                          Presidential Signing Statements
This testimony discusses the purpose and history of presidential signing statements.

                                                                                       January 31, 2007

           STATEMENT BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY

    Mr. Chairman, Ranking Member Smith, and Members of the Committee, I
appreciate the opportunity to appear here today to discuss the purpose and history
of presidential signing statements.
    Like most Presidents before him, President Bush occasionally issues statements
on signing legislation into law. Presidents have used these “signing statements” for
a variety of purposes. At times Presidents use signing statements to explain to the
public why the President endorses a bill and what the President understands to be
its likely effect. At other times, Presidents use the statements to guide subordinate
officers within the Executive Branch in enforcing or administering a particular
provision.
    Presidents throughout history also have issued what may be called “constitu-
tional” signing statements, and it is this use of the signing statement that has
recently been the subject of public attention. Presidents are sworn to “preserve,
protect, and defend the Constitution,” and thus are responsible for ensuring that
the manner in which they enforce acts of Congress is consistent with America’s
founding document. Presidents have long used signing statements for the purpose
of “informing Congress and the public that the Executive believes that a particular
provision would be unconstitutional in certain of its applications,” The Legal
Significance of Presidential Signing Statements, 17 Op. O.L.C. 131, 131 (1993)
(“Presidential Signing Statements”), or for stating that the President will interpret
or execute provisions of a law in a manner that would avoid possible constitutional
infirmities. As Assistant Attorney General Walter Dellinger noted early during the
Clinton Administration, “[s]igning statements have frequently expressed the
President’s intention to construe or administer a statute in a particular manner
(often to save the statute from unconstitutionality).” Id. at 132.
    President Bush, like many of his predecessors dating back to President James
Monroe, has issued constitutional signing statements. The constitutional concerns
identified in these statements often pertain to provisions of law that could be read
to infringe explicit constitutional provisions (such as the Recommendations
Clause, the Presentment Clauses, and the Appointments Clause) or to violate
specific constitutional holdings of the Supreme Court. (Common examples are set
forth in Part II below.) As such, President Bush’s signing statements are indistin-
guishable from those issued by past Presidents. As the Congressional Research
Service concluded in its recent comprehensive study, “it is important to note that
the substance of [President Bush’s] signing statements do not appear to differ



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substantively from those issued by either Presidents Reagan or Clinton.” T.J.
Halstead, Cong. Research Serv., Presidential Signing Statements: Constitutional
and Institutional Implications at CRS-12 (Sept. 20, 2006); accord Curtis A.
Bradley & Eric A. Posner, Signing Statements: It’s a President’s Right, Boston
Globe, Aug. 3, 2006 (“The constitutional arguments made in President Bush’s
signing statements are similar—indeed, often almost identical in wording—to
those made in Bill Clinton’s statements.”). In addition, the number of such
statements issued by President Bush is in keeping with the number issued by every
President during the past quarter century.
    It is important to establish at the outset what presidential signing statements are
not: an attempt to “cherry-pick” among the parts of a duly enacted law that the
President will choose to follow, or an attempt unilaterally to redefine what the law
is after its enactment. Presidential signing statements are, rather, a statement by the
President explaining his interpretation of and responsibilities under the law, and
they are therefore an essential part of the constitutional dialogue between the
branches that has been a part of the etiquette of government since the early days of
the Republic. Nor are signing statements an attempt to “override” duly enacted
laws, as some critics have suggested. Many constitutional signing statements are
an attempt to preserve the enduring balance between coordinate branches of
government, but this preservation does not mean that the President will not enforce
the provision as enacted.
    One common example illustrates the natural course by which a President may
object to a constitutionally problematic provision without deviating from the text
of a statute or failing to abide by its provisions. In the Appointments Clause
context discussed below, Congress sometimes attempts to place undue restrictions
on the pool from which the President may select appointment candidates. As a
mandatory directive to the President, such restrictions violate the Appointments
Clause, U.S. Const. art. II, § 2, as each of the past four Presidents has noted in
signing statements. If construed as a recommendation from Congress, however,
these appointments provisions are constitutional and are often routinely followed.
A constitutional signing statement on this issue, therefore, is not a declaration that
the President will not follow the appointments provisions, but that he remains free
to abide by them as a matter of policy. And it is commonly the case that Presidents
do abide by such appointment provisions.
    Similarly, a surprising number of newly enacted statutes seek to require the
approval of a congressional committee before execution of a law, despite well-
settled Supreme Court precedent that such “legislative veto” provisions violate the
Presentment and Bicameralism Clauses of the Constitution, art. I, § 7. See INS v.
Chadha, 462 U.S. 919, 958 (1983). More than 20 years after that clearly control-
ling Supreme Court decision, unconstitutional legislative veto provisions remain
so common that President Bush has had to raise the issue in approximately 55 of
his 126 constitutional signing statements. See, e.g., Statement on Signing the




