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43–109 PDF 2009

S. HRG. 109–1053 

THE USE OF PRESIDENTIAL SIGNING STATEMENTS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED NINTH CONGRESS 

SECOND SESSION 

JUNE 27, 2006 

Serial No. J–109–92 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 4 

Durbin, Richard J., a U.S. Senator from the State of Illinois .............................. 5 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 18 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2 

statement .......................................................................................................... 222 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 

WITNESSES 

Boardman, Michelle E., Deputy Assistant Attorney General, Office of Legal 

Counsel, U.S. Department of Justice, Washington, D.C. .................................. 6 

Fein, Bruce, Partner, Fein & Fein LLC, Washington, D.C. ................................. 24 

Ogletree, Charles J., Jr., Professor, Harvard Law School, Cambridge, Massachusetts ................................................................................................................. 20 

Rosenkranz, Nicholas Quinn, Associate Professor of Law, Georgetown University Law Center, Washington, D.C. .................................................................... 27 

Yoo, Christopher S., Professor, Vanderbilt University Law School, Nashville, 

Tennessee .............................................................................................................. 22 

QUESTIONS AND ANSWERS 

Questions submitted by Senators Kennedy and Feinstein to Charles Ogletree 

(Note: Reponses to questions were not received as of the time of printing, 

April 16, 2009 ....................................................................................................... 39 

Responses of Michelle Boardman to questions submitted by Senators Specter, 

Leahy, Kennedy, Feinstein and Schumer .......................................................... 41 

Responses of Bruce Fein to questions submitted by Senator Kennedy ............... 71 

Responses of Nicholas Rosenkranz to questions submitted by Senators Feinstein and Kennedy ............................................................................................... 74 

Responses of Christopher Yoo to questions submitted by Senator Feinsten ...... 85 

SUBMISSIONS FOR THE RECORD 

American Bar Association, News Release, statement .......................................... 95 

Boardman, Michelle E., Deputy Assistant Attorney General, Office of Legal 

Counsel, U.S. Department of Justice, Washington, D.C., statement ............... 98 

Boston Globe, Boston, Massachusetts: 

April 30, 2006, article ....................................................................................... 109 

May 3, 2006, article .......................................................................................... 119 

Calabresi, Steven G., Professor of Law, Northwestern University School of 

Law, Yale University, statement and attachment ............................................ 122 

The Constitution Project, Washington, D.C., statement ...................................... 200 

Department of Justice, Washington, D.C., Memorandum for Bernard N. Nussbaum ...................................................................................................................... 204 

Fein, Bruce, Partner, Fein & Fein LLC, Washington, D.C., statement .............. 215 

Ogletree, Charles J., Jr., Professor, Harvard Law School, Cambridge, Massachusetts, statement .............................................................................................. 227 

Rosenkranz, Nicholas Quinn, Associate Professor of Law, Georgetown University Law Center, Washington, D.C., statement ................................................. 234 

Yoo, Christopher S., Professor, Vanderbilt University Law School, Nashville, 

Tennessee, statement ........................................................................................... 247 

(1) 

THE USE OF PRESIDENTIAL SIGNING 

STATEMENTS 

TUESDAY, JUNE 27, 2006 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:02 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Cornyn, Leahy, Kennedy, Feinstein, 

Feingold, and Durbin. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Judiciary Committee will now proceed with our hearing on presidential signing statements. 

The issue has come into sharp focus as a result of the extensive 

use by President Bush of signing statements. There have been 

many signing statements issued by Presidents in the past, and 

there are good purposes which are not subject to challenge; for example, if the signing statement is one which contains instructions 

to the executive branch as to how to carry out the legislation. But 

there is a sense that the President has taken the signing statements far beyond the customary purview as, for example, with the 

heated controversy on the issue of interrogation of prisoners and 

the alleged use of torture. 

When the Senate passed 89–9 a prohibition on that kind of interrogation practice, and after very extensive negotiations with the 

White House on the so-called McCain amendment, the President 

issued a signing statement which appeared to undercut what had 

been negotiated. 

In the PATRIOT Act, which was a measure which came out of 

this Committee, very extensively negotiated, unanimous on the 

Committee and the Senate bill, and without any dissent on the 

floor, went through on the unanimous consent calendar—rather unusual. We did have some points of controversy when it got to the 

conference with the House of Representatives. And the administration had every opportunity to weigh on in the provisions of the bill, 

but when the President signed it, he put a notation in that he 

could withhold information. We had put into the bill oversight provisions intended to make sure that law enforcement did not abuse 

the special terrorism-related powers to search homes and secretly 

seize paper. It also required the Department of Justice to keep a 

2 

closer track of how often the FBI used the new powers and in what 

types of situations. 

The President then in his signing statement added an addendum 

that that disclosure would not be made if, in his judgment, it would 

‘‘impair foreign relations, national security, the deliberative process 

of the Executive, or the performance of the Executive’s constitutional duties.’’ 

Now, if the President had intended to put that limitation into 

law, that is something I believe should have been submitted to the 

Congress. We should have weighed it. We should have evaluated 

it, and, if we under the exercise of our legislative powers granted 

in the Constitution, thought it appropriate, we would have put it 

in. But there is a real issue here as to whether the President may, 

in effect, cherrypick the provisions he likes and exclude the ones 

he does not like and add addenda as to what he may prefer. 

There is no doubt that the President’s constitutional power under 

Article II cannot be limited by statute. But as a matter of comity 

and negotiation, these are things which we would all be better 

served if they were brought to the attention of the legislative 

branch before the legislation is finished. Then, as we all know, the 

President has the option under the Constitution to veto or not. And 

the Framers, in leaving with the Congress the authority to legislate, provided for an override of the veto, again, as we all know. 

And in the decision of the Supreme Court of the United States 

in the Chadha case, the Court said, ‘‘It emerges clearly that the 

prescription for legislative action in Article I, Section 1, Clause 7, 

represents the Framers’ decision that the legislative power of the 

Federal Government be exercised in accord with a single, finely 

wrought and exhaustively considered procedure.’’ And that language of the Court I think bears very heavily on the issue of presidential signing statements and where they may appropriately go. 

Let me yield now to the distinguished Ranking Member of this 

Committee, Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you, Mr. Chairman. I am sorry that the 

administration—and this is nothing against you, Ms. Boardman, 

but I am sorry they did not want to send up anybody who would 

have authority to speak on this. But, considering the fact that they 

are using basically an extraconstitutional and extrajudicial step to 

enhance the power of the President, it is not unusual. 

I commend the Chairman for holding this hearing, even though 

we will not get the answers that we need. The President has made 

unprecedented claims for unchecked Executive power. I have never 

seen anything quite like this. Historically, these signing statements 

have been basically press releases sent out by Presidents to commend themselves or others, which is fine, on enactment of laws. 

But this administration has so expanded it that I believe it is a 

practice which poses a grave threat to our constitutional system of 

checks and balances. 

The President has not vetoed any bills, but basically he has done 

a personal veto. He has used his bill signing statements to sign his 

own interpretation of laws, and he has also said which laws he will 

3 

not follow, and basically said certain laws do not apply to the President. He has put himself above the law, even the same laws he 

signs. According to a review of these statements conducted by the 

Boston Globe, President Bush has employed signing statements to 

ignore or disobey more than 750 laws enacted by a Republican Congress. I mean, this is a rubber-stamp Congress to begin with, and 

he is still saying that he will not even follow the laws that he 

signs. That 750, incidentally, is far more than all the signing statements signed by every single President from George Washington to 

Bill Clinton put together. 

When the President signed the Sarbanes-Oxley law, combating 

corporate fraud, he used a signing statement to attempt to narrow 

a provision protecting corporate whistle-blowers in a way that 

would have afforded them little protection. Senator Grassley and I 

wrote a letter to the President stating that the President’s narrow 

interpretation, which we now understand was signed off on by Vice 

President Cheney’s office first, did not reflect the law. And after a 

great deal of public exposure and pressure, they relented and 

agreed with Senator Grassley and myself. 

We had months of debate and negotiations in Congress on the 

USA PATRIOT Act reauthorization language. I commend the 

Chairman for working with those who had differing views. Former 

Congressman Dick Armey of Texas and I had put in amendments 

that required sunset provisions so we would have to look at it 

again. And we negotiated and negotiated. Again, I commend the 

Chairman on this, but when we finally got down to the end—after 

negotiating a number of things, I voted against it because I did not 

believe, even with those things that the administration agreed to, 

that they had followed the law. And, of course, when the President 

signed it, he stated his intention not to follow the reporting and 

oversight provisions contained in that bill. He also used signing 

statements to challenge laws banning torture, affirmative action, or 

those laws that prohibited censorship of scientific data. He had 

great press conferences and a lot of press, for example, on the 

McCain torture bill, with the President saying how we had negotiated all this, and the Vice President negotiated all this, and then 

the President signs it, to great fanfare, but quietly says, ‘‘Of course, 

it will not apply to people I do not want it to apply to.’’ 

Basically, the President signs laws enacted by the people’s Representatives in Congress, while he is crossing his fingers behind his 

back. And when he proudly says he has never had to make a veto, 

heck, why? He just signs laws and says he is not going to follow 

them. 

It is hard to see a situation where somebody so blatantly says 

that they are above the law. I was always brought up to believe 

that in this society no one is above the law. We are not and the 

President is not either. But we are not going to hear from the Attorney General or the Deputy Attorney General, somebody we confirmed in a bipartisan way. We are not going to hear from a 

spokesman for the White House, although they are all too willing 

to spin to the press or friendly audiences. We will not hear from 

the Acting Assistant Attorney General for the Office of Legal Policy, who we were initially told would be attending. 

4 

Ms. Boardman, I wish you well, but, you know, it is almost irrelevant what you say because, once again, this administration said, 

even with a rubber-stamp Republican Congress, they do not care 

what we think because they are going to decide what laws to follow 

and what laws to disobey. And they have been doing that a great 

deal because nobody up here will call them on it. 

Thank you, Mr. Chairman. I will put my full statement in the 

record. 

Chairman SPECTER. Thank you, Senator Leahy. Without objection, your full statement will be made a part of the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman SPECTER. I do not want to dispute too much your 

statement about the rubber-stamp Congress since you did not call 

it a rubber-stamp Judiciary Committee. 

Senator LEAHY. I did not. 

Chairman SPECTER. Senator Cornyn, would you care to make an 

opening statement? 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Just briefly. Thank you, Mr. Chairman, for the 

opportunity. I think this is a fascinating topic, I guess something 

mainly law students and lawyers can love. I do not know why the 

issue of Presidents’ issuing signing statements is controversial at 

all since the practice dates back to 1821 and James Monroe and 

was something done by President Clinton and defended by Walter 

Dellinger when he was President Clinton’s Assistant Attorney General for the Office of Legal Counsel. 

As a practical matter, I do not really know what impact it has 

other than the fact that, of course, when there is a possibility of 

someone acquiring standing and actually filing a lawsuit, ultimately it is not the executive branch that determines what the law 

means. It is not even the legislative branch, which writes it. It is 

the judicial branch that makes the decision, and, of course, that is 

by interpreting what Congress’ intent is, legislative intent, not Executive intent. 

But I do think it is helpful for the Executive to identify areas of 

concern in the course of signing statements. Actually, it promotes 

public discourse and discussion about what the roles of the legislative branch are and the roles of the executive branch are insofar 

as all of us, all three branches, take an oath to uphold and defend 

the Constitution and laws of the United States. But recognizing 

that there are a whole variety of decisions made by Congress and 

by the executive branch in signing legislation that never make 

their way to court and there is really no likelihood that any court 

will ever actually resolve the disputes between the Executive and 

the legislative branches over what a statute or a bill may mean, 

I find the use of the presidential signing statements is helpful for 

us to understand the rationale of the executive branch in signing 

the legislation rather than vetoing it, and promoting the kind of 

discussion that we are going to have here today about the relative 

powers of executive, legislative, and judicial branches when it 

comes to each of their oaths to uphold and defend the Constitution. 

