Arlen Specter: Senator Arlen Specter Introduces Presidential Signing Statements Legislation

July 3rd, 2007 -- Washington, D.C. - U.S. Senator Arlen Specter, ranking member on the Senate Judiciary Committee, introduced on Friday legislation to regulate the use of presidential signing statements in the interpretation of an Act of Congress. The Presidential Signing Statements Act of 2007, S. 1747, has been referred to the Senate Judiciary Committee.

“Presidential signing statements can render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced,” Senator Specter said. “This legislation reinforces the system of checks and balances and separation of powers set out in our Constitution.”

The bill seeks to protect the constitutional system of checks and balances by, first, preventing the President from issuing a signing statement that alters the meaning of a statute by instructing the courts not to rely on signing statements in interpreting an act; and second, granting Congress the power to participate in any case where the construction or constitutionality of an act of Congress is in question and a signing statement was issued when the act was signed.

While there are legitimate uses for signing statements, such as instruction for the executive branch on how to administer a law, this legislation seeks to curtail the President from using a signing statement to rewrite the words of a statute or using a signing statement to selectively nullify provisions he does not like.

This bill is similar in substance to the Presidential Signing Statements Act of 2006, which Senator Specter introduced on July 26, 2006. The Senate Judiciary Committee also held a hearing on this topic on June 27, 2006.

A copy of Senator Specter’s floor statement is below.

Mr. President, I seek recognition today to offer the Presidential Signing Statements Act of 2007. The purpose of this bill is to regulate the use of Presidential Signing Statements in the interpretation of acts of Congress. This bill is similar in substance to the Presidential Signing Statements Act of 2006, which I introduced on July 26, 2006. The Senate Judiciary Committee also held a hearing on this topic on June 27, 2006.

I believe that this is necessary to protect our constitutional system of checks and balances. This bill achieves that goal in the following ways.

First, it prevents the President from issuing a signing statement that alters the meaning of a statute by instructing Federal and State courts not to rely on Presidential signing statements in interpreting a statute.

Second, it grants Congress the power to participate in any case where the construction or constitutionality of any act of Congress is in question and a presidential signing statement for that act was issued by (i) allowing Congress to file an amicus brief and present oral argument in such a case; (ii) instructing that if Congress passes a joint resolution declaring its view of the correct interpretation of the statute, the court must admit that resolution into the case record; and (iii) providing for expedited review in such a case.

Presidential signing statements are nothing new. Since the days of President James Monroe, Presidents have issued statements when signing bills. It is widely agreed that there are legitimate uses for signing statements. For example, Presidents may use signing statements to instruct executive branch officials how to administer a law. They may also use them to explain to the public the likely effect of a law. And, there may be a host of other legitimate uses.

However, the use of signing statements has risen dramatically in recent years. When I introduced the Presidential Signing Statement bill last year, I noted that as of June 26, 2006, President Bush had issued 132 signing statements. Since then, he has issued an additional 17 statements, for a total of 149 to date. In comparison, President Clinton issued 105 signing statements during his two terms. Moreover, President Bush's signing statements often raise objections to several provisions of a law. For example, a recent report by the Government Accountability Office released June 18, 2007, found that, for 11 appropriations acts for fiscal year 2006, President Bush issued signing statements identifying constitutional concerns or objections to 160 different provisions appearing in the acts. While the mere numbers may not be significant, the reality is that the way the President has used those statements threatens to render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced.

The President cannot use a signing statement to rewrite the words of a statute nor can he use a signing statement to selectively nullify those provisions he does not like. This much is clear from our Constitution. The Constitution grants the President a specific, narrowly defined role in enacting legislation. Article I, section 1 of the Constitution vests ``all legislative powers . . . in a Congress.'' Article I, section 7 of the Constitution provides that when a bill is presented to the President, he may either sign it or veto it with his objections. He may also choose to do nothing, thus rendering a so-called pocket veto. The President, however, cannot veto part of bill, he cannot veto certain provisions he does not like.

The Founders had good reason for constructing the legislative process as they did: by creating a bicameral legislature and then granting the President the veto power. According to The Records of the Constitutional Convention, the veto power was designed by our Framers to protect citizens from a particular Congress that might enact oppressive legislation. However, the Framers did not want the veto power to be unchecked, and so, in article I, section 7, they balanced it by allowing Congress to override a veto by two-thirds vote.

As I stated when I introduced the Presidential Signing Statement bill last year, this is a finely structured constitutional procedure that goes straight to the heart of our system of check and balances. Any action by the President that circumvents this finely structured procedure is an unconstitutional attempt to usurp legislative authority. If the President is permitted to rewrite the bills that Congress passes and cherry pick which provisions he likes and does not like, he subverts the constitutional process designed by our Framers.

The Supreme Court has affirmed that the constitutional process for enacting legislation must be safeguarded. As the Supreme Court explained in INS v. Chahda, ``It emerges clearly that the prescription for legislative action in article I, section 1 and 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.''

So, while signing statements have been commonplace since our country's founding, we must make sure that they are not being used in an unconstitutional manner; a manner that seeks to rewrite legislation, and exercise line item vetoes.

As I have previously explained, President Bush has used signing statements in ways that have raised some eyebrows. An example is the signing statement accompanying Senator McCain's ``anti-torture amendment'' to the Department of Defense Emergency Supplemental Appropriations Act, otherwise known as the ``McCain Amendment.'' In that legislation, Congress voted by an overwhelming majority, 90 to 9, to ban all U.S. personnel from inflicting ``cruel, inhuman or degrading'' treatment on any prisoner held anywhere by the United States. President Bush, who had threatened to veto the legislation, instead invited Senator McCain to the White House for a public reconciliation and declared they had a mutual goal: to make it clear to the world that this government does not torture and that we adhere to the international convention of torture.''

