July 14th, 2009
01:24 PM ET
12 years ago

Sotomayor: 'signing statements' must be considered case by case

[cnn-photo-caption image= http://i2.cdn.turner.com/cnn/2009/images/07/14/art.sotoconfirm2.gi.jpg caption="Sonia Sotomayor said Tuesday that the legality of presidential 'signing statements' must be decided on a case-by-case basis."]WASHINGTON (CNN) - The legality of presidential "signing statements" has to be decided on a case-by-case basis, Judge Sonia Sotomayor said Tuesday.

Sotomayor weighed in on the hotly contested subject during her Supreme Court confirmation hearings after Sen. Dianne Feinstein, D-California, criticized former President Bush's decision to sign a 2005 bill banning torture only after attaching several caveats.

Feinstein noted that Bush issued a signing statement specifying that he would only enforce the measure when "consistent with the constitutional authority of the president to supervise the unitary executive branch."

Bush also said that the measure must be "consistent with the constitutional limitations on the judicial power."

Asked if the Constitution authorizes the president "to not follow parts of laws duly passed by the Congress that he is willing to sign," Sotomayor would only say that "the factual scenario before the court" must be considered in each particular situation.

She cited a framework set Justice Robert Jackson during President Harry Truman's seizure of several steel factories during the Korean War in order to prevent a strike.

According to Jackson, Sotomayor said, "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."

First, "you look at whether Congress has expressly or implicitly addressed or authorized the president (to) act in a certain way. And if the president has, then he's acting at his highest stature of power."

If, on the other hand, "the president is acting in prohibition of an express or implied act of Congress, then he's working at his lowest ebb."

But if a president acts "where Congress hasn't spoken, then we're in what Justice Jackson called a 'zone of twilight.'"

In each instance, she argued, you have to start "with what Congress says or has not said, and then looking at what the Constitution ... says about the powers of the president minus Congress's powers in that area."

But at the end of the day, Sotomayor concluded, a "president can't act in violation of the Constitution. No one's above the law."

In the 2008 case Doe v. Mukasey, Sotomayor joined a unanimous 2nd Circuit panel that found several Patriot Act provisions improperly stripped the federal courts of the power to review the government's decisions.

The law would improperly "cast Article III [federal] judges in the role of petty functionaries, persons required to enter as a court judgment an executive officer's decision, but stripped of capacity to evaluate independently whether the executive's decision is correct," the panel concluded.

"Under no circumstances should the Judiciary become the handmaiden of the Executive Branch. ... The Constitution envisions a role for all three branches when individual liberties are at stake."

–CNN's Bill Mears contributed to this report

Filed under: Sonia Sotomayor • Supreme Court
soundoff (17 Responses)
  1. Dutch/Bad Newz, VA

    But if a president acts "where Congress hasn't spoken, then we're in what Justice Jackson called a 'zone of twilight.'"

    Isn't kind of what we're going through right now with the C.I.A. Congress wasn't "fully" informed of a secret program. So basically, the President/V.P. overstepped their boundaries if I'm understanding this correctly. My larger concern is whether or not Cheney was undermining Bushs' authority. If he was, that's illegal.

    "No one is above the law"

    July 14, 2009 01:55 pm at 1:55 pm |
  2. independent

    It will be nice to hear her on the SCOTUS. Clear basis for decisions, instead of forcing decisions through a political agenda.

    Pro or Con, left or right, liberal or conservative, live in line with the Constitution, and tell Congress to get off their rear-ends to fill in the gaps, instead of cowardly leaving it to the Court and President to make decisions Congress is afraid to make.

    July 14, 2009 01:59 pm at 1:59 pm |
  3. Kevin B

    This nominee is running circles around the GOP senators at every turn.

    Even the stench and lawlessness left behind by the previous administration and the GOP ran congressional the branch of govenment, which still lingers around the judicial branch is being overcome by this "wise latina" woman.

    Great nomination President Obama !