5 

Thank you very much. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Senator Durbin, would you care to make an opening statement? 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Just very briefly, Mr. Chairman. I thank you 

for calling this hearing, and I think it is a critical constitutional 

issue which we are considering. This President has yet to veto a 

bill, but he seems to be a prolific author of signing statements. It 

suggests, I would say to my friend and colleague from Texas, that 

this administration believes that they can sign whatever they 

want, as long as they put a disclaimer, and the disclaimer basically 

says, ‘‘We are not going to follow certain portions of this law.’’ And 

that to me is troublesome. I am afraid it is part of a much larger 

pattern which we have seen in the last several years, at least since 

9/11, where this Congress continues to cede its authority and power 

to the executive branch. Every Executive that I have witnessed has 

always wanted more power and authority. They have resisted following even constitutional requirements for declaration of war, if 

they could. 

In this circumstance, this administration continues to reach into 

the province and authority of our legislative branch of Government 

with impunity. The President’s own party is complicit in ceding 

this power to the executive branch. I think it is a serious constitutional mistake of historic consequence, and I hope that the day will 

come, and soon, when we assert our responsibility, not just for personal pride—that has nothing to do with it—but, rather, because 

I do believe checks and balances is still a very viable concept and 

principle. 

Witness what is going on now with this whole warrantless wiretap. We are now waiting for Vice President Cheney to rule on the 

constitutionality of the Bush-Cheney administration’s policies. I 

think I know how he is going to rule. I think he is going to find 

that they are very constitutional, thank you, and that Congress 

should keep its nose out of it. 

In the past, Congresses dominated even by the President’s political party would pay little or no attention to that sort of subterfuge, 

but, sadly, today that passes for a meaningful dialogue between the 

executive and legislative branches. I do not buy it, and I think history is going to judge us very poorly for standing by as so many 

precious rights and responsibilities under our Constitution are 

ceded away. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Durbin. 

We now turn to Ms. Michelle Boardman, Deputy Assistant Attorney General in the Office of Legal Counsel of the Department of 

Justice. Before joining the Department, Ms. Boardman was an assistant professor at George Mason Law School. She joined George 

Mason in 2002 after practicing appellate law for several years with 

Wiley, Rein & Fielding. She clerked for Judge Frank Easterbrook 

of the Seventh Circuit, has a bachelor’s degree from Brown, and a 

law degree from the University of Chicago. 

6 

Thank you for joining us today, Ms. Boardman, and the floor is 

yours for 5 minutes. 

STATEMENT OF MICHELLE E. BOARDMAN, DEPUTY ASSISTANT 

ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Ms. BOARDMAN. Thank you very much, Mr. Chairman. I hope 

that today I can persuade Senator Leahy, among others, that I actually have something of value to offer to you, and not just because 

the words ‘‘Attorney General’’ appear in my title. I may not be 

the— 

Chairman SPECTER. As Senator Thurmond used to say, would 

you pull ‘‘the machine’’ a little closer? 

[Laughter.] 

Ms. BOARDMAN. Sure, the machine. Does that work, Mr. Chairman? 

Chairman SPECTER. That works—not for Senator Thurmond, but 

it does for us. 

[Laughter.] 

Ms. BOARDMAN. Mr. Chairman, Senator Leahy, and members of 

the Committee, I appreciate the opportunity to appear here today 

to talk about the purpose and history of presidential signing statements. I will use my brief initial time to make two points: first, 

signing statements serve a legitimate and important function and 

are not an abuse of power; second, the Congress need not fear signing statements but should instead welcome the openness that they 

provide. 

It is important to establish at the outset what presidential signing statements are not. They are not an attempt to cherrypick 

parts of the law that the President can choose to follow or an attempt to redefine an established law. Many constitutional signing 

statements are an attempt to preserve the Executive’s role in the 

separation of powers, but this preservation does not mean that the 

President will not enforce the provision as enacted. And this is a 

point that is often lost in the public discourse. 

The President takes an oath to preserve, protect, and defend the 

Constitution of the United States. The President also has the responsibility and duty to see that the laws of the United States are 

faithfully executed. Are these duties in tension? No. 

The President must execute the law faithfully, but the Constitution is the highest law. It is the supreme law of the land. If the 

Constitution and the statutory law conflict, the President’s duty requires him to choose the statutory law as construed under the Constitution. It may interest you to know that every President since 

President Eisenhower has issued signing statements in which he 

said that he would not execute an unconstitutional provision. 

Signing statements are only one method where a President can 

fulfill this duty. For example, the presidential responsibility may 

arise sharply if a President is charged with executing a law passed 

by a previous Congress, signed by a prior President, that the President considers to be unconstitutional under intervening case law. 

A President that places statutory law over the Constitution in this 

context does not fulfill his duty of executing the law faithfully, and 

the principle is equally sound if the Supreme Court has not yet 

7 

ruled but the President finds the statutory law violates the Constitution. 

Most will agree with this principle, but everyone will disagree 

with its application some of the time because there are legitimate 

and difficult questions about constitutional interpretation. But 

whether a particular constitutional objection should be made is a 

different question from whether constitutional signing statements 

are an appropriate exercise of every President’s power. 

The consistent history of signing statements reveals that this 

President’s statements are in keeping with those of past Presidents. And while the use of signing statements has increased in the 

past several decades, starting with President Reagan, this President’s signing statements are not substantially greater in number 

than those of prior Presidents. I look forward to discussing those 

numbers with members of the Committee. 

To quote Walter Dellinger, the Assistant Attorney General for 

the Office of Legal Counsel in the Clinton administration, signing 

statements have frequently expressed the President’s intention to 

construe or administer a statute in a particular manner, often to 

save the statute from unconstitutionality. Some have argued that 

this President has increased the use of signing statements, but 

even if there is a modest increase, allow me to suggest that it must 

be viewed in light of current events and the legislative response to 

those events. 

While the President has issued numerous signing statements involving issues such as the foreign affairs power and his power as 

Commander-in-Chief, the significance of legislation affecting national security has increased markedly since September 11th. Congress has been more active; the President has been more active. 

The kind of tension in this area of concurrent powers is precisely 

how the Founders envisioned the system of separation of powers as 

working when we have this kind of dispute. 

Now to my second point, the desirability of signing statements. 

To appreciate the value of signing statements, you must, of course, 

consider the alternatives. As I understand the argument, some 

would rather the President either veto the legislation—and I hope 

we can talk about that—or remain silent while signing the legislation. But it has never been the case that the President’s only option 

when confronting a constitutionally difficult bill is to veto it. The 

Supreme Court, among others, has noticed that it is not uncommon 

for Presidents to approve legislation containing parts which are objectionable on certain grounds. 

Allow me to suggest that, in closing, respect for the legislative 

branch is not shown through veto. Respect for the legislative 

branch, when we have a well-crafted bill, the majority of which is 

constitutional, is shown when the President chooses to construe a 

particular section in keeping with the Constitution as opposed to 

defeating an entire bill that would serve the Nation. In short, presidential signing statements are an established part of the President’s responsibility to take care that the laws be faithfully executed. Members of Congress and Presidents will occasionally disagree on constitutional questions, but this disagreement does not 

relieve the President of his responsibility to defend the ConstituVerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC
8 

tion. It instead supports an open and public statement of the President’s views. 

Chairman SPECTER. Thank you very much, Ms. Boardman. 

Ms. Boardman, you do agree, do you not, that the President does 

not have a blank check? 

Ms. BOARDMAN. A blank check, no. No, Mr. Chairman. 

Chairman SPECTER. You agree. 

Ms. BOARDMAN. Yes. 

Chairman SPECTER. In the decision to issue a signing statement, 

wouldn’t the President be better advised if he vetoed a bill, sent it 

back to the Congress, and said, ‘‘I am not going to sign it unless 

you take this provision out’’ ? When we had all the negotiations 

with the McCain amendment, when he inserted the language in 

the signing statements on the PATRIOT Act, which I read in my 

opening statement, that he would disregard the limitations of the 

legislation if he concluded it would ‘‘impair foreign relations, national security,’’ et cetera, wouldn’t the President be better off on 

the constitutional comity if he followed the Constitution, vetoed it, 

and then challenged the Congress to pass it in accordance with 

what he would accept? 

Ms. BOARDMAN. Well, Mr. Chairman, you ask two very interesting questions, and I will start with the veto question, and perhaps we can get into the way in which the President’s signing 

statement on the McCain amendment is in keeping with other 

signing statements of past Presidents. 

Chairman SPECTER. No, do not do that. You had an opening 

statement for that. I want you to answer my question. 

Ms. BOARDMAN. Yes. No, no. First I would like to talk about the 

veto question. There are three reasons, I believe, why it is better 

for the President to not veto in that circumstance, or at least, not 

obviously, preferable for him to veto. The first is he is not required 

to do so. Some have suggested—and I know you have not—that a 

President who finds a portion of a law unconstitutional must veto 

the law— 

Chairman SPECTER. You say he is not required to do so. Of 

course he is not if he signed the bill. But if he disagrees with the 

bill, isn’t the constitutional provision to veto? 

Ms. BOARDMAN. Well, the second reason why I think he should 

not veto in that circumstance is especially in modern legislation we 

have large omnibus bills, hundreds of pages long, involving, as you 

say, difficult compromise and negotiation, a lot of work on behalf 

of Congress, and it is often— 

Chairman SPECTER. Deal with the McCain amendment and the 

PATRIOT Act. Don’t give me an omnibus bill. Why didn’t he veto 

those bills and lay the challenge down for Congress either to comply with what he wanted or he would veto? 

Ms. BOARDMAN. Mr. Chairman, can I answer the veto question? 

And then we can talk about the other two bills. I would like to set 

up a framework here because I think—we can talk about those 

bills. The vast majority of the time when a President does not veto, 

it is because there is a minor provision in a large bill. There are 

some bills where that is not the case, and obviously you feel strongly about those bills. 

9 

The one point I would like to make before discussing those bills 

in the context of the history of signing statements is this: The veto 

does not actually avoid the problem. If the President vetoes a bill 

and then the Congress overrides that veto, the President still has 

the constitutional obligation to uphold and defend the Constitution 

and to execute the law faithfully. So if a veto is overridden, including a veto that a President expressly makes because he believes 

something is unconstitutional, it does not give the President free 

rein to then ignore the dictates of the Constitution. He is still required to construe the provision in keeping with the Constitution. 

So, to some extent, I really think a veto only delays the question. 

Now, if you would like, I can talk about the similarities of the 

McCain situation to other legislative signing statements. 

Chairman SPECTER. Well, you are going to have less than a 

minute because I have another question for you. It is a little difficult if you choose what you are going to say in response to questions. That is what you have an opening statement for. We did not 

interrupt you. But supply those answers in writing. That is what 

I would like you to do since you chose to talk about framework 

rather than to respond to the questions. 

Let me go to another question which I consider to be very important. When we had the PATRIOT Act, we had a lot of negotiations. 

Then it went over to the House of Representatives, and we had a 

lot of negotiations there. If the President wanted to have an exception, if he decided that it would ‘‘impair foreign relations, national 

security, or the deliberative process of the Executive,’’ wouldn’t it 

have been preferable as a matter of comity for the administration 

to have come to the Judiciary Committee and said, ‘‘This is something we would like to have in the bill, would you consider putting 

that in the bill? ’’ instead of working with us on all the provisions 

that he liked, which we put in, and then in the signing statement 

eliminate that? Would it, as a matter of comity and recognition of 

co-equal branches of government, be preferable to take it up with 

Congress before unilaterally putting those provisions in? 

Ms. BOARDMAN. Well, Mr. Chairman, that signing statement is 

in keeping with a long line of signing statements that address the 

question of furnishing information to entities outside of the executive branch in a manner consistent with the President’s foreign relations power. And the President has a duty to generally protect 

classified information, but the President, like the courts, also assumes that, in lieu of anything to the contrary, Congress intends 

to pass a constitutional law. 

So it is often the case—and this is true for many Presidents, including Presidents Clinton, Carter, and Reagan, that when Congress passes a bill that touches on those issues, requesting types 

of information, the President says in his signing statement, ‘‘I accept this to be in keeping and not in contravention of my general 

power and duty to control sensitive foreign relations and national 

security information.’’ 

I think those statements really say not ‘‘I believe the bill means 

to impinge on these powers and I will not let it,’’ but, ‘‘I take this 

bill to mean that we all understand I have some duties to protect 

sensitive information and that I will not violate those duties in 

keeping with the bill.’’ 

