I 

111TH CONGRESS 

1ST SESSION H. R. 3362 

To establish guidelines for the assertion of Executive privilege, to enhance 

the authority of Congress to enforce subpoenas and punish for contempt, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 28, 2009 

Mr. MILLER of North Carolina (for himself, Mr. CONYERS, Ms. LINDA T. 

SA ́NCHEZ of California, and Mr. COHEN) introduced the following bill; 

which was referred to the Committee on the Judiciary, and in addition 

to the Committee on House Administration, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To establish guidelines for the assertion of Executive privilege, to enhance the authority of Congress to enforce 

subpoenas and punish for contempt, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Checks and Balances Restoration and Revitalization 

6 Act’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents of 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—ASSERTIONS OF EXECUTIVE PRIVILEGE 

Sec. 101. Findings. 

Sec. 102. Procedure governing claims of Executive privilege before Congress. 

Sec. 103. Executive policy. 

Sec. 104. Executive privilege defined. 

TITLE II—CONTEMPT OF CONGRESS PROCEDURES AND 

ENFORCEMENT 

Sec. 201. Availability of civil action to enforce House of Representatives subpoenas. 

Sec. 202. Alternate procedures for enforcement of criminal contempt of Congress. 

Sec. 203. Increase in penalty for contempt of Congress. 

Sec. 204. Authority of United States Capitol Police to enforce citations. 

Sec. 205. Collection of penalties imposed by the House of Representatives on 

persons cited for contempt of House. 

TITLE III—PRESIDENTIAL SIGNING STATEMENTS 

Sec. 301. Findings. 

Sec. 302. Treatment of certain Presidential signing statements as reports establishing policy to refrain from enforcing law for purposes of 

notifying counsel for Congress. 

Sec. 303. Actions for declaratory or injunctive relief to compel enforcement. 

Sec. 304. Qualifying Presidential signing statement defined. 

Sec. 305. Effective date. 

TITLE IV—PROCEDURES APPLICABLE TO LEGAL OPINIONS OF 

OFFICE OF LEGAL COUNSEL 

Sec. 401. Findings. 

Sec. 402. Reporting of legal opinions. 

Sec. 403. Signature requirements for legal opinions of Office of Legal Counsel. 

TITLE V—SEVERABILITY 

Sec. 501. Severability. 

3 TITLE I—ASSERTIONS OF 

4 EXECUTIVE PRIVILEGE 

5 SEC. 101. FINDINGS. 

6 Congress finds the following: 


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1 (1) Assertions of Executive privilege provide the 

2 Executive branch an opportunity to perpetuate ex3 cessive executive secrecy and to deny Congress ac4 cess to the information it requires to perform its 

5 Constitutional responsibilities. 

6 (2) Excessive secrecy tends to undermine self7 government and invite lawlessness and maladmin8 istration. 

9 (3) A shared and uniform understanding of 

10 when and how the President may assert Executive 

11 privilege, and when and how this privilege may be 

12 overcome by Congress, facilitates information shar13 ing among the coordinate branches of the Govern14 ment. 

15 (4) A judicial forum is available to resolve dis16 putes over particular claims of Executive privilege 

17 when the political branches are unable to do so. 

18 SEC. 102. PROCEDURE GOVERNING CLAIMS OF EXECUTIVE 

19 PRIVILEGE BEFORE CONGRESS. 

20 (a) IN GENERAL.—Any claim of Executive privilege 

21 before either House of Congress or any body acting under 

22 the authority of either House must be— 

23 (1) made by the express authority of the Presi24 dent; and 


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1 (2) accompanied by a statement, approved by 

2 the President, of the factual and legal basis for that 

3 claim. 

4 (b) METHOD OF SHOWING EXPRESS AUTHORITY.— 

5 In the case of such a claim made other than by the incum6 bent President in person, the express authority of the 

7 President for the claim must be in writing and signed by 

8 the incumbent President. 

9 (c) REQUIREMENT OF APPEARANCE.—Noting that 

10 each person summoned to appear under the authority of 

11 either House of Congress must appear in person in order 

12 to assert any privilege or other excuse not to testify, Con13 gress also requires that a person (other than the President 

14 or a former President) who is or was an Executive branch 

15 official make any assertion of Executive privilege by such 

16 an appearance. 

17 (d) PROCEDURES FOR ASSERTION OF PRIVILEGE IN

18 PERSON.— 

19 (1) PRESENTATION OF AUTHORITY TO ASSERT

20 PRIVILEGE.—When a person appears in person to 

21 assert Executive privilege as required under sub22 section (c), the person shall present a written state23 ment that satisfies the requirements of subsection 

24 (b) and authorizes the person to assert the privilege, 

25 except that if the person reasonably believes that a 


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1 question would elicit information that is subject to 

2 Executive privilege, but is not in possession of such 

3 a written statement, the witness may assert a provi4 sional claim of Executive privilege in lieu of answer5 ing the question. 

6 (2) SUBSEQUENT RESPONSE AFTER ASSERTION

7 OF PROVISIONAL CLAIM.—Not later than 10 cal8 endar days after asserting a provisional claim of Ex9 ecutive privilege under paragraph (1) in response to 

10 a question, the person shall submit to the House of 

11 Congress before which the person appeared— 

12 (A) a written statement that satisfies the 

13 requirements of subsection (b) with respect to 

14 the claim asserted; or 

15 (B) a written answer to the question. 

