Signing StatementsSigning Statements

Early usesEarly uses

Andrew JacksonAndrew Jackson Ronald ReaganRonald Reagan ClintonClinton

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

2006)2006)

050

100150200250300350400

Reagan Bush 41 Clinton Bush 43

Number of statementsNumber questioning constitutionality

Example: the Torture Example: the Torture banban Timeline:Timeline: April 2004: News about Abu Ghraib April 2004: News about Abu Ghraib Military officers ask McCain for Military officers ask McCain for

clarification on what interrogation clarification on what interrogation techniques are allowedtechniques are allowed

McCain introduces “torture ban McCain introduces “torture ban amendment” to approps. billamendment” to approps. bill

Torture ban timelineTorture ban timeline

Sept. 2005: Bush threatens veto:Sept. 2005: Bush threatens veto:– Calls amendment “unnecessary and Calls amendment “unnecessary and

duplicative”duplicative”– ““McClellan said existing law already McClellan said existing law already

prohibits the mistreatment of prohibits the mistreatment of prisoners in American custody, and prisoners in American custody, and the amendment ‘would limit the the amendment ‘would limit the president's ability as commander-in-president's ability as commander-in-chief to effectively carry out the war chief to effectively carry out the war on terrorism.’”on terrorism.’”

Torture bill timelineTorture bill timeline

Senate votes 90-9 to approveSenate votes 90-9 to approve House approves 308-122 House approves 308-122 Bush signs, saying “Senator McCain has been Bush signs, saying “Senator McCain has been

a leader to make sure that the United States a leader to make sure that the United States of America upholds the values of America as of America upholds the values of America as we fight and win this war on terror. And we fight and win this war on terror. And we’ve been happy to work with him to we’ve been happy to work with him to achieve a common objective, and that is to achieve a common objective, and that is to make it clear to the world that this make it clear to the world that this government does not torture, and that we government does not torture, and that we adhere to the international Convention of adhere to the international Convention of Torture, whether it be at home or abroad.” Torture, whether it be at home or abroad.”

Text: Detainee Treatment Text: Detainee Treatment ActAct

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

Sct. 1002Sct. 1002

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

Sct. 1003Sct. 1003

In this section, the term `cruel, inhuman, or In this section, the term `cruel, inhuman, or degrading treatment or punishment' means degrading treatment or punishment' means the cruel, unusual, and inhumane treatment or the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the and Fourteenth Amendments to the Constitution of the United States, as defined in Constitution of the United States, as defined in the United States Reservations, Declarations the United States Reservations, Declarations and Understandings to the United Nations and Understandings to the United Nations Convention Against Torture and Other Forms Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, Punishment done at New York, December 10, 1984.1984.

Sct. 1003(d)Sct. 1003(d)

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

Sct. 1004Sct. 1004

Not later than 180 days after the date of the enactment of this Act, 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 the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth--of the House of Representatives a report setting forth--

(A) the procedures of the Combatant Status Review Tribunals and (A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee ; andneed to continue to detain an alien who is a detainee ; and

(B) the procedures in operation in Afghanistan and Iraq for a (B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those under the physical control of the Department of Defense in those countries.countries.

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

Two signing Two signing statementsstatements ““the US is committed to treating all the US is committed to treating all

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

Two signing Two signing statementsstatements ““The executive branch shall construe Title X The executive branch shall construe Title X

in Division A of the Act, relating to detainees, in Division A of the Act, relating to detainees, in a manner consistent with the in a manner consistent with the constitutional authority of the President to constitutional authority of the President to supervise the unitary executive branch and supervise the unitary executive branch and as Commander in Chief and consistent with as Commander in Chief and consistent with the constitutional limitations on the judicial the constitutional limitations on the judicial power, which will assist in achieving the power, which will assist in achieving the shared objective of the Congress and the shared objective of the Congress and the President, evidenced in Title X, of protecting President, evidenced in Title X, of protecting the American people from further terrorist the American people from further terrorist attacks.”attacks.”

The Administration’s The Administration’s argumentargument

Congress has no power to Congress has no power to regulate how the president regulate how the president conducts a war, once Congress conducts a war, once Congress has declared ithas declared it

The executive branch reports The executive branch reports solely to the president (unitary solely to the president (unitary executive)executive)

Objections: The ABAObjections: The ABA

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

Clinton vs. City of New Clinton vs. City of New YorkYork

““There is no provision in the There is no provision in the Constitution that authorizes the Constitution that authorizes the President to enact, to amend, or President to enact, to amend, or to repeal statutes.”to repeal statutes.”

Clinton vs. City of New Clinton vs. City of New YorkYork There are important differences between the There are important differences between the

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

Clinton vs. City of New Clinton vs. City of New YorkYork There are powerful reasons for construing There are powerful reasons for construing

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

What do you think?What do you think?

Can the courts Can the courts intervene?intervene? Difficulty of getting balance of Difficulty of getting balance of

power issues before a court:power issues before a court: Courts can’t offer advisory Courts can’t offer advisory

opinionsopinions A victim must file a lawsuitA victim must file a lawsuit In most of these cases, no victimIn most of these cases, no victim

ABA’s ABA’s recommendationsrecommendations Presidents shouldn’t issue them as line item Presidents shouldn’t issue them as line item

vetoesvetoes Presidents should complain about objectionable Presidents should complain about objectionable

provisions before the bill is passedprovisions before the bill is passed Legislation is needed to ensure that Congress and Legislation is needed to ensure that Congress and

the Public are fully informed about the use of the Public are fully informed about the use of presidential signing statementspresidential signing statements

Legislation is needed to provide for judicial review Legislation is needed to provide for judicial review of presidential signing statements in appropriate of presidential signing statements in appropriate cases—law that would enable the president, cases—law that would enable the president, congress, or other entities to seek judicial review, congress, or other entities to seek judicial review, and to have standing in any instance in which the and to have standing in any instance in which the president uses a signing statement to claim the president uses a signing statement to claim the authority to disregard part of a lawauthority to disregard part of a law