10 

Chairman SPECTER. Well, my red light is on, so I will not ask you 

another, nor will I press you to answer the last question. But I will 

ask you to submit in writing an answer to my question, and that 

question was: Wouldn’t it be better, as a matter of comity, for the 

President to have come to the Congress and said, ‘‘I would like to 

have this in the bill. I would like to have these exceptions in the 

bill’’ so that we could have considered that? Submit that for me in 

writing, if you will, please. 

In order of arrival on the Democratic side, the early-bird rule, 

Senator Durbin is next. 

Senator DURBIN. Thank you, Mr. Chairman. 

Ms. Boardman, you have used many words carefully, and that is 

what lawyers should do. But you have carefully avoided two words: 

‘‘unitary executive.’’ Are you familiar with that theory? 

Ms. BOARDMAN. I am familiar with those words. 

Senator DURBIN. I guess you should be if you are part of this administration. The Reagan administration mentioned the unitary executive publicly once; the first Bush administration, six times; the 

Clinton administration never cited it. Your current administration 

has cited the unitary executive theory an astounding 110 times in 

Executive orders, signing statements, and elsewhere. And for those 

who are following this and puzzled by what this could possibly 

mean, I think you understand. It is a largely Federalist Society inspired theory which suggests that the President has exceptional 

powers. 

Time and again, President Bush has cited the so-called unitary 

executive theory in claiming the right to ignore laws passed by 

Congress. I will give you one illustration from the Wall Street Journal, and I quote: ‘‘Bush administration lawyers contended that the 

unitary nature of presidential power over national security meant 

Mr. Bush could not be constrained either by treaties or laws passed 

by Congress that govern treatment of enemy prisoners. The Justice 

Department has not backed away from its theory on presidential 

power, which also underlies domestic surveillance programs and 

the detention of U.S. citizens as enemy combatants.’’ 

I know why you carefully avoided using these two words, because 

they go to the heart of the issue here. Twice the Supreme Court 

on issues raised in the case Morrison v. Olson and in the Hamdi 

case rejected the unitary executive theory, but, clearly, it is the inspiration of this executive branch to ignore the prerogative of the 

legislative branch. 

So the nonpartisan Congressional Research Service has said that 

the Supreme Court has ‘‘clearly dispelled the so-called theory of the 

unitary executive.’’ Do you disagree? 

Ms. BOARDMAN. With everything you have said, Senator, or with 

parts of it? I do disagree with part of what you have just said, and 

I do disagree with the law statement. I think, unfortunately, we 

still do not have necessarily a joint understanding of what unitary 

executive means. And one reason I think that earlier Presidencies 

did not use the phrase ‘‘unitary executive’’ is that it just was not 

really coined until rather recently. That does not mean the concept 

was not out there. 

President Clinton, for example, would refer in his signing statements, and I will quote, to his ‘‘power to supervise and guide my 

11 

subordinates, including the review of the proposed communications 

to the Congress.’’ This is often under what people call the unitary 

executive theory, a source of concern—the ability of the President 

to control the delegates within the executive branch and control 

their communications with Congress. 

President Clinton also said in another signing statement that he 

would pay attention to ‘‘concerns of depriving the President and his 

department and agency heads of the ability to supervise and control the operations and communications of the executive branch.’’ 

That is really what I think about when I think about the unitary 

executive. 

Senator DURBIN. But don’t you also agree that since 9/11 that 

has changed dramatically when it comes to issues of national security and that this administration has used signing statements and 

this Federalist Society theory of the unitary executive to suggest 

that, regardless of what Congress passes in law, the President as 

Commander-in-Chief, with the authority and responsibility to protect America, will do what he wants to do? 

Ms. BOARDMAN. Respectfully, Senator, I have to disagree. The 

unitary executive theory really tells you about the structure of 

power within the executive branch. It does not have that much to 

say about the separation of powers and the struggle for power between the two branches. 

You are right that after 9/11 this issue has come to the fore, and 

in large part that is because Congress has some more powers and 

the President has some more powers, we have concurrent powers. 

And when you have two separate branches in a difficult time with 

a lot of high opinions, you end up with that kind of a struggle. But 

I do not believe that this administration’s use of unitary executive 

differs from other administrations. 

Senator DURBIN. I want to use one example as my time closes 

here. The McCain torture amendment that passed 90–9, when Vice 

President Cheney said that the employees of the intelligence agencies would not be bound by it got into quite a flap over a period 

of time, and then when the President signed it, here is what he 

said in the signing statement: He would construe the McCain torture amendment ‘‘in a manner consistent with the constitutional 

authority of the President to supervise the unitary executive 

branch as Commander-in-Chief.’’ 

So do you believe the President feels, based on that signing statement, that he can set aside and ignore the torture, the McCain torture amendment? 

Ms. BOARDMAN. No, Senator. I think we should look at the President’s public statements where he has said, ‘‘No American will be 

allowed to torture another human being anywhere in the world, 

and I sign the appropriations bill, the McCain amendment, because 

that is the way it is.’’ 

Senator DURBIN. So why the disclaimer? 

Ms. BOARDMAN. Signing statements like that often serve the 

function of setting aside an issue that could in some unknown future application cause a potential unconstitutional difficulty. I do 

not propose to speak for this President as to what was in his head 

when he signed it, but it is of a piece with many other presidential 

signing statements that say—not I will not follow the law, but 

12 

there is a difficult constitutional issue here, I sign the bill because 

I anticipate being able to apply the law without constitutional difficulty, but we should all be aware to be up front and honest that 

there may be circumstances where a constitutional difficulty could 

arise. 

Senator DURBIN. It is interesting to me, in the operative legal 

language of the signing statement, he has created a disclaimer, an 

exception, and then goes to the microphones and makes a public 

statement, ‘‘Don’t worry, be happy.’’ I just do not think that that 

is consistent. 

Thank you very much. 

Chairman SPECTER. Thank you very much, Senator Durbin. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. 

Ms. Boardman, do you agree with me that every person in this 

country is bound by the decision of a court of law in a case that 

decides the pertinent legal issue at hand? 

Ms. BOARDMAN. Yes, in general, we are all bound— 

Senator CORNYN. In other words, the President of the United 

States is bound by a court judgment, just like you are, just like I 

am, just like every other person in the country, correct? 

Ms. BOARDMAN. Yes, and as a matter of course, Presidents 

choose to follow Supreme Court precedent. It is very unusual for 

a President to attempt not to. 

Senator CORNYN. My point is choose to do so or not, if a court 

ultimately decides a case or an issue, that binds everybody who is 

a party to that decision, correct? 

Ms. BOARDMAN. In general, yes. 

Senator CORNYN. But there is a whole body of legal decisions 

that Congress makes, that the President makes, in the course of 

executing their duties that never end up in a court of law, correct? 

Ms. BOARDMAN. That is true. 

Senator CORNYN. And that is where, if I understand you correctly, these presidential signing statements, perhaps even legislative history by Congress, help inform the public debate as to precisely what it is the Executive intended and exactly what the legislature has intended. In those cases, it never will go to court and 

will never be decided in a court of law. Do you agree with that? 

Ms. BOARDMAN. I do agree with that, Senator. You raise an interesting point, which is that signing statements do not point out 

every potential constitutional error in a bill. Signing statements, 

for the most part, point out those constitutional difficulties that it 

is the job of the Executive to enforce. The President, all Presidents 

are focusing on retaining the appropriate scope of the executive 

power and the separation of the branches and can only in that regard focus on those laws that he has the power to execute. 

Senator CORNYN. And I happened to go back and look at some 

of the signing statements that President Clinton has signed, and 

I found a number of them, one that I want to bring to your attention, the statement on signing the Balanced Budget Act of 1997. 

Senator Durbin asked about a quotation from a signing statement 

by President Bush in signing the so-called ban against torture, 

which Senator McCain introduced in the Senate. And I want to ask 

you whether the words in that signing statement sound awfully 

13 

similar to these contained in a signing statement by President 

Clinton on signing the Balance Budget Act of 1997. 

He said, ‘‘I will construe this provision in light of my constitutional authority to recommend to the Congress such legislative 

measures as I judge necessary and expedient, and to supervise and 

guide my subordinates, including the review of their proposed communications to the Congress.’’ 

Does that sound awfully similar to the one that Senator Durbin 

referenced? 

Ms. BOARDMAN. It does, Senator. That is a reference both to the 

Recommendations Clause and to what today we might call the unitary executive. But at the time, President Clinton was more inclined to explain in a longer phrase. 

Senator CORNYN. And I am not really exactly sure what the bogeyman of the theory of the unitary executive—what the implications of that mean, but what I understand President Clinton to 

have said here is roughly equivalent to what has now been coined 

as the unitary executive concept. Is that right? 

Ms. BOARDMAN. I would agree with that, Senator. 

Senator CORNYN. And I think you have indicated that, dating 

back to the early part of this country, Presidents have used signing 

statements. Have almost all or maybe all administrations used 

signing statements much as the President did similar to the 

McCain amendment statement and the PATRIOT Act statement 

that have already been referred to? 

Ms. BOARDMAN. Every President since Eisenhower has used constitutional signing statements. The other Presidents that have used 

them in the ballpark number that this President has start with 

President Reagan. President Carter issued, we believe, approximately 30 for one term. The numbers differ for President Reagan 

depending on how you count. You can go from 80 to 105. For President Clinton, it is also around 80. There is one study that says 105. 

I think that is probably a little high. 

We believe this President to date has issued 110. The President 

who has issued the most number of signing statements was George 

H.W. Bush, who in one term issued approximately 147. 

Senator CORNYN. But you would agree with me, if there was 

something wrong with a presidential signing statement, just 

issuing one would be bad, if there was something wrong with it. 

Ms. BOARDMAN. One bad act is a bad act, Senator. 

Senator CORNYN. So if there is nothing wrong with it from the 

standpoint of executing the President’s duties, how many a President chooses to issue doesn’t strike me as a significant consideration. Do you disagree? 

Ms. BOARDMAN. No, and I think you can envision a circumstance 

where Congress might feel, as Senator Specter does, that perhaps 

there is a lack of good communication between the parties, if the 

President is signing a thousand signing statements that touch on 

constitutional issues, or perhaps that could be a sign that Congress 

is rampantly passing unconstitutional laws. You know, that could 

reflect on either branch. 

But because all of these numbers are basically in the ballpark, 

I think we do not have to worry about that. 

Senator CORNYN. Thank you very much. 

14 

Chairman SPECTER. Thank you, Senator Cornyn. 

Under the early-bird rule, Senator Kennedy? 

Senator KENNEDY. Thank you, Mr. Chairman. 

Ms. Boardman, on page 5 of your testimony, you talk in the top 

paragraph, ‘‘This presidential responsibility may arise most sharply 

when the President is charged with executing a statute, passed by 

a previous Congress and signed by a prior President, a provision 

of which he finds unconstitutional under intervening Supreme 

Court precedent.’’ So far, so good. 

Then, ‘‘A President that places the statutory law over the constitutional law in this instance would fail in his duty faithfully to 

execute the laws.’’ Okay. 

Now, ‘‘The principle is equally sound where the Supreme Court 

has yet to rule on an issue, but the President has determined that 

a statutory law violates the Constitution.’’ This goes beyond signing 

statements. You believe the principle is equally sound, the Supreme Court has not ruled, but the President has determined that 

a statutory law violates—this is the President that has determined, 

the Supreme Court has not ruled, the President has determined 

that a statutory law violates the Constitution. 

Now, can you give us a list of the laws already on the books before the beginning of this Presidency that President Bush has decided not to enforce? 

Ms. BOARDMAN. I cannot give you that list, Senator. 

Senator KENNEDY. Pardon? 

Ms. BOARDMAN. I cannot give you that list. 

Senator KENNEDY. Well, who can? 

Ms. BOARDMAN. Well, I suppose we could ask the President, but, 

Senator— 

Senator KENNEDY. Well, is there any way for the Congress or the 

public to know when the President decides to enforce a law? How 

are we going to know whether the President has made a judgment 

down there in the White House he is not going to enforce it? How 

is the American public and how is the Congress going to know? 

And shouldn’t we be entitled to know which laws on the books now 

he is not going to enforce because he believes that they are unconstitutional, and yet he is not going to tell us, he is not going to tell 

the American people which laws he is not going to enforce? 

