Presidential Signing Statements
Agency Implementation of Selected Provisions of Law Gao ID: GAO-08-553T March 11, 2008Both Republican and Democratic Presidents have issued signing statements since the early nineteenth century. Signing statements usually take the form of a presidential statement or press release issued in connection with the President's signing of a bill. Some signing statements praise the newly signed law and those involved in its passage. In other signing statements, Presidents have offered their interpretation of or explained how agencies will execute a new law. Presidents have also raised constitutional concerns or objections to new statutes in signing statements. The Chairmen of the Senate Appropriations Committee and the House Judiciary Committee asked us to examine the fiscal year 2006 appropriations acts and the President's accompanying signing statements to identify the provisions in the acts to which the President took exception, to identify the presidential concern, and to determine how the agencies executed those provisions. We also examined how the federal courts have treated presidential signing statements in their published opinions. In a second request, the same requestors asked us to examine an additional 10 provisions to determine how the agencies were executing them. Based on this work, the Subcommittee invited GAO's General Counsel to testify on the use of signing statements.
In our opinions, we examined how agencies were implementing certain provisions to which the President objected in the signing statements. In developing our first opinion, we examined all the signing statements accompanying the fiscal year 2006 appropriations acts, identified 160 specific provisions of law to which the President objected, and categorized each provision according to the nature of the President's stated concern. The President's objections to a majority of provisions fell under broad categories, four of which we summarize in the testimony: President's theory of the unitary executive, President's constitutional role, INS v. Chadha, and Fifth Amendment. We then chose 19 provisions to learn whether the agencies were executing the provisions as written. In considering which provisions would be appropriate for further inquiry, we excluded provisions for which it would be difficult to determine whether the President was executing the provision, either because of the breadth of the executive action covered or because the information would not be readily available due to national security or foreign relations concerns. GAO also looked at 10 other provisions from various laws identified by congressional requestors to which the President objected in order to ascertain how agencies were executing the provisions. In total, GAO examined how 21 agencies executed 29 different provisions of law. GAO determined that in all but 9 cases the agencies had either taken actions to execute the provisions as written, or conditions requiring agency action had not occurred. In the remaining 9 cases, GAO found that the agencies had not executed the provisions as written. We did not assess the merits of the President's objections or examine the constitutionality of the provisions to which the President objected. Although we found that agencies did not execute 9 provisions as written, we could not conclude that agency noncompliance was the result of the President's signing statements. We also examined the extent to which federal courts have relied on signing statements in their interpretation of federal statutes. GAO found that only in rare instances have courts treated presidential signing statements as authoritative sources of statutory interpretation. While GAO's prior work did not involve any provisions in the recently enacted National Defense Authorization Act (NDAA) for fiscal year 2008, three provisions in the NDAA to which the President objected are similar to provisions we examined in our earlier opinions. We found that agencies had not executed two of these earlier provisions as written. To reduce any effect signing statements may have on agency execution of statutes, Congress may wish to focus its oversight work to include those provisions to which the President objects to ensure that the laws are carried out.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-08-553T, Presidential Signing Statements: Agency Implementation of Selected Provisions of Law
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Testimony:
Before the Subcommittee on Oversight and Investigations, Committee on
Armed Services, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery Expected at 12:00 p.m. EST:
Tuesday, March 11, 2008:
Presidential Signing Statements:
Agency Implementation of Selected Provisions of Law:
Statement of Gary L. Kepplinger General Counsel:
GAO-08-553T:
GAO Highlights:
Highlights of GAO-08-553T, a testimony before the subcommittee on
Oversight and Investigations, Committee on Armed Services, House of
Representatives.
Why GAO Did This Study:
Both Republican and Democratic Presidents have issued signing
statements since the early nineteenth century. Signing statements
usually take the form of a presidential statement or press release
issued in connection with the President‘s signing of a bill. Some
signing statements praise the newly signed law and those involved in
its passage. In other signing statements, Presidents have offered their
interpretation of or explained how agencies will execute a new law.
Presidents have also raised constitutional concerns or objections to
new statutes in signing statements.
