Signing Statements

Early uses Andrew Jackson Andrew Jackson Ronald Reagan Ronald Reagan Clinton Clinton

Signing statements: numbers (CRS Report, Sept. 2006)

Example: the Torture ban Timeline: Timeline: April 2004: News about Abu Ghraib April 2004: News about Abu Ghraib Military officers ask McCain for clarification on what interrogation techniques are allowed Military officers ask McCain for clarification on what interrogation techniques are allowed McCain introduces “torture ban amendment” to approps. bill McCain introduces “torture ban amendment” to approps. bill

Torture ban timeline Sept. 2005: Bush threatens veto: Sept. 2005: Bush threatens veto: –Calls amendment “unnecessary and duplicative” –“McClellan said existing law already prohibits the mistreatment of prisoners in American custody, and the amendment ‘would limit the president's ability as commander-in-chief to effectively carry out the war on terrorism.’”

Torture bill timeline Senate votes 90-9 to approve Senate votes 90-9 to approve House approves House approves Bush signs, saying “Senator McCain has been a leader to make sure that the United States of America upholds the values of America as we fight and win this war on terror. And we’ve been happy to work with him to achieve a common objective, and that is to make it clear to the world that this government does not torture, and that we adhere to the international Convention of Torture, whether it be at home or abroad.” Bush signs, saying “Senator McCain has been a leader to make sure that the United States of America upholds the values of America as we fight and win this war on terror. And we’ve been happy to work with him to achieve a common objective, and that is to make it clear to the world that this government does not torture, and that we adhere to the international Convention of Torture, whether it be at home or abroad.”

Text: Detainee Treatment Act No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation. No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation. Sct Sct. 1002

No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment. Sct Sct. 1003

In this section, the term `cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, In this section, the term `cruel, inhuman, or degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, Sct. 1003(d) Sct. 1003(d)

In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government … or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government … or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Sct Sct. 1004

Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth-- (A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee ; and (B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries. Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth-- (A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee ; and (B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.

The Secretary of Defense shall ensure that policies are prescribed regarding procedures for military and civilian personnel of the Department of Defense and contractor personnel of the Department of Defense in Iraq that are intended to ensure that members of the Armed Forces, and all persons acting on behalf of the Armed Forces or within facilities of the Armed Forces, ensure that all personnel of Iraqi military forces who are trained by Department of Defense personnel and contractor personnel of the Department of Defense receive training regarding the international obligations and laws applicable to the humane detention of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture. The Secretary of Defense shall ensure that policies are prescribed regarding procedures for military and civilian personnel of the Department of Defense and contractor personnel of the Department of Defense in Iraq that are intended to ensure that members of the Armed Forces, and all persons acting on behalf of the Armed Forces or within facilities of the Armed Forces, ensure that all personnel of Iraqi military forces who are trained by Department of Defense personnel and contractor personnel of the Department of Defense receive training regarding the international obligations and laws applicable to the humane detention of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture.

Two signing statements “the US is committed to treating all detainees held by the United States in a manner consistent with our Constitution, laws, and treaty obligations, which reflect the values we hold dear. U.S. law and policy already prohibit torture. Our policy has also been not to use cruel, inhuman, or degrading treatment, at home or abroad. This legislation now makes that a matter of statute for practices abroad.” “the US is committed to treating all detainees held by the United States in a manner consistent with our Constitution, laws, and treaty obligations, which reflect the values we hold dear. U.S. law and policy already prohibit torture. Our policy has also been not to use cruel, inhuman, or degrading treatment, at home or abroad. This legislation now makes that a matter of statute for practices abroad.”

Two signing statements “The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.” “The executive branch shall construe Title X in Division A of the Act, relating to detainees, 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, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”

The Administration’s argument Congress has no power to regulate how the president conducts a war, once Congress has declared it Congress has no power to regulate how the president conducts a war, once Congress has declared it The executive branch reports solely to the president (unitary executive) The executive branch reports solely to the president (unitary executive)

Objections: The ABA Signing statements are “contrary to the rule of law and our constitutional separation of powers” when they “claim the authority or state the intention to disregard or decline to enforce all or part of a law…or to interpret such a law in a manner inconsistent with Congress’ intent.” Signing statements are “contrary to the rule of law and our constitutional separation of powers” when they “claim the authority or state the intention to disregard or decline to enforce all or part of a law…or to interpret such a law in a manner inconsistent with Congress’ intent.”

Clinton vs. City of New York “There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” “There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.”

Clinton vs. City of New York There are important differences between the President's "return" of a bill pursuant to Article I, § 7, and the exercise of the President's cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to playa role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes. There are important differences between the President's "return" of a bill pursuant to Article I, § 7, and the exercise of the President's cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to playa role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.

Clinton vs. City of New York There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, procedure." Chadha, 462 U. S., at 951. Our first President understood the text of the Presentment Clause as requiring that he either "approve all the parts of a Bill, or reject it in toto." 30 What has emerged in these cases from the President's exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the "finely wrought" procedure that the Framers designed. There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, procedure." Chadha, 462 U. S., at 951. Our first President understood the text of the Presentment Clause as requiring that he either "approve all the parts of a Bill, or reject it in toto." 30 What has emerged in these cases from the President's exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the "finely wrought" procedure that the Framers designed.

What do you think?

Can the courts intervene? Difficulty of getting balance of power issues before a court: Difficulty of getting balance of power issues before a court: Courts can’t offer advisory opinions Courts can’t offer advisory opinions A victim must file a lawsuit A victim must file a lawsuit In most of these cases, no victim In most of these cases, no victim

ABA’s recommendations Presidents shouldn’t issue them as line item vetoes Presidents shouldn’t issue them as line item vetoes Presidents should complain about objectionable provisions before the bill is passed Presidents should complain about objectionable provisions before the bill is passed Legislation is needed to ensure that Congress and the Public are fully informed about the use of presidential signing statements Legislation is needed to ensure that Congress and the Public are fully informed about the use of presidential signing statements Legislation is needed to provide for judicial review of presidential signing statements in appropriate cases—law that would enable the president, congress, or other entities to seek judicial review, and to have standing in any instance in which the president uses a signing statement to claim the authority to disregard part of a law Legislation is needed to provide for judicial review of presidential signing statements in appropriate cases—law that would enable the president, congress, or other entities to seek judicial review, and to have standing in any instance in which the president uses a signing statement to claim the authority to disregard part of a law