Ms. BOARDMAN. I believe he will tell the American people, but, 

Senator, this is not out of keeping with what all prior Presidents— 

Senator KENNEDY. I am not asking. I am just saying this is your 

testimony. This is your testimony here. I am asking you if that is— 

you are giving the testimony. You are speaking on this. We want 

to know what laws. I want to know what laws the President feels 

today—what are they? 

Ms. BOARDMAN. This is not a discussion that I have had with the 

President, but if I could say, please, Senator, you are touching on 

the value, to my mind, of signing statements, which is it is a public 

and open— 

Senator KENNEDY. No, no. I am not talking—let’s leave signing 

statements alone on this. We are talking here— 

Ms. BOARDMAN. Executive orders often serve the function in the 

case that you are discussing. Executive orders, which are open and 

public documents giving orders to the executive branch about the 

15 

way in which those members should construe the law, are other examples of public statements where the President explains that he 

may choose to construe a law in a particular way. 

Senator KENNEDY. I have to come back. That is not what I am 

referring to on page 5. It is very clear that what you are saying 

here is that the President has a signing statement, we have gone 

over—others have questioned that. He does not have to enforce a 

law if the Supreme Court says it is unconstitutional. So far, so 

good. 

But you go further than that. ‘‘The principle is equally sound 

where the Supreme Court has yet to rule on an issue, but the 

President has determined that a statutory law violates the Constitution.’’ He does not have to enforce that either. 

Ms. BOARDMAN. That is not a disputed point of constitutional 

law. 

Senator KENNEDY. Well, I am just asking you—and evidently you 

can say no, or whatever answer—what laws. What laws. This is 

your testimony. 

Ms. BOARDMAN. The answer, Senator, is I— 

Senator KENNEDY. If you will listen to the question. If you will 

listen to the question. 

Ms. BOARDMAN. Yes, Senator. 

Senator KENNEDY. In response to this, ‘‘The principle is equally 

sound where the Supreme Court has yet to rule. . . .the President 

has determined that a statutory law violates the Constitution.’’ I 

want to know what laws have we passed, the Congress has passed 

that are on the books that this President does not feel that he is 

going to enforce. 

Ms. BOARDMAN. The direct answer to your question, Senator, is 

I do not know the answer to that. The second answer is, though, 

that that sentence refers to ‘‘Presidents,’’ not this President. It refers to ‘‘the President.’’ 

Senator KENNEDY. All right. Well, Mr. Chairman, I would ask 

you if you would consider a legislative mandate for Congressional 

notification that may be sensible and be willing to work with us in 

a bipartisan way to ensure accountability to the American people. 

It seems to me we ought to be able to work out in a bipartisan way, 

at least legislatively, what in the world—notification to Congress, 

the people’s Representatives, and the American people, what in the 

world this President is going to say is going to be enforced and 

what he is not going to enforce. I will raise this with the Chair. 

The other members ought to be able to work this out in a bipartisan way. I think the idea is absolutely—when will it end? Where 

does it stop? 

I thank the Chair. 

Chairman SPECTER. Senator Kennedy, you have directed a question to me, and I am pleased to give you a response. The specific 

issue which concerns me the most at this moment is what is happening to the Foreign Intelligence Surveillance Act. And it may 

well be that the President has constitutional authority on electronic surveillance with one party in the United States, but that 

determination requires a balancing act. And when the President 

has objected to informing the Intelligence Committees, which he is 

required to do under the National Security Act of 1947, there were 

16 

a lot of objections made for his failure to do that. And, finally, 

when this Committee prodded him, they informed the Subcommittee of both the House and the Senate, 7 in the Senate and 

11 in the House. Then when we had the Hayden hearings, they had 

to inform the full committees to get Hayden confirmed. But this 

Committee has not yet had an answer to why the President would 

not submit the electronic surveillance program to the Foreign Intelligence Surveillance Court as four former members of the Court 

said should be done and could be done, maintaining confidentiality, 

where he does not have a blank check. And as Senator Cornyn 

pointed out, it is the Court to decide the parameters. The Court 

writes the check. And that is an issue which has not yet been answered by the Attorney General, and we are going to try again on 

July 18th. And, Ms. Boardman— 

Senator KENNEDY. Just on that, Mr. Chairman— 

Chairman SPECTER. Wait 1 second. I would appreciate it if, 

among the written responses that I have requested, you would respond to that question in the context of the President being able 

to maintain confidentiality with the submission to the Foreign Intelligence Surveillance Court what reasons that there should not be 

that judicial review for the Court to write the check. And if it is 

made out to the President, he cashes it. And if the Court declines 

to write the check, he cannot run the program. 

Senator Kennedy. 

Senator KENNEDY. Well, I had heard over the weekend that there 

was at least a tentative agreement between you and the Vice President. Are we going to have some opportunity to hear about that 

some time? 

Chairman SPECTER. You will, and I would be glad to discuss it 

with you privately when this hearing is over. 

Senator KENNEDY. Thank you. 

Chairman SPECTER. It is not with the Vice President. It is with 

the Department of Justice and the National Security Council, and 

I would be glad to inform you fully as to where we stand. 

Senator KENNEDY. Thank you. 

Chairman SPECTER. Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. I do thank you 

very much for holding this hearing. 

The administration has issued signing statements at an astonishing rate to express the view that it does not have to comply with 

the laws that Congress has passed. This unprecedented use of socalled constitutional signing statements raises very serious questions and concerns, and I am glad that it is being examined closely 

today. 

We are all familiar with the controversy surrounding the signing 

statement on the Congressional ban on torture, and I want to just 

talk about that briefly, as others have, because it is at the core of 

the issue. 

This Nation had a protracted public debate about torture that 

spans several years. As a result of that debate, the administration 

withdrew a memo, arguing that the President had the constitutional authority to disregard the already existing ban on torture. 

And despite reported backroom attempts by the administration to 

17 

water it down, late last year Congress passed yet another clear prohibition on torture, no exceptions. 

You would think that would be the end of the matter. But what 

happened? The President responded by issuing a signing statement 

making clear that he would retain the right not to comply with the 

law if he chose not to do so. He made clear that he had no respect 

for Congressional authority in this area and that he would do just 

whatever he pleased, despite Congress’ clear direction. 

Now, as witness testimony is pointing out, this administration 

certainly is not the first to issue signing statements, nor is it the 

first to express concern about the constitutionality of particular 

provisions of laws and signing statements. But this administration 

has taken this approach far more often than prior administrations, 

and it has done so, in my view, to advance a view of Executive 

power that, as far as I can tell, has no bounds. What is more, this 

administration has shown no sense of obligation to resolve thorny 

constitutional questions by trying to facilitate judicial review of 

questions provisions. And it has denied Congress the opportunity 

to overcome a presidential veto. It has instead assigned itself the 

sole responsibility for deciding which laws it will comply with and, 

in the process, has taken upon itself the powers of all three 

branches of Government. 

As one law professor recently put it, in a piece on signing statements, ‘‘Because President Bush has found constitutional problems 

with statutes so readily, and because he takes such a radically expansive view of his own power, President Bush’s position amounts 

to a claim that he is impervious to the laws that Congress enacts.’’ 

So, Mr. Chairman, I do believe that this is dangerous to our system of Government. As I said, I am glad we are talking about it, 

and I would like to ask the witness a couple of questions. 

Back to the PATRIOT Act, the signing statement on the PATRIOT Act reauthorization conference report states that the executive branch will construe provisions that ‘‘call for furnishing information to entities outside the executive branch in a manner consistent with the President’s constitutional authority.’’ In particular, 

as you know, it references two provisions of the PATRIOT Act that 

call for detailed audits of the use of two of the most controversial 

authorities, Section 215, business record orders and national security letters, and that require that the results of these audits be 

shared with the Congress. These audit provisions were two of the 

strongest oversight measures contained in the reauthorization 

package. 

Is it the position of the administration that those audit provisions are unconstitutional? 

Ms. BOARDMAN. Well, Senator, I think the President has been 

clear in his statement, and I do not think there is any value to my 

attempting to reinterpret it. 

If you will allow me, I would like to quote from a signing statement that President Clinton gave similar to this type of signing 

statement, and then I would like to make a general— 

Senator FEINGOLD. That is going to use up all my time. 

I am sorry. I just asked a straight question. Does the administration take the position that these audit provisions are unconstitutional? Yes or no. 

18 

Ms. BOARDMAN. I believe the answer to that is no, but it is not 

for me to reinterpret the President’s statement. 

Senator FEINGOLD. All right. So is it your view the administration thinks it does not have to conduct these audits or that it does 

not have to share the results of these audits with Congress, or 

both? 

Ms. BOARDMAN. It is my understanding that these audits are already taking place and some of the results have already been given 

to Congress. 

Senator FEINGOLD. That is fine. That is a factual statement 

about what is happening. I am asking whether the administration 

thinks it would not have to conduct these audits despite the clear 

language of the law? 

Ms. BOARDMAN. Again, Senator, I think that the signing statement gives the President’s view, and I do not want to put words 

in his mouth. What I will say is Presidents repeatedly say in this 

context, ‘‘The Congress has asked us for information. We are 

pleased to give it. My national security requirements and duty to 

take care of sensitive information continues to apply.’’ 

That is often simply a statement saying, ‘‘Just so we all know, 

there are some circumstances, maybe none here, maybe none will 

occur, just so we all know, there is this one constitutional duty I 

as President have.’’ It is often not at all a suggestion that the 

President does not intend to completely enact the bill as written. 

Senator FEINGOLD. Just to be clear, the administration does not 

take the position that all reporting requirements are unconstitutional, does it? 

Ms. BOARDMAN. Oh, no, of course not, Senator. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Feingold. 

Were you finished, Senator Feingold? 

Senator FEINGOLD. Yes. 

Chairman SPECTER. Senator Feinstein. 

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. I 

would like to use my time, if I might, to make a statement. 

Approximately a month ago, I gave a speech to 85 judges and 

about 400 lawyers and spoke about my concern regarding this 

President’s efforts to seriously expand executive authority and, in 

my opinion, push a constitutional confrontation between the three 

branches of Government. I am very concerned that, under the Bush 

administration, our country is experiencing a fundamental change 

in direction. In fact, I would argue that the calculated expansion 

of executive power under this President will be one of the lasting 

legacies of the Bush administration and could have a longer impact 

on our country than most, if not all, of his own policies. 

The expansion of power has been implemented through many different avenues, including the President’s prolific use of signing 

statements to alter or reject legislation at the time he is signing 

it into law. I believe this new use of signing statements is a means 

to undermine and weaken the law and that it should be a serious 

concern to all Americans. 

19 

If the President is able to nullify or alter a law with a stroke of 

a pen without issuing a veto, without going through the legal and 

community channels, then the structure of our Government and its 

inherent checks and balances are fundamentally altered. Ironically, 

this week the President is asking Congress to give him the authority to issue what are called line-item vetoes, in effect giving the 

President the power of the pen to strike down a portion of a statute 

that the Congress has passed, without invalidating the entire bill. 

Previously, this has been a policy I have supported. This is a serious issue, and deciding whether to grant the President this authority is now being debated in a very different atmosphere than 

in previous Congresses. Whether my colleagues agree or disagree 

with granting the President this authority, I would hope we could 

all agree that if the President is going to have the power to nullify 

all or part of a statute, it should only be through veto authority 

that the Congress has authorized and can reject, rather than 

through a unilateral action taken outside the structures of our democracy. 

So I am very pleased that you are having these hearings. I think 

it is a very serious situation when you see an expanded Article I 

authority combined with signing statements, and I think this has 

really put our democracy in a totally different direction. And when 

one really goes out and examines the specific signing statements, 

as we have, you find that they are in a multitude of different directions, essentially saying to the Congress, you know, ‘‘What you do 

is not really important. I am going to do whatever I want to do.’’ 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Feinstein. 

Thank you, Ms. Boardman. You are an accomplished attorney. 

You have faced some tough questions, and I think your responses 

have been very, very helpful, and we appreciate your coming in. 

And we have left you some homework, which we would very much 

appreciate your directing your attention to and providing us written answers. If you could do that within the course of the next 

week, we would appreciate it. Is that a realistic timetable for you? 

