Republican Senator Introduces Bill to Limit Scope of Presidential Signing Statements

Presidential Signing Statement Act of 2007
On Friday, June 29, 2007, just before Congress left for its Independence Day recess, Senator Arlen Specter (R-PA) introduced bill S. 1747, "to regulate the judicial use of presidential signing statements in the interpretation of Acts of Congress," known as the Presidential Signing Statement Act of 2007.

While the text of the bill acknowledges that presidential signing statements have been used since the early 1800s, the emphasis of concern is recent judicial use of the statements, as noted "some courts have begun using presidential signing statements as a source of authority in the interpretation of Acts of Congress." The bill further asserts that "This judicial use of presidential signing statements is inappropriate, because it in effect gives these statements the force of law."

Protecting Checks and Balances
In a press release dated July 3, 2007 Specter said "Presidential signing statements can render the legislative process a virtual nullity, making it completely unpredictable how certain laws will be enforced." In Specter's floor speech, introducing the bill, he said "I believe that this is necessary to protect our constitutional system of checks and balances." The bill is two-fold, according to Specter. First, it instructs the courts not to rely on signing statements to interpret the law, voiding the use of the president's signing statement to alter its intent, and second, it allows the Congress to participate in court cases where the construction or constitutionality of an act of Congress is in question when presented with a signing statement.

Anti-torture Amendment Signing Statement
Specter's floor speech also cited some of the signing statements issued by President George W. Bush, including, probably the most notorious, the signing statement to the "McCain Amendment," also known as the "anti-torture amendment," which was passed by the Senate with a decisive majority of 90 to 9. Specter stated "you might conclude that by signing the McCain amendment into law, President Bush and his administration has fully committed to not using torture. But you would be wrong. After the public ceremony of signing the bill into law, the President issued a signing statement saying his administration would construe the new law 'in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.'''

Unitary Executive Branch
The phrase "unitary executive branch," referring to a theory that holds, among other things, that laws enacted by Congress, cannot restrict the Executive Branch, has been used many times by President Bush in his signing statements and executive orders. In an article in The Wall Street Journal by Jess Bravin dated January 5, 2006, appearing on the Judiciary Committee Democrats on the Supreme Court Hearings website, statistical data gathered by Christopher Kelly of Miami University provides a comparison of official use of this term among our four most recent presidents. According to the data, President Reagan used the term once during his eight years in office; President George H.W. Bush used it six times in his four years, President Clinton never used the expression, while President George W. Bush used "unitary executive" 110 times in his signing statements and executive orders through 2005.

Separation of Powers
Specter pointed out that, according to the Constitution, all legislative power is vested in the Congress and that the President only has the Constitutional power to accept or veto the legislation in its entirety and has no authority to select which provisions of a law he will accept. Referencing the role of the separation of powers as designed by our Framers, Specter stated "Any action by the President that circumvents this finely structured procedure is an unconstitutional attempt to usurp legislative authority."

Specter's floor speech concluded with the summary "this bill seeks to implement measures that will safeguard the constitutional structure of enacting legislation. In preserving this structure, this bill reinforces the system of checks and balances and separation of powers set out in our Constitution."

It will be interesting to see how the U.S. Supreme Court might rule on the question of separation of powers, if it is ever confronted with the authority of Congressional intent on passing legislation versus the power of a presidential signing statement to that legislation, especially under the current make-up of the Supreme Court. It was Sandra Day O'Connor who wrote "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." in the June 28, 2004 decision of Hamdi et al. vs. Rumsfeld, Secretary of Defense, et al., siding against Executive branch authority. Her successor, however, Justice Samuel Alito, is, reportedly, a supporter of the unitary executive theory, who, ironically Senator Specter voted to confirm as a Supreme Court Justice.