16 (e) REQUIREMENT OF IDENTIFICATION OF MATE17 RIALS WITHHELD ON THE GROUND OF PRIVILEGE.—Any 

18 person withholding subpoenaed documents, written com19 munications, or tangible items from either House of Con20 gress on a claim of Executive privilege shall provide to 

21 the requesting body an index of the withheld documents, 

22 communications, and items and a statement describing the 

23 nature of each such document, communication, and item 

24 in a manner that, without revealing the information 

25 claimed as privileged, will enable the requesting body to 


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1 assess the validity of the claim that Executive privilege 

2 applies to that particular document, communication, or 

3 item. 

4 SEC. 103. EXECUTIVE POLICY. 

5 (a) ESTABLISHMENT OF POLICY.—Not less than 180 

6 days after the date of the enactment of this Act, and 

7 thereafter, not less than 180 days following the beginning 

8 of each four-year presidential term, the President or the 

9 Attorney General shall issue binding guidelines setting 

10 forth a policy governing the use of Executive privilege. 

11 (b) SPECIFICATIONS.—The policy set forth pursuant 

12 to subsection (a)— 

13 (1) shall specify the procedures by which a deci14 sion to assert Executive privilege is reached, which 

15 shall be consistent with section 102; and 

16 (2) shall be consistent with the holding of 

17 United States v. Nixon (418 US 683, 713–714) that 

18 the demonstrated, specific need of a coordinate 

19 branch of government is sufficient to overcome a 

20 claim of Executive privilege. 

21 SEC. 104. EXECUTIVE PRIVILEGE DEFINED. 

22 In this title, the term ‘‘Executive privilege’’ means— 

23 (1) a withholding of information which is based 

24 on a claim of authority under article II of the Con25 stitution of the United States; or 


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1 (2) a withholding of information by any indi2 vidual who is an officer or employee of the Executive 

3 branch (or who was an officer or employee of the 

4 Executive branch at the time the information was 

5 first sought by either House of Congress) which is 

6 based on any other claim of law. 

7 TITLE II—CONTEMPT OF CON8 GRESS PROCEDURES AND EN9 FORCEMENT 

10 SEC. 201. AVAILABILITY OF CIVIL ACTION TO ENFORCE 

11 HOUSE OF REPRESENTATIVES SUBPOENAS. 

12 (a) CIVIL ACTION.—The House of Representatives 

13 may in a civil action obtain any appropriate relief to en14 force compliance with a subpoena or order of the House, 

15 or to enforce compliance with a subpoena or order issued 

16 by a committee or subcommittee of the House authorized 

17 to issue a subpoena or order, if the House by resolution 

18 authorizes the commencement of that civil action. 

19 (b) REPRESENTATION BY GENERAL COUNSEL.—Un20 less the House otherwise provides, the Office of the Gen21 eral Counsel of the House of Representatives shall rep22 resent the House in the civil action. 

23 (c) PERSONAL JURISDICTION.—Personal jurisdiction 

24 of the court over a defendant in a civil action under this 


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1 section extends outside the territorial jurisdiction of the 

2 court if the claim— 

3 (1) arose out of conduct by the defendant— 

4 (A) within that territorial jurisdiction, or 

5 (B) causing any injury, including informa6 tional injury to the right of the House to make 

7 an investigation, within that territorial jurisdic8 tion; or 

9 (2) otherwise has a reasonable relationship to 

10 contacts of the defendant with the territorial juris11 diction. 

12 (d) ASSESSMENT OF COMPETING INTERESTS.— 

13 (1) IN GENERAL.—In any civil action brought 

14 under this section, if the court has determined that 

15 the information or material which is the subject of 

16 the subpoena or order involved is presumptively priv17 ileged based upon the President’s generalized inter18 est in confidentiality, the House may overcome this 

19 presumption by showing that— 

20 (A) the House, or a committee or sub21 committee thereof, has a specific need for the 

22 information or material in order to carry out its 

23 constitutional obligations; and 

24 (B) the information is not otherwise avail25 able. 


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1 (2) ENFORCEMENT.—If the court determines 

2 that the House, or a committee or subcommittee 

3 thereof, has made the showing described in para4 graph (1), it shall enforce the subpoena or order in5 volved. 

6 (e) EXPEDITION OF TRIAL AND APPELLATE PRO7 CEEDINGS.—The court shall hear and determine a civil ac8 tion under this section as expeditiously as possible, and 

9 to the maximum extent practicable during the Congress 

10 in which the action is commenced. Any appellate pro11 ceedings relating to such a civil action shall similarly be 

12 expedited to assure to the extent possible that the matter 

13 is fully resolved during the Congress in which the action 

14 was commenced. 

15 SEC. 202. ALTERNATE PROCEDURES FOR ENFORCEMENT 

16 OF CRIMINAL CONTEMPT OF CONGRESS. 

17 (a) ALTERNATE PROCEDURE.— 

18 (1) SCOPE OF APPLICATION.—If the House of 

19 Representatives finds a current or former officer or 

20 employee of the Executive branch has violated sec21 tion 102 of the Revised Statutes of the United 

22 States (2 U.S.C. 192) or that any person has vio23 lated such section at the direction of the President 

24 or another officer of the Executive branch, the pro25 cedures of this section apply. 


