No.

10-699

IN THE

upreme ourt of tlje i niteb tate

M. B. Z., by his parents and guardians

ARI ZIVOTOFSKY et ux.,
Petitioner,
V.
HILLARY RODHAM CLINTON, SECRETARY OF STATE,
Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals
for the District of Columbia Circuit

BRIEF OF CONGRESSMEMBER
ANTHONY WEINER AS AMICU8 CURIAE
IN SUPPORT OF PETITIONERS M. B. Z., BY
HIS PARENTS AND GUARDIANS
ARI ZIVOTOFSKY ET UX.

PAUL KUJAWSKY
LAW OFFICE OF PAUL
KUJAWSKY
5252 Corteen Place No. 35
Studio City CA 91607
818-389-5854
pkuj [email protected]
Counsel of Record
December 29, 2010 for Amicus Curiae

WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002

Blank Page
 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................ ii
STATEMENT OF INTEREST ............................ 1
STATEMENT ...................................................... 1
SUMMARY OF ARGUMENT ............................. 2
ARGUMENT ........................................................ 3
I. THIS COURT SHOULD CLARIFY THE
RELATIONSHIP BETWEEN CON-
GRESSIONAL AND PRESIDENTIAL
POWERS IN FOREIGN AFFAIRS .......... 3
A. The Constitutional Grant of Legisla-
tive Power to Congress Contains
No Textual Restriction To Domestic
Affairs. Congress Regulates Pass-
ports and Recognition of Foreign
Governments ........................................ 6
B. The Constitution Contains No Tex-
tual Commitment of Foreign Policy
to the Executive Branch ...................... 11
II. USING A PRESIDENTIAL SIGNING
STATEMENTS AS A BACKDOOR VETO
IS UNCONSTITUTIONAL ...................... 14
CONCLUSION .................................................... 18

(i)
 ii
TABLE OF AUTHORITIES
CASES Page
Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398 (1964) .......................................... 12, 13
Clinton v. City of New York, 524 U.S. 417
(1998) ......................................................... 16, 17
Dames & Moore v. Regan, 453 U.S. 654
(1981) ......................................................... 6
First Nat’l City Bank v. Banco Nacional de
Cuba, 406 U.S. 759 (1972) ........................ 9
Haig v. Agee, 453 U.S. 280 (1981) ................ 8
Japan Whaling Ass’n. v. American Ceta-
cean Soc’y., 478 U.S. 221 (1986) ............... 8
Kent v. Dulles, 357 U.S. 116 (1958) ............. 7, 8
Medellin v. Texas, 552 U.S. 491 (2008) ........ 9
Mendelsohn v. Meese, 695 F. Supp. 1474
(S.D.N.Y. 1988) ........................................ 3, 10
Oetjen v. Central Leather Co., 246 U.S. 297
(1918) ......................................................... 9
Pasquantino v. United States, 544 U.S.
349 (2005) .................................................. 4
Raines v. Byrd, 521 U.S. 811 (1997) ............ 18
United States v. Belmont, 301 U.S. 324
(1937) ......................................................... 12
United States v. Curtiss-Wright Export
Corp., 299 U.S. 304 (1936) ........................ 3-4, 6
United States v. Palestine Liberation Or-
ganization, 695 F. Supp. 1456 (S.D.N.Y
1988) .......................................................... 10
Williams v. Suffolk Ins. Co., 38 U.S. 415
(1839) ......................................................... 13
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ........................ 4, 6, 7, 13, 14
 ooo
111

TABLE OF AUTHORITIES--Continued
Page
Zivotofsky v. Sec’y of State, 571 F.3d 1227
(D.C. Cir. 2009) rehearing denied, 610
F.3d 84 (D.C. Cir. 2010) ....................... 12, 13, 19

CONSTITUTION
U.S. Const., art I, § 1 .................................... 7
U.S. Const., art I, § 7, cl. 2 ........................3, 14, 15
U.S. Const. art. II, § 1 .................................. 11
U.S. Const. art. II, § 2 .................................. 12
U.S. Const. art. II, § 3 .........................3, 12, 13, 14
STATUTES
22 U.S.C. § 211a ........................................... 8
22 U.S.C. § 5201 ........................................... 9
22 U.S.C. § 5202 ........................................... 9
Pub. L. No. 104-45, § 3, 109 Stat. 398
(1995) ......................................................... 10
Pub. L. No. 107-228, § 214(d) (2003) ............ 18