Ms. BOARDMAN. It is a little hard for me to know, Senator, only 

because the Department of Justice is flooded, and I do not have access to my office. As you may know, the Department is shut down 

for the next week. But I will do my best, Mr. Chairman. 

Chairman SPECTER. Well, let’s say a week from the time you get 

back to your desk. 

Ms. BOARDMAN. I hope that is next Monday. Yes, Mr. Chairman, 

I will do my best. 

Chairman SPECTER. Okay. Thank you very much. 

Senator KENNEDY. Mr. Chairman, could I ask just one quick 

question? 

Chairman SPECTER. Yes, Senator Kennedy. 

Senator KENNEDY. Would you provide an answer in writing to 

my question about the President complying with the existing law 

as set forth. It is 28 U.S.C. Section 530(d), the President is required to report to Congress and the American people on laws that 

he is not enforcing because of constitutional objections. Can we get 

that in writing? 

Ms. BOARDMAN. Yes, Senator. 

20 

Senator KENNEDY. Thank you. 

Chairman SPECTER. Thank you very much. 

[The prepared statement of Ms. Boardman appears as a submissions for the record.] 

Chairman SPECTER. We now turn to our second panel: Professor 

Ogletree, Professor Yoo, Mr. Fein, and Professor Rosenkranz. 

Our first witness on panel two is Professor Charles Ogletree, the 

Jesse Climenko Professor of Law at Harvard, where he is also the 

Executive Director of the Charles Hamilton Houston Institute for 

Race & Justice. Professor Ogletree is the recipient of many honors, 

including being named in the National Law Journal as one of the 

100 most influential lawyers in America; published extensively on 

race relations and criminal law; currently the co-chair of the Reparations Coordinating Committee, a group which seeks reparations 

for defendants of African slaves. 

Thank you for being with us today, Professor Ogletree, and we 

look forward to your testimony. 

STATEMENT OF CHARLES J. OGLETREE, JR., PROFESSOR, 

HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS 

Mr. OGLETREE. Senator Specter, it is good to see you. Good to see 

you again and glad to be here. I am Charles Ogletree, the Jesse 

Climenko Professor of Law and the Executive Director of the 

Charles Hamilton Houston Institute for Race & Justice. 

At the outset, I want to make clear that my remarks here today 

are neither on behalf of the ABA task force, which I sit on—called 

the American Bar Association Task Force on Presidential Signing 

Statements and the Separation of Powers Doctrine—nor am I 

speaking on behalf of Harvard Law School. 

I am pleased to have this opportunity to speak with you briefly 

on what I think and what others think are some profound and serious issues concerning the separation of powers and the way that 

the executive branch has exercised its powers with respect to signing statements. There are three central points that I want to make. 

The first is that signing statements in and of themselves are not 

necessarily objectionable. They have been used by Presidents on 

many occasions to help clarify and even salute important principles 

of law, and that is not an issue of debate. 

The second point, the more profound point, is that we have seen 

an incredible juxtaposition over the past 5 years with President 

Bush, and that juxtaposition is the absence of this President, unless his predecessors, of ever exercising an actual veto of legislation, but instead using signing statements to interpret and challenge congressional action in ways that I believe are unprecedented 

and that raise serious questions. 

The third point is that despite what the executive branch has 

done—and it has been done by Republican and Democratic administrations; it has been done on many important issues—the third 

most important point here is the legislative function, and in many 

respects, one of the great challenges that this Congress faces is 

that much of these efforts have taken place right in the presence 

of Congress, but with little notice and little response. And I would 

urge this Committee in particular, with this responsibility to create 

the laws, to take it as an ultimate responsibility to find ways to 

21 

challenge this use of authority and to make sure that there is a 

balance of authority between the executive, the legislative, and the 

judicial branches of Government. 

One way that would obviously have to happen would be for this 

Committee to look very carefully at some of its own laws and how 

they have been interpreted by the executive branch and to determine whether and to what extent, given issues of standing and 

other important constitutional limitations there is any basis upon 

which Congress might challenge the authority of presidential signing statements. 

Let me say a word about the ABA task force, a final point before 

taking any questions that members may have. One of the great 

things about the American Bar Association and President Mike 

Greco, who appointed this task force, is that it is bipartisan and 

has a wide range of perspectives. Among the members are people 

familiar to this Committee. Bruce Fein, who worked in the Reagan 

administration; William Sessions, the former Director of the FBI; 

Patricia Wald, the former Chief Judge of the D.C. Circuit, and who 

also has been involved in a number of the War Tribunals; and, additionally, Congressman Mickey Edwards, who served with distinction in the House for many years. We are also joined by a number 

of legal scholars, including former Dean of Stanford Law School, 

Kathleen Sullivan; current Dean of Yale Law School, Howard Koh; 

and a variety of other private lawyers who have had extensive administrative experience in the executive branch and some in the 

legislative branch. And it is chaired by Neal Sonnett, a Miami lawyer, who also has been very active in the American Bar Association. 

To put it bluntly, I think that the great issue here is one of 

transparency. To what extent has President Bush, through the exercise of his authority with these signing statements, frustrated the 

intent of Congress and avoided having these matters, which may 

be unconstitutional, examined by a higher court? 

It seems clear on a cursory examination of the decisions that 

have been made over the past 5 years, that it is very incumbent 

upon the legislative branch of Government to take this matter 

quite seriously and to make sure that when the President refuses 

to enforce the law on constitutional grounds without interacting 

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

public policy, but it also creates a unilateral and unchecked exercise of authority in one branch of Government without the interaction and consideration of the other branches of Government. And 

I would urge this Senate judiciary Committee to examine very 

carefully what has been done, but also to think what responsibilities and authority it has to address it more completely. 

Thank you. 

[The prepared statement of Mr. Ogletree appears as a submission for the record.] 

Chairman SPECTER. Thank you very much, Professor Ogletree. 

Our next witness is Professor Christopher Yoo, professor at the 

Vanderbilt University Law School, where he is also Director of the 

Technology and Entertainment Law Program. Before going to Vanderbilt, Professor Yoo was an associate at Hogan & Hartson, 

clerked for Judge Randolph on the document Circuit and Supreme 

22 

Court Justice Anthony Kennedy. He was an author on the issue of 

presidential authority, a co-author of the forthcoming book, ‘‘A History of the Unitary Executive: Executive Branch Practice from 1789 

to 2005.’’ 

We appreciate your being here, Professor Yoo, and the floor is 

yours for 5 minutes. 

STATEMENT OF CHRISTOPHER S. YOO, PROFESSOR, VANDERBILT UNIVERSITY LAW SCHOOL, NASHVILLE, TENNESSEE 

Mr. YOO. Thank you very much, Mr. Chairman, members of the 

Committee. I am Christopher Yoo, professor of law at Vanderbilt 

University and visiting professor of law at the University of Pennsylvania Law School. I am grateful for the opportunity to testify 

today about presidential signing statements. 

Presidential signing statements have a long and storied history 

that dates back to the earliest days of our Republic. For example, 

in 1821, President James Monroe issued a signing statement indicating that he would construe a statutory provision in a manner 

that did not conflict with his power to appoint executive officers. 

Similarly, in 1830, President Andrew Jackson issued a signing 

statement indicating that he would interpret a particular statute 

as authorizing the construction of a road only in the Michigan Territory, and not outside. 

Signing statements began to become a more regular feature of 

the political landscape during the administration of Franklin Delano Roosevelt, with subsequent Presidents of both parties, including 

Presidents Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, 

and Carter each issuing signing statements on a regular basis. 

Signing statements began to appear with even greater frequency 

during the Presidencies of Ronald Reagan, George H.W. Bush, and 

Bill Clinton. 

The popularity of signing statements over the years should come 

as no surprise. The enactment of a major piece of legislation is a 

momentous occasion, and it is natural for those responsible for 

bringing it about to commemorate it with some remarks. The increase in the frequency of their use should also come as no surprise. The role of the media in politics has been on the ascent since 

the days of FDR’s fireside chats, and this has heightened the incentives to turn a political milestone, like the enactment of major legislation, into a public event. 

Presidential signing statements, as Professor Ogletree has noted, 

have served a wide range of purposes, the vast majority of which 

are completely uncontroversial. For example, they are often used to 

thank legislators for their support for legislation, to inform the 

public about the legislation’s overarching purposes and general effects, to call for further legislation, and to communicate to the public and to executive branch officials how a statute will be implemented, just to name a few. The broad appeal of each of these purposes underscores that signing statements are not partisan in nature. Presidents of both parties have placed ever increasing reliance on signing statements, and we should expect that trend to 

continue into the future. 

Another use of signing statements that is relatively 

uncontroversial is to offer the President’s interpretation of a statuVerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC
23 

tory provision that is susceptible of more than one interpretation. 

As anyone in this room recognizes, the limitations of the English 

language, the realities of the legislative process, and the inability 

to anticipate every possible contingency makes perfect precision in 

drafting statutes infeasible. 

When enforcing a statute, executive officials are inevitably confronted with such ambiguities, and they must proceed on the basis 

of some understanding of what the statute means. To use a classic 

example coming from H.L.A. Hart, suppose that Congress were to 

enact a statute saying no vehicles in the park. A police officer confronting a child’s bicycle, a motorized wheelchair, and an ambulance rushing to the scene of a medical emergency would have to 

interpret what the terms of that statute actually meant. For this 

reason, it is generally accepted that some executive role in statutory interpretation is inevitable. Indeed, agency experience with 

administering statutes often leads courts to accord executive 

branch interpretations special respect. Given the inevitability of 

the executive branch’s role in statutory role in interpretation, there 

seems little reason to prevent such interpretations from being offered as early and in as transparent a manner as possible, as is 

the case with presidential signing statements. 

The last category includes signing statements that raise concerns 

about the constitutionality of a particular provision. It is quite common for Presidents to be confronted with statutes that are open to 

two interpretations, one of which would be constitutional and the 

other of which would raise serious constitutional doubts. It has 

long been accepted that courts confronted with such a statute 

should favor the interpretation that avoids raising constitutional 

doubts. This doctrine is based in part on the presumption that Congress and the President take seriously their duty to uphold and defend the Constitution, and in part on a desire to minimize constitutional holdings and to minimize conflict among the branches. As a 

formal opinion issued by the Clinton Justice Department makes 

clear, the law expects the executive branch officials to do the same 

and to adopt interpretations when confronted with ambiguous statutes that tend to render the statute constitutional. 

This is not to say that the President’s opinion about constitutionality of a statute is necessarily binding. The process for resolving the constitutionality of a statute is demonstrated by the statute 

that led to the impeachment of Andrew Johnson, which remains 

one of the most politically important events in our Nation’s history. 

The Tenure of Office Act left unclear whether the President could 

remove the Cabinet members that Johnson had inherited from 

President Lincoln. The House and the Senate were unable to resolve the dispute, with the House believing that the statute should 

prevent Johnson from removing holdover Cabinet members, and 

the Senate believing that the statute should not. Congress, thus, 

drafted an ambiguous statute that was open to either interpretation. President Johnson believed the statute gave him the power to 

remove those Cabinet members. Consistent with its understanding 

of the statute, the House impeached Johnson. And consistent with 

its understanding of the statute, the Senate exonerated Johnson. 

Eventually, the Congress, based on its concerns about the constitutionality of the statute, repealed it, and eventually, the Supreme 

24 

Court held, some 50 years after the fact, that it was, in fact, unconstitutional. 

It seems to me this is precisely the way such disputes should be 

resolved, through an inter-branch dialogue among all three 

branches. It also is clear to me that President Johnson’s removal 

of a Cabinet member was not improper. Like every Member of the 

Congress, he takes an oath to support and defend the Constitution. 

Together these arguments suggest that presidential signing 

statements are inherent in our system of checks and balances, and 

as well in the role of the President as Chief Executive. I discuss 

these arguments at greater length in my submitted remarks, and 

I am happy to answer any questions based on either of my remarks 

today or my submitted remarks that the Committee might have. 

[The prepared statement of Mr. Yoo appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Professor Yoo. 