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Military Quality of Life and Veterans Affairs Appropriations Act, 41 Weekly
Comp. Pres. Doc. 1799, 1799 (Nov. 30, 2005) (“The Constitution requires
bicameral passage, and presentment to the President, of all congressional actions
governing other branches, as the Supreme Court of the United States recognized in
INS v. Chadha (1983), and thus prohibits conditioning executive branch action on
the approval of congressional committees. Many provisions of the Act conflict
with this requirement and therefore shall be construed as calling solely for
notification, including the following: ‘Department of Defense Base Closure
Account 2005,’ ‘Department of Veterans Affairs, Information Technology
Systems,’ ‘Department of Veterans Affairs, Construction, Major Projects,’ and
sections 128, 129, 130, 201, 211, 216, 225, 226, 227, and 229.”); Statement on
Signing the Agriculture, Rural Development, Food and Drug Administration, and
Related Agencies Appropriations Act, 41 Weekly Comp. Pres. Doc. 1701, 1701
(Nov. 10, 2005) (“The executive branch shall construe certain provisions of the
Act that purport to require congressional committee approval for the execution of
a law as calling solely for notification, as any other construction would be
inconsistent with the principles enunciated by the Supreme Court of the United
States in INS v. Chadha.”).
    When constitutionally problematic provisions such as these are placed in oth-
erwise constitutional bills, signing statements serve the appropriate function of
reminding Congress and members of the Executive Branch of the deficiency.
Again, however, President Bush and past Presidents to our knowledge have not
ignored these provisions, but have instead done their utmost to apply them in a
manner that does not violate the Constitution by ordering Executive Branch
officials to notify congressional committees as anticipated by the provisions. See
id. In short, where a President has no choice but to avoid a constitutional violation,
the President’s best course is to announce publicly his intention to construe the
provision constitutionally. Where the constitutional violation stems not from the
substance of a provision but from its mandatory nature, as with the Appointments
Clause, the President’s best course is to note the deficiency, leaving the President
free to act in accordance with the provision as a matter of policy.
    In another category of cases, Presidents recognize a statute as constitutional on
its face, and anticipate that it will be applied constitutionally, but also foresee that
in extreme or unanticipated circumstances it could raise the possibility of an
unconstitutional application. An appropriate signing statement may therefore
announce that the President fully intends to apply the law as far as possible,
consistent with his duty to the Constitution.
    The charge that constitutional signing statements are a “power grab” and en-
croach on Congress’s power to write the law is fundamentally flawed. Signing
statements do not alter the constitutional balance between the President and
Congress. That is established by the Constitution itself, and neither the President
nor Congress can alter it through their actions. Signing statements do not expand




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the President’s authority: The President cannot adopt the provisions he prefers and
ignore those he does not; he must execute the law as the Constitution requires. Nor
do signing statements diminish congressional power. Congress has no power to
enact unconstitutional laws, and that is true whether the President issues a
constitutional signing statement or not.

                                          I.

   Signing statements have been an integral part of the constitutional dialogue
between the branches of government since the early days of the Republic. After a
thorough study, Assistant Attorney General Dellinger concluded that the use of
signing statements “to raise and address the legal or constitutional questions . . .
presented by” enrolled bills “can be found as early as the Jackson and Tyler
Administrations, and later presidents, including Lincoln, Andrew Johnson,
Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Lyndon
Johnson, Nixon, Ford and Carter, also engaged in the practice.” Presidential
Signing Statements, 17 Op. O.L.C. at 138. Even as early as 1822, President James
Monroe issued a signing statement in which he stated that he would construe a
statutory provision in a manner that did not conflict with his prerogative to appoint
officers. Letter to the Senate of the United States (Apr. 13, 1822), in 2 A Compila-
tion of the Messages and Papers of the Presidents 698 (James D. Richardson ed.,
1897). In 1830, Andrew Jackson “signed a bill and simultaneously sent to
Congress a message” setting forth his interpretation “that restricted the reach of
the statute.” Presidential Signing Statements, 17 Op. O.L.C. at 138 (quoting Louis
Fisher, Constitutional Conflicts between Congress and the President 128 (3d ed.
1991)).
   The use of the constitutional signing statement has become more common in
recent presidencies, beginning with President Reagan. While the task of counting
constitutional signing statements is inexact because of the difficulty of characteriz-
ing such statements, Presidents Reagan, George H.W. Bush, Clinton, and George
W. Bush have apparently issued constitutional signing statements with respect to
similar numbers of laws. By our count, President Reagan issued constitutional
signing statements with respect to 80 laws; George H.W. Bush, 114; Clinton, 80.
The numbers in the academic literature are comparable or even higher. By our
count, President Bush has issued constitutional signing statements with respect to
126 bills as of January 25 of this year. Some Presidents have in the past used
signing statements simply to praise a piece of legislation, and even including non-
constitutional signing statements, the total number of signing statements is only a
small fraction of the number of laws passed by Congress. For example, President
Bush issued a total of 28 signing statements for both bills and joint resolutions in
2003, 25 in 2004, 14 in 2005, 23 in 2006, and 1 thus far this year, totaling only
approximately 9 percent of the 498 public laws passed by the 108th Congress and
the 482 public laws passed by the 109th Congress.