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1 (2) CERTIFICATION BY SPEAKER.—In accord2 ance with section 104 of the Revised Statutes of the 

3 United States (2 U.S.C. 194), upon the finding by 

4 the House of Representatives of a violation to which 

5 this section applies, the Speaker shall certify that 

6 finding to the appropriate United States attorney, 

7 whose duty it shall be to bring the matter before the 

8 grand jury for its action. 

9 (3) CIRCUMSTANCES LEADING TO APPOINT10 MENT OF SPECIAL COUNSEL.—If— 

11 (A) the Attorney General or the United 

12 States attorney to whom the finding was cer13 tified informs the court or the House that the 

14 Department of Justice will not prosecute the 

15 case; or 

16 (B) by the end of the 30th day after the 

17 date of receipt of a certification made under 

18 paragraph (2) a grand jury has not returned an 

19 indictment based on the violation alleged in the 

20 certification; 

21 the Special Division established under subsection (b) 

22 (hereinafter in this Act referred to as the ‘‘Special 

23 Division’’) shall appoint a special counsel under sub24 section (c). It shall be the duty of the Attorney Gen25 eral to inform that court and the House if a grand 


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1 jury does not return an indictment by the end of the 

2 30-day period. The Speaker of the House, or any in3 terested congressional party, may file with the Spe4 cial Division a suggestion that circumstances giving 

5 rise to a duty to appoint a special counsel have oc6 curred after the 30-day period ends without the re7 turn of an indictment. 

8 (b) SPECIAL DIVISION.— 

9 (1) ESTABLISHMENT.—There is hereby estab10 lished within the United States Court of Appeals for 

11 the District of Columbia a Special Division to carry 

12 out the appointment of special counsels under this 

13 section. 

14 (2) DESIGNATION.— 

15 (A) IN GENERAL.—The Chief Justice of 

16 the United States shall designate three judges 

17 or justices of the United States, one of whom 

18 shall be an active judge of the United States 

19 Court of Appeals for the District of Columbia, 

20 to serve on the Special Division, except that 

21 none of the judges or justices serving on the 

22 Special Division may serve or have served on 

23 the same court. 

24 (B) PRIORITY.—In designating judges and 

25 justices to serve on the Special Division, the 


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1 Chief Justice shall give priority to senior circuit 

2 judges and retired justices of the United States 

3 Supreme Court. 

4 (C) DEADLINE.—The Chief Justice shall 

5 make the first such designation not later than 

6 45 days after the date of the enactment of this 

7 Act. 

8 (3) TERM OF SERVICE.—Each designation to 

9 the Special Division shall be for a term of 2 years, 

10 but the Chief Justice may fill any vacancy arising 

11 before the end of a term for the remainder of that 

12 term. 

13 (c) APPOINTMENT, QUALIFICATIONS, AND PROSECU14 TORIAL JURISDICTION OF SPECIAL COUNSEL, AND AD15 MINISTRATIVE MATTERS RELATING TO THE SPECIAL

16 COUNSEL.— 

17 (1) APPOINTMENT, QUALIFICATIONS, AND

18 PROSECUTORIAL JURISDICTION OF SPECIAL COUN19 SEL.— 

20 (A) APPOINTMENT AND QUALIFICA21 TIONS.—The Special Division shall appoint the 

22 special counsel, who must be an attorney in 

23 good standing with substantial prosecutorial ex24 perience— 


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1 (i) who has not served in any capacity 

2 in the administration of the President who 

3 is or who was in office at the time the 

4 Speaker of the House certified the finding 

5 of a violation; and 

6 (ii) who is or who was not a Member, 

7 officer, or employee of Congress at the 

8 time the Speaker of the House certified the 

9 finding of a violation. 

10 (B) PROSECUTORIAL JURISDICTION.—The 

11 Special Division shall define the special coun12 sel’s prosecutorial jurisdiction as comprising the 

13 investigation and prosecution of the alleged vio14 lation, any conspiracy to commit the alleged 

15 violation, and any perjury, false statement, or 

16 obstruction of justice occurring in relation to 

17 such investigation and prosecution. 

18 (2) AUTHORITY OF SPECIAL COUNSEL WITH

19 RESPECT TO MATTERS WITHIN PROSECUTORIAL JU20 RISDICTION.—With respect to all matters in that 

21 special counsel’s prosecutorial jurisdiction, a special 

22 counsel appointed under this section shall have full 

23 power and independent authority to exercise all pros24 ecutorial functions and powers, and any other func25 tions and powers normally ancillary thereto, of the 


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1 Department of Justice, the Attorney General, and 

2 any other officer or employee of the Department of 

3 Justice, except that the Attorney General shall exer4 cise direction or control as to those matters that spe5 cifically require the Attorney General’s personal ac6 tion under section 2516 of title 18, United States 

7 Code. 

8 (3) COMPLIANCE WITH POLICIES OF THE DE9 PARTMENT OF JUSTICE.— 

10 (A) IN GENERAL.—A special counsel shall, 

11 except to the extent that to do so would be in12 consistent with the purposes of this section, 

13 comply with the written or other established 

14 policies of the Department of Justice respecting 

15 enforcement of the criminal laws. 

16 (B) NATIONAL SECURITY.—A special coun17 sel shall comply with guidelines and procedures 

18 used by the Department in the handling and 

19 use of classified material. 