The Chairmen of the Senate Appropriations Committee and the House
Judiciary Committee asked us to examine the fiscal year 2006
appropriations acts and the President‘s accompanying signing statements
to identify the provisions in the acts to which the President took
exception, to identify the presidential concern, and to determine how
the agencies executed those provisions. We also examined how the
federal courts have treated presidential signing statements in their
published opinions. In a second request, the same requestors asked us
to examine an additional 10 provisions to determine how the agencies
were executing them.
Based on this work, the Subcommittee invited GAO‘s General Counsel to
testify on the use of signing statements.
What GAO Found:
In our opinions, we examined how agencies were implementing certain
provisions to which the President objected in the signing statements.
In developing our first opinion, we examined all the signing statements
accompanying the fiscal year 2006 appropriations acts, identified 160
specific provisions of law to which the President objected, and
categorized each provision according to the nature of the President‘s
stated concern. The President‘s objections to a majority of provisions
fell under broad categories, four of which we summarize in the
testimony: President‘s theory of the unitary executive, President‘s
constitutional role, INS v. Chadha, and Fifth Amendment.
We then chose 19 provisions to learn whether the agencies were
executing the provisions as written. In considering which provisions
would be appropriate for further inquiry, we excluded provisions for
which it would be difficult to determine whether the President was
executing the provision, either because of the breadth of the executive
action covered or because the information would not be readily
available due to national security or foreign relations concerns. GAO
also looked at 10 other provisions from various laws identified by
congressional requestors to which the President objected in order to
ascertain how agencies were executing the provisions.
In total, GAO examined how 21 agencies executed 29 different provisions
of law. GAO determined that in all but 9 cases the agencies had either
taken actions to execute the provisions as written, or conditions
requiring agency action had not occurred. In the remaining 9 cases, GAO
found that the agencies had not executed the provisions as written. We
did not assess the merits of the President‘s objections or examine the
constitutionality of the provisions to which the President objected.
Although we found that agencies did not execute 9 provisions as
written, we could not conclude that agency noncompliance was the result
of the President‘s signing statements. We also examined the extent to
which federal courts have relied on signing statements in their
interpretation of federal statutes. GAO found that only in rare
instances have courts treated presidential signing statements as
authoritative sources of statutory interpretation.
While GAO‘s prior work did not involve any provisions in the recently
enacted National Defense Authorization Act (NDAA) for fiscal year 2008,
three provisions in the NDAA to which the President objected are
similar to provisions we examined in our earlier opinions. We found
that agencies had not executed two of these earlier provisions as
written.
To reduce any effect signing statements may have on agency execution of
statutes, Congress may wish to focus its oversight work to include
those provisions to which the President objects to ensure that the laws
are carried out.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.GAO-08-553T]. For more information, contact
Susan Poling at (202) 512-2667 or polings@gao.gov.
[End of section]
Chairman Snyder, Representative Akin, and Members of the Subcommittee:
We appreciate the opportunity to be here to participate in today's
hearing on the use of presidential signing statements. Signing
statements usually take the form of a presidential statement or press
release issued in connection with the President's signing of a bill.
Some signing statements praise the newly signed law and those involved
in its passage. In other signing statements, presidents have offered
their interpretation of or have explained how agencies will execute a
new law. Presidents have also raised constitutional concerns or
objections to new statutes in signing statements. These concerns or
objections are rooted in the President's understanding of his
constitutional role and powers. Not all laws have accompanying signing
statements.
My testimony today focuses on the practical consequences of the
President's objections to particular provisions of certain acts,
specifically, (1) categories of presidential concerns or objections,
(2) agency actions, (3) courts' use of signing statements, (4)
application of our findings to the 2008 National Defense Authorization
Act, and (5) observations. These remarks are based on two legal
opinions issued last year.[Footnote 1] In developing our first opinion,
we examined the signing statements accompanying the fiscal year 2006
appropriations acts, identified 160 specific provisions of law to which
the President objected, and then categorized each of these provisions
according to the nature of the President's stated concern. We then
chose 19 provisions to find out whether the agencies were executing the
provisions as written. In the second opinion, we examined 10 provisions
identified by the requestors to which the President objected to
determine how the agencies were carrying them out.