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    This practice of issuing signing statements does not mean that a President has
acted contrary to law or the Legislative Branch. The practice is consistent with,
and derives from, the President’s constitutional obligations, and is an ordinary part
of a respectful constitutional dialogue between the branches. When Congress
passes legislation containing provisions that could be construed or applied in
certain cases in a manner contrary to well-settled constitutional principles, the
President can and should take steps to ensure that such laws are interpreted and
executed in a manner consistent with the Constitution. The Supreme Court
specifically has stated that the President has the power to “supervise and guide
[Executive officers’] construction of the statutes under which they act in order to
secure that unitary and uniform execution of the laws which Article II of the
Constitution evidently contemplated in vesting general executive power in the
President alone,” Myers v. United States, 272 U.S. 52, 135 (1926); see also
Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“Interpreting a law enacted by
Congress to implement the legislative mandate is the very essence of ‘execution’
of the law.”).
    The President takes an oath to “preserve, protect and defend the Constitution of
the United States.” U.S. Const. art. II, § 1, cl. 8. The President has the responsibil-
ity and duty also to faithfully execute the laws of the United States. U.S. Const.
art. II, § 3. But these duties are not in conflict: the law the President must execute
includes the Constitution—the supreme law of the land. Because the Constitution
is supreme over all other law, the President must resolve any conflict between
statutory law and the Constitution in favor of the Constitution, just as courts must.
    This presidential responsibility may arise most sharply when the President is
charged with executing a statute, passed by a previous congress and signed by a
prior President, a provision of which he finds unconstitutional under intervening
Supreme Court precedent. A President that places the statutory law over the
constitutional law in this instance would fail in his duty faithfully to execute the
laws. The principle is equally sound where the Supreme Court has yet to rule on
an issue, but the President has determined that a statutory law violates the
Constitution. To say that the principle is not equally sound in this context is to
deny the President’s independent responsibility to interpret and uphold the
Constitution. It is to leave the defense of the Constitution only to two, not three, of
the branches of our government. See United States v. Verdugo-Urquidez, 494 U.S.
259, 274 (1990) (“The Members of the Executive and Legislative Branches are
sworn to uphold the Constitution, and they presumably desire to follow its
commands.”); Webster v. Doe, 486 U.S. 592, 613 (1988) (Scalia, J., dissenting)
(“Members of Congress and the supervising officers of the Executive Branch take
the same oath to uphold the Constitution that we do . . . .”).
    In the past year alone, many prominent commentators, including respected
scholars and former officials of the Clinton Administration’s Justice Department,
have said that the use of signing statements is a legitimate presidential power. For




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example, Professors Tribe, Bradley, and Posner have acknowledged the appropri-
ateness of constitutional signing statements. See Laurence H. Tribe, “Signing
statements” are a phantom target, Boston Globe, Aug. 9, 2006; Curtis A. Bradley
& Eric A. Posner, Signing Statements: It’s a President’s Right, Boston Globe,
Aug. 3, 2006; Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements
and Executive Power, Const. Commentary (forthcoming). Professor Dellinger has
done the same, reiterating the views that he expressed as Assistant Attorney
General during the Clinton Administration (and that I have quoted above). Walter
Dellinger, A Slip of the Pen, N.Y. Times, July 31, 2006. And the Congressional
Research Service concluded that “in analyzing the constitutional basis for, and
legal effect of, presidential signing statements, it becomes apparent that no
constitutional or legal deficiencies adhere to the issuance of such statements in and
of themselves.” Presidential Signing Statements: Constitutional and Institutional
Implications at CRS-1. These analyses by commentators who span the ideological
spectrum represent the mainstream opinion among informed constitutional
scholars.
    I am aware that the American Bar Association issued a report last year that
reached a contrary conclusion. See American Bar Association, Report of the Task
Force on Presidential Signing Statements and the Separation of Powers Doctrine
(Aug. 2006). We respectfully disagree with the analysis in that report, which
suggests that a President has no choice but to enforce a clearly unconstitutional
provision of law until the provision is struck down by a court, and that a President
has no choice but to veto a bill if even a minor provision of an omnibus bill
violates the Constitution in some applications. As noted, scholars of many
different viewpoints share our disagreement with the report’s constitutional
analysis.
    To be sure, people may fairly disagree with the language in particular signing
statements, because there is honest disagreement in many instances about what the
Constitution requires. But as this testimony will reveal, President Bush’s signing
statements are of a piece with prior administrations’ signing statements. He is
exercising a legitimate power in a legitimate way.
    To appreciate the value of signing statements, consider the alternatives. As we
understand the argument, some critics of presidential signing statements would
prefer that a President either reject the legislation outright through veto or remain
silent upon signing the legislation. First, it has never been the case that the
President’s only option when confronting a bill containing a provision that is
constitutionally problematic is to veto the bill. Presidents Jefferson (e.g., the
Louisiana Purchase), Lincoln, Theodore Roosevelt, Wilson, Franklin Roosevelt,
Truman, Eisenhower, Kennedy, Lyndon Johnson, Ford, Carter, as well as George
H.W. Bush and Clinton, have signed legislation rather than vetoing it despite
concerns that particular aspects of the legislation posed constitutional difficulties.
See Presidential Signing Statements, 17 Op. O.L.C. at 132 nn. 3 & 5, 134, 138; see




