than a signal here?

Something more than a signal that even the Supreme Court, at

some point, did weigh in on?

Mr. KEPPLINGER. Mrs. Davis, I have been listening to the discussion, and, you know, my view when I first read the President’s

signing statement with respect to this is—my reaction: What is the

point?

To the extent that there are circumstances that may present

themselves at some point in the future, where the application of

one of these provisions to particular circumstances present an

issue, you certainly can deal with it then. You certainly aren’t inhibiting your ability to deal with it then by being silent when you

signed the statement.

And so, I begin to get—it is a little bit of a Chicken Little reflex

of, you know, the sky is falling on Presidential authority, which I

don’t think is the case at all.

And so, I think it is—the Congressional Research Service (CRS)

has made the point in the past that this orchestrated use of signing

statements to raise abstract, conjectural constitutional issues is

more to, if you will, advance an ideology than it is to deal with any

particular issues of the moment.

Mr. FEIN. If I could elaborate, most of the checks and balances,

separation of powers law that the Supreme Court embraces comes

more from practice in rhetorical exchanges between Congress and

the executive branch than by looking at the words of the Constitution, which are blurry at best in this regard.

This is an effort by the President to establish de facto what the

Constitution means by saying over and over again, ‘‘These are my

prerogatives, and you can’t encroach on this.’’ And if Congress

doesn’t respond, he will go into court and say, ‘‘See? I have said

this all along. And Congress hasn’t suggested that I am wrong, and

therefore that is what the law is.’’ That is how executive privilege,

34

actually, was finally endorsed by the U.S. Supreme Court in the

U.S. v. Nixon case.

The other issue that is addressed, at least indirectly, by your

question is, oftentimes, the nonenforcement is undetectable. The

President doesn’t come forward and say, ‘‘You know, I am violating

that law. I am not going to enforce it.’’

And that has happened with the Foreign Intelligence Surveillance Act (FISA). The President never said after 9/11, ‘‘Eh, the act

is antiquated. I am just going to go ahead and enforce in other

ways.’’ And despite the ridicule of the New York Times, we

wouldn’t have a discussion about FISA. You wouldn’t even be

thinking about the Protect America Act if the executive branch

hadn’t leaked that information to the New York Times. We

wouldn’t know about it.

Mrs. DAVIS OF CALIFORNIA. Mr. Halstead.

Mr. HALSTEAD. It is essentially part of what I see as a general

strategy or position on the part of the executive branch that any

time we have the opportunity to assert very expansive assertions

of Presidential power, we are going to take that opportunity. And

it is designed to inure Congress, the courts, the public to the notion

that the executive branch in fact possesses these large swathes of

power, upon which Congress and the courts may not intrude.

And in my report, I lay out instances. One of the most common

things you see in signing statements is objections to direct reporting requirements that are imposed by Congress. It is well-established that those are not remotely constitutionally problematic in

and of themselves. Certainly, if you have a direct reporting requirement that intrudes upon a sphere of privilege, then you may have

an issue. But, as a general matter, direct reporting requirements

are constitutionally unexceptional.

And so, it is part of an overall position or strategy, I think, on

the part of the Administration to forward these claims of power

whenever possible.

Mr. ROSENKRANZ. I should just say, I don’t see any evidence in

this signing statement, or in this President’s signing statements

generally, of broad strategy to assert some broad swathe of executive power. The statement is only two paragraphs long.

And what it is saying is, ‘‘This statute could possibly raise constitutional issues, and I am going to keep that in mind, in particular with regard to these specific provisions. And I want the executive branch to keep this in mind, as well.’’ It doesn’t say anything

more than that.

Mrs. DAVIS OF CALIFORNIA. But I think that—earlier, I just

thought I heard you saying that there is a place for Congress,

though, to be more proactive, as it relates to those signing statements. And I am trying to determine the extent to which that is

the case.

Mr. ROSENKRANZ. I agree that Congress should read these things

carefully.

Dr. SNYDER. Mr. Andrews for five minutes.