In total, we examined how 21 agencies executed 29 different provisions
of law. As explained in detail later in my testimony, we determined
that in 16 cases the agencies had taken actions to execute the
provisions as written. In 5 cases we found that the provisions were not
triggered. In the remaining 9 cases we determined that the agencies had
not yet executed the provisions or had not executed the provisions as
written.[Footnote 2] In neither opinion did GAO assess the merits of
the President's objections or examine the constitutionality of the
provisions to which the President objected. Although we found that
agencies did not execute some provisions as written, we could not
conclude that agency noncompliance was the result of the President's
signing statements.
Background:
Both Republican and Democratic Presidents have issued signing
statements since the early nineteenth century. According to the
Congressional Research Service, signing statements became increasingly
common since the Reagan Administration and have been used by Presidents
to raise constitutional objections to congressional
enactments.[Footnote 3]
Of particular concern to this committee is the statement issued by the
President when he signed the National Defense Authorization Act for
Fiscal Year 2008 (2008 NDAA).[Footnote 4] In it, the President objected
to four provisions of law because they "purport to impose requirements
that could inhibit the President's ability to carry out his
constitutional obligations to take care that the laws be faithfully
executed, to protect national security, to supervise the executive
branch, and to execute his authority as Commander in Chief."[Footnote
5] The President stated, "The executive branch shall construe such
provisions in a manner consistent with the constitutional authority of
the President."[Footnote 6]
Presidential Concerns and Objections:
In our prior work on signing statements, we categorized the provisions
we examined by the specific wording the President used in his signing
statement to identify his concern or objection. We found that the
President's objections to a majority of provisions fell under broad
categories, four of which I will briefly summarize.[Footnote 7]
The President's Theory of the Unitary Executive:
In signing statements the President has often objected to provisions on
the ground that the provisions interfere with "the President's
constitutional authority to supervise the unitary executive
branch."[Footnote 8] The Constitution does not mention the "unitary
executive," nor do the signing statements in which the term appears
explain its meaning. The theory of the unitary executive is rooted in
Article II of the Constitution and, specifically, in the vesting in the
President of the executive power[Footnote 9] and the President's duty
to "take Care that the Laws be faithfully executed."[Footnote 10] The
Office of Legal Counsel has asserted that because the Constitution
entrusts the President with the executive power, executive branch
employees and officers exercise this power through delegation from the
President. Thus, the President has an exclusive right to supervise and
rely on his subordinates which may not be burdened by the other
branches of government without impermissibly interfering with the
President's constitutional authority.[Footnote 11] Provisions to which
the President objects on this ground require some action, such as
transmittal of information to Congress or consultation with Congress or
its committees.
The President's Constitutional Role:
Many of the President's objections relate to government functions for
which the President asserts primary constitutional authority. For
example, the President commonly objects to provisions regarding command
and control of the Armed Forces and the handling of intelligence
information on the grounds that such provisions impermissibly burden
his authority as Commander-in-Chief.[Footnote 12] The President also
asserts that his authority as Commander-in-Chief grants him control
over the disclosure of information related to national
security.[Footnote 13]
The President has also asserted a primary constitutional role in the
conduct of the foreign relations of the United States. No single
constitutional provision establishes such authority, although the
President does have specific constitutional authority to make treaties
and appoint ambassadors with the advice and consent of the Senate, and
to receive ambassadors.[Footnote 14] The President in his signing
statements often objects to provisions that "purport to direct or
burden the President's constitutional authority to conduct foreign
relations."[Footnote 15] The President also has stated that decisions
on deployment and redeployment of law enforcement officers are
constitutionally vested in the President. The signing statement states
that statutory provisions that dictate such decisions are advisory
rather than mandatory.[Footnote 16]
The U.S. Supreme Court Decision INS v. Chadha:
In our previous work, we have identified 170 provisions to which the
President objected in signing statements. The President objected to 70
of these on the grounds that they were inconsistent with the
Constitution's bicameralism and presentment clause, as interpreted by
the U.S. Supreme Court in its 1983 decision Immigration and
Naturalization Service v. Chadha.[Footnote 17] The bicameralism and
presentment clause provides that before a bill becomes law it must pass
both the House of Representatives and the Senate (bicameralism) and be
presented to the President for his signature (presentment). At issue in
Chadha was a statute allowing a resolution passed by the House of
Representatives to override decisions of the Attorney General made
pursuant to statutory authority. The Court held the statute
unconstitutional as it allowed one house to overrule the executive
branch's lawful action instead of requiring a bicameral vote to
overturn the action, followed by presentment to the President for
signature.