Now from that, you might conclude that by signing the McCain amendment into law, President Bush and his administration has fully committed to not using torture. But you would be wrong. After the public ceremony of signing the bill into law, the President issued a signing statement saying his administration would construe the new law ``in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.'' This vague language may mean that, despite the enactment of the McCain Amendment, the administration may still be preserving a right to inflict torture on prisoners and to evade the International Convention Against Torture.

Now, the National Defense Authorization Bill, like the McCain amendment, has a crucial provision regarding torture: it provides that the Combatant Status Review Tribunals, CSRTs, in Guantanamo Bay ``may not consider a [detainee's] statement that was obtained through methods that amount to torture.'' See section 1023(4)(e). But who knows how this provision will be enforced if deemed inconsistent with the unitary executive theory?

And, the McCain amendment is just the tip of the iceberg: On close examination of the same signing statement, we see that President Bush has declared the right to construe the entire Detainee Treatment Act and all provisions relating to detainees, in a manner consistent with the unitary executive theory and with his powers as Commander and Chief. This is extremely troublesome. Like the DTA, this bill has crucial sections relating to detainees. Specifically, this bill contains much-needed provisions that protect detainees' due process rights in CSRT procedures, including allowing detainees a right to legal counsel, a right to compel and cross examine witnesses, and a right to have their status determined by a military judge. Should a similar signing statement be issued to S. 1547, that all sections related to detainees will be construed in a certain way, there is really no way to know how these crucial provisions will be enforced.

We must ensure that such provisions, and for that matter, any and all provisions in this bill, are not subject to revision by a Presidential signing statement.

In addition to these examples, I have noted another instance in which a questionable signing statement was issued, for the PATRIOT Act. We passed the PATRIOT Act after months of deliberation. We debated nearly every provision, often redrafting and revising. Moreover, we worked very closely with the President because we wanted to get it right. We wanted to make sure that we were passing legislation that the executive branch would find workable. In fact, in many ways, the process was an excellent example of the legislative branch and the executive branch working together towards a common goal.

In the end, the bill that was passed by the Senate and the House contained several oversight provisions intended to make sure the FBI did not abuse the special terrorism-related powers to search homes and secretly seize papers. It also required Justice Department officials to keep closer track of how often the FBI uses the new powers and in what type of situations.

The President signed the PATRIOT Act into law, but afterwards, he wrote a signing statement that said he could withhold any information from Congress provided in the oversight provisions if he decided that disclosure would ``impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive's constitutional duties.''

As I noted last year, during the entire process of working with the President to draft the PATRIOT Act, he never asked the Congress to include this language in the act. At a hearing we held last June on signing statements, I asked an executive branch official, Michelle Boardman from the Office of Legal Counsel, why the President did not ask the Congress to put the signing statement language into the bill. She simply didn't have an answer.

Given this backdrop, I believe this bill is necessary. As I noted when I introduced the Presidential Signing Statement bill last summer, this bill does not seek to limit the President's power, and it does not seek to expand Congress's power. Rather, this bill simply seeks to safeguard our Constitution.

This bill will provide courts with much-needed guidance on how legislation should be interpreted. The recent GAO report on Presidential Signing Statements found that Federal courts cited or referred to presidential signing statements in 137 different opinions reported from 1945 to May 2007. It also shows that the Supreme Court's reliance on presidential signing statements has been sporadic and unpredictable. In some cases, such as United States v. Lopez, 115 S.Ct. 1624 at 1631, 1995, where the Court struck down the Gun-Free School Zones Act, the Supreme Court has relied on Presidential signing statements as a source of authority to interpret an act, while in other cases, such as the military tribunals case, Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006), Scalia dissenting, it has conspicuously declined to do so. This inconsistency has the unfortunate result of rendering the effect of Presidential signing statements on Federal law unpredictable.

As I stated when I initially introduced the Presidential Signing Statements Act of 2006, it is well within Congress's power to resolve judicial disputes such as this by enacting rules of statutory interpretation. In fact, the Department of Defense Authorization bill already contains at least one ``rule of construction'' provision. See section 845(e). This power flows from article 1, section 8, clause 18 of the Constitution, which gives Congress the power ``To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.'' Rules of statutory interpretation are ``necessary and proper'' to execute the legislative power.

Several scholars have agreed: Jefferson B. Fordham, a former dean of the University of Pennsylvania Law School said, ``[I]t is within the legislative power to lay down rules of interpretation for the future;'' Mark Tushnet, a professor at Harvard Law School explained, ``In light of the obvious congressional power to prescribe a statute's terms, and so its meaning, congressional power to prescribe interpretive methods seems to me to follow;'' Michael Stokes Paulsen, an associate dean of the University of Minnesota Law School noted, ``Congress is the master of its own statutes and can prescribe rules of interpretation governing its own statutes as surely as it may alter or amend the statutes directly.'' Finally, J. Sutherland, the author of the leading multivolume treatise for the rules of statutory construction has said, ``There should be no question that an interpretive clause operating prospectively is within legislative power.''

Furthermore, any legislation that sets out rules for interpreting an act makes legislation more clear and precise, which is exactly what we aim to achieve here in Congress. Congress can and should exercise this power over the interpretation of Federal statutes in a systematic and comprehensive manner.

Put simply, this bill seeks to implement measures that will safeguard the constitutional structure of enacting legislation. In preserving this structure, this bill reinforces the system of checks and balances and separation of powers set out in our Constitution, and I urge my colleagues to support it.

Source: Senate Arlen Specter