Presidential Signing Statements

On December 29, 2006, the White House released a signing statement for H.R. 6344, the Office of National Drug Control Policy Reauthorization Act of 2006.

On December 21, 2006, the White House released two new signing statements. The first was for H.R. 5076, the National Transportation Safety Board Reauthorization Act of 2006.

The second was for S. 2370, the Palestinian Anti-Terrorism Act of 2006. 

These are the 21st and 22nd signing statements issued in 2006.

On December 20, 2006, the White House released two new signing statements. The first was for H.R. 6111, the Tax Relief and Health Care Act of 2006.

The second was for H.R. 6407, the Postal Accountability and Enhancement Act. 

These are the 19th and 20th signing statements issued in 2006.

The Associated Press reports that on December 14, 2006, Senator Leahy "suggested Congress could dissuade Bush from issuing more signing statements by threatening to withhold funding or blocking nominations." (source: Boston Globe)

On October 17, 2006, President Bush signed the Military Commissions Act of 2006 (H.R. 6166).

In response to a question about whether the administration expected the new law "to end up back in the Supreme Court," White House Press Secretary Tony Snow stated:

"No. I mean, our legal team spent a great deal of time working hard on this. One of the reasons you didn't have, for instance, a signing statement is that we think it all passed constitutional muster. And the people who worked on it have worked very hard. So we'll see."

See, Press Briefing by Tony Snow, White House Conference Center Briefing Room, 1:05 P.M. EDT (October 17, 2006).

One day earlier, this exchange occurred at the White House Press Briefing:

Q Tony, is there going to be a substantial and detailed signing statement with tomorrow's signing?

MR. SNOW: There will be no signing statement.

Later, in the same press briefing:

Q Can I follow on Ken's question? Why no signing statement? Is there any kind of change in policy?

MR. SNOW: Because there's no signing statement. You have signing statements sometimes, and sometimes you just sign it. And possibly to frustrate you guys, because everybody has been waiting for one.

Q What about an executive order?

MR. SNOW: An executive order does not need to be coterminous with the signing. I believe there will, at some point, be need for one. And that one, I'll also get the White House Office of Legal Counsel to give me a precise --

Q But there will at some point?

MR. SNOW: I'm not -- let me find out for sure.

Q Tony, was there any agreement with Congress that there would not be a signing statement?

MR. SNOW: No.

Q This just seems like the kind of bill where there are a lot of things to be interpreted and take a look at.

MR. SNOW: They did a really good job this time.

Q Wow. (Laughter.)

And, finally, there was this exchange:

Q Tony, on signing statements, as you know, the administration has received some criticism for putting out signing statements that include interpretation by the President of sections of the law. So I'm just wondering why, in this instance, you are not putting out a signing statement to explain your interpretation of Article III of the Geneva Convention.

MR. SNOW: Because we believe that the law, in fact, has its own way of addressing that, and we're satisfied with it. As you know, Paula, last week we had a signing statement. Signing statements quite often involve trying to figure -- there are often questions about whether Congress, in putting together provisions of an act, has been fully consistent with the Constitution and whom it charges with executing those laws. And, therefore, we look for ways to maintain fidelity of the Constitution and to the intent of the laws that have been drawn up. We don't think there's such a conflict in this case.

See, Press Briefing by Tony Snow, White House Conference Center Briefing Room, 1:13 P.M. EDT (October 16, 2006)

New from the Congressional Research Service: Presidential Signing Statements: Constitutional and Institutional Implications, Report for Congress RL33667 (September 20, 2006) (source: Federation of American Scientists)

The Congressional Research Service (CRS), a part of the Library of Congress, is a nonpartisan research service that provides public policy and legal analyses to Congress. To learn more about CRS, visit their web site. Because it serves Congress, CRS does not distribute its papers and analyses to the public. CRS reports become available to the public when members of Congress release them. Law schools, universities, executive branch agencies, and other organizations then collect the reports and make them available. CRS reports, while not infallible, are typically meticulously researched and reflect a high degree of competence and intellectual integrity, while honoring CRS's nonpartisan mission. CRS reports are especially useful for those who need fact-centered, thorough overviews of legal and public policy issues of importance to Congress and the nation.