Many provisions to which the President objects on Chadha grounds
require executive agencies to obtain congressional approval prior to
making certain expenditures. Others direct agencies to submit reports
to Congress for congressional approval.
The Fifth Amendment:
The Fifth Amendment to the Constitution prohibits the federal
government from depriving anyone of life, liberty, or property without
due process of law.[Footnote 18] The U.S. Supreme Court has held that
if a law categorizes people by certain traits such as race, ethnicity,
or gender, the law may implicate the Fifth Amendment.[Footnote 19] The
President has noted in signing statements that the executive branch
will construe provisions relating to race, ethnicity, or gender
consistent with the Fifth Amendment's due process requirement.[Footnote
20]
Mr. Chairman, I would now like to turn to how GAO approached the work
it issued to provide some perspective on what we found when we looked
at presidential signing statements.
Agency Actions:
In our opinions, we examined how agencies were implementing certain
provisions to which the President objected in signing statements. In
developing our first opinion, we examined all the signing statements
accompanying the fiscal year 2006 appropriations acts, identified 160
specific provisions of law to which the President objected, and then
categorized each of these provisions according to the nature of the
President's stated concern. We then chose 19 provisions to learn
whether the agencies were executing the provision as written.
In considering which provisions would be appropriate for further
inquiry, we excluded provisions for which it would be difficult to
determine whether the President was executing the provision, either
because of the breadth of the executive action covered by the provision
or because the information would not be readily available due to
national security or foreign relations concerns. As a result, we did
not examine any provisions to which the President objected solely on
the grounds that they interfered with his authority as Commander-in-
Chief. We then chose a provision for each appropriation act and
representing each type of objection from the President. These 19
provisions represented at least one provision from each appropriations
act for which the President issued a signing statement[Footnote 21]
and, as far as possible, at least one provision representing the
various grounds for objection we identified, as discussed above. In the
second opinion, we examined 10 provisions identified by the requestors
to which the President objected to determine how the agencies were
carrying them out.
For both opinions, we contacted the agencies responsible for
implementing the provisions. Based on their responses, we determined
that in 16 cases the agencies had taken actions to execute the
provisions as written. In 5 cases we found that the provisions were not
triggered. In the remaining 9 cases we determined that the agencies had
not yet executed the provisions or had not executed the provisions as
written.[Footnote 22]
These nine instances are summarized below, sorted by the grounds on
which the President objected.
* Unitary Executive: Section 8100 of the Department of Defense,
Emergency Supplemental Appropriations to Address Hurricanes in the Gulf
of Mexico, and Pandemic Influenza Act directed the President to include
in his budget for fiscal year 2007 separate budget justification
documents for costs of the Armed Forces' participation in contingency
operations.[Footnote 23] DOD submitted a separate budget justification
document for contingency operations as part of its fiscal year 2007
budget submission to Congress, but this document contained data only
for operations in the Balkans and Guantanamo Bay. It did not contain
information for operations in such locales as Iraq and Afghanistan.
* Unitary Executive: DOD was required to respond to questions or
inquiries from the Chairman of the Subcommittee on Military Quality of
Life and Veterans Affairs, House Committee on Appropriations, within 21
days.[Footnote 24] DOD identified two inquiries it received subject to
this requirement. DOD responded to one such inquiry in 38 days.
* Unitary Executive: The Energy Policy Act of 2005 extended certain
whistleblower protections to Department of Energy (DOE) employees and
required DOE to post information about the new protections in DOE
offices.[Footnote 25] DOE had not yet posted such notification at the
time of GAO's inquiry into the matter.