OTHER AUTHORITIES
American Bar Association, Report of the
Task Force On Presidential Signing
Statements And The Separation Of
Powers Doctrine, http://www.abanet.org/
op/signingstatements/aba_final_signing_
statements_recommendation-report_7-24-
06.pdf (2006) ................................... 14, 15, 17, 18
Charlie Savage, Symposium: The Last
Word? The Constitutional Implications
Of Presidential Signing Statements:
Introduction, 16 Wm. & Mary Bill Rts.
J. 1 (2007) .................................................. 15
 iv

TABLE OF AUTHORITIES--Continued
Page
Curtis A. Bradley and Martin S. Flaherty,
Executive Power Essentialism and
Foreign Affairs, 102 Mich. L. Rev. 545
(2004) ......................................................... 11-12
Edward S. Corwin, The President 1787-
1984 (Randall Bland et al. eds., 5th ed.
1984) .......................................................... 3
Joseph M. Lynch, Negotiating the Consti-
tution: The Earliest Debates Over
Original Intent (1999) ............................... 11
Saikrishna B. Prakash & Michael D. Ram-
sey, The Executive Power Over Foreign
Affairs, 111 Yale L.J. 231 (2001) .............. 11
 STATEMENT OF INTEREST
Amicus Curiae is a Member of the Congress of the
United States of America. He has an institutional
interest in the proper, constitutional allocation of
authority between the political departments of the
federal government. Amicus contends that the Presi-
dent must respect and enforce laws duly enacted by
Congress, and signed by him, even when those laws
bear on the foreign relations of the United States. 1
STATEMENT
This case touches on the most fundamental consti-
tutional questions: The power of the Congress to
make the laws, and the duty of the President to faith-
fully execute them.
Presidents often contend that the power to deter-
mine the nation’s foreign policy rests entirely and
exclusively in their hands. President George W. Bush
did so in the signing statement at the heart of this
case.
There is no constitutional basis for such a claim.
The Constitution and the cases, not to mention
history, demonstrate that both political branches
share responsibility for formulating American foreign
policy, while the executive branch is charged with
executing that policy.
However, the Supreme Court’s cases have not
made this point with sufficient clarity and emphasis.
The Court should therefore use this case to enunciate

1 Pursuant to Supreme Court Rule 37.6, Amicus certifies

that no counsel for a party authored this brief in whole or in
part. No person or party other than the Amicus or his counsel
has made a monetary contribution to this briefs preparation or
submission. The parties were timely notified and consent to this
filing was granted.
 2
the basic principle of constitutional law that Congress
too plays a central role in framing foreign policy.
This case also presents the narrower, but equally
vital, question of whether the President can sign a
law with one hand while vetoing it with the other.
The presidential signing statement has grown
monstrous and debased. Presidents once used it
appropriately to express their thinking about a bill,
or to register concerns and objections. Now, presi-
dents use it as a vehicle to announce that they will
not enforce the very statute they are signing into law.
That is what President Bush did in this case.
The signing statement danger is not limited to
foreign policy. Presidential abuse threatens to
undermine the constitutional structure in all areas of
law. The Supreme Court should take this case, as it
is the rare case in which someone actually has
standing to contest a signing statement.
SUMMARY OF ARGUMENT

The text of the Constitution is not particularly

lucid in explaining the relationship between the
President and Congress in the formulation and
implementation of foreign policy. Logic dictates that
Congress, as the nation’s legislative body, must be
the constitutional actor to legislate, in foreign affairs
as well as domestic affairs. In fact, Congress has
enacted legislation concerning passports and recogni-
tion of foreign governments without appreciable
controversy.
The Constitution gives the President a few well-
defined jobs on the foreign policy front, but that is all.
Any theory that turns the President into a foreign
affairs legislator upends the fundamental separation
 3
of powers principle. In addition, the presidential
assertion that foreign policy legislation invades his
private domain and can be ignored violates the
keystone obligation of his office: to faithfully execute
the laws.
The use of presidential signing statements to
declare that portions of laws are unconstitutional,
and that the President refuses to enforce them,
violates the Presentment Clause and the Faithful
Enforcement Clause.

ARGUMENT

THIS COURT SHOULD CLARIFY THE

RELATIONSHIP BETWEEN CONGRES-
SIONAL AND PRESIDENTIAL POWERS IN
FOREIGN AFFAIRS.