    July 14, 2009 02:01 pm at 2:01 pm |
  4. Stacy from Leesburg, VA

    Personally speaking, I think these so-called “signing statements” are ridiculous and allows for selective enforcement of laws passed by Congress and then agreed to by the Executive. George Bush frankly abused the “signing statement” and selective enforcement should be removed from the scope of Executive authority. The Executive enforces the laws of this country and it is not a cherry picking of the laws he or she should follow. Rather, they must enforce the laws enacted by the will of the people.

    July 14, 2009 02:19 pm at 2:19 pm |

    She is right in that no president should be able to act in violation of the Constitution, however we have one in place now that does not seem to realize that fact. This is the only thing she has said that I agree with.

    July 14, 2009 02:24 pm at 2:24 pm |
  6. G

    What would a wise 'Latina woman' think about signing statements?

    If a fireman studed a signing statement test and passed would you give him the promotion?

    Did you ever discuss this issue at your all women's club?

    July 14, 2009 02:25 pm at 2:25 pm |

    Extremely well stated!!!

    July 14, 2009 02:29 pm at 2:29 pm |
  8. trying not to over answer

    sounds like a careful answer and what is required by this mess of a process we have developed over 200+ years

    July 14, 2009 02:32 pm at 2:32 pm |
  9. southerncousin

    She must not have received her instructions from the "dear leader" on how to answer that one yet.

    July 14, 2009 02:35 pm at 2:35 pm |
  10. Leta

    The members of congress asking Judge Sotomayor these questions re: Private Property and Public Use....Why are these questions being allowed to be asked durring a time when Banks, Property, Insurance fraud is so deeply being investigated. Why allow parts of the problem to fraud more....? These are some of the same congress under investigation....I would leave these questions off limits to congress. They are suppose to be acting on the behalf of the people they represent not the COMMERCIAL sector of their regin and most of these guy's have been lawyers or gone to law school.....They are the ones that bring the facts in to Judge...The private sector is the victim in the majority of these cases...

    July 14, 2009 02:37 pm at 2:37 pm |
  11. Leta

    Prisioners are not allowed rights.....Even the ones in this country...They don't vote either.....

    July 14, 2009 02:40 pm at 2:40 pm |
  12. Paul

    Concerns with signing statements ought to include a concern for the health of our constitutional republic, it ought not to be based upon the political battle of the day. Regardless of whether the president is named Bush or Obama, and without respect to any particular political interest, Congress needs to fulfill their oath of office and protect and defend the constitution and our republic. We the people deserve no less, and should demand it of all of our representatives.

    July 14, 2009 02:41 pm at 2:41 pm |
  13. skyhawkdriver

    What a waste of the peoples time and money..utterly meaningless and mindless..confirm the new justice and get on with it..arguing back and forth and grandstanding like a bunch of little children..how many of you know that a REAL american hero passed away on June 17 th ..anyone ever heard of Shifty Powers??..I bet not many..how sad it is that this country looks to people like the congressional clowns for leadership when they are nothing but a bunch of empty shirts..who cares who sits on the supreme court??..this country is in a mess and I seriously doubt any judge is going to straighten it out..leadership is what this country needs,and it certainly isn't coming from washington

    July 14, 2009 02:47 pm at 2:47 pm |
  14. addon

    Well much to the pleasure of the GOP....the judge will be a strict constructionist as it relates to the extent of the current President's executive authority. No rubber stamping here

    July 14, 2009 02:49 pm at 2:49 pm |
  15. Trade Freedom for Security, Lose Both

    Signing statements are nothing new. Every president uses the tactic. So don't anyone get their undies in an uproar.

    July 14, 2009 02:53 pm at 2:53 pm |
  16. dominican mama 4 Obama

    This woman should not be underestimated. She's brilliant. We've already witnessed that all the coaching in the world will not guarantee a stellar performance when the curtain goes up ( see Sarah "clueless" Pailin). The difference here is someone who excels at what she does, versus someone who is making it up as she stumbles along (again see Sarah "gotcha" Pailin).

    I agree with you Sniffit. All together now Repubs: Congratulations Judge Sotomayor!!

    July 14, 2009 02:56 pm at 2:56 pm |