* Primary Constitutional Role: The Department of Homeland Security
Appropriations Act, 2006, required the Customs and Border Patrol (CBP)
to relocate its checkpoints in the Tucson sector every 7 days to
minimize detection of the checkpoints.[Footnote 26] CBP did not
relocate its checkpoints in this manner. CBP told us that such
relocations were not always consistent with CBP's mission requirements,
because its checkpoints were stationary and could not be relocated to
other spots. Instead, CBP shut down its checkpoints for short periods
in an effort to comply with what CBP termed the "advisory provision" in
the appropriations act.
* Chadha: The Pension Benefit Guaranty Corporation (PBGC) was required
to obtain approval from the Office of Management and Budget (OMB) and
the congressional appropriations committees before incurring
obligations greater than $296,978,000 for administrative
expenses.[Footnote 27] Although PBGC obtained OMB approval as required
by statute, PBGC only notified the committees after incurring
obligations for administrative expenses beyond the specified level.
* Chadha: The Department of Agriculture was required to obtain prior
approval from the congressional appropriations committees for a
transfer of funds to the Office of the Chief Information
Officer.[Footnote 28] The Department did not seek approval as required
by statute, but it did notify the committees prior to transferring the
funds and responded to a subsequent congressional request for
information.
* Chadha: The Federal Emergency Management Agency (FEMA) was required
to submit for appropriations committee approval a proposal and
expenditure plan for housing.[Footnote 29] FEMA did not submit such a
plan because, according to FEMA, it does not normally produce such
plans.
* Fifth Amendment: FEMA was directed to take reasonable steps to ensure
diversity in the student body of a new graduate-level homeland security
program.[Footnote 30] The program was designed to provide educational
opportunities to senior federal officials and selected state and local
officials with homeland security and emergency management
responsibilities.[Footnote 31] Fourteen months after this provision was
enacted, FEMA had not taken steps to ensure diversity in the student
body.
* Fifth Amendment: FEMA was required to create a registry of
contractors willing to perform certain disaster or emergency relief
services.[Footnote 32] The registry was to list, among other
information, whether the contractor is a small business owned and
controlled by socially or economically disadvantaged individuals or
women, among others.[Footnote 33] Fourteen months after this provision
was enacted, FEMA had not yet created this registry.
Of the 29 provisions we looked at in our previous work, 3 involved DOD.
We found that DOD did not execute 2 of these provisions as written, as
noted in the first two bullets above. The President objected to both of
these provisions on unitary executive grounds.
We also examined one provision that DOD did implement as written,
section 1205 of the 2005 national defense authorization act.[Footnote
34] The provision required the Secretary of Defense to issue guidance
on how DOD would manage contractor personnel who support deployed
forces. The President noted in his signing statement that the
"executive branch shall construe . . . [section 1205] . . . in a manner
consistent with the President's constitutional authority as Commander
in Chief and to supervise the unitary executive branch."[Footnote 35]
We found that DOD's issuance of Instruction 3020.41 and revised
Instruction 7730.64 satisfied the statutory requirement.[Footnote 36]
Federal Courts Have Rarely Used Signing Statements to Aid Their
Interpretation of the Law:
As part of our first signing statements opinion, we examined the extent
to which federal courts have referred, or cited, to signing statements.
We found that between 1945 and May 2007, 137 federal court decisions
referred in some way to signing statements. The courts have used the
signing statements for various purposes, such as supplementing
legislative history, establishing a law's enactment date, or as factual
evidence that the President objected to a provision. Only in rare
instances have courts treated signing statements as sources of
statutory interpretation.
For example, a federal district court used President George H. W.
Bush's signing statement accompanying the Civil Rights Act of
1991[Footnote 37], combined with an EEOC policy statement and a highly
conflicted legislative history, to interpret whether that Act applied
retroactively.[Footnote 38]
National Defense Authorization Act for Fiscal Year 2008:
In his signing statement accompanying the 2008 NDAA, the President
proclaimed that:
"Provisions of the Act, including sections 841, 846, 1079, and 1222,
purport to impose requirements that could inhibit the President's
ability to carry out his constitutional obligations to take care that
the laws be faithfully executed, to protect national security, to
supervise the executive branch, and to execute his authority as
Commander in Chief. The Executive Branch shall construe such provisions
in a manner consistent with the constitutional authority of the
President."[Footnote 39]
The President's objections were general, conditional ("could inhibit"),
and did not relate particular objections to the four provisions listed.