There are many web sites that provide CRS reports. Organizations with significant collections of CRS reports include:

Open CRS
United States Department of State
Thurgood Marshall Law Library, University of Maryland School of Law
University of North Texas Libraries
Federation of American Scientists
United States Diplomatic Mission (Embassy) in Italy
Rules Committee of the United States House of Representatives
(CRS Reports about the legislative process and operation of government)

On November 2, 2002, President Bush issued a signing statement for H.R. 2215, the 21st Century Department of Justice Appropriations Authorization Act (P.L. 107-273). In the signing statement, Bush objected to § 202 of that Act (codified at 28 U.S.C. § 530(D)). The ABA Task Force on Presidential Signing Statements drew attention to this signing statement, noting:

A frustrated Congress finally enacted a law requiring the Attorney General to submit to Congress a report of any instance in which that official or any officer of the Department of Justice established or pursued a policy of refraining from enforcing any provision of any federal statute, but this too was subjected to a ritual signing statement insisting on the President’s authority to withhold information whenever he deemed it necessary.

Report of the ABA Task Force on Presidential Signing Statement, p. 17 n. 62 (July 24, 2006)

In an attempt to find out whether the Department of Justice (DOJ) was complying with the law (which requires the DOJ to submit reports to Congress) or the signing statement (which suggests the Executive Branch would withhold the information required by Congress), Professor Christopher Kelley, a political scientist, sent a Freedom of Information Act request to the DOJ. He requested that the DOJ provide: (i) the number of reports filed with Congress under § 202(A) and (B) of P.L. 107-273, and (ii) copies of those reports. 

So far, the DOJ has sent two responses to this FOIA request. 

The first response was dated April 29, 2005, and the second, August 8, 2006. Taken together, the DOJ responses essentially indicate that the DOJ has searched for a year and five months (from March, 2005, and August, 2006) but has been unable to locate any reports filed with Congress in compliance with § 202.

The second response states that the DOJ is still searching for the requested records, in a different division, and will send a third response when that search is completed.

The DOJ responses to the FOIA request are available here.

The annotated signing statement for P.L. 107-273, including the full text of P.L. 107-273, are available here.

On August 18, 2006, WMUB aired a program on "Presidential Signing Statements and Separation of Powers," with guests Dr. Christopher Kelley, visiting assistant professor of Political Science at Miami University, and Bruce Fein, member of the American Bar Association task force on signing statements and a constitutional lawyer and international consultant with the Lichfield Group in Washington, D.C.

The show originally aired on WMUB Forum, a public affairs production of NPR@88.5 FM, a listener-supported service of Miami University in Oxford, Ohio. WMUB has generously granted me permission to archive the audio files for that show and to make them available here. To listen to the show from this website, use the links below. To stream or podcast the show from WMUB's website, or for more information about WMUB's Forum, please visit http://www.wmub.org/forum/. Many thanks to Executive Producer, John Hingsbergen, and to WMUB for permission.

Hear the entire show:    click here (mp3 file -- 10.9 MB -- 46:49 minutes)  

OR

Hear Part 1:                click here (mp3 file --   2.9 MB -- 12:30 minutes)
Hear Part 2:                click here (mp3 file --   2.4 MB -- 10:30 minutes)
Hear Part 3:                click here (mp3 file --   2.3 MB --   9:49 minutes)
Hear Part 4:                click here (mp3 file --   3.2 MB -- 14:00 minutes)

On July 27, 2006, the Boston Globe reported:

"Senate Judiciary Committee chairman Arlen Specter yesterday introduced legislation that would allow Congress to sue President Bush over his use of signing statements to claim the power to bypass laws, saying that lawmakers must push back against a White House power grab."

To read the text of Specter's bill (S. 3731), as printed by the GPO, click here. To read Senator Specter's statement upon introduction of S. 3731, from the Congressional Record of July 26, 2006, click here.

