News About Signing Statements
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On December 31, 2007, the White House released a signing statement for S. 2271, the "Sudan Accountability and Divestment Act of 2007."
It is the 8th issued by the White House in 2007 and the very last signing statement issued by George W. Bush.
On December 28, 2007, the White House released a Memorandum of Disapproval announcing the President's intent to pocket veto H.R. 1585, the "National Defense Authorization Act for Fiscal Year 2008." The GPO version of the memo appears at 43 WCPD 1641 (December 31, 2007).
On December 26, 2007, the White House released a signing statement for H.R. 2764, the "Consolidated Appropriations Act, 2008."
It was the 7th issued by the White House in 2007.
On December 12, 2007, the White House released the signing statement for H.R. 1429, the "Improving Head Start for School Readiness Act of 2007."
This is the 6th signing statement issued by the White House in 2007, and it is a rhetorical statement.
On December 12, 2007, President Bush vetoed H.R. 3963, the "Children's Health Insurance Program Reauthorization Act of 2007." The veto message appears on the White House website.
On November 13, 2007, the White House released a signing statement for H.R. 3222, the "Department of Defense Appropriations Act, 2008."
This is the fifth signing statement issued in 2007, the fourth that pertains to an act of the 110th Congress, and the 153rd issued by President Bush.
On November 13, 2007, President Bush vetoed H.R. 3043, the "Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2008." The veto message is available from the GPO's Weekly Compilation of Presidential Documents.
On October 16, 2007, PBS aired an edition of Frontline, entitled "Cheney's Law." The program details the assertions of expansive presidential powers advanced by key members of George W. Bush's administration, including Vice President Dick Cheney, David Addington (the primary author of the signing statements), John Yoo, and others.
"Cheney's Law" can be viewed in its entirety online at this link on PBS's website. Chapter 6 of the program deals directly and in depth with the signing statement for the Detainee Treatment Act, more commonly known as the McCain anti-torture amendment. Frontline has also posted a webpage dedicated to signing statements that is well worth visiting.
The Frontline program does a good job of placing signing statements in their proper context within the much larger efforts to embed the "unitary executive" theory in the legal framework and popular understanding of American government. The Frontline program goes a long way towards explaining the consequences of the "unitary executive" for the United States Constitution, the citizens, and America's role and reputation in the world.
On October 15, 2007, Ron Paul (R-TX) introduced HR 3835, entitled the ‘‘American Freedom Agenda Act of 2007,’’ the stated purpose of which is: "to restore the Constitution’s checks and balances and protections against government abuses as envisioned by the Founding Fathers." Among the topics addressed by the bill are: (1) repeal of the Military Commissions Act of 2006; (2) restoration of habeas corpus; (3) prohibiting torture and coerced confessions; (4) subordinating presidential power to gather foreign intelligence to the FISA Act (50 U.S.C. 1801 et seq.); (5) addressing extraordinary rendition. The foregoing list is not inclusive.
The bill also addresses presidential signing statements, providing in § 6:
The House of Representatives and Senate collectively shall enjoy standing to file a declaratory judgment action in an appropriate Federal district court to challenge the constitutionality of a presidential signing statement that declares the President’s intent to disregard provisions of a bill he has signed into law because he believes they are unconstitutional.
The GPO print of the full text of HR 3835 as introduced is available here.
In August, 2007, the Congressional Research Service updated its report "Presidential Directives: Background and Overview," which "provides an overview of the different kinds of directives that have primarily been utilized by 20th century Presidents." The report presents "background on the historical development, accounting, use, and effect of such directives." Presidential documents explained in the report include: administrative orders; certificates; designations of officials; executive orders; general licenses; Homeland Security presidential directives; interpretations; letters on tariffs and international trade; military orders; various National Security instruments; presidential announcements; presidential findings; presidential reorganization plans; proclamations; and regulations.
On October 3, President Bush vetoed H.R. 976, the "Children's Health Insurance Program Reauthorization Act of 2007." His veto message is available on the White House website.
On September 17, 2007, the Congressional Research Service (CRS) issued an update to its report, Presidential Signing Statements: Constitutional and Institutional Implications, Report for Congress RL33667 (updated September 17, 2007). The update is notable for several reasons, including: updated counts; the CRS's response to the GAO report on signing statements; adjustments to the CRS's comparisons of recent administrations' uses of signing statements; incorporation of findings from new empirical legal research by Neil Kinkopf concerning President Bush's signing statements; and revisions to conclusions.
In September of 2007, Neil Kinkopf, associate professor of law at Georgia State University College of Law and former special assistant in the Office of Legal Counsel at the Department of Justice, issued a list of "every provision of a law objected to by the White House in a signing statement [between 2001 and 2007], the reason for the objection, and a link to the relevant signing statement." The index is available for download at the website for the American Constitution Society for Law and Policy. Professor Kinkopf demonstrates that President Bush's signing statements challenge more than 1,000 provisions of federal law. This research provides a second independent academic count of the laws affected by the signing statements issued by President Bush. According to the ACS website, the new index is a companion piece to Professor Kinkopf's paper, Signing Statements and the President's Authority to Refuse to Enforce the Law, which addresses whether and when the President may refuse to enforce a law that the President regards as unconstitutional.