Indeed, the signing statement suggests that the President objects to
numerous provisions in the 2008 NDAA, and the four listed provisions
are but examples.
Three of the provisions in the 2008 NDAA to which the President
objected are similar to provisions we examined in our prior work. For
example, section 1079 of the 2008 NDAA requires certain members of the
intelligence community to respond to Armed Services Committee requests
for existing intelligence assessments, reports, estimates, or legal
opinions within 45 days, subject to presidential assertion of
privilege.[Footnote 40] In our previous work, we examined a provision
with time frames that required DOD to respond to certain questions or
inquiries from a congressional committee within 21 days. We determined
that DOD had not executed this provision as written because it
responded to one of the two inquiries covered by the provision in 38
days.
Section 846 of the 2008 NDAA increased certain whistleblower
protections for DOD contractors.[Footnote 41] In our work we examined a
provision extending certain whistleblower protections to employees of
the Department of Energy. At the time of our work, we found that the
Department of Energy had not implemented this provision.
Another provision that the President objected to in the 2008 NDAA was
section 841, establishing a Commission on Wartime Contracting in Iraq
and Afghanistan.[Footnote 42] Section 841 specifies that congressional
leaders will appoint six of the eight Commission members, and the
President will appoint the remaining two in consultation with the
Secretaries of Defense and State. As part of our earlier work, we
examined a provision establishing the Rio Grande Natural Area
Commission.[Footnote 43] The Secretary of the Interior was directed to
appoint all nine Commission members, each of whom was to have certain
qualifications. The President objected to this provision on the grounds
that it might impinge on his powers under the Appointments Clause of
the Constitution. We learned that 2 years after the provision
establishing the Rio Grande Natural Area Commission was enacted, its
members still had not been appointed.
Given our findings regarding these similar provisions, the Subcommittee
may wish to stay abreast of DOD's implementation of the provisions in
the 2008 NDAA to which the President objected in his signing statement.
Concluding Observations:
In summary, Mr. Chairman, we found that many agencies executed the laws
as written, some provisions were not triggered and, in some instances,
agencies did not execute the laws as written. In our review, we did not
assess the merits of the President's objections, nor did we examine the
constitutionality of the provisions to which the President objected.
Our inquiry was limited to only 30 instances of agency action and did
not include a close examination of provisions involving national
security, intelligence, or foreign relations matters, because of our
limited access to such information and the time constraints on our
work. We found that in 9 of these 30 instances, agencies had not
executed the provisions as written. Importantly, we also found that
federal courts are not using signing statements as common sources of
authority for statutory interpretation.
To reduce any effect signing statements may have on agency execution of
statutes, Congress may wish to focus its oversight work to include
those provisions to which the President objects to ensure that the laws
are carried out. We note that the Attorney General is required to
submit a report to Congress of any instances in which the Attorney
General or the Department of Justice implements a formal or informal
policy to refrain from enforcing or defending a federal law or
regulation on the grounds that such provision is
unconstitutional.[Footnote 44] This reporting requirement also extends,
albeit more narrowly, to the President himself with respect to any
unclassified executive order or similar memorandum, and to the heads of
executive agencies and military departments that establish or implement
a nonenforcement policy.[Footnote 45]
Mr. Chairman, this concludes my prepared statement. I would be happy to
respond to any questions that you or the committee may have.
GAO Contacts And Staff Acknowledgments:
For further information about this testimony please contact Susan A.
Poling, Managing Associate General Counsel, at 202-512-2667 or at
polings@gao.gov. Other key contributors to this statement were Pedro
Briones, Carlos Diz, Wesley Dunn, and A.J. Stephens.
[End of section]
Footnotes:
[1] Presidential Signing Statements Accompanying the Fiscal Year 2006
Appropriations Acts, B-308603, June 18, 2007; Presidential Signing
Statements--Agency Implementation of Ten Provisions of Law, B-309928,
Dec. 20, 2007.