Mr. ANDREWS. I wanted to ask each of our two law professors

how they reconcile the controversy over signing statements with

Justice Scalia’s announcement that legislative history has very little to do with anything.

35

And the reason I ask this—and I think that is perhaps an unfair

characterization, but I think it is accurate.

The reason I raise that is, of course, if the Administration is

going to continue to preempt litigation or challenges by announcing

what it thinks something means without vetoing, then, of course,

our corresponding power would be to make it clear in legislative

history what we mean.

So let me try this one on. Let’s say that in the section 841, commission creation, we had said in the committee report of this committee and again on the floor in a colloquy that, should a situation

arise where an executive branch person who is commanded to turn

over a document believes that the turning it over would constitute

a violation of executive privilege or some other executive constitutional prerogative and that that is shared by the President, that it

is not our intention to have that ‘‘shall’’ applied to that. So we disclaim in the legislative history that we are pushing that constitutional envelope. It is only in cases where there is no dispute that

they ‘‘shall’’ do it.

I think Justice Scalia has told us that that doesn’t mean anything. First of all, do any of you disagree with that characterization

of Justice Scalia’s position?

Mr. FEIN. He has clearly stated that it is the language of the

statute that counts and that legislative history isn’t voted on by the

Congress and it is not signed or vetoed by the President. And,

therefore, it is——

Mr. ANDREWS. So, Professor Rosenkranz, do you agree with my

characterization?

Mr. ROSENKRANZ. Justice Scalia would say that legislative history is not very useful to the interpreting of Federal statutes, and

also Presidential signing statements are not very useful to the interpreting of Federal statutes.

Mr. ANDREWS. I don’t quite know that that issue has reached

him yet. But I do know—so what we do have, at least a significant

voice on the Supreme Court, if not the majority voice, saying that

if we want to say something we had better put it in the statute explicitly.

It seems to me, if—do you think Justice Scalia is right, by the

way? If you were sitting on the court, would you agree with that

view or disagree with it?

Mr. ROSENKRANZ. I would agree with that.

Mr. ANDREWS. Okay. So if you agree with that view, then

shouldn’t we make the same thing hold for the executive branch?

Shouldn’t we say that if the President wants something not to happen, he needs to exercise his veto power; and if he signs a bill, then

he really has to execute the law? Shouldn’t there be a reciprocal

obligation in the executive branch?

Mr. ROSENKRANZ. It is a very good question. There are two different issues here. One is the effect of Presidential signing statements in the executive branch. And the other is the effect of Presidential signing statements in court.

So there is nothing inconsistent about saying a Presidential signing statement should inform how the Defense Department

reads——

36

Mr. ANDREWS. But with all due respect, judgments and decisions

of courts then affect the real world. So if the court says, ‘‘No, you

don’t have to turn over this document about contracting in Iraq because it is protected by executive privilege,’’ then the document

doesn’t get turned over, right? So——

Mr. ROSENKRANZ. Congressman, the Secretary of Defense has to

follow the President’s interpretation of the law. The Supreme Court

doesn’t have to follow the President’s interpretation of the law.

They follow their own interpretation of the law. There is nothing

inconsistent in that.

Mr. ANDREWS. It just strikes me as oddly lacking a reciprocity

here, when you say you agree with Justice Scalia’s view that if the

legislative branch wants to really mean something it has to use its

common instrument of the statute to do so—its only instrument, I

guess he would say—but if the President wants to nullify a statutory direction, he can simply do so without veto; he has this

other—it reminds me of the penumbras in Griswold v. Connecticut,

just sort of happened one day. But there is this penumbral power

of the President to do these signings that are sort of half-fish and

half-fowl, right?

They are half-veto but half-signature. Isn’t that an odd contradiction?

Mr. ROSENKRANZ. Again, there is nothing inconsistent here. It is

the difference between intra-branch communication and interbranch communication. If you——

Mr. ANDREWS. Professor Fein, why am I right? [Laughter.]

Mr. FEIN. I think Professor Rosenkranz is flawed in the sense

that the majority of these cases will never get into court.