On September 14, 2007, the White House released a signing statement for S. 1, the ""Honest Leadership and Open Government Act of 2007."
This is the fourth signing statement issued in 2007, the third that pertains to an act of the 110th Congress, and the 152nd issued by President Bush.
On August 9, 2007, the White House released a signing statement for the "America COMPETES Act."
This is the third signing statement issued in 2007, the second that pertains to an act of the 110th Congress, and the 151st issued by President Bush.
On August 3, 2007, the White House Office of the Press Secretary released a signing statement for the "Implementing Recommendations of the 9/11 Commission Act of 2007."
This is the first signing statement issued by President Bush pertaining to an act passed by the 110th Congress.
On 29 June 2007, Senator Arlen Specter (R-Pa) introduced legislation (S. 1747) in the 110th Congress concerning presidential signing statements. The GPO print of the bill, as introduced, is available here. Senator Specter's press release concerning the bill is available here.Senator John Kerry (D-Ma) is a co-sponsor.
S. 1747 was referred to the Committee on the Judiciary.
The Congressional Research Service, a nonpartisan research service that provides public policy and legal analyses to Congress, has recently updated a report addressing whether Congress has the constitutional authority to legislate limits on the President’s authority to conduct military operations in Iraq. The report also addresses whether an outright repeal of the Authorization to Use Military Force (AUMF) in Iraq would have any effect. The report provides historical and legal context for President Bush's statement upon signing the Iraq AUMF, and it addresses constitutional issues of separation of powers and oversight concerning use and direction of the military.
CRS Report for Congress RL33837: Congressional Authority to Limit U.S. Military Operations in Iraq (updated July 11, 2007) (source: Federation of American Scientists)
On 29 June 2007, Senator Arlen Specter (R-Pa) introduced legislation (S. 1747) in the 110th Congress concerning presidential signing statements. The text of the proposed legislation, as introduced, is available here. Senator Specter's press release concerning the bill is available here. Senator John Kerry (D-Ma) is now a co-sponsor.
On 16 July 2007, Representative Carol Shea-Porter (D-NH) introduced HR 3045 on the same topic. It appears to be identical to S. 1747. The text, as introduced, is available here.
Senator Specter also sponsored a bill on presidential signing statements during the 109th Congress. More information about the prior bill is available here.
On 18 June 2007, Senator Robert Byrd (D-WVa) and Representative John Conyers (D-MI) released a GAO letter opinion regarding "Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts." The report provides, in the opening summary:
This letter responds to your request that we examine the fiscal year 2006 appropriations acts and the President's accompanying signing statements to identify the provisions in the acts to which the President took exception and to determine how the President executed those provisions. We also examined how the federal courts have treated signing statements in their published opinions.
We found that in 11 signing statements the President singled out 160 specific provisions from the fiscal year 2006 appropriations acts. We examined 19 of these provisions to determine whether the agencies responsible for their execution carried out the provisions as written.1 Of these 19 provisions, 10 provisions were executed as written, 6 were not, and 3 were not triggered and so there was no agency action to examine.2 With regard to the use of signing statements by the federal courts, we found that they cite or refer to them infrequently and only in rare instances have relied on them as authoritative interpretations of the law.
GAO Letter Opinion B-308603, pg. 1 (June 18, 2007) (footnotes omitted). The entire letter opinion is available here.
Over the last year and a half, some commentators and legal scholars have asserted that public and political criticism about signing statements has been unwarranted. These commentators have argued that critics of signing statements have produced no evidence that executive branch agencies have actually failed to enforce any laws that have been subjected to signing statements. The GAO's findings should put that argument to rest.
The GAO opinion further provides, on page 9: "Although we found the agencies did not execute the provisions as enacted, we cannot conclude that agency noncompliance was the result of the President’s signing statements."
Senator Specter also sponsored a bill on presidential signing statements during the 109th Congress. More information about the prior bill is available here.
On June 20, 2007, the President vetoed S. 5, the "Stem Cell Research Enhancement Act of 2007." The President's veto message to the Senate is here. His statement to the press is here. To see the Statement of Administration Policy sent by the White House to Rules Committee of the House of Representatives prior to the veto, click here. The White House SAP sent to the Senate is here. Also on June 20, the President also issued an Executive Order entitled, "Expanding Approved Stem Cell Lines in Ethically Responsible Ways."
The Congressional Research Service, a nonpartisan research service that provides public policy and legal analyses to Congress, has recently updated two reports relevant to presidential signing statements.
The CRS report, Presidential Signing Statements: Constitutional and Institutional Implications, Report for Congress RL33667, was updated April 13, 2007. The last prior version was issued September 20, 2006. The older version is available here.
In addition, the CRS report, Congressional Oversight Manual, Report for Congress RL30240, was updated on May 1, 2007. The last prior version was issued October 21, 2004. The older version is available here.