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also Chadha, 462 U.S. at 942 n.13 (“it is not uncommon for Presidents to approve
legislation containing parts which are objectionable on constitutional grounds”).
Assistant Attorney General Dellinger explained early during the Clinton Admin-
istration: “In light of our constitutional history, we do not believe that the Presi-
dent is under any duty to veto legislation containing a constitutionally infirm
provision.” Presidential Signing Statements, 17 Op. O.L.C. at 135. To be sure,
Presidents have the option of vetoing a bill most of whose provisions are clearly
constitutional but that contains a few provisions that may be read to permit certain
unconstitutional applications. It is more sensible, however, to sign the bill while
giving the problematic provisions a “saving” construction. Respect for the
Legislative Branch in this circumstance is not shown by the veto of an otherwise
well crafted bill, but by a candid and public signing statement. Compared to
vetoing a bill, giving constitutionally infirm provisions a “saving” interpretation
through a signing statement gives fuller effect to the wishes of Congress by giving
complete effect to the great bulk of a law’s provisions and the fullest possible
effect to even constitutionally problematic provisions. This approach is not an
affront to Congress. Instead, it gives effect to the well-established legal presump-
tion that Congress did not choose to enact an unconstitutional provision. As
Assistant Attorney General Dellinger explained, this practice is “analogous to the
Supreme Court’s practice of construing statutes, where possible, to avoid holding
them unconstitutional.” Presidential Signing Statements, 17 Op. O.L.C. at 133. A
veto, by comparison, would render all of Congress’s work a nullity, even if, as is
often the case, the constitutional concerns involve relatively minor provisions of
major legislation. The value of this ability to preserve legislation has grown in step
with the use of large omnibus bills in the last few decades.
    It should also be noted that a veto may only delay, not avoid, the constitutional
question. If a President’s veto is overridden by Congress, the resulting statute still
must be interpreted and executed by that and future Presidents in keeping with the
Constitution. To return to the example of a Chadha violation, where a provision
attempts to condition future executive action on the approval of a congressional
committee, the President and the courts, including the Supreme Court, will still be
compelled to find that provision unconstitutional, and therefore unenforceable.
Moreover, this was true even before the definitive Supreme Court ruling in
Chadha. See, e.g., Chadha, 462 U.S. at 942 n.13 (citations omitted) (“11 Presi-
dents, from Mr. Wilson through Mr. Reagan, who have been presented with this
issue have gone on record at some point to challenge congressional vetoes as
unconstitutional.”).
    As for the second suggested alternative to signing statements—presidential
silence—it is not clear what critics of signing statements hope will be gained by
such a course. Signing statements have the virtue of making the President’s views
public. A statement may notify the Congress and the American people of concerns
that the President has about the legislation and how the Executive Branch will
construe a particular law. Or it may serve only as a reminder to those in the



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Executive Branch charged with executing a law that the law must be applied
within the confines of the Constitution. Neither Congress nor the public would be
better served by such statements being restricted to an internal Executive Branch
audience. Employing signing statements to advise Congress of constitutional
objections is more respectful of Congress’s role as an equal branch of government
than public silence, and promotes a constitutional dialogue that is healthy in a
democracy.
    The last possible alternative—for the President to remain publicly silent and
not to direct subordinate Executive Branch officials to construe the law in a
constitutional manner—would flatly contradict the Constitution’s requirement that
the President “take care that the Laws [are] faithfully executed.” Recent admin-
istrations, including the Reagan, George H.W. Bush, and Clinton Administrations,
consistently have taken the position that “the Constitution provides [the President]
with the authority to decline to enforce a clearly unconstitutional law.” Presiden-
tial Signing Statements, 17 Op. O.L.C. at 133 (opinion of Assistant Attorney
General Dellinger) (noting that understanding is “consistent with the view of the
Framers” and has been endorsed by many members of the Supreme Court).
Indeed, “every President since Eisenhower has issued signing statements in which
he stated that he would refuse to execute unconstitutional provisions.” Presidential
Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 202
(1994) (opinion of Assistant Attorney General Dellinger); see also id. at 199
(noting that “consistent and substantial executive practice” since “at least 1860
assert[s] the President’s authority to decline to effectuate enactments that the
President views as unconstitutional”); Attorney General’s Duty to Defend and
Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980)
(opinion of Benjamin R. Civiletti, Attorney General to President Carter) (“the
President’s constitutional duty does not require him to execute unconstitutional
statutes”); 2 Debates in the Several State Conventions on the Adoption of the
Federal Constitution 446 (2d ed. 1836) (statement of James Wilson, signer of
Constitution from Pennsylvania) (noting that, just as judges have a duty “to
pronounce [an unconstitutional law] void . . . [,] [i]n the same manner, the Presi-
dent of the United States could . . . refuse to carry into effect an act that violates
the Constitution”). Rather than tacitly placing limitations on the enforcement of
provisions (or declining to enforce them), as has been done in the past, signing
statements promote a constitutional dialogue with Congress by openly stating the
interpretation that the President will give certain provisions.
    Finally, some have raised the concern that courts will use signing statements to
interpret statutes in contravention of the legislative goal. Signing statements, of
course, are not binding on the courts; they are principally an exercise of the
President’s responsibility as head of the Executive Branch to determine the correct
interpretation of the law for purposes of executing it faithfully. There must be an
authoritative interpretation of the law within the Executive Branch, and it is the




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President’s responsibility as Chief Executive to ensure that the law is authorita-
tively interpreted consistent with the Constitution.

                                         II.

   Many of President Bush’s constitutional signing statements have sought to
preserve three specific constitutional provisions that are sometimes overlooked in
the legislative process: the Recommendations Clause, the Presentment Clauses,
and the Appointments Clause. Far from using signing statements in “unprecedent-
ed fashion,” as some critics have contended, this President has employed constitu-
tional signing statements in a way completely consistent with those of his prede-
cessors. Three additional important areas that have elicited comment from
Presidents are the protection of confidential national security information, the
preservation of the Executive’s foreign affairs power and position as Commander
in Chief, and the preservation of the President’s status as head of a unitary
Executive Branch.