20 (4) SALARY.—The special counsel shall receive 

21 a salary equivalent to the salary of the United 

22 States Attorney for the District of Columbia. 

23 (5) STAFF.—The special counsel may appoint 

24 and fix the salaries of such staff, not to exceed 12 

25 in number, as the special counsel deems necessary to 


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1 carry out the functions of the special counsel under 

2 this section. However, no salary of a member of such 

3 staff may exceed the salary of the special counsel. 

4 (6) EXPENSES.—The Department of Justice 

5 shall pay all costs relating to the establishment and 

6 operation of any office of special counsel. The Attor7 ney General shall submit to the Congress, not later 

8 than 30 days after the end of each fiscal year, a re9 port on amounts paid during that fiscal year for ex10 penses of investigations and prosecutions the special 

11 counsel. 

12 (7) REPORT TO CONGRESS.—Each special coun13 sel shall report to Congress annually on the special 

14 counsel’s activities under this section. The report 

15 shall include a description of the progress of any in16 vestigation or prosecution conducted by the special 

17 counsel and provide information justifying the costs 

18 of the activities reported on. 

19 (d) REMOVAL OF SPECIAL COUNSEL.— 

20 (1) IN GENERAL.—A special counsel may be re21 moved from office, other than by impeachment and 

22 conviction, only by the personal action of the Attor23 ney General, and only for good cause, physical or 

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1 stantially impairs the performance of that special 

2 counsel’s duties. 

3 (2) REPORT UPON REMOVAL.—If a special 

4 counsel is removed from office, the Attorney General 

5 shall promptly submit to the Special Division and to 

6 Congress a report specifying the facts found and the 

7 ultimate grounds for the removal. 

8 (3) JUDICIAL REVIEW OF REMOVAL.—A special 

9 counsel removed from office may obtain judicial re10 view of the removal in a civil action. The Special Di11 vision may not hear or determine any appeal of a de12 cision in any such civil action. The special counsel 

13 may be reinstated or granted other appropriate relief 

14 by order of the court. 

15 (4) APPOINTMENT OF REPLACEMENT.—Upon 

16 removal of a special counsel, the Special Division 

17 shall appoint a similarly qualified individual to con18 tinue the functions of the special counsel. 

19 (e) TERMINATION OF SPECIAL COUNSEL’S AUTHOR20 ITY.— 

21 (1) IN GENERAL.—The authority of the special 

22 counsel shall cease 2 years after the date of the spe23 cial counsel’s appointment, but the Special Division 

24 may extend that authority for an additional period 

25 not to exceed one year, if the Special Division finds 


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1 good cause to do so. Good cause to do so includes 

2 that the investigation or prosecution undertaken by 

3 the special counsel has been delayed by dilatory tac4 tics by persons who could provide evidence that 

5 would significantly assist the investigation or pros6 ecution, and also includes the need to allow the spe7 cial counsel to participate in any appellate pro8 ceedings related to prosecutions engaged in by the 

9 special counsel. 

10 (2) TERMINATION BY COURT.—The Special Di11 vision, either on the Special Division’s own motion 

12 or upon the request of the Attorney General, may 

13 terminate an office of special counsel at any time, on 

14 the ground that the investigation of all matters with15 in the prosecutorial jurisdiction of such special coun16 sel, and any resulting prosecutions, have been com17 pleted or so substantially completed that it would be 

18 appropriate for the Department of Justice to com19 plete such investigations and prosecutions. 

20 SEC. 203. INCREASE IN PENALTY FOR CONTEMPT OF CON21 GRESS. 

22 Section 102 of the Revised Statutes of the United 

23 States (2 U.S.C. 192) is amended by striking ‘‘deemed’’ 

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1 ing ‘‘fined not more than $1,000,000 or imprisoned not 

2 more than 2 years, or both’’. 

3 SEC. 204. AUTHORITY OF UNITED STATES CAPITOL POLICE 

4 TO ENFORCE CITATIONS. 

5 (a) AUTHORITY.—Section 9B(a) of the Act entitled 

6 ‘‘An Act to define the area of the United States Capitol 

7 Grounds, to regulate the use thereof, and for other pur8 poses’’, approved July 31, 1946 (2 U.S.C. 1967(a)), is 

9 amended— 

10 (1) by striking ‘‘and’’ at the end of paragraph 

11 (4); 

12 (2) by striking the period at the end of para13 graph (5) and inserting ‘‘; and’’; and 

14 (3) by adding at the end the following new 

15 paragraph: 

16 ‘‘(6) within any area, to enforce a citation 

17 issued with respect to a violation of section 102 of 

18 the Revised Statutes of the United States which re19 lates to the House of Representatives, or any cita20 tion issued with respect to a resolution adopted by 

21 the House citing a person for contempt of the 

22 House.’’. 

23 (b) EFFECTIVE DATE.—The amendment made by 

24 subsection (a) shall apply with respect to citations issued 


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1 on or after the expiration of the 90-day period which be2 gins on the date of the enactment of this Act. 

3 SEC. 205. COLLECTION OF PENALTIES IMPOSED BY THE 

4 HOUSE OF REPRESENTATIVES ON PERSONS 

5 CITED FOR CONTEMPT OF HOUSE. 

6 (a) CIVIL ACTION.—If the House of Representatives 

7 adopts a resolution citing a person for contempt of the 

8 House, the House may commence a civil action to collect 

9 a monetary penalty from the person if the House by subse10 quent resolution authorizes the commencement of that 

11 civil action. 