The Constitution sets out some of its rules and

principles with simplicity and clarity. The conduct of
foreign policy is not among them. The intended roles
of the executive and legislative branches are some-
what obscure. As political scientist Edward Corwin
mordantly observed: "The Constitution is an invita-
tion to struggle for the privilege of directing Ameri-
can foreign policy." Edward S. Corwin, The President
1787-1984 201 (Randall Bland et al. eds., 5th ed.
1984). One federal court has observed that the foreign
affairs power is "certainly shared, though the specific
boundaries have never been drawn." Mendelsohn v.
Meese, 695 F. Supp. 1474, 1484 (S.D.N.Y. 1988).
The Supreme Court’s jurisprudence has not resolved
the tensions.
Sometimes the Court has awarded the laurel to the
executive branch. For example, in United States v.
 4
Curtiss-Wright Export Corp., 299 U.S. 304 (1936), the
Court stated expansively:
"In this vast external realm, with its important,
complicated, delicate and manifold problems, the
President alone has the power to speak or listen
as a representative of the nation. The
President is the sole organ of the nation in its
external relations, and its sole representative
with foreign nations."
Id. at 319 (quotation marks omitted).
Curtiss-Wright is often brandished by partisans of
exclusive executive control over foreign policy. See,
e.g., Pasquantino v. United States, 544 U.S. 349, 369
(2005.) But in Curtiss-Wright the presidential action
under review--prohibition of arms sales in the
United States to Bolivia and Paraguay, at war in
the Chaco region--was explicitly authorized by a
congressional joint resolution. Curtiss-Wright, 299
U.S. at 311-312. Thus, the assertion of exclusive
presidential command of foreign policy does not arise
from the facts of the case, and is mere dictum.
A more satisfying conception, with proper apprecia-
tion of the role of Congress, is found in Justice Jack-
son’s influential concurring opinion in Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In
that case the Court disallowed President Truman’s
seizure of the nation’s steel plants ahead of a labor
strike as unconstitutional executive lawmaking. It
dismissed the argument that the seizure was vali-
dated by the President’s constitutional authority as
Commander in Chief, arising out of the military’s
needs during the Korean War. Id. at 587.
Justice Jackson added analytical heft to the bare
bones majority opinion. He considered that under the
 5
Constitution, the legitimacy of presidential action is
directly related to congressional authorization:
1. When the President acts pursuant to an
express or implied authorization of Congress, his
authority is at its maximum, for it includes all
that he possesses in his own right plus all that
Congress can delegate. In these circumstances,
and in these only, may he be said (for what it
may be worth) to personify the federal sove-
reignty. If his act is held unconstitutional under
these circumstances, it usually means that the
Federal Government as an undivided whole
lacks power. A seizure executed by the President
pursuant to an Act of Congress would be
supported by the strongest of presumptions and
the widest latitude of judicial interpretation, and
the burden of persuasion would rest heavily upon
any who might attack it.
2. When the President acts in absence of either a
congressional grant or denial of authority, he can
only rely upon his own independent powers, but
there is a zone of twilight in which he and
Congress may have concurrent authority, or in
which its distribution is uncertain. Therefore,
congressional inertia, indifference or quiescence
may sometimes, at least as a practical matter,
enable, if not invite, measures on independent
presidential responsibility. In this area, any
actual test of power is likely to depend on the
imperatives of events and contemporary impon-
derables rather than on abstract theories of law.
3. When the President takes measures incom-
patible with the expressed or implied will of
Congress, his power is at its lowest ebb, for then
he can rely only upon his own constitutional
 6
powers minus any constitutional powers of
Congress over the matter. Courts can sustain
exclusive presidential control in such a case only
by disabling the Congress from acting upon the
subject. Presidential claim to a power at once so
conclusive and preclusive must be scrutinized
with caution, for what is at stake is the equili-
brium established by our constitutional system.
Id. at 635-638 (footnotes omitted) (Jackson, J.,
concurring).
Note that Justice Jackson’s formulation embraces
the realm of foreign policy, although not specifically
addressing it.
Curtiss-Wright and Justice Jackson’s Youngstown
opinion uneasily coexist. See, e.g., Dames & Moore v.
Regan, 453 U.S. 654, 661-662 (1981) (contrasting the
two opinions). As the Jackson concurrence intimates,
the Curtiss-Wright proposition that all foreign policy
authority resides in the executive can be right only if
Congress is constitutionally disabled from legislating