                          A. Recommendations Clause

   Presidents commonly have raised concern when Congress purports to require
the President to submit legislative recommendations, because the Constitution
vests the President with discretion to do so when he sees fit, stating that he “shall
from time to time . . . recommend to [Congress’s] Consideration such Measures as
he shall judge necessary and expedient.” U.S. Const. art. II, § 3, cl. 1. By our
count, President Bush raised this particular concern in approximately 67 of his 126
constitutional signing statements. President Bush’s statements on this point,
moreover, are indistinguishable from President Clinton’s. Compare, e.g., State-
ment on Signing the Intelligence Authorization Act for Fiscal Year 2005, 40
Weekly Comp. Pres. Doc. 3012, 3012 (Dec. 23, 2004) (President Bush) (“To the
extent that provisions of the Act, such as sections 614 and 615, purport to require
or regulate submission by executive branch officials of legislative recommenda-
tions to the Congress, the executive branch shall construe such provisions in a
manner consistent with the President’s constitutional authority to supervise the
unitary executive branch and to submit for congressional consideration such
measures as the President judges necessary and expedient.”), with, e.g., Statement
on Signing the Shark Finning Prohibition Act (Dec. 26, 2000), 3 Pub. Papers of
Pres. William J. Clinton 2782, 2782 (2000–2001) (“Because the Constitution
preserves to the President the authority to decide whether and when the executive
branch should recommend new legislation, Congress may not require the President
or his subordinates to present such recommendations (section 6). I therefore direct
executive branch officials to carry out these provisions in a manner that is
consistent with the President’s constitutional responsibilities.”). See also State-
ment on Signing the Balanced Budget Act of 1997 (Aug. 5, 1997), 2 Pub. Papers




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of Pres. William J. Clinton 1053, 1054 (1997) (“Section 4422 of the bill purports
to require the Secretary of Health and Human Services to develop a legislative
proposal . . . . I will construe this provision in light of my constitutional duty and
authority to recommend to the Congress such legislative measures as I judge
necessary and expedient, and to supervise and guide my subordinates, including
the review of their proposed communications to the Congress.”) (emphasis added);
Statement on Signing the Treasury and General Government Appropriations Act
(Oct. 10, 1997), 2 Pub. Papers of Pres. William J. Clinton 1339, 1340 (1997)
(“Any broader interpretation of the provision that would apply to ‘nonwhistle-
blowers’ would raise substantial constitutional concerns in depriving the Presi-
dent and his department and agency heads of their ability to supervise and control
the operations and communications of the executive branch. I do not interpret this
provision to detract from my constitutional authority in this way.”) (emphasis
added).

             B. Presentment Clauses/Bicameralism/INS v. Chadha

    Presidents commonly raise concern when Congress purports to authorize a
single house of Congress to take action on a matter in violation of the well-
established rule, embodied in the Supreme Court’s decision in INS v. Chadha, 462
U.S. 919, 958 (1983), that Congress can act only by “passage by a majority of both
Houses and presentment to the President.” U.S. Const. art. I, § 7 (requiring that
bills and resolutions pass both houses before being presented to the President). By
our count, President Bush raised this particular concern in 55 of his 126 constitu-
tional signing statements. Again, President Bush followed in the footsteps of prior
Presidents, including President Clinton, in raising this concern in various signing
statements. Compare, e.g., Statement on Signing the Departments of Labor, Health
and Human Services, and Education, and Related Agencies Appropriations Act, 41
Weekly Comp. Pres. Doc. 1920, 1920 (Dec. 30, 2005) (“The executive branch
shall construe certain provisions of the Act that purport to require congressional
committee approval for the execution of a law as calling solely for notification, as
any other construction would be inconsistent with the constitutional principles
enunciated by the Supreme Court of the United States in INS v. Chadha.”), with,
e.g., Statement on Signing the Consolidated Appropriations Act, FY 2001 (Dec.
21, 2000), 3 Pub. Papers of Pres. William J. Clinton 2770, 2776 (2000–2001)
(“There are provisions in the Act that purport to condition my authority or that of
certain officers to use funds appropriated by the Act on the approval of congres-
sional committees. My Administration will interpret such provisions to require
notification only, since any other interpretation would contradict the Supreme
Court ruling in INS v. Chadha.”).




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                             C. Appointments Clause

   The Appointments Clause of the Constitution, U.S. Const. art. II, § 2, provides
that the President, with the advice and consent of the Senate, shall appoint
principal officers of the United States (heads of agencies, for example); and that
“inferior officers” can be appointed only by the President, by the heads of
“Departments” (agencies), or by the courts. Presidents commonly raise a concern
when bills seem to restrict the President’s ability to appoint officers, or to vest
entities other than those specified in the Constitution with the power to appoint
officers. By our count, President Bush raised this concern in 25 of his 126
constitutional signing statements. President Bush’s signing statements on this
point are nearly identical to President Clinton’s. Compare, e.g., Statement on
Signing the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users, 41 Weekly Comp. Pres. Doc. 1273, 1273 (Aug. 10, 2005)
(President Bush) (“The executive branch shall construe the described qualifica-
tions and lists of nominees under section 4305(b) as recommendations only,
consistent with the provisions of the Appointments Clause of the Constitution.”),
with, e.g., Statement on Signing the Gramm-Leach-Bliley Act (Nov. 12, 1999),
2 Pub. Papers of Pres. William J. Clinton 2082, 2084 (1999) (“Under section
332(b)(1) of the bill, the President would be required to make such appointments
from lists of candidates recommended by the National Association of Insurance
Commissioners. The Appointments Clause, however, does not permit such
restrictions to be imposed upon the President’s power of appointment. I therefore
do not interpret the restrictions of section 332(b)(1) as binding and will regard any
such lists of recommended candidates as advisory only.”).