12 (b) REPRESENTATION BY GENERAL COUNSEL.—Un13 less the House otherwise provides, the Office of the Gen14 eral Counsel of the House of Representatives shall rep15 resent the House in the civil action. 

16 (c) PERSONAL JURISDICTION.—Personal jurisdiction 

17 of the court over a defendant in a civil action under this 

18 section extends outside the territorial jurisdiction of the 

19 court if the claim— 

20 (1) arose out of conduct by the defendant— 

21 (A) within that territorial jurisdiction; or 

22 (B) causing any injury, including informa23 tional injury to the right of the House to make 

24 an investigation, within that territorial jurisdic25 tion; or 


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1 (2) otherwise has a reasonable relationship to 

2 contacts of the defendant with the territorial juris3 diction. 

4 (d) EXPEDITION OF TRIAL AND APPELLATE PRO5 CEEDINGS.—The court shall hear and determine a civil ac6 tion under this section as expeditiously as possible, and 

7 to the maximum extent practicable during the Congress 

8 in which the action is commenced. Any appellate pro9 ceedings relating to such a civil action shall similarly be 

10 expedited to assure to the extent possible that the matter 

11 is fully resolved during the Congress in which the action 

12 was commenced. 

13 SEC. 206. NO EFFECT OF EXPIRATION OF CONGRESS ON 

14 PENDING ACTIONS. 

15 Any civil action commenced by the House of Rep16 resentatives pursuant to this title, and the authority of 

17 the Office of the General Counsel of the House of Rep18 resentatives with respect to the action, shall not be ren19 dered moot or otherwise affected as the result of the expi20 ration of the Congress in which the House commenced the 

21 action. 

22 TITLE III—PRESIDENTIAL 

23 SIGNING STATEMENTS 

24 SEC. 301. FINDINGS. 

25 Congress finds the following: 


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1 (1) To ensure that the lawmaking power would 

2 be exercised by the branch of government that is the 

3 closest and most accountable to the people the Con4 stitution provides that ‘‘All legislative power herein 

5 granted shall be vested in a Congress of the United 

6 States, which shall consist of a Senate and House of 

7 Representatives’’. 

8 (2) Article I, section 8, clause 18, gives Con9 gress the power ‘‘To make all laws which shall be 

10 necessary and proper for carrying into execution the 

11 foregoing powers, and all other powers vested by this 

12 Constitution in the government of the United States, 

13 or in any department or officer thereof’’. 

14 (3) The Constitution provides that the Presi15 dent ‘‘shall take care that the laws be faithfully exe16 cuted’’ and limits the role of the President in the 

17 lawmaking process to— 

18 (A) giving Congress information on the 

19 State of the Union; 

20 (B) recommending to Congress for consid21 eration such measures as the President deems 

22 necessary and expedient; and 

23 (C) approving or vetoing bills and joint 

24 resolutions presented to him for signature. 


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1 (4) Statements made by the President contem2 poraneously with the signing of a bill or joint resolu3 tion that express the President’s interpretation of 

4 the scope, constitutionality, and intent of Congress 

5 in enacting the bill or joint resolution presented for 

6 signature may encroach upon the power to make 

7 laws that the Framers vested solely in the Congress. 

8 SEC. 302. TREATMENT OF CERTAIN PRESIDENTIAL SIGNING 

9 STATEMENTS AS REPORTS ESTABLISHING 

10 POLICY TO REFRAIN FROM ENFORCING LAW 

11 FOR PURPOSES OF NOTIFYING COUNSEL FOR 

12 CONGRESS. 

13 Section 530D(e) of title 28, United States Code, is 

14 amended by striking ‘‘or order)’’ and inserting the fol15 lowing: ‘‘or order, or to the issuance of any qualifying 

16 Presidential signing statement (as defined in section 304 

17 of the Checks and Balances Restoration and Revitalization 

18 Act))’’. 

19 SEC. 303. ACTIONS FOR DECLARATORY OR INJUNCTIVE RE20 LIEF TO COMPEL ENFORCEMENT. 

21 (a) IN GENERAL.—In accordance with the require22 ments of this section, the General Counsel of the House 

23 of Representatives and the Senate Legal Counsel, acting 

24 jointly, may bring a civil action in the appropriate United 

25 States district court for declaratory or injunctive relief to 


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1 compel the enforcement of the provision of law which is 

2 the subject of a qualifying Presidential signing statement. 

3 (b) ADOPTION OF RESOLUTION REQUIRED.—The 

4 General Counsel of the House of Representatives and the 

5 Senate Legal Counsel may bring a civil action under sub6 section (a) only upon the adoption by the House of Rep7 resentatives and the Senate of a resolution which meets 

8 each of the following requirements: 

9 (1) The resolution is introduced prior to the ex10 piration of the 10-day period (excluding weekends, 

11 holidays, and any day on which either House of Con12 gress is not in session because of an adjournment 

13 sine die, a recess of more than 3 days, or an ad14 journment of more than 3 days) which begins on the 

15 date on which the House of Representatives and the 

16 Senate receive notice pursuant to section 530D(e) of 

17 title 28, United States Code, of the issuance of a 

18 qualifying Presidential signing statement. 

