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Key Excerpt: Feinstein and Sotomayor on National Security and Presidential Signing Statements

CQ Transcriptions

FEINSTEIN: I wanted to ask a question on executive power and national security. We have seen the executive branch push the boundaries of power, claiming sweeping authority to disregard acts of Congress, and that's one way to collect communications of Americans without warrants and to detain people indefinitely without due process.

Now, the president in literally hundreds of signing statements affixed to a signature on a bill indicated part of a bill that he would, in essence, disregard. He didn't veto the bill. He signed the bill and said, "But there are sections that I," in so many words, "will disregard."

FEINSTEIN: Most egregiously, in 2005, when Congress passed a bipartisan bill banning torture, President Bush signed it, but he also issued a signing statement saying he would only enforce the law, quote, "consistent with the constitutional authority of the president to supervise the unitary executive branch and consistent with the constitutional limitations on the judicial power," end quote.

In other words, although he signed the bill, it was widely interpreted that he was asserting the right not to follow it.

Does the Constitution authorize the president to not follow parts of laws duly passed by the Congress that he is willing to sign that he believes are an unconstitutional infringement on executive authority?

SOTOMAYOR: It's a very broad question.

FEINSTEIN: It's one that we are grappling with.

SOTOMAYOR: And -- and that's why I have to be very cautious in answering it...

FEINSTEIN: That's fine.

SOTOMAYOR: ... because not only is Congress grappling with this issue, but so are courts, by claims being raised by many litigants who are -- who are asserting -- whether they're right or wrong would need to be addressed in each individual case -- that the president, in taking some activity against the individual, has exceed Congress's authorization or his powers.

The best I can do in answering your question, because there are so many pending cases addressing this issue in such a different variety of ways, is to say that the best expression of how to address this always in a particular situation was made by Justice Jackson in his concurrence in the Youngstown steel seizure cases, and that involved President Truman's seizure of steel factories.

There, Justice Jackson has sort of set off the framework in an articulation that no one's thought of a better way to make it. He says that you always have to look at an assertion by the president that he or she is acting within executive power in the context of what Congress has done or not done.

And he always starts with, first, you look at whether Congress has expressly or implicitly addressed or authorized the president's act in a certain way. And if the president has, then he's acting at his highest stature of power.

If the president is acting in prohibition of an express or implied act of Congress, then he's working at his lowest ebbs. If he's acting where Congress hasn't spoken, then we're in what Justice Jackson called the zone of twilight.

The issue in any particular case is always starting with what Congress says or has not said and then looking at what the Constitution has with -- says about the powers of the president minus Congress's powers in that area.

You can't speak more specifically than that, in response to your statement that were a part of your question, other than to say the president can't act in violation of the Constitution. No one's above the law. But what that is in a particular situation has to be looked at in the factual scenario before the court.

Read the entire exchange between Sen. Feinstein and Judge Sotomayor. Read more on Sotomayor and national security.

By  |  July 14, 2009; 12:52 PM ET
Categories:  Hearings , Supreme Court , Topics: National Security  
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