              D. Confidentiality of National Security Information

   The Supreme Court has held that the Constitution gives the President authority
to control the access of Executive Branch officials to classified information. The
Supreme Court has stated that the President’s “authority to classify and control
access to information bearing on national security and to determine whether an
individual is sufficiently trustworthy to occupy a position in the Executive Branch
that will give that person access to such information flows primarily from this
constitutional investment of power in the President and exists quite apart from any
explicit congressional grant.” Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988).
Presidents commonly have issued signing statements when newly enacted
provisions might be construed to involve the disclosure of sensitive information.
See, e.g., Statement by the President Upon Approval of Bill Amending the Naval
Security Act of 1954 (July 24, 1959), Pub. Papers of Pres. Dwight D. Eisenhower
549, 549 (1959) (“I have signed this bill on the express premise that the three
amendments relating to disclosure are not intended to alter and cannot alter the
recognized Constitutional duty and power of the Executive with respect to the




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disclosure of information, documents, and other materials. Indeed, any other
construction of these amendments would raise grave Constitutional questions
under the historic Separation of Powers Doctrine.”).
   By our count, President Bush raised this concern in approximately 63 of his
126 constitutional signing statements. President Bush’s statements regarding this
issue are nearly identical to the statements issued by past Presidents, including
Presidents Eisenhower and Clinton. Compare, e.g., Statement on Signing Legisla-
tion on Amendments to the Mexico-United States Agreement on the Border
Environment Cooperation Commission and the North American Development
Bank, 40 Weekly Comp. Pres. Doc. 550, 550–51 (Apr. 5, 2004) (President Bush)
(“Sections 2(5) and 2(6) of the Act purport to require the annual report of the
Secretary of the Treasury to include a description of discussions between the
United States and Mexican governments. In order to avoid intrusion into the
President’s negotiating authority and ability to maintain the confidentiality of
diplomatic negotiations, the executive branch will not interpret this provision to
require the disclosure of either the contents of diplomatic communications or
specific plans for particular negotiations in the future.”), with, e.g., Statement on
Signing the National Defense Authorization Act for Fiscal Year 2000 (Oct. 5.
1999), 2 Pub. Papers of Pres. William J. Clinton 1685, 1688 (1999) (“A number
of other provisions of this bill raise serious constitutional concerns. Because the
President is the Commander in Chief and the Chief Executive under the Constitu-
tion, the Congress may not interfere with the President’s duty to protect classified
and other sensitive national security information or his responsibility to control the
disclosure of such information by subordinate officials of the executive branch
(sections 1042, 3150, and 3164). . . . To the extent that these provisions conflict
with my constitutional responsibilities in these areas, I will construe them where
possible to avoid such conflicts, and where it is impossible to do so, I will treat
them as advisory. I hereby direct all executive branch officials to do likewise.”);
Statement on Signing the National Defense Authorization Act for Fiscal Year
1998 (Nov. 18, 1997), 2 Pub. Papers of Pres. William J. Clinton 1611, 1612
(1997) (“Because of the President’s constitutional role, the Congress may not
prevent the President from controlling the disclosure of classified and other
sensitive information by subordinate officials of the executive branch.”).

             E. Foreign Affairs and Power as Commander in Chief

   President Bush also has used signing statements to safeguard the President’s
well-established role in the Nation’s foreign affairs and the President’s wartime
power. These signing statements also are in keeping with the practice of his
predecessors. See, e.g., Louis Fisher, Constitutional Conflicts Between Congress
and the President 134 (4th rev. ed. 1997) (noting that President Wilson expressed
an intention not to enforce a provision on the grounds it was unconstitutional
because Congress did not have the authority to direct the President on the conduct