19 (2) The resolution does not have a preamble. 

20 (3) The matter after the resolving clause is as 

21 follows: ‘‘That Congress directs the General Counsel 

22 of the House of Representatives and the Senate 

23 Legal Counsel to bring a civil action for declaratory 

24 or injunctive relief to compel the enforcement of 

25 lllll’’, with the blank space filled in with a 


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1 citation to the provision of law which is the subject 

2 of the qualifying Presidential signing statement for 

3 which the House and Senate received the notice de4 scribed in paragraph (1). 

5 (4) The title is as follows: ‘‘Concurrent resolu6 tion directing the General Counsel of the House of 

7 Representatives and the Senate Legal Counsel to 

8 bring a civil action for declaratory or injunctive re9 lief to compel the enforcement of lllll’’, with 

10 the blank space filled in with a citation to the provi11 sion of law which is the subject of the qualifying 

12 Presidential signing statement for which the House 

13 and Senate received the notice described in para14 graph (1). 

15 SEC. 304. QUALIFYING PRESIDENTIAL SIGNING STATE16 MENT DEFINED. 

17 In this title, the term ‘‘qualifying Presidential signing 

18 statement’’ means a statement issued by the President 

19 and published in the Federal Register about a bill or joint 

20 resolution in conjunction with signing that bill or joint res21 olution into law pursuant to article I, section 7, of the 

22 Constitution of the United States which asserts or implies 

23 an intention not to enforce any provision of the bill or joint 

24 resolution, in part or in whole. 


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1 SEC. 305. EFFECTIVE DATE. 

2 This title and the amendments made by this title 

3 shall apply with respect to Presidential signing statements 

4 issued on or after the expiration of the 90-day period 

5 which begins on the date of the enactment of this Act. 

6 TITLE IV—PROCEDURES APPLI7 CABLE TO LEGAL OPINIONS 

8 OF OFFICE OF LEGAL COUN9 SEL 

10 SEC. 401. FINDINGS. 

11 Congress finds the following: 

12 (1) To fulfill the constitutional duty of the Ex13 ecutive branch to act lawfully, the President must 

14 have access to a reliable source of legal advice. 

15 (2) The Attorney General has delegated to the 

16 Office of Legal Counsel in the Department of Jus17 tice the function of providing legal advice to guide 

18 the actions of the President and the Executive 

19 branch. 

20 (3) To fulfill its legislative and oversight duties 

21 under the Constitution, Congress must have access 

22 to information about how and whether the Executive 

23 branch is implementing the laws of the United 

24 States. 

25 (4) To fulfill its legislative and oversight duties 

26 under the Constitution, Congress must have greater 


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1 access to information about the legal opinions ren2 dered by the Office of Legal Counsel, and the legal 

3 theories and doctrines on which they rely. 

4 SEC. 402. REPORTING OF LEGAL OPINIONS. 

5 (a) ISSUANCE OF OPINIONS REQUIRING REPORTS TO

6 CONGRESS.—Section 530D(a) of title 28, United States 

7 Code, is amended— 

8 (1) in paragraph (1)— 

9 (A) in subparagraph (B), by striking ‘‘or’’ 

10 at the end; 

11 (B) by redesignating subparagraph (C) as 

12 subparagraph (E); and 

13 (C) by inserting after subparagraph (B) 

14 the following: 

15 ‘‘(C) except as provided in paragraph (3), 

16 issues an authoritative legal interpretation (in17 cluding an interpretation under section 511, 

18 512, or 513 by the Attorney General or by an 

19 officer, employee, or agency of the Department 

20 of Justice pursuant to a delegation of authority 

21 under section 510) of any provision of any Fed22 eral statute— 

23 ‘‘(i) that concludes that the provision 

24 is unconstitutional or would be unconstitu25 tional in a particular application; 


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1 ‘‘(ii) that relies for the conclusion of 

2 the authoritative legal interpretation, in 

3 whole or in the alternative, on a deter4 mination that an interpretation of the pro5 vision other than the authoritative legal in6 terpretation would raise constitutional con7 cerns under article II of the Constitution 

8 of the United States or separation of pow9 ers principles; 

10 ‘‘(iii) that relies for the conclusion of 

11 the authoritative legal interpretation, in 

12 whole or in the alternative, on a legal pre13 sumption against applying the provision, 

14 whether during a war or otherwise, to— 

15 ‘‘(I) any department or agency 

16 established in the Executive branch of 

17 the Federal Government, including 

18 the Executive Office of the President 

19 and the military departments (as de20 fined in section 101(8) of title 10); or 

21 ‘‘(II) any officer, employee, or 

22 member of any department or agency 

23 established in the Executive branch of 

24 the Federal Government, including 


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1 the President and any member of the 

2 Armed Forces; or 

3 ‘‘(iv) that concludes the provision has 

4 been superseded or deprived of effect in 

5 whole or in part by a subsequently enacted 

6 statute where there is no express statutory 

7 language stating an intent to supersede the 

8 prior provision or deprive it of effect; 

9 ‘‘(D) except as provided in paragraph (3), 

10 issues an authoritative legal interpretation (in11 cluding an interpretation under section 511, 

12 512, or 513 by the Attorney General or by an 

13 officer, employee, or agency of the Department 

14 of Justice pursuant to a delegation of authority 

15 under section 510) regarding the constitu16 tionality or legality of a policy or action of the 