We will now turn to Mr. Bruce Fein, a partner in the consulting 

firm of Fein & Fein. He has a very extensive record of Government 

service, a research director for the Joint Congressional Committee 

on the Iran-Contra Affair back in 1986–87; General Counsel for the 

FCC under President Reagan; Assistant Director of the Department of Justice Office of Legal Policy for 3 years; law clerk to 

Judge Kauffman, graduate of Harvard Law School cum laude, 

bachelor’s degree from University of California, where he was Phi 

Beta Kappa. 

Thank you for joining us here today, Mr. Fein, and we look forward to your testimony. 

STATEMENT OF BRUCE FEIN, PARTNER, FEIN & FEIN LLC, 

WASHINGTON, D.C. 

Mr. FEIN. Thank you, Mr. Chairman and members of the Committee. I think a page of history is worth volumes of logic in examining the President’s use of signing statements to neglect to faithfully enforce the laws. 

In 1688, the Parliament in Great Britain convened and declared 

basically the overthrow of King James II, and they voted as follows 

in declaring the English Bill of Rights, and I am quoting: ‘‘By assuming and exercising a power of dispensing with and suspending 

of laws and execution of laws without the consent of Parliament, 

King James II was threatening the laws and liberties of the kingdom.’’ And they continued in the Declaration of Rights to conclude 

that, ‘‘The pretended power of suspending of laws or the execution 

of laws by regal authority without consent of Parliament is illegal.’’ 

And continued on that, ‘‘The pretended power of dispensing with 

laws or the execution of laws by regal authority as it has been assumed and exercised of late by King James II is illegal.’’ And he 

lost his throne for failing to execute the laws. 

Now, the Founding Fathers wrote upon British history when 

they were crafting our own Constitution, and the Take Care Clause 

in Article II is modeled after the problem that the British Parliament confronted with King James II. It requires the President 

to take care that the laws be faithfully executed, not sabotaged. 

Now, that does not mean that the President has to blind himself 

to constitutional problems that he may see in legislation that is 

25 

presented to him. Indeed, he takes an oath to faithfully defend the 

Constitution, and in executing his official authority to sign or veto 

legislation, it is incumbent upon the President to consider the constitutional issues that may be raised and to veto—to veto—a bill 

if it is believed, in whole or in part, to violate the Constitution. The 

veto enables then Congress to reconsider that with an override 

vote. 

Now, this was clearly the understanding of the Founding Fathers. As the Supreme Court explained in Clinton v. New York, a 

decision holding the line-item veto unconstitutional, ‘‘Our first 

President understood the text of the Presentment Clause as requiring that he either ‘approve all the parts of a bill, or reject it in 

toto.’ ’’ 

Now, the first President was George Washington, who, of course, 

you remember, was President of the Constitutional Convention, 

and his views and practices are given enormous weight in providing the gloss on the constitutional provisions. So it was understood at the outset that the President, when confronted with a law, 

in whole or in part, that was unconstitutional had to veto it in toto 

if he was to defend the Constitution as he saw it. There were not 

any other options. 

Now, President George Washington’s view was not an aberrational one. President William Howard Taft, who had a very expansive view of Executive authority, which he expounded later on as 

Chief Justice in United States and Myers, similarly wrote that, 

‘‘The President has no power to veto part of a bill and let the rest 

become a law.’’ 

Presidents, nevertheless, have sought to evade their obligation to 

veto a bill by issuing signing statements saying that they simply 

will refuse to enforce parts of the law or all of the law, precisely 

the evil that led to the overthrow of King James II, precisely the 

evil the Founding Fathers wished to avoid by requiring the President to sign a bill and enforce it or veto it if he thought parts were 

unconstitutional. 

Now, it is said that somehow the Constitution ought to be 

changed because initially the volume of legislation that Congress 

considered was relatively slim, and the President did not confront 

thousand-page laws that contained many provisions he might like 

and others he might dislike. But simply because there has been a 

change in the political dimension of the Federal Government is no 

excuse for violating the original intent of the Founding Fathers. 

And I give as an example the Supreme Court’s approach to the use 

of the legislative veto in the Chadha case. 

You may recall the legislative veto arose after the welfare state 

began to blossom under Franklin Delano Roosevelt, and Congress 

said to itself, Gee, we are confronting these thousands of regulations, we are delegating enormous power to the President, and, 

therefore, we need the legislative veto to exercise some kind of supervision over the executive branch that was not required in earlier 

times when the executive branch was much smaller. 

That was thoroughly unpersuasive with the United States Supreme Court. It said the Presentment Clause is the Presentment 

Clause; the legislative veto violates that clause; and it is no excuse 

to say Government is more complicated these days than then; 

26 

therefore, we can torture the architecture of the Constitution. If the 

Constitution needs to be changed in structural format, there is an 

amendment process to do so, and it has been undertaken from time 

to time. 

It is also said that the President should not be confronted— 

Chairman SPECTER. Pardon me for interrupting. Our timekeeper 

lost track of time. Just let me ask you how much more time you 

need. 

Mr. FEIN. If you could give me just 1 minute. 

Chairman SPECTER. That would be fine. 

Mr. FEIN. Now, what is an appropriate response for the Congress 

to take? One method would be to provide as a generic rule that 

anytime a President announces that he will simply refuse to execute part of a law that he then will have no money to execute any 

of the law, so he has to default on the entire law, although that 

has the problem of not enabling Congress to override a veto. So 

that is at least partially unsatisfactory. 

A second approach would be to attempt to confer standing on the 

House and Senate collectively to sue in Federal court to obligate 

the President to enforce a statute that he says he will not enforce. 

There may be problems under Article III as to whether that would 

be constitutional, but at least it would provide a method short of 

impeachment where you could get a judicial resolution of constitutional disputes between Congress and the President. And I don’t 

think anyone would dispute that. If a President ignores a decree 

of the United States Supreme Court, we are talking about offenses 

that are impeachable. 

It may well be that it is very difficult for the President to veto 

legislation that he finds generally commendable but in small parts 

unconstitutional. But Presidents repeatedly, like Congress, have to 

make tough political decisions. Harry Truman said, ‘‘If you can’t 

stand the heat, stay out of the kitchen.’’ If you do not want to make 

tough political decisions, then do not be President. And if the President is to faithfully execute his office, he is required, if he believes 

a bill is unconstitutional, to veto it, not simply to bury it and say 

he will not enforce it. 

Thank you. 

[The prepared statement of Mr. Fein appears as a submission for 

the record.] 

Chairman SPECTER. Thank you very much, Mr. Fein. 

Our final witness on this panel is Professor Nicholas Rosenkranz, 

Professor of Constitutional Law at Georgetown Law Center. He is 

the author of two articles in the Harvard Law Review: ‘‘Federal 

Rules of Statutory Interpretation’’ and ‘‘Executing the Treaty 

Power.’’ He was attorney adviser in the Office of Legal Counsel at 

the Department of Justice from 2002 to 2004, clerked for Judge 

Easterbrook on the Seventh Circuit and Justice Kennedy on the 

Supreme Court, attended Yale Law School. 

Thank you for being with us today, Professor Rosenkranz, and 

we look forward to your testimony. 

27 

STATEMENT OF NICHOLAS QUINN ROSENKRANZ, ASSOCIATE 

PROFESSOR OF LAW, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, D.C. 

Mr. ROSENKRANZ. I thank the Committee for the opportunity to 

express my views about presidential signing statements. I largely 

agree with the position put forth by Deputy Assistant Attorney 

General Michelle Boardman earlier this morning. Rather than reiterate her testimony, I will just briefly make two points. First, I will 

explain that signing statements, including those that mention constitutional provisions, are generally nothing more than exercises of 

the uncontroversial power of the President to interpret the law in 

the course of executing it. Second, I will discuss the possibility of 

legislative responses to this practice. 

The most common, most important, and most uncontroversial 

function of presidential signing statements is to announce the 

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

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

And the President interprets statutes in much the same way that 

courts do, with the same panoply of interpretive rules. 

One such rule is of particular interest today: the canon of constitutional avoidance. This is the canon that the President is applying when he says, in signing statements, that he will construe a 

particular provision to be consistent with a particular constitutional command. 

It is crucial to understand what these statements do and do not 

say. These statements emphatically do not ‘‘reserve the right to disobey’’ the law, and they do not declare that the statutes enacted 

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

opposite. 

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

these sorts of signing statements are ‘‘analogous to the Supreme 

Court’s practice of construing statutes, if possible, to avoid holding 

them unconstitutional.’’ In effect, these statements say simply that 

if one possible meaning of a statute would render it unconstitutional, then the President, out of respect for Congress, will presume 

a different, constitutional meaning. The clear and crucial implication of these statements is that he will faithfully execute the statute so understood. 

Now, at least three legislative proposals on this topic are pending 

in the House of Representatives, so I shall address the balance of 

my testimony to the constitutionality and the wisdom of such proposals. 

One bill that has been introduced in the House provides that 

Federal entities, including executive agencies, shall not consider 

presidential signing statements when construing Federal statutes. 

This provision is almost certainly unconstitutional for the simple 

reason that it is the President’s duty to ‘‘take care that the laws 

be faithfully executed.’’ 

The House resolution would impede the President’s performance 

of this duty, by closing the ears of the executive branch to his interpretation of the law. For that reason alone, it would be unconstitutional. 

28 

A different section of the same bill would forbid the President to 

spend any money on signing statements. This provision, too, is arguably unconstitutional. Congress possesses broad power over appropriations, but for Congress to use its power of the purse to impede a core executive function would raise serious constitutional 

concerns. And in any case, this President’s use of signing statements does not justify such a constitutionally contentious response. 

By contrast, one resolution that has been introduced in the 

House would merely require the President to report to Congress 

whenever he determined not to carry out a duly enacted law. This 

resolution may be sensible. On very rare occasions, the President 

may determine that a statute is thoroughly unconstitutional and 

that no saving construction is possible. When he does so, basic separation-of-powers principles do suggest that the other branches 

should have notice and an opportunity to respond. 

Most interestingly, one of the House resolutions would also forbid 

Federal courts from considering presidential statements when construing Federal statutes. The question here is whether Congress 

can tell courts what tools and methods to use when interpreting 

Federal statutes. I considered this question at length in the Harvard Law Review 4 years ago, and I concluded that the answer is 

generally yes. Congress does have power to tell courts what methods to use when interpreting Federal statutes. 

The only question remaining is whether this particular rule of 

statutory interpretation, forbidding reliance on presidential signing 

statements, would be wise. 

I have written that Congress should indeed exercise its power 

over the tools that courts use to interpret Federal statutes, but a 

crucial aspect of my thesis is that Congress should approach this 

project comprehensively. For this reason, I think that any rule on 

this matter should ideally be adopted as part of a coherent and cohesive code of statutory interpretation. 

In conclusion, the recent brouhaha over presidential signing 

statements is largely unwarranted. Signing statements are an appropriate means by which the President fulfills his constitutional 

duty to ‘‘take care that the laws be faithfully executed.’’ However, 

I do applaud Congress’ interest in the proper judicial use of presidential signing statements, and I hope that this interest will blossom into a more comprehensive and general initiative for Federal 

rules of statutory interpretation. 

Thank you. 

[The prepared statement of Mr. Rosenkranz appears as a submission for the record.] 

Chairman SPECTER. Professor Rosenkranz, why do you say it is 

an unwarranted brouhaha when the Congress takes up the McCain 

amendment and has an overwhelming vote, 89–9, directing what 

the executive branch may do as a matter of public policy on interrogation techniques, and the Executive responds and says we are not 

going to pay any attention to it? 

Mr. ROSENKRANZ. Well, Senator, I do not think that is a fair 

reading of the President’s signing statement. He does not say there 

and, indeed, he never says, ‘‘I am not going to pay any attention 

to a provision of law.’’ What he says sometimes and what he said 

there is, ‘‘I will construe this statute to be consistent with my conVerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC
29 

stitutional obligations.’’ There are only two choices. He can either 

construe it to be consistent with his constitutional obligations or 

construe it to be inconsistent with his constitutional obligations. 

And it is a well-settled canon of construction which finds its rationale in respect for the Congress that he opts for the constitutional 

interpretation. He assumes that you mean to pass a constitutional 

bill. 

Chairman SPECTER. But in that context, he makes the unilateral 

determination as to what is constitutional, so that he does not take 

the route which the Constitution provides to veto the bill and seek 

to have a legislative determination as to whether his veto will be 

upheld or not. 