on any aspect or facet of foreign affairs. And that is
plainly false.
This Court should finally dispatch and bury the
dicta of Curtiss-Wright.
A. THE CONSTITUTIONAL GRANT OF
LEGISLATIVE POWER TO CONGRESS
CONTAINS NO TEXTUAL RESTRIC-
TION TO DOMESTIC AFFAIRS.
CONGRESS REGUI~TES PASSPORTS
AND RECOGNITION OF FOREIGN
GOVERNMENTS.
The Constitution entrusts the power to legislate to
Congress. It nowhere states that Congress’ compe-
tence to make laws stops at the water’s edge.
 7
Begin with first principles: "All legislative Powers
herein granted shall be vested in a Congress of the
United States .... " U.S. Const., art I, § 1. This
comprehensive grant of law-making authority to
Congress logically includes foreign policy. Any other
view of the political branches would transmute the
executive into a legislature regarding foreign policy, a
serious blow to the separation of powers principle.
It is true that Congress often permits the President
to take the lead in guiding the nation’s foreign policy.
Such examples fall under the first branch of Justice
Jackson’s taxonomy in Youngstown, and seldom
arouse controversy. But the separation of powers at
the core of the Constitution means that Congress
remains the legislature, with the right to assert its
policy-making authority in foreign affairs.
In particular, Congress can--and does--regulate
passports, although passports are issued by the
executive branch’s Department of State. This Court
laid out some of the relevant history in Kent v.
Dulles, 357 U.S. 116 (1958):
Prior to 1952 there were numerous laws enacted
by Congress regulating passports and many
decisions, rulings, and regulations by the
Executive Department concerning them. Thus in
1803 Congress made it unlawful for an official
knowingly to issue a passport to an alien certi-
fying that he is a citizen. In 1815, just prior to
the termination of the War of 1812, it made it
illegal for a citizen to "cross the frontier" into
enemy territory, to board vessels of the enemy on
waters of the United States or to visit any of his
camps within the limits of the United States,
"without a passport first obtained" from the
Secretary of State or other designated official.
 8
The Secretary of State took similar steps during
the Civil War. In 1850 Congress ratified a treaty
with Switzerland requiring passports from
citizens of the two nations. Finally in 1856
Congress enacted what remains today as our
basic passport statute.
Id. at 122-123 (citations omitted).
The Secretary of State’s authority to issue pass-
ports and to regulate their use is explicitly granted
by statute. 22 U.S.C. § 211a. Since Congress created
the passport authority, it can regulate that authority.
For example, in Haig v. Agee, 453 U.S. 280 (1981),
the Court upheld the Secretary of State’s power to
revoke a passport, on the ground that the regulation
at issue was congruent with 22 U.S.C. § 211a.
Impliedly, if the regulation had clashed with the
legislation, the regulation would have been struck
down, per the dictum of Japan Whaling Ass’n. v.
American Cetacean Soc’y., 478 U.S. 221 (1986): "The
Secretary, of course, may not act contrary to the will
of Congress exercised within the bounds of the
Constitution. If Congress has directly spoken to the
precise issue in question, if the intent of Congress
is clear, that is the end of the matter." Id. at 223
(emphasis added).
In this case, Congress has enacted a passport
regulation: an American citizen born in Jerusalem
may have "Israel" entered in his passport as his place
of birth. Since "Congress has directly spoken to the
precise issue in question," this Court should see to it
that "that is the end of the matter."
Moreover, Congress can--and does--participate in
the recognition of foreign governments. The federal
courts have recognized this fact.
 9
In Oetjen v. Central Leather Co., 246 U.S. 297
(1918), the plaintiff sought recovery of goods appro-
priated by General Carranza in the Mexican Civil
War. The Court held that plaintiff must sue in the
courts of Mexico, because the U.S. government had
recognized the Carranza government. The Court
stated:
The conduct of the foreign relations of our
Government is committed by the Constitution to
the Executive and Legislative--"the political"
Departments of the Government, and the
propriety of what may be done in the exercise of
this political power is not subject to judicial
inquiry or decision. It has been specifically
decided that "Who is the sovereign, de jure or de
facto, of a territory is not a judicial, but is a
political question, the determination of which by
the legislative and executive departments of any
government conclusively binds the judges, as well
as all other officers, citizens and subjects of that
government."
Id. at 302 (citations omitted, emphasis added). Accord,
Medellin v. Texas, 552 U.S. 491, 511 (2008); First
Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S.
759, 766 (1972).
In a more recent example, Congress has co-directed
the nation’s relations with the Palestine Liberation
Organization. In the Anti-Terrorism Act of 1987,
Congress determined that the PLO is a terrorist