On Thursday, July 27, 2006, the President signed into law H.R. 9, the "Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006." Senator Patrick Leahy had strongly urged President Bush not to issue a signing statement for the bill, and he introduced remarks and materials into the Congressional Record to document his concerns and communications about signing statements, generally, and several specific bills, including The Voting Rights Act Reauthorization and Amendments Act of 2006. Senator Leahy's remarks and materials appear here:

(1)  Senator Patrick Leahy, Remarks on Voting Rights Act Reauthorization and Amendments Act of 2006, Congressional Record,  Senate S8781 (August 3, 2006) (following up on remarks of July 28, 2006) (source: GPO web site)

(2)  Senator Patrick Leahy, Remarks on Presidential Signing Statements, Congressional Record, Senate S8404 (July 28, 2006) (source: GPO web site)

 

On July 24, 2006, the American Bar Association Task Force on Presidential Signing Statements issued its report. To read the ABA Press Release (Blue-Ribbon Task Force Finds President Bush's Signing Statements Undermine Separation of Powers), click here.

To watch the ABA Task Force's press conference at the National Press Club, click here.

To read Senator Arlen Specter's comments, from the Congressional Record, concerning the ABA Task Force report, click here.

On August 8, 2006, at the annual meeting of the ABA, the House of Delegates (which represents over 410,000 members) approved a resolution opposing the misuse of presidential signing statements. Here is the ABA Press Release.

The ABA website also shows the Task Force report as having been "approved as amended."

Here is the full text of the final resolution, as amended.

You can stream the debate from the ABA's website. 

On July 19, 2006, the President vetoed the Stem Cell Research Enhancement Act of 2005.  To read the President's veto message, click here. To read the bill that was vetoed, click here.

To see the Statement of Administration Policy issued by the White House prior to the veto, click here (source: White House website). The press briefing by Tony Snow prior to the veto is here.

On July 12, 2006, the New York Times reported the release of the memorandum and made the document available at the New York Times online. It is now available, at this website, in the annotations to the President's signing statement for the Detainee Treatment Act (Public Law 108-458).

On Saturday, July 8, 2006, the New York Times reported: "In a sharply worded letter to President Bush in May, an important Congressional ally charged that the administration might have violated the law by failing to inform Congress of some secret intelligence programs and risked losing Republican support on national security matters." 

A link to the full letter appears in the Times article and in the annotations, below, for the signing statement for the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law No. 108-458.

 On Thursday, June 29, 2006, the United States Supreme Court issued its opinion in Hamdan v. Rumsfeld.  In his dissent, Justice Antonin Scalia cited the President's Statement on Signing of H.R. 2863, the "Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006," which was issued December 30, 2005, and which addresses, in part, the Detainee Treatment Act of 2005.  In the main body of his dissent, Scalia stated:

Of course in its discussion of legislative history the Court wholly ignores the President’s signing statement, which explicitly set forth his understanding that the DTA ousted jurisdiction over pending cases. (emphasis original)

Footnote 5 of Scalia's dissent, on page 115 of the slip opinion, quotes part of the signing statement.

Justice Thomas, also dissenting, referred to "the Executive's unity:"

As I explained in Hamdi v. Rumsfeld, 542 U. S. 507 (2004), the structural advantages attendant to the Executive Branch--namely, the decisiveness, "'activity, secrecy, and dispatch'" that flow from the Executive's "'unity,"' id., at 581 (dissenting opinion) (quoting The Federalist No. 70, p. 472 (J. Cooke ed. 1961) (A. Hamilton))--led the Founders to conclude that the "President ha[s] primary responsibility--along with the necessary power--to protect the national security and to conduct the Nation's foreign relations." 542 U. S., at 580.

Hamden, slip opinion at 127-128. 

Two Congressional enactments contained provisions related to treatment of detainees. The first was Public Law 109-3. Click here to read the text of PL 109-3, the signing statement for that law, and the annotations.

A second Congressional enactment, Public Law 109-163, also contained a Detainee Treatment Act. To see the text of PL 109-163, the signing statement for that law, and the annotations, click here.