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of foreign affairs) (citation omitted); Statement by the President Upon Signing the
General Appropriations Act (Sept. 6, 1950), Pub. Papers of Pres. Harry S.
Truman 616 (1950) (“I do not regard this provision [involving loans to Spain] as a
directive, which would be unconstitutional, but instead as an authorization, in
addition to the authority already in existence under which loans to Spain may be
made.”); Statement on Signing the Military Appropriations Authorization Bill
(Nov. 17, 1971), Pub. Papers of Pres. Richard M. Nixon 1114, 1114 (1971)
(Mansfield Amendment setting a final date for the withdrawal of U.S. Forces from
Indochina was “without binding force or effect”); Department of State, Interna-
tional Communication Agency, and Board for International Broadcasting Appro-
priations Bill—Statement on Signing H.R. 3363 Into Law (Aug. 15, 1979), 2 Pub.
Papers of Pres. Jimmy Carter 1434, 1434 (1979) (“Congress cannot mandate the
establishment of consular relations at a time and place unacceptable to the
President”).
   Some have argued that President Bush has increased the use of presidential
signing statements, but any such increase must be viewed in light of current events
and the legislative response to those events. While President Bush has issued
numerous signing statements involving foreign affairs and his power as Com-
mander in Chief, the significance of legislation affecting national security has
increased markedly since the September 11th attacks and Congress’s authorization
of the use of military force against the terrorists who perpetrated those attacks.
Even before the War on Terror, President Clinton issued many such statements.
See, e.g., Statement on Signing the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999 (Oct. 23, 1998), 2 Pub. Papers of Pres.
William J. Clinton 1843, 1847 (1998) (“Section 610 of the Commerce/Justice/
State appropriations provision prohibits the use of appropriated funds for the
participation of U.S. armed forces in a U.N. peacekeeping mission under foreign
command unless the President’s military advisers have recommended such
involvement and the President has submitted such recommendations to the
Congress . . . [which] unconstitutionally constrain[s] my diplomatic authority and
my authority as Commander in Chief, and I will apply them consistent with my
constitutional responsibilities.”); Statement on Signing the Cuban Liberty and
Democratic Solidarity (LIBERTAD) Act of 1996 (Mar. 12, 1996), 1 Pub. Papers
of Pres. William J. Clinton 433, 434 (1996) (“Consistent with the Constitution, I
interpret the Act as not derogating from the President’s authority to conduct
foreign policy. . . . While I support the underlying intent of these sections, the
President’s constitutional authority over foreign policy necessarily entails
discretion over these matters. Accordingly, I will construe these provisions to [b]e
precatory.”).




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                                F. Unitary Executive

   Some critics have focused in particular on signing statements that make refer-
ence to the President’s authority to supervise the “unitary executive.” Although the
phrase has been used by critics to mean many things in recent months, at bottom,
the core idea of a “unitary executive” is that, because “[t]he executive power shall
be vested in [the] President” under the Constitution, U.S. Const. art. II, § 1, the
President has broad authority to direct the exercise of discretion by officials within
the Executive Branch. As several scholars concluded after an exhaustive survey of
historical practice, “each of the first thirty-two presidents—from George Washing-
ton up through Franklin D. Roosevelt—believed in a unitary executive” and
“every president between 1945 and 2004 defended the unitariness of the executive
branch.” Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The
Unitary Executive in the Modern Era, 1945–2004, 90 Iowa L. Rev. 601, 608, 730
(2005).
   President Bush’s statements that he intends to construe particular statutory
provisions consistent with his constitutional obligation to “supervise the unitary
Executive Branch” are indistinguishable from similar statements made by past
Presidents of both parties. For example, President Reagan in 1987 issued the
following signing statement:

       I wish to make clear my understanding that sections 252(a)(1) and
       (2) of the amended Act—which direct the President to issue an order
       “in strict accordance” with the report submitted by the Office of
       Management and Budget—do not preclude me or future Presidents
       from exercising our authority to supervise the execution of the law
       by overseeing and directing the Director of OMB in the preparation
       and, if necessary, revision of his reports. If this provision were inter-
       preted otherwise so as to require the President to follow the orders of
       a subordinate, it would plainly constitute an unconstitutional in-
       fringement of the President’s authority as head of a unitary Execu-
       tive branch.

Statement by President Ronald Reagan upon Signing H.J. Res. 324 (Sept. 29,
1987), 2 Pub. Papers of Pres. Ronald Reagan 1096, 1097 (1987) (emphasis
added). See also, e.g., Statement by President William J. Clinton Upon Signing the
Balanced Budget Act of 1997 (Aug. 5, 1997), 2 Pub. Papers of Pres. William J.
Clinton 1053, 1054 (1997) (“Section 4422 of the bill purports to require the
Secretary of Health and Human Services to develop a legislative proposal . . . . I
will construe this provision in light of my constitutional duty and authority to
recommend to the Congress such legislative measures as I judge necessary and
expedient, and to supervise and guide my subordinates, including the review of
their proposed communications to the Congress.”) (emphasis added); Statement




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                           Presidential Signing Statements