organization. 22 U.S.C. § 5201. Congress forbade
receiving anything of value from the PLO save infor-
mation, expending funds from the PLO, or estab-
lishing or maintaining a PLO office in the United
States. 22 U.S.C. § 5202. The federal district court
found this to be a valid and appropriate exercise of
 10
Congress’ foreign affairs powers. Mendelsohn v.
Meese, 695 F. Supp. 1474, 1483 (S.D.N.Y. 1988). The
court there significantly made a comment that
remains pertinent today:
We are aware of no case striking down federal
legislation as an encroachment of the executive’s
authority to conduct foreign affairs, and counsel
for the plaintiffs has not brought any to our
attention despite a specific inquiry to him at oral
argument. There appears, therefore, no jurispru-
dence in this area, despite the existence of much
legislation which has been criticized as an
encroachment upon presidential authority to
conduct foreign affairs.
Id. at 1483.
The Executive Branch did not protest this congres-
sional crowding on its turf, but instead promptly
relied on the Anti-Terrorism Act of 1987 in an effort
to close the PLO Observer Mission to the United
Nations. United States v. Palestine Liberation Organ-
ization, 695 F. Supp. 1456 (S.D.N.Y 1988).
Even on the specific question of Israeli control of
Jerusalem, Congress has a history of legislation. In
1995, Congress passed the Jerusalem Embassy Act.
Its object is to require the removal of the U.S.
Embassy to Israel from Tel Aviv to Jerusalem. It
includes the following:
a) Statement of the Policy of the United States.--
(1) Jerusalem should remain an undivided city
in which the rights of every ethnic and religious
group are protected;
(2) Jerusalem should be recognized as the capi-
tal of the State of Israel.
Pub. L. No. 104-45, § 3, 109 Stat. 398 (1995).
 11
This law states "the policy of the United States,"
not the mere preference of Congress. This refutes the
notion that Congress holds no power to recognize
foreign governments and their sovereignty over
particular territories.
But if it is considered that the point remains
doubtful, the Court should grant cert in this case and
settle it.
B. THE CONSTITUTION CONTAINS NO
TEXTUAL COMMITMENT OF FOR-
EIGN POLICY TO THE EXECUTIVE
BRANCH.
One searches in vain for a constitutional proof text
for presidential domination of foreign affairs.
Preliminarily, constitutional "legislative" history
on the allocation of powers between President and
Congress is of limited use, because the Founders
changed their opinions about what the Constitution
forbids, permits or requires, based on the political
exigencies of the moment. See Joseph M. Lynch,
Negotiating the Constitution: The Earliest Debates
Over Original Intent (1999). Let’s stick to the text.
Article II, section 1 states: "The executive Power
shall be vested in a President of the United States of
America." Some argue that the eighteenth century
understanding of "executive power" subsumed foreign
policy. Saikrishna B. Prakash & Michael D. Ramsey,
The Executive Power Over Foreign Affairs, 111 Yale
L.J. 231, 234 (2001). This will please folks predis-
posed to that conclusion, but the evidence is inconclu-
sive, as it must be in all such questions of how "the
eighteenth century" would have understood a concept
as broad as "executive power." See Curtis A. Bradley
and Martin S. Flaherty, Executive Power Essential-
 12
ism and Foreign Affairs, 102 Mich. L. Rev. 545, 551
(2004).
On the other hand, the Constitution has several
specific grants of power that bear on foreign
relations. Article II, section 2 makes the President
the Commander in Chief. But this case does not
concern the President’s war powers or national secu-
rity, so that’s beside the point. This section also gives
the President the power to make treaties, but this
case involves no treaties.
Article II, section 3 directs that "he shall receive
Ambassadors and other public Ministers." This seems
closer to the mark. But to the extent that receiving
ambassadors involves recognition of governments,
this Court has suggested that such determinations
are shared by the political branches.
In United States v. Belmont, 301 U.S. 324 (1937),
the U.S. government’s recognition of the Soviet Union
extinguished certain claims for money held in a
private bank which the Soviet government had
nationalized. The Court stated: "[W]ho is the sovereign
of a territory is not a judicial question, but one the
determination of which by the political departments
conclusively binds the courts." Id. at 328 (emphasis
added). Admittedly, this is dictum, as it was the
President who extended recognition to the Soviet
Union. The point awaits Supreme Court clarification.
Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398 (1964) is cited for the proposition that "[p]olitical
recognition is exclusively a function of the Executive."
Zivotofsky v. Sec’y of State, 571 F.3d 1227, 1231 (D.C.
Cir. 2009), rehearing denied, 610 F.3d 84 (D.C. Cir.
2010). The Banco Nacional case questioned Cuba’s
right to sue in U.S. courts, in view of Washington’s
 13