It may well be that a presidential veto would be respected by the 

Congress on the McCain bill if he states his reasons for the veto. 

But that was never a part of the process, the legislative process, 

or the determination of constitutionality. And when he handles the 

McCain amendment as he did, isn’t he pretty much saying, ‘‘I am 

going to decide what interrogation tactics are appropriate, I am 

going to decide the parameters of the tactics, it is not going to be 

up to the Congress, and I am not going to veto the bill to give you 

a chance to override it, or I am not going to veto the bill to provide 

an opportunity for the Congress to rethink what it has done,’’ 

which is what the Constitution says he should do? 

Mr. ROSENKRANZ. Well, Senator, it is novel in a way for Congress 

to protest that the President is not vetoing a sufficient number of 

bills. When a statute is thoroughly unconstitutional in every provision, the President probably should veto such a bill. 

Chairman SPECTER. Well, was the McCain amendment thoroughly unconstitutional? 

Mr. ROSENKRANZ. No, Senator, but if a provision of law is arguably constitutional, or even probably constitutional, but it may 

raise constitutional issues, it is quite right and consistent with a 

settled canon of construction, that the President tries to interpret 

that statute to be constitutional; and then once he has done that, 

he can sign it and he can enforce it as interpreted. 

Chairman SPECTER. Professor Yoo, Professor Rosenkranz suggests that the alternative of having legislation which would say the 

courts may not consider the reasons given by the President in a 

signing statement for not enforcing the law, that the courts may 

not consider that. Do you think that that is a provision which 

would be constitutional? Can the courts be instructed by Congress 

on what they may consider and what they may not consider, especially on constitutional issues? 

Mr. YOO. In fact, the Congress already has. There is a wonderful 

statute that is often called ‘‘the Dictionary Act.’’ It is 1 U.S.C. 1 

through 1 U.S.C. 8, the very first part of the U.S. Code. That gives 

very specific guidance about how courts, agencies, everyone, people 

in the country, should interpret Federal statutes. It says, for example, when we say ‘‘corporations’’ and ‘‘persons’’ may not do that, it 

means one person as well as multiple people. It lays out a wide 

number of rules of construction that will govern. There is no question that that is the case. Whether— 

Chairman SPECTER. Well, you can have guidance on statutory 

construction, but can you direct the court what the court may conVerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC
30 

sider on a constitutional issue? Isn’t the court the ultimate arbiter, 

the Supreme Court the ultimate arbiter of the constitutional issue? 

Mr. YOO. The answer under the doctrine of Cooper v. Aaron is 

yes. The actual answer to me is somewhat more complicated than 

that, as the example put forward by— 

Chairman SPECTER. More complicated than Cooper v. Aaron? 

Mr. YOO. I think so. For example, think about the New Deal era 

where the Court was holding unconstitutional minimum wage laws 

and maximum hours laws. A number of State legislatures continued to pass them, and the Court struck them down for a time, but 

eventually reversed course, reconsidered its actions, and began to 

uphold them. And that was a proper way for the law to evolve. The 

question would be: Would a legislature who disagreed and thought 

that minimum wage legislation continued to be a good idea, were 

they acting lawlessly by continuing to put that issue before the 

Court? 

In that case, for example, those actors continued to engage in a 

dialogue with the Supreme Court to resolve what the ultimate 

meaning of the Constitution is, and eventually the meaning of the 

Constitution evolved. 

Chairman SPECTER. My time is up, but your hand is raised, Professor Rosenkranz, so we will acknowledge your hand. 

Mr. ROSENKRANZ. I just wanted to speak to that question for a 

moment. I just wanted to be clear. I believe that Congress can instruct the courts in how to read statutes, not in how to read the 

Constitution. So a provision which instructed the court about statutory interpretation is permissible, not one that instructs the courts 

about constitutional interpretation. 

Chairman SPECTER. Well, the signing statements customarily 

reach constitutional issues. 

Senator Cornyn. 

Senator CORNYN. Thank you, Mr. Chairman. I think this hearing 

has already been very enlightening, although it does not quite up 

meet the billing that some have presented ahead of time. For example, some have said that this is an unprecedented practice or 

new practice, and we find out that it is precedented and it is not 

new. 

Some have complained that Congress needs to be notified anytime the President thinks that it has passed an unconstitutional 

statute. But to me, that is one of the purposes that a presidential 

signing statement might fulfill, identifying those statutes which the 

executive branch considers problematic. 

For example, one here that I have, a statement on signing the 

National Defense Authorization Act for Fiscal Year 1996, where 

President Clinton said, ‘‘I have concluded that this discriminatory 

provision is unconstitutional. In accordance with my constitutional 

determination, the Attorney General will decline to defend this position.’’ So neither new nor unprecedented, and serve, in fact, the 

desirable purpose of Congressional notification and transparency. 

I guess I would like to ask Mr. Fein—I know you, of course, 

served with distinction in the Reagan administration, and the figures that we have in front of us show that it was President Reagan 

who, although he did not begin this practice, certainly was responsible for generating more presidential signing statements than his 

31 

predecessors had. Would you just agree with me that this was also 

a practice that President Reagan used to identify what he considered to be statutes to which the administration was not legally 

bound because he interpreted them as being unconstitutional? 

Mr. FEIN. Yes, I do not believe President Bush is charting new 

ideological territory here or claims of power. Certainly it was periodic since the Eisenhower administration, but I still think the 

structural problems are identical, that is, the President, instead of 

vetoing a provision he thinks is unconstitutional, disables Congress 

from reconsidering a provision of a bill he thinks should be null 

and void and exercises de facto line-item veto authority. That is a 

structural problem, and it is not unique to this President. 

Senator CORNYN. I think I understand your argument that really 

the President, if he thinks any part of a statute is unconstitutional, 

he ought to veto the entire statute. But I would just ask as a practical matter, given the contentiousness of debates on legislation, 

not only within the Senate but within the branches of the legislature and the difficulties navigating important legislation—for example, the PATRIOT Act that Chairman Specter spent an awful lot 

of time and effort navigating to successful completion—it seems 

like it would be counterproductive if the President had some concern with a relatively small, from a percentage standpoint, portion 

of that statute, have to veto everything and start over from the beginning. Wouldn’t that create a logjam? 

Mr. FEIN. No, not necessarily. I remember the Republicans, when 

Newt Gingrich was the Speaker of the House, shut down the Government because he could not get consensus with President Clinton, and I think the Republicans— 

Senator CORNYN. It did not go very well, if my memory is— 

Mr. FEIN. And I think the Republicans lost politically on that 

score. It may be difficult, but I want to recall the same kind of argument that I think you have articulated, Senator, that was made 

in defense of the legislative veto. Surely you did not want Congress, now confronted with just thousands of regulations issued by 

administrative agencies, as you well know, to be disabled from exercising a legislative veto because they could not keep accountability, as Congress was able to do in the early years of the country. And the Supreme Court said that does not matter. You may 

think legislative vetoes are now required in order to exercise greater supervision of executive branch agencies that, in terms of numbers and power, vastly exceeded anything that was contemplated at 

the founding. But that is not good enough. 

Senator CORNYN. Let me reclaim the last 30 seconds so I can ask 

another question of Professor Yoo in this instance. There seems to 

be a lot of concern expressed that because so few cases are actually 

going to be decided by the courts, that there is this vast body of 

law out there that there is going to be no final judicial determination on either what the statute means or whether it is constitutional; that the executive and legislative branches simply do not 

have any role in that process—in this instance, the executive 

branch—in interpreting it perhaps in a way that avoids constitutional problems or the like. 

32 

Could you speak to the responsibility of the executive branch to 

try to uphold and defend the Constitution as well as the legislative 

and judicial branches? 

Mr. YOO. Certainly. Every officer of the executive branch swears 

an oath to uphold and defend the Constitution, just as every Member of Congress and every judge, and, in fact, they confront—the 

President himself has an obligation to take care that the laws be 

faithfully executed. And when a statute is applied for the first time 

or applied to a particular person, the executive officer is usually 

the first person to confront how a particular statute applies and 

what the scope of that statute would be and what the proper— 

whether constitutional limits permit—how the Constitution permits 

that statute to be applied. 

That is inevitable in this process, and, in fact, many of those decisions do not make it into court. What I would suggest is, in fact, 

our system is not a system of courts. It is a system of laws. And 

it is a finely crafted system of three branches of Government, 

which is much more robust in how it handles that. 

As this Committee knows, if the Congress becomes dissatisfied 

with the way the President is administering a statute, even if that 

matter never appears in court, there can be hearings on reauthorization, there can be simple hearings in the Committee, there can 

be hearings before the Subcommittee on Appropriations, there can 

be hearings in front of the subcommittees on oversight, and, in fact, 

there can be a great deal of confirmation of appointees, discussion 

during confirmation of appointees, and, in fact, there is a great 

deal of communication between individual members raising specific 

concerns about the way the law has been administered, and that, 

in fact, we have a system that is not court-centered but is, in fact, 

a much more robust one with a much more dynamic interaction between the legislature and the Executive about how the law should 

be interpreted. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Professor Ogletree, you heard Mr. Fein offer a suggestion about 

legislation which would give Congress standing to sue in court, 

take the case to the Supreme Court of the United States. Do you 

think that would pose a case in controversy and not be an advisory 

opinion and be constitutional? 

Mr. OGLETREE. Senator Specter, I think it is a difficult but an 

achievable issue, and I think that this Congress should look very 

carefully at the opportunities to raise this matter to the Court. 

I think Congress is going to rue the day that it examined the use 

of signing statements the way this President has used them and 

really frustrates the idea of separation of powers. We live in a democracy, not in a monarchy, and I think what we are seeing clearly, in case after case, is the excessive application of the executive 

power and in a sense ignoring the legislative respect. 

It is important for this final and important reason: Professor Yoo 

is right when he talks about HLA Hart. I remember reading the 

great work he has done on legal process, no vehicles in the park. 

That is an interesting issue for interpretation. Senator McCain said 

a ban on torture. There is a distinct and substantive difference. 

And when this Congress has spoken time and time again on fundamental issues consistent with the war on terrorism, consistent with 

33 

our changed issues since 9/11/2001, it has not given up its responsibility in making laws to ensure that the executive branch responds. 

I think it is time that Congress does two things: One, require the 

President to provide an official copy of all signing statements. I 

don’t know where they are. You don’t know where they are. They 

are done in the dark of night or in the light of day, but we just 

do not know. And, second, to examine the likelihood of a constitutional challenge that will allow this to happen. The Constitutional 

Project has issued a report, a bipartisan report, outlining some of 

these issues, and I would urge Congress to accept its responsibility 

and the duty to not just let this continue to happen, but to think 

about legislative alternatives, including a case before the Supreme 

Court of the United States of America. 

Chairman SPECTER. So you think we could draft a statute, take 

the President to court on his signing statements, which would be 

constitutional. 

Mr. YOO. I think not only you can, I think you must. If the view 

is going to be that these are harmless, simple interpretations of 

law and the President’s authority cannot be checked, I see no alternative except to let the Court decide. That is what Marbury v. 

Madison told us many years ago, and I think that is what this Supreme Court may have to tell us now. 

Chairman SPECTER. Mr. Fein, do you want to reinforce your— 

Mr. FEIN. Well, I would like to— 

Chairman SPECTER. Wait a minute. You have not heard the 

question yet. Do you want to reinforce your position that there 

could be a constitutional statute prepared? 

Mr. FEIN. Yes, and I also would indicate that there are reasons 

why Congress should do that, because there are many instances 

where there is no private litigant to bring a case. 

For instance, you may recall in the Detainee Treatment Act signing statement the executive branch said there is not any private 

right of action here, that is, no one who is subject to torture could 

bring a suit claiming that there was a violation of the Detainee 

Treatment Act. Unless Congress then has standing to challenge the 

President’s application and claim that he has constitutional authority to gather foreign intelligence by torture, that statute is hollow. 

I also think that this President is not using signing statements 

to provide a gloss on ambiguous language, and let me read you language from a provision that has been repeatedly enacted by Congress in the Intelligence Authorization Act to try to keep the 

United States out of military combat in Colombia. And Section 502 

of the Intelligence Authorization Act that has been repeatedly reenacted provides that, ‘‘No United States Armed Forces personnel 

or United States civilian contractor employed by the United States 

Armed Forces will participate in any combat operation in connection with assistance made available under this section to Colombia.’’ 