by President William J. Clinton Upon Signing the Treasury and General Govern-
ment Appropriations Act (Oct. 10, 1997), 2 Pub. Papers of Pres. William J.
Clinton 1339, 1340 (1997) (“Any broader interpretation of the provision that
would apply to ‘nonwhistleblowers’ would raise substantial constitutional
concerns in depriving the President and his department and agency heads of their
ability to supervise and control the operations and communications of the
executive branch. I do not interpret this provision to detract from my constitutional
authority in this way.”) (emphasis added); Statement by President George Bush
upon Signing H.R. 3792 (Feb. 16, 1990), 1 Pub. Papers of Pres. George Bush 239,
241 (1990) (“I shall interpret these provisions consistent with my authority as
head of the unitary executive branch.”) (emphasis added); Statement by President
George Bush upon Signing H.R. 5019 (Nov. 5, 1990), 2 Pub. Papers of Pres.
George Bush 1561, 1562 (1990) (“This provision must be interpreted in light of
my constitutional responsibility, as head of the unitary executive branch, to
supervise my subordinates.”) (emphasis added).
    Similarly, during the Carter Administration, the Justice Department published a
legal opinion stating that “[t]he ordinary duties of officers prescribed by statute
come under the general administrative control of the President by virtue of the
general grant to him of the executive power, and he may properly supervise and
guide their construction of the statutes under which they act in order to secure that
unitary and uniform execution of the laws which Article II of the constitution
evidently contemplated in vesting general executive power in the President alone.”
Administrative Procedure—Rulemaking—Department of the Interior—Ex Parte
Communications—Consultation with the Council of Economic Advisors—Surface
Mining Control and Reclamation Act (30 U.S.C. § 1201 et seq.), 3 Op. O.L.C. 21,
23 (1979) (quoting Myers v. United States, 272 U.S. 52, 135 (1926)). The specific
phrasing used in these signing statements is not unique, and indeed employs
language that was already well settled by the mid-nineteenth century. For example,
Attorney General Cushing wrote in an 1854 opinion that the “settled constitutional
theory” was that “executive discretion exists, and that judgment is continually to
be exercised, yet required unity of executive action, and, of course, unity of
executive decision.” Offices and Duties of Attorney General, 6 Op. Att’y Gen. 326
(1854). These statements explaining the President’s authority to supervise the
Executive Branch in the execution of the law are uncontroversial and consistent
with well-established law. The Supreme Court specifically has stated that the
President has the power to “supervise and guide [Executive officers’] construction
of the statutes under which they act in order to secure that unitary and uniform
execution of the laws which Article II of the Constitution evidently contemplated
in vesting general executive power in the President alone,” Myers v. United States,
272 U.S. 52, 135 (1926). More recently, the Court has explained that
“[i]nterpreting a law enacted by Congress to implement the legislative mandate is
the very essence of ‘execution’ of the law.” Bowsher v. Synar, 478 U.S. 714, 733
(1986).



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                 Opinions of the Office of Legal Counsel in Volume 31


                                         III.

    Until recently, every scholarly discussion of signing statements of which we are
aware simply counted the number of bills about which a President had made
constitutional signing statements. Under that traditional measure, the number of
signing statements President Bush has issued is, as I have just explained, compa-
rable to the number issued by Presidents Reagan, George H.W. Bush, and Clinton.
    Recently, persons critical of the President’s use of signing statements have
adopted the novel measure of counting the number of individual provisions
referenced in signing statements. We believe that is a misleading statistic, because
President Bush’s signing statements tend to be more specific in identifying
provisions than his predecessors’ signing statements. President Clinton, for
example, routinely referred in signing statements to “several provisions” or “a
number of provisions” that raised constitutional concerns without enumerating the
particular provisions in question. See, e.g., Statement on Signing the Consolidated
Appropriations Act, FY 2001 (Dec. 21, 2000), 3 Pub. Papers of Pres. William J.
Clinton 2770, 2776, 2777 (2000–2001) (“There are provisions in the Act that
purport to condition my authority or that of certain officers to use funds appropri-
ated by the Act on the approval of congressional committees. My Administration
will interpret such provisions to require notification only, since any other interpre-
tation would contradict the Supreme Court ruling in INS v. Chadha.”; “Several
provisions of the Act also raise concerns under the Recommendations Clause.
These provisions purport to require a Cabinet Secretary or other Administration
official to make recommendations to Congress on changes in law. To the extent
that those provisions would require Administration officials to provide Congress
with policy recommendations or draft legislation, I direct these officials to treat
any such requirements as precatory.”) (emphases added); Statement on Signing
Consolidated Appropriations Legislation for Fiscal Year 2000 (Nov. 29, 1999),
2 Pub. Papers of Pres. William J. Clinton 2156, 2160 (1999) (“to the extent these
provisions could be read to prevent the United States from negotiating with
foreign governments about climate change, it would be inconsistent with my
constitutional authority”; “This legislation includes a number of provisions in the
various Acts incorporated in it regarding the conduct of foreign affairs that raise
serious constitutional concerns. These provisions would direct or burden my
negotiations with foreign governments and international organizations, as well as
intrude on my ability to maintain the confidentiality of sensitive diplomatic
negotiations. Similarly, some provisions would constrain my Commander in Chief
authority and the exercise of my exclusive authority to receive ambassadors and to
conduct diplomacy. Other provisions raise concerns under the Appointments and
Recommendation Clauses. My Administration’s objections to most of these and
other provisions have been made clear in previous statements of Administration
policy and other communications to the Congress. Wherever possible, I will
construe these provisions to be consistent with my constitutional prerogatives and



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responsibilities and where such a construction is not possible, I will treat them as
not interfering with those prerogatives and responsibilities.”) (emphases added). If,
as the CRS and many scholars have indicated, the substance of the President’s
signing statements is unobjectionable, it is no fault that those statements specifi-
cally identify the provisions at issue. Indeed, doing so tends to promote the
constitutional dialogue between the branches.

                                        IV.

   The constitutional signing statements discussed here are a small, but central,
sampling of the many statements issued by American Presidents. These statements
are an established part of the President’s responsibility to “take Care that the Laws
be faithfully executed.” U.S. Const. art. II, § 3. Members of Congress and the
President will occasionally disagree on a constitutional question. This disagree-
ment does not relieve the President of the obligation to interpret and uphold the
Constitution, but instead supports the candid public announcement of the Presi-
dent’s views.

                                               JOHN P. ELWOOD
                                         Deputy Assistant Attorney General
                                             Office of Legal Counsel




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