GovernmentExecutive.com

Legal professionals testified this week before Congress that there might be some practical concerns with the signing statement issued by President Bush on the fiscal 2008 Defense authorization bill. The president's objections to certain provisions leave some in doubt about whether he will follow the letter of the law.

Gary Kepplinger, general counsel at the Government Accountability Office, said a recent report from the watchdog agency shows that in many cases, agencies do not implement provisions the president has objected to in signing statements. While the report did not prove a direct link between signing statements and failure to implement legislative mandates, Kepplinger said the trend could indicate that increased congressional oversight is necessary to ensure that agencies execute these provisions.

"In nine of 30 cases we examined, the agencies had failed to implement the statutory provisions according to the letters of the law," Kepplinger told the House Armed Services Oversight and Investigations Subcommittee on Tuesday. "Moreover, the president continues to issue signing statements, leaving Congress unsure if the president will carry out the laws as written."

President Bush's signing statement on the Defense authorization bill (H.R. 4986) stated 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."

These mandates include:

• Creation of a commission to investigate contracting abuse in Iraq and Afghanistan.
• Protection of whistleblowers who expose contracting abuse.
• Mandatory disclosure of certain categories of intelligence information to congressional committees.
• A prohibition on using appropriated funds to build permanent bases in Iraq.

Lawmakers said the signing statement was excessively broad, seeming to leave open the possibility that it could be applied to any provision in the massive authorization bill.

"There's no detail there at all about what that means for those four provisions; there's no guidance to this committee as the drafters of the Defense bill," said Rep. Vic Snyder, D-Ark., chairman of the subcommittee. "Also, the president clearly says provisions including these four, with the implication being perhaps there's another 500 provisions, another three provisions covered, it's not clear."

According to the legal professionals at the hearing, signing statements should be used to object to legislation on the grounds that it poses a constitutional threat. Several lawmakers and witnesses, however, said the Defense signing statement is too broad to flag any particular risk of unconstitutionality.

"In this particular signing statement, it's difficult to know exactly what the constitutional objections are," said Nicolas Rosenkranz, associate professor of law at Georgetown University Law Center. "I think it would be better if the president was more specific in his signing statements, but on the other hand, the president is interpreting these laws before any enforcement has happened, unlike courts. It is much harder to spot constitutional objections on the plain base of a statutory text."

Some witnesses and lawmakers said certain flagged provisions raise no potential constitutional issue at all.

"From a constitutional perspective, I think anybody would be hard-pressed to attack the constitutionality of the commission," said T.J. Halstead, legislative attorney at the Congressional Research Service's American Law Division. He said the commission established by the authorization bill to investigate in-theater contracting is "not an entity that wields any executive authority, so I don't see the potential conflict there. It doesn't even have subpoena authority, which well-established legislative commissions can have."

Several lawmakers said that while they respect the president's authority to issue signing statements, it might not be the best way to open avenues of communication between the executive and legislative branches. That apprehension was exacerbated when administration officials from the Justice and Defense Departments who were invited to testify at the hearing refused to do so.

"If the president believes his independent duties under the Constitution preclude him from implementing a law in the manner Congress prescribed, then I want to know," said Rep. Todd Akin, R-Mo., ranking member of the subcommittee. "What I do not want is an executive that does not communicate with the Congress."