Congressional Record: July 25, 2006 (Senate)
Page S8189-S8190                        


  Mr. LEAHY. Mr. President, yesterday we were reminded, again, of the 
lawlessness of the Bush-Cheney administration as it continues its abuse 
of ``signing statements'' as part of a systematic pursuit of power 
without the checks and balances inherent in our constitutional 
democracy. A most distinguished task force of the American Bar 
Association has now released a unanimous report highly critical of this 
President's practice as ``contrary to the rule of law and our 
constitutional system of separation of powers.'' I thank the 
distinguish panel of conservatives and moderates, or Republicans and 
Democrats for their thoughtful report.
  Let me be clear, this is not some academic debate without 
consequences. I have been seeking to draw attention to this 
surreptitious power-grab for at least 4 years, since this President's 
unusual signing statement following enactment of the Sarbanes-Oxley 
bill in 2002 to reign in corporate abuses that cost so many Americans 
their livelihoods and their retirement savings through Enron and other 
scandals. The President signed the bill but had secret 
``reservations.'' That is when I first realized the President's 
unorthodox, unwise and unsound practice of signing a bill while 
crossing his fingers behind his back. We have seen it over and over 
again as this President insists on the equivalent of an unwritten line-
item veto that would undermine the checks and balances of our 
constitutional separation of powers and that the Supreme Court 
correctly determined was unconstitutional.
  Later this week, the President will be signing the reauthorization 
and revitalization of the Voting Rights Act, passed by the House with 
390 votes and unanimously last week by the Senate. In the past I could 
have gone to the White House to witness the bill signing knowing that 
our three branches of government were all operating within their proper 
authority. That is the way we have operated for more than 200 years. 
But this year, with this President, that is not the way any longer. 
After the bill signing, after the celebration, after the bipartisan 
plaudits and after the President takes credit for the civil rights 
advances that our bill is intended to represent--after all this--we 
will have to wait to see whether there is a belated presidential 
document, a so-called ``signing statement.'' Only then will we see if 
the President will seek to create a gloss that Congress did not intend, 
or modify a provision of law more to his liking, or declare some 
provision of law something he and his administration will not enforce. 
That is wrong. That is the opposite of the rule of law. And no one--not 
even the President--is above the law.
  The Constitution places the lawmaking power, ``All legislative 
Powers'' in the Congress. That is an article I power. A check on the 
congressional power is the requirement that ``before [a bill] becomes a 
Law'' it must be presented to the President. Section 7 of article I of 
the Constitution provides: ``If he approve he shall sign it, but if not 
he shall return it, with his Objections to that House in which it shall 
have originated.'' Of course the Constitution then contemplates 
congressional power to override a presidential objection or veto. That 
is our system, that is our law. The President has the option to veto--
in fact after 5 years in office, he finally exercised that power last 
week when he vetoed the stem cell research legislation. I disagreed 
with his decision to veto that bill, but it was within his 
constitutional power to do it. He does not have the power to issue a 
decree that he will pick and choose which provisions of laws to follow 
in statements issued after Congress passes a law. What this President 
is doing is wrong.
  Last month, the Senate Judiciary Committee held a hearing on the use 
of these signing statements by the Bush-Cheney administration. I noted 
that we are at a pivotal moment in our Nation's history, where 
Americans are faced with a President who makes sweeping claims for 
almost unchecked Executive power. This President's use of signing 
statements is unprecedented, although presaged by the work of Samuel 
Alito at the Meese Justice Department during the Reagan Presidency--now 
Justice Alito on the Supreme Court. This administration is now 
routinely using signing statements to proclaim which parts of the law 
the President will follow, which parts he will ignore, and which he 
will reinterpret. This is what I have called ``cherry-picking'' and it 
is wrong.
  This President's broad use of signing statements to try to rewrite 
the laws passed by the Congress poses a grave threat to our 
constitutional system of checks and balances. During his 5 years in 
office, President Bush has abused his bill signing statements to assign 
his own interpretations to laws passed by Congress.
  According to a review of these statements conducted by The Boston 
Globe, President Bush has employed signing statements to ignore or 
disobey more than 750 provisions enacted by the Congress since 2001, 
more than all previous Presidents in the history of our Nation 
combined. According to scholarly research that number now tops 800 
provisions of law.
  I have alluded to the President's signing statement in 2002 in 
connection with the Sarbanes-Oxley law designed to combat corporate 
fraud. The President used his signing statement to attempt to narrow a 
provision protecting corporate whistleblowers in a way that would have 
afforded them very little protection. Senator Grassley and I wrote a 
letter to the President stating that his narrow interpretation was at 
odds with the plain language of the statute, and the administration 
reluctantly relented on this view but only after much protest.
  We also witnessed the President's fondness for signing statements 
earlier this year, when after months of debate and negotiations in 
Congress, the President issued a signing statement for the USA PATRIOT 
ACT reauthorization language in which he stated his intentions not to 
follow the reporting and oversight provisions contained in that bill. I 
noted this abuse at the time. When I voted against that 
reauthorization, I explained it was because I did not have confidence 
that the oversight provisions we succeeded in incorporating into the 
law would be respected. What little doubt was left by the self-serving 
signing statement was erased last week when the Attorney General of the 
United States refused to commit to following the law.
  This President has also used signing statements to challenge laws 
banning torture, on affirmative action and prohibiting the censorship 
of scientific data. In fact, time and again, this President has stood 
before the American people, signed laws enacted by their 
representatives in Congress, while all along crossing his fingers 
behind his back. And, while this President used to boast--until his 
veto of stem cell research legislation--that he was the first modern 
President to have never vetoed a bill, he has cleverly used his signing 
statements as a de facto line-item veto to cherry-pick which laws he 
will enforce in a manner not consistent with our Constitution.
  Under our constitutional system of government, when Congress passes a 
bill and the President signs it into law, that should be the end of the 
story. At that moment the President's constitutional duty is to ``take 
Care that the Laws be faithfully executed.'' That is the article II 
power, the executive power, to ``execute'' the laws, it is not a 
legislative power. So when the President, including this President, 
takes the oath of office and swears on the Bible, he does so, in the 
words of the Constitution, ``Before he enter on the Execution of his 
Office,'' and swears that he will ``faithfully execute'' the office of 
President and ``preserve, protect and defend the Constitution of the 
United States.'' I remind this President and this administration that 
the Constitution has more than one article and that ``All legislative 
Power'' is vested in Congress, not some ``unitary executive.''
  When the President uses signing statements to unilaterally rewrite 
the laws enacted by the people's representatives in Congress, he 
undermines the rule of law and our constitutional

[[Page S8190]]

checks and balances designed to protect the rights of the American 
  This President's abuse of signing statements is all the more 
dangerous because he has packed the courts with judges willing to defer 
to him and presidential authority. I have noted that Justice Alito 
helped develop this device. I could not help but note that Justice 
Scalia, who is famous for not consulting legislative history, reached 
out in his dissent in the recent Hamdan decision to reference a recent 
Presidential signing statement.
  These signing statements are a diabolical device but this President 
will continue to use and abuse them, if the Republican Congress lets 
him. So far, this Congress has done exactly that. Whether it is 
torture, warrantless eavesdropping on American citizens, or the 
unlawful detention of military prisoners, this Republican-led Congress 
has been willing to turn a blind eye and rubberstamp the questionable 
actions of this administration, regardless of the consequences to our 
Constitution or civil liberties.