Now, that is pretty straightforward. No one can participate. And 

yet the President claims—in his signing statement, he says, ‘‘The 

executive branch shall construe the restriction’’—no combat use— 

‘‘in that section as advisory.’’ Now, it is clear that that was not an 

advisory limitation in the statute. 

34 

So the suggestion that the President is not declining to enforce 

laws but simply providing a gloss on ambiguous language I think 

is counterhistorical and counterfactual. He is doing that, and as 

King James II, declining to faithfully execute the laws, and an appropriate response is needed. 

Chairman SPECTER. Professor Yoo, would such a statute be constitutional? 

Mr. YOO. My reaction is that if a statute is unambiguous, what 

the President says in the signing statement is irrelevant. It has 

been established since the days of Chief Justice John Marshall 

that, where a statute is plain on its face, there is no room for interpretation. And a legislative history, whether from the President or 

from this body or from the House of Representatives, has no place 

in the judicial decisionmaking. 

So if the statute is plain, whether the President says—whatever 

the President says in a signing statement is beside the point. A 

plainly worded statute might violate the terms of the Constitution, 

but that is a separate issue from the role of the signing statements 

and is a separate matter that will be litigated in terms of the 

Court. But in that determination, what the President said in his 

or her signing statement would not matter. 

Chairman SPECTER. Well, you may say it does not matter, and 

it may be plain on its face. But where the President has stated he 

does not intend to follow it, the question is: Would it be constitutional for Congress to enact legislation where the Congress concludes that the President has flouted the plain language of the 

statute, that it gives itself standing to take the case to the Federal 

court, would that statute be constitutional in your opinion? 

Mr. YOO. It is a difficult issue that has not been fully litigated 

in front of the courts. 

Chairman SPECTER. Well, of course, it has not been litigated. We 

have not drafted the statute yet. But I am interested in your judgment if you care to give it. 

Mr. YOO. My judgment is that it would be very difficult for the 

Congress to meet Article III standing. The biggest obstacle is a decision called Raines v. Byrd, decided by the Supreme Court, debating whether Members of Congress had standing to challenge the 

line-item veto. And the first time that the Court— 

Chairman SPECTER. Congress had not given standing to challenge it. 

Mr. YOO. But it wasn’t a question of whether—it is not just a 

question of whether a statute confers standing on the Congress. 

There is also a constitutional limitation of whether the Constitution allows a party like Congress to appear in court. And as you 

know, the basic requirement is that there be a case in controversy. 

And the Supreme Court has defined that to mean a pocketbook 

issue, that is, something that affects someone’s individual rights directly and— 

Chairman SPECTER. Well, a case in controversy is different from 

standing, but I take it your answer is no. 

Mr. YOO. My initial judgment would be no. I would have to look, 

obviously, at the particular language in the particular context, but 

it is clear to me it would face formidable obstacles. 

35 

Chairman SPECTER. Do you think it is constitutional, Professor 

Rosenkranz? 

Mr. ROSENKRANZ. I am inclined to agree with Professor Yoo. I 

think it is quite a difficult question. Standing doctrine— 

Chairman SPECTER. Sufficiently difficult to take it to court? 

Mr. ROSENKRANZ. There could be a case that would resolve this 

question in court, but standing doctrine is notoriously complicated, 

and Congress’ ability to confer standing on itself is a vexed question. 

Chairman SPECTER. Well, if it is not up to Congress to confer 

standing, who confers standing? 

Mr. ROSENKRANZ. Well, there are also constitutional limitations, 

so Congress can confer standing to a point, but there may well be 

constitutional limits on what Congress can do to confer standing. 

Chairman SPECTER. But are those limits beyond the issue of case 

in controversy? 

Mr. ROSENKRANZ. I am sorry? I am not sure I understand. 

Chairman SPECTER. Are the constitutional limit to get this into 

court beyond the question of case in controversy? 

Mr. ROSENKRANZ. Well, Senator, I think what you are imagining 

is a statute which confers standing on Congress to challenge a 

presidential signing statement. Is that what we are talking about? 

Chairman SPECTER. Correct. 

Mr. ROSENKRANZ. I think a presidential signing statement 

simpliciter, a provision that purported to allow Congress to challenge any presidential signing statement, almost certainly would be 

unconstitutional in at least some applications. If the President 

issues a signing statement which says, ‘‘I applaud this bill, and I 

thank Senator Specter for his work on it,’’ obviously there would 

not be a case in controversy if you chose to challenge that presidential signing statement. 

Chairman SPECTER. Mr. Fein, would you be willing to undertake 

the first line of drafting such a bill? 

Mr. FEIN. Yes, there is—I know at least one precedent that is 

somewhat analogous— 

Chairman SPECTER. If you send it to me, send a copy to Professor 

Yoo and Professor Rosenkranz. 

Mr. FEIN. The Senate Select Committee v. Nixon was a case 

where a Committee of Congress was afforded standing to sue President Nixon, seeking documents that they thought were important 

to legislate on campaign finance. That hit the U.S. Court of Appeals for the District of Columbia Circuit. It did not get to the U.S. 

Supreme Court. But at least there is some analogy in conferring 

standing on a Committee with conferring standing on the entire 

Congress. 

Chairman SPECTER. Professor Ogletree, do you think it would be 

better to put this issue to the Supreme Court as opposed to this 

panel? 

Mr. OGLETREE. Absolutely. 

Chairman SPECTER. One final question. The House of Representatives passed a resolution to—passed ‘‘an amendment to prohibit 

the use of funds from being available to engage in electronic surveillance in the United States, except as authorized under the ForVerDate Nov 24 2008 10:34 Apr 16, 2009 Jkt 043109 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\43109.TXT SJUD1 PsN: CMORC
36 

eign Intelligence Surveillance Act.’’ It lost, but narrowly, by a vote 

of 207–219. 

I filed such an amendment on the appropriations bill, the supplemental appropriations bill, and had grave concerns about the wisdom of such an amendment. And to see 207 votes in the House, including many Republican votes, rekindles the thought. Do you 

think as a matter of public policy it is a good idea, Mr. Fein? 

Mr. FEIN. Yes. Indeed, James Madison, the Father of the Constitution, writing in the Federalist Papers, celebrated the power of 

the purse as the most efficacious way for the legislative branch to 

redress grievances against the President. As you well know, being 

around at the enactment of FISA, it says that there shall be no 

gathering of foreign intelligence, except specifically in accord with 

this statute. And the power-of-the-purse remedy seems entirely appropriate. It has been used in the past by Congress to prevent covert actions in Angola, to prevent the Vietnam War from slipping in 

Laos and Cambodia, and those were not questioned as to their constitutionality or wisdom. And I think an appropriate amendment, 

as you have crafted, would be right in line. 

Chairman SPECTER. Professor Yoo, two parts to your question. 

One, would it be constitutional to do that? And, second, would it 

be wise as a matter of public policy? 

Mr. YOO.T1 THERE ARE CERTAINLY A LOT OF CONSTITUTIONAL ASPECTS ABOUT REQUIRING ELECTRONIC SURVEILLANCE TO BE OVERSEEN BY A COURT. THE FOURTH AMENDMENT CLEARLY PROVIDES

THAT—PUTS LIMITATIONS ON THE ABILITY OF THE UNITED STATES

LAW ENFORCEMENT AGENCIES TO GATHER SURVEILLANCE. THERE ARE

SOME VERY DIFFICULT QUESTIONS ABOUT EXTRATERRITORIAL APPLICATION WHICH GO BEYOND THE STRICT LIMIT OF THE CONSTITUTION, 

WHICH ARE VERY DIFFICULT TO RESOLVE IN PARTICULAR CASES. BUT

IT IS FAIRLY CLEAR TO ME THAT, IN ADDITION TO THE CONSTITUTIONAL QUESTION, LAW ENFORCEMENT HAS TO BE AUTHORIZED BY

SOME BASIC FEDERAL LAW BEFORE IT CAN ACT. AND, IN FACT, THE

CONSTITUTION HAS A LIMIT ON THE KINDS OF AUTHORIZATIONS THAT

CAN BE GIVEN, BUT CAN VERY RARELY AUTHORIZE ACTIONS IN ITS

OWN RIGHT. 

So my guess is that you could—it would be entirely constitutional 

for this Congress, the Senate and the House, to put limitations on 

the ability of the Government to gather intelligence consistent with 

certain broad requirements. 

Now, there are limitations that come out of the nature of the executive branch itself. For example, there is a deliberative process 

privilege. When the executive asks questions amongst itself in trying to make a decision, that information is generally not considered 

reachable by any other means, and there are some things inherent 

in the executive—the nature of the executive branch that defend 

certain kinds of information from being gathered. 

Chairman SPECTER. Is that a yes? 

Mr. YOO. The answer is mostly yes, but as any lawyer would 

probably do, it would depend on the details of the specific proposal. 

Chairman SPECTER. I do not think any lawyer; perhaps any professor but not any lawyer. 

Part two, would it be a wise policy? 

37 

Mr. YOO. I think that it is always wise to put some check on any 

exercise of power. I do believe that— 

Chairman SPECTER Even one as drastic as cutting off funding? 

Wouldn’t you worry a little bit that without knowing what the 

President is doing exactly—because we do not know—that we may 

be curtailing some very important anti-terrorism data gathering to 

fight terrorists if we do it in the dark? 

Mr. YOO. I would share that concern with you, Senator. As with 

most of these tough issues, it requires a balance. 

Chairman SPECTER. Maybe if it looked like it was going to pass, 

the President would tell us what it was so we would not pursue 

the legislative remedy of cutting off funding. 

Mr. YOO. What is fascinating to me is the executive that we have 

is the direct product of our frustrations with a multi-headed executive under the Articles of Confederation. And if you go back to the 

Federalist Papers, they say one of the reasons we like executive 

power is because it is energetic when it is concentrated in one person, and that, in fact, laws get implemented, liberty is protected, 

public safety is better preserved by that, and there has to be a 

proper sphere of action in which the President can direct the executive branch to achieve those goals. 

Is that power unlimited? No. There is appropriate judicial and 

legislative checks on that process, and it is all part of this complex 

dialogue in which the three branches enter into every day. 

Chairman SPECTER. I don’t detect in that answer any clue to the 

answer to my question as to whether it might get the President to 

tell us what the program is. 

Mr. YOO. Without knowing the details of the program—it is clear 

to me that it is appropriate for the Congress to insist on the disclosure of the details of many parts of the program. 

Chairman SPECTER. Professor Rosenkranz, would the provision 

that failed in the House be constitutional? 

Mr. ROSENKRANZ. I agree with Professor Yoo that the question 

is a difficult one and that one would have to study the details of 

the specific language. 

Chairman SPECTER. Well, I just read you the language. 

Mr. ROSENKRANZ. Well, Congress has very broad appropriations 

power. The President, though, has a certain scope of inherent Commander-in-Chief power, and the interaction— 

Chairman SPECTER. And he should spend money that Congress 

prohibits him from spending? 

Mr. ROSENKRANZ. It is arguably possible that an appropriation so 

cunningly tailored to restrict inherent executive powers would be 

unconstitutional. This is a controversial point and one that scholars 

debate. But the interaction of Congress’ appropriation power with 

inherent Article II powers is complicated and uncertain. 

Chairman SPECTER. Well, maybe you could organize a course at 

the Yale Law School. Do you think it would be wise as a public policy matter, Professor Rosenkranz? 

Mr. ROSENKRANZ. Sir, I am a law professor. I am not going to 

purport to speak to the wisdom of that as a matter of public policy. 

Chairman SPECTER. You may not be invited back then. 

[Laughter.] 

38 

Chairman SPECTER. Well, this has been illuminating, and it is always a challenge when we get you guys from Harvard and Yale, 

et cetera, to debate these issues as to where we come out. You expose a lot more nuances than we customarily hear in this room, especially when the Senators are here alone. 

Thank you all very much, and that concludes our hearing. 

[Whereupon, at 12:02 p.m., the Committee was adjourned.] 

[Questions and answers and submissions follow.] 

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