[2] One provision we examined for our second opinion applied to two
different agencies, so we examined agency action in 30 instances rather
than 29.
[3] Library of Congress, Congressional Research Service, Presidential
Signing Statements: Constitutional and Institutional Implications, No.
RL33667 (Sept. 17, 2007), at 2. According to CRS, as of September 17,
2007, President Bush had issued 152 signing statements, 118 of which
(78%) raised constitutional concerns or objections. In comparison,
President Clinton issued 381 statements in 8 years, 70 of which (18%)
raised constitutional concerns, and President George H. W. Bush issued
228 signing statements over 4 years, 107 of which (47%) raised
constitutional concerns or objections. Id.
[4] Pub. L. No. 110-181, 122 Stat. 3 (Jan. 28, 2008).
[5] President Bush Signs H.R. 4986, the National Defense Authorization
Act for Fiscal Year 2008 into Law (Jan. 28, 2008) available at
[hyperlink, http://www.whitehouse.gov/news/releases/2008/01/20080128-
10.html] (last visited Mar. 7, 2008).
[6] Id.
[7] Other presidential objections are discussed in greater detail in
our two opinions.
[8] See, e.g., Statement on Signing the Transportation, Treasury,
Housing and Urban Development, the Judiciary, the District of Columbia,
and Independent Agencies Appropriations Act, 2006, 41 Weekly Comp.
Pres. Doc. 1800 (Dec. 5, 2005).
[9] U.S. Const. art. II, § 1, cl. 1.
[10] U.S. Const. art. II, § 3.
[11] Letter Opinion for the General Counsel, Department of Health and
Human Services, Authority of Agency Officials to Prohibit Employees
from Providing Information to Congress, OLC Opinion, May 21, 2004,
available at [hyperlink,
http://www.usdoj.gov/olc/crsmemoresponsese.htm] (last visited Feb. 22,
2008); Statute Limiting the President's Authority to Supervise the
Director of the Centers for Disease Control in the Distribution of an
AIDS Pamphlet, 12 Op. Off. Legal Counsel 47 (1988).
[12] See, e.g., Statement on Signing the Department of Defense,
Emergency Supplemental Appropriations to Address Hurricanes in the Gulf
of Mexico, and Pandemic Influenza Act, 2006, 41 Weekly Comp. Pres. Doc.
1918 (Jan. 2, 2006) (stating that "the executive branch shall construe
[two provisions regarding command and control relationships within the
Armed Forces] as advisory, as any other construction would be
inconsistent with the constitutional grant to the President of the
authority of Commander in Chief").
[13] See, e.g., Statement on Signing the Department of Homeland
Security Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc. 1558
(Oct. 24, 2005) (declaring that "the executive shall construe [a
provision relating to access to national security information] in a
manner consistent with the President's exclusive constitutional
authority . . . to classify and control access to national security
information").
[14] U.S. Const. art. II, § 2, cl. 2; § 3.
[15] Statement on Signing the Foreign Operations, Export Financing, and
Related Programs Appropriations Act, 2006, 41 Weekly Comp. Pres. Doc.
1718 (Nov. 21, 2005).
[16] Statement on Signing the Department of Homeland Security
Appropriations Act, 2006.
[17] 462 U.S. 919 (1983).
[18] U.S. Const. amend. V.
[19] Johnson v. California, 543 U.S. 499 (2005) (race); League of
United Latin American Citizens v. Perry, 548 U.S. 399 (2006)
(ethnicity); United States v. Virginia, 518 U.S. 515 (1996) (gender).
[20] See, e.g., Statement on Signing the Department of Defense,
Emergency Supplemental Appropriations to Address Hurricanes in the Gulf
of Mexico, and Pandemic Influenza Act, 2006, 41 Weekly Comp. Pres. Doc.
1918 (Jan. 2, 2006).
[21] The President did not issue a signing statement for the fiscal
year 2006 Legislative Branch Appropriations Act.