17 Executive branch; or’’; 

18 (2) in paragraph (2), by striking ‘‘For the pur19 poses’’ and all that follows through ‘‘if the report’’ 

20 and inserting ‘‘Except as provided in paragraph (4), 

21 a report shall be considered to be submitted to the 

22 Congress for the purposes of paragraph (1) if the re23 port’’; and 

24 (3) by adding at the end the following: 


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1 ‘‘(3) EXCEPTION FOR ADVISORY OPINIONS.— 

2 The submission of a report to Congress based on the 

3 issuance of an authoritative legal interpretation shall 

4 be discretionary on the part of the Attorney General 

5 or an officer described in subsection (e)— 

6 ‘‘(A) in the case of an interpretation de7 scribed in paragraph (1)(C), if no action is 

8 taken or withheld or no policy is implemented 

9 or stayed on the basis of the authoritative legal 

10 interpretation; or 

11 ‘‘(B) in the case of an interpretation de12 scribed in paragraph (1)(D), if the authoritative 

13 legal interpretation is not followed with respect 

14 to the Executive branch policy or action in15 volved. 

16 ‘‘(4) CLASSIFIED INFORMATION.— 

17 ‘‘(A) SUBMISSION OF REPORT CONTAINING

18 CLASSIFIED INFORMATION REGARDING INTEL19 LIGENCE ACTIVITIES.—Except as provided in 

20 subparagraph (B), if the Attorney General sub21 mits a report relating to an instance described 

22 in paragraph (1) that includes a classified 

23 annex containing information relating to intel24 ligence activities, the report shall be considered 


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1 to be submitted to the Congress for the pur2 poses of paragraph (1) if— 

3 ‘‘(i) the unclassified portion of the re4 port is submitted to each officer specified 

5 in paragraph (2); and 

6 ‘‘(ii) the classified annex is submitted 

7 to the Select Committee on Intelligence 

8 and the Committee on the Judiciary of the 

9 Senate and the Permanent Select Com10 mittee on Intelligence and the Committee 

11 on the Judiciary of the House of Rep12 resentatives. 

13 ‘‘(B) SUBMISSION OF REPORT CONTAINING

14 CERTAIN CLASSIFIED INFORMATION ABOUT

15 COVERT ACTIONS.— 

16 ‘‘(i) IN GENERAL.—In a circumstance 

17 described in clause (ii), a report described 

18 in that clause shall be considered to be 

19 submitted to the Congress for the purposes 

20 of paragraph (1) if— 

21 ‘‘(I) the unclassified portion of 

22 the report is submitted to each officer 

23 specified in paragraph (2); and 

24 ‘‘(II) the classified annex is sub25 mitted to— 


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1 ‘‘(aa) the chairman and 

2 ranking minority member of the 

3 Select Committee on Intelligence 

4 of the Senate; 

5 ‘‘(bb) the chairman and 

6 ranking minority member of the 

7 Committee on the Judiciary of 

8 the Senate; 

9 ‘‘(cc) the chairman and 

10 ranking minority member of the 

11 Permanent Select Committee on 

12 Intelligence of the House of Rep13 resentatives; 

14 ‘‘(dd) the chairman and 

15 ranking minority member of the 

16 Committee on the Judiciary of 

17 the House of Representatives; 

18 ‘‘(ee) the Speaker and mi19 nority leader of the House of 

20 Representatives; and 

21 ‘‘(ff) the majority leader and 

22 minority leader of the Senate. 

23 ‘‘(ii) CIRCUMSTANCES.—A cir24 cumstance described in this clause is a cir25 cumstance in which— 


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1 ‘‘(I) the Attorney General sub2 mits a report relating to an instance 

3 described in paragraph (1) that in4 cludes a classified annex containing 

5 information relating to a Presidential 

6 finding described in section 503(a) of 

7 the National Security Act of 1947 (50 

8 U.S.C. 413b(a)); and 

9 ‘‘(II) the President determines 

10 that it is essential to limit access to 

11 the information described in subclause 

12 (I) to meet extraordinary cir13 cumstances affecting vital interests of 

14 the United States.’’. 

15 (b) DEADLINE FOR SUBMISSION.—Section 530D(b) 

16 of such title is amended to read as follows: 

17 ‘‘(b) DEADLINE.—A report shall be submitted— 

18 ‘‘(1) under subsection (a)(1)(A), not later than 

19 30 days after the establishment or implementation 

20 of each policy; 

21 ‘‘(2) under subsection (a)(1)(B), within such 

22 time as will reasonably enable the House of Rep23 resentatives and the Senate to take action, sepa24 rately or jointly, to intervene in timely fashion in the 


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1 proceeding, but in no event later than 30 days after 

2 the making of each determination; 

3 ‘‘(3) under subsection (a)(1)(C) or (a)(1)(D)— 

4 ‘‘(A) not later than 30 days after the date 

5 on which the Attorney General, the Office of 

6 Legal Counsel, or any other officer of the De7 partment of Justice issues the authoritative 

8 legal interpretation of the Federal statutory 

9 provision; or 

10 ‘‘(B) if the President or other responsible 

11 officer of a department or agency established in 

12 the Executive branch of the Federal Govern13 ment, including the Executive Office of the 

14 President and the military departments (as de15 fined in section 101(8) of title 10), issues a di16 rective described in subsection (a)(3) and the 

17 directive is subsequently rescinded, not later 

18 than 30 days after the date on which the Presi19 dent or other responsible officer rescinds that 

20 directive; and 

21 ‘‘(4) under subsection (a)(1)(E), not later than 

22 30 days after the conclusion of each fiscal-year quar23 ter, with respect to all approvals occurring in such 

24 quarter.’’. 