My source for all versions of these two reports is the Federation of American Scientists.
On May 1, 2007, the President vetoed H.R.1591, the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007. The President's veto message to the House of Representatives is here. His statement to the press is here. To see the Statement of Administration Policy issued by the White House prior to the veto, click here (source: White House web site).
The Congressional Research Service has issued an updated report for Congress concerning the legal effects, under international and American law, of declarations of war and authorizations of the use of military force (AUMFs), including the AUMFs that authorized the military actions in Afghanistan and Iraq (respectively, P.L.107-40 and P.L. 107-243). President Bush issued signing statements for both AUMFs, apparently claiming that the Executive branch did not need Congressional authority to conduct military action in response to the attacks of September 11, 2001. President Bush's signing statement for the AUMF (P.L 107-40) that preceded military action in Afghanistan provides:
In signing this resolution, I maintain the longstanding position of the executive branch regarding the President's constitutional authority to use force, including the Armed Forces of the United States and regarding the constitutionality of the War Powers Resolution.
Similarly, the President's signing statement for the Iraq AUMF (P.L. 107-243) refers to the signing statement for P.L. 107-40 and further states:
While I appreciate receiving that support, my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President's constitutional authority to use force to deter, prevent, or respond to aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.
The CRS report (released by the Federation of American Scientists) discusses these AUMFs and signing statements, and it also provides an important, extensive listing and discussion of Presidential standby authorities that are triggered by AUMFs and declarations of war.
Senator Jim Webb (D-Va) has questioned the Bush administration's interpretations of these AUMFs. In a recent letter to the Secretary of State, Webb stated:
Remarks made by members of this administration strongly suggest that the administration wrongly believes that the 2002 joint resolution authorizing use of force in Iraq can be applied in other instances, such as in the case of Iran. I, as well as the American people, would benefit by fully understanding the administration’s unequivocal response.
On March 5, 2007, Senator Webb introduced legislation to prohibit the use of military funds for military operations in Iran without the consent of the Congress. Senator Webb explained the impetus for this proposed legislation:
The major function of the amendment, again, is to restore the constitutional balance. No administration should have the power to commence unprovoked military activities against Iran or any other nation with [sic]* the approval of the Congress.
But the issue of the day is Iran. I am offering this amendment partly due to my concern over President Bush's signing statement that accompanied the 2002 Congressional Resolution authorizing the use of force in Iraq. That amendment, if you read it carefully, indicates that this Administration believes it possesses the broadest imaginable authority to commence military action without the consent of the Congress. And it should not be left unanswered by this body.
*[Ed. Note: "with" is apparently a typographical error; apparent intent was "without." See second sentence of next paragraph.]
Senator Webb's press releases are archived here: (1) Press release of January 30, 2007, including text of letter to Secretary of State; and (2) Press release of March 27, 2007, including Senator Webb's floor statement upon introduction of his Iran amendment to the Iraq supplemental bill. Webb later withdrew the amendment.
A group of prominent conservatives has announced the launch of the American Freedom Agenda (AFA), an organization whose mission includes a ten-point statutory agenda to restore checks and balances in federal government and to address encroachments by the Executive branch upon the powers of the Judicial and Legislative branches. The AFA agenda specifically calls for legislation to prevent unconstitutional Presidential encroachment on Congress's legislative prerogatives through the use of presidential signing statements. The principals of the AFA are: Bruce Fein, Bob Barr, David Keene, and Richard Viguerie (biographies provided by the AFA).
The Bill of Rights Journal Symposium at the Marshall-Wythe School of Law at William and Mary University hosted a three-part symposium entitled, "The Last Word? The Constitutional Implications of Presidential Signing Statements," on Saturday, February 3, 2007. Streaming video and audio are available here.
The Committee on the Judiciary for the United States House of Representatives conducted an oversight hearing entitled "Presidential Signing Statements under the Bush Administration: A Threat to Checks and Balances and the Rule of Law?" The committee chair's opening statement is here. The witness list is here.
On January 22, 2007, in response to President Bush's signing statement for H.R. 6407, the Postal Accountability and Enhancement Act, the American Civil Liberties Union (ACLU) filed three Freedom of Information Act (FOIA) requests, seeking information concerning warrantless mail surveillance. The ACLU's press release is here. The three FOIA requests are available here. One of the FOIA requests is directed to the U.S. Postal Service; another is directed to the Office of the Director of National intelligence; and the third is directed to the Justice Department.
On January 12, 2007, the White House released a signing statement for H.R. 5946, the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006.
On January 10, 2007, Senator Susan Collins (R-Maine) introduced Senate Resolution 22, relating to President Bush's signing statement for H.R. 6407, the Postal Accountability and Enhancement Act. The text of the resolution, and Senator Collins's remarks upon introducing the resolution, are available here on pages S394 and S395 of the Congressional Record.
The Raw Story reports that Senator Russ Feingold (D-Wisconsin) delivered a letter to President Bush concerning the same signing statement on January 8, 2007.
Also on January 4, 2007, Tony Snow responded to reporters' questions about the statement at a White House press briefing.