[22] One provision we examined for our second opinion applied to two
different agencies, so we examined agency action in 30 instances rather
than 29.
[23] Pub. L. No. 109-148, § 8100, 119 Stat. 2680, 2721 (Dec. 30, 2005).
[24] Military Quality of Life and Veterans Affairs Appropriations Act,
2006, Pub. L. No. 109-114, § 126, 119 Stat. 2372, 2380 (Nov. 30, 2005).
[25] Pub. L. No. 109-58, § 629, 119 Stat. 594, 785 (Aug. 8, 2005).
[26] Pub. L. No. 109-90, title II, 119 Stat. 2064, 2067 (Oct. 18,
2005).
[27] Department of Labor, Health and Human Services and Education, and
Related Agencies Appropriations Act, 2006, Pub. L. No. 109-149, title
I, 119 Stat. 2833, 2837 (Dec. 30, 2005).
[28] Agriculture, Rural Development, Food and Drug Administration, and
Related Agencies Appropriations Act, 2006, Pub. L. No. 109-97, § 716,
119 Stat. 2120, 2151 (Nov. 10, 2005).
[29] Emergency Supplemental Appropriations Act for Defense, the Global
War on Terror and Hurricane Recovery, 2006, Pub. L. No. 109-234, title
II, ch. 4, 120 Stat. 418, 459 (June 15, 2006).
[30] Department of Homeland Security Appropriations Act, 2007, Pub. L.
No. 109-295, § 623, 120 Stat. 1355, 1418 (Oct. 4, 2006).
[31] Id.
[32] Id. §697, 120 Stat. at 1461.
[33] Id.
[34] Ronald W. Reagan National Defense Authorization Act for Fiscal
year 2005, Pub. L. No. 108-375, § 1205, 118 Stat. 1811, 2083 (Oct. 28,
2004).
[35] Statement on Signing the Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005, 40 Weekly Comp. Pres. Doc. 2673-
74 (Nov. 1, 2004).
[36] B-309928 at 15.
[37] Pub. L. No. 102-166, 105 Stat. 1071 (Nov. 21, 1991).
[38] Ribando v. United Airlines, Inc., 787 F. Supp. 827 (N.D. Ill.
1992).
[39] President Bush Signs H.R. 4986, the National Defense Authorization
Act for Fiscal Year 2008 into Law.
[40] Pub. L. No. 110-181, § 1079, 122 Stat. 3, 334 (Jan. 1, 2008).
[41] Pub. L. No. 110-181, § 846, 122 Stat. at 241.
[42] Pub. L. No. 110-181, § 841, 122 Stat. at 230.
[43] B-309928 at 16-17.
[44] 28 U.S.C. § 530D. For examples where the Department of Justice has
submitted litigation reports to Congress under section 530D, see Letter
to the Honorable Patrick J. Leahy, Chairman, Committee on the
Judiciary, U.S. Senate, from Richard A. Hertling, Acting Assistant
Attorney General at 103-8, January 18, 2007, responding to Questions
for the Record for Attorney General Alberto Gonzales, Senate Judiciary
Committee DOJ Oversight Hearing on July 18, 2006.
[45] President Bush objected to 28 U.S.C. § 530D in a signing statement
when he signed the provision into law and stated that "[t]he executive
branch shall construe section 530D of title 28 . . . in a manner
consistent with the constitutional authorities of the President to
supervise the unitary executive branch and to withhold information the
disclosure of which could impair foreign relations, the national
security, the deliberative processes of the Executive, or the
performance of the Executive's constitutional duties." Statement on
Signing the 21st Century Department of Justice Appropriations
Authorization Act, 38 Weekly Comp. Pres. Doc. 1971-73 (Nov. 11, 2002).
Interestingly, the Office of Legal Counsel, citing to a prior, narrower
version of section 530D, states that the Attorney General "must" notify
Congress if the Attorney General decides not to defend the
constitutionality of certain provisions. Memorandum Opinion for the
Attorney General, Recommendation that the Department of Justice not
defend the Constitutionality of Certain Provisions of the Bankruptcy
Amendments and Federal Judgeship Act of 1984, 8 Op. O.L.C. 183 (1984).
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