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1 (c) CONTENTS OF REPORTS.—Section 530D(c) of 

2 such title is amended to read as follows: 

3 ‘‘(c) CONTENTS.—A report required by subsection (a) 

4 shall— 

5 ‘‘(1) specify the date of the establishment or 

6 implementation of the policy described in subsection 

7 (a)(1)(A), of the making of the determination de8 scribed in subsection (a)(1)(B), of the issuance of 

9 the authoritative legal interpretation described in 

10 subsection (a)(1)(C) or (a)(1)(D), or of each ap11 proval described in subsection (a)(1)(E); 

12 ‘‘(2) with respect to a report required under 

13 subparagraph (A), (B), (D), or (E) of subsection 

14 (a)(1), specify the Federal statute, rule, regulation, 

15 program, policy, or other law at issue, and the para16 graph and clause of subsection (a)(1) that describes 

17 the action of the Attorney General or other officer 

18 of the Department of Justice; 

19 ‘‘(3) include a complete and detailed statement 

20 of the relevant issues and background (including a 

21 complete and detailed statement of the reasons for 

22 the policy, authoritative legal interpretation, or de23 termination, and the identity of the officer respon24 sible for establishing or implementing such policy, 

25 issuing such authoritative legal interpretation, makVerDate Nov 24 2008 06:16 Jul 30, 2009 Jkt 079200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\H3362.IH H3362

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1 ing such determination, or approving such settle2 ment or compromise), except that— 

3 ‘‘(A) any classified information shall be 

4 provided in a classified annex, which shall be 

5 handled in accordance with the security proce6 dures established under section 501(d) of the 

7 National Security Act of 1947 (50 U.S.C. 

8 413(d)); 

9 ‘‘(B) except for information described in 

10 paragraph (1) or (2), such details may be omit11 ted as may be absolutely necessary to prevent 

12 improper disclosure of information the disclo13 sure of which is prohibited by section 6103 of 

14 the Internal Revenue Code of 1986, any other 

15 statute, or any court order if the fact of each 

16 such omission (and the precise ground or 

17 grounds therefor) is clearly noted in the state18 ment, except that this subparagraph shall not 

19 be construed to deny to the Congress (including 

20 any House, Committee, or agency thereof) any 

21 such omitted details (or related information) 

22 that it lawfully may seek, subsequent to the 

23 submission of the report; and 

24 ‘‘(C) the requirements of this paragraph 

25 shall be deemed satisfied— 


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1 ‘‘(i) in the case of an authoritative 

2 legal interpretation described in subsection 

3 (a)(1)(C) or (a)(1)(D), if a copy of the Of4 fice of Legal Counsel or other legal opinion 

5 setting forth the authoritative legal inter6 pretation is provided; 

7 ‘‘(ii) in the case of an approval de8 scribed in subsection (a)(1)(E)(i), if an 

9 unredacted copy of the entire settlement 

10 agreement and consent decree or order (if 

11 any) is provided, along with a statement 

12 indicating the legal and factual basis or 

13 bases for the settlement or compromise (if 

14 not apparent on the face of documents pro15 vided); and 

16 ‘‘(iii) in the case of an approval de17 scribed in subsection (a)(1)(E)(ii), if an 

18 unredacted copy of the entire settlement 

19 agreement and consent decree or order (if 

20 any) is provided, along with a statement 

21 indicating the injunctive or other nonmone22 tary relief (if not apparent on the face of 

23 documents provided); and 

24 ‘‘(4) in the case of a determination described in 

25 subsection (a)(1)(B) or an approval described in 


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1 subsection (a)(1)(E)(i), indicate the nature, tribunal, 

2 identifying information, and status of the pro3 ceeding, suit, or action.’’. 

4 (d) APPLICABILITY.—Section 530D(e) of such title is 

5 amended by striking ‘‘subsection (a)(1)(A)’’ and inserting 

6 ‘‘subsection (a)(1)(A), issues an authoritative interpreta7 tion described in subsection (a)(1)(C) or (a)(1)(D),’’. 

8 SEC. 403. SIGNATURE REQUIREMENTS FOR LEGAL OPIN9 IONS OF OFFICE OF LEGAL COUNSEL. 

10 An authoritative legal interpretation described in sub11 section (a)(1)(C) or (a)(1)(D) of section 530D of title 28, 

12 United States Code (as amended by section 402(a)), shall 

13 have no legal affect unless the interpretation is signed per14 sonally by the Attorney General. 

15 TITLE V—SEVERABILITY 

16 SEC. 501. SEVERABILITY. 

17 If any provision of this Act or any amendment made 

18 by this Act, or the application of a provision or amend19 ment to any person or circumstance, is held to be uncon20 stitutional, the remainder of this Act and the amendments 

21 made by this Act, and the application of the provisions 

22 and amendments to any person or circumstance, shall not 

23 be affected by the holding. 

Æ 


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