Let’s take the situation that we have with 1222. Suppose if the

President spends money to establish a permanent military base in

Iraq, who has standing to go into court? You don’t. I don’t. The Supreme Court standing rules make it impossible.

So the fact is, the President’s word is the final word, short of impeachment or some other retaliation, through not confirming someone or whatever.

And that is most of the cases concerning these claims that the

President makes in signing statements, raise issues that will never

get to court because you will never have standing.

Mr. ANDREWS. I think the same is true of the intelligence mandate. I think if the President refused to turn over an intelligence

report and we went to Federal district court to compel him to do

so, we would get kicked out for lack of standing.

So our remedies, apparently, would be to impeach him or, I

guess, shut the government down and not fund the executive

branch or some really radical approach.

Whereas, I would think that if he thinks that this requirement

that intelligence reports turned over impair his ability as commander in chief, he should veto the legislation and make us do it

over. That is what I think.

Dr. SNYDER. Mr. Akin, anything further?

Mr. AKIN. No. I think we have pretty much plowed the field.

Dr. SNYDER. Well, I know, but I am not going to let that stop me

from going ahead one more time.

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I have here the President’s veto message from December 28,

2007, of the bill. And it is a two-page statement, most of which discusses section 1083 that dealt with Iraqi monies and the litigation.

And then at the very end, he says, ‘‘This legislation contains important authorities for the Department of Defense, including authority to provide certain additional pay and bonuses to service

members. Although I continue to have serious objections to other

provisions of this bill, including section 1079 relating to intelligence

matters, I urge the Congress to address the flaw in section 1083

as quickly as possible so I may sign into law the National Defense

Authorization Act for Fiscal Year 2008 as modified.’’ And that is

the last paragraph.

So now we have a situation in the most recent message from the

President about that bill is that only one of the provisions are mentioned as warranting consideration.

I mean, Professor Rosenkranz, what does that do to your analysis, that the other three provisions are not specifically mentioned?

Does it do anything? Are these just, like, messages to be ignored,

boilerplate, that one day it is going to be four provisions, a few

days later it is going to be one provision?

Mr. ROSENKRANZ. I have not seen that prior statement, so I don’t

know what——

Dr. SNYDER. Okay. This is the veto message that came from the

President when he vetoed. But my point is——

Mr. ROSENKRANZ. And were these provisions identical then to the

ones that were passed?

Dr. SNYDER. Yes. Yes.

Mr. ROSENKRANZ. I see.

Dr. SNYDER. I mean, because my point is he specifically talks

about serious objections to other provisions of this bill but then

does not mention three of the four. I don’t know what it means. I

think it is just part of this confusion that we have right now.

Before seeing if Mrs. Davis or Mr. Andrews have anything further, I do want to mention I actually do have another Law Review

article. You have already read my one today from Vanderbilt University. And, in fairness to Vanderbilt University, I should acknowledge my one-page Law Review article by Vanderbilt University. I actually did write another one that I actually thought was

a real Law Review article about the congressional oath of office and

what does it mean as a member of the Congress to take the congressional oath of office. So if you can’t sleep at night, take that

one.

Mrs. Davis, anything further?

Mrs. DAVIS OF CALIFORNIA. No, Mr. Chairman. You were just a

perennial student.

Dr. SNYDER. Yes.

Mr. Andrews.

Mr. ANDREWS. I am going to wait and see the movie. [Laughter.]

Dr. SNYDER. All right. Anything further, Mr. Andrews?

Mr. ANDREWS. No, thank you, Mr. Chairman.

Dr. SNYDER. Mr. Akin.

Mr. AKIN. No, thank you.

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Dr. SNYDER. Thank you all for being here. I am sorry this took

longer because of the votes. We appreciate your patience with us.

I think your information has been helpful. Thank you.

And I will also give you as an open question for the record, if

anybody has anything that they are dying to submit in written

form to be appended to this, I would be glad to do that in response

to this question.

Thank you. We are adjourned.

[Whereupon, at 2:36 p.m., the subcommittee was adjourned.]

A P P E N D I X

MARCH 11, 2008

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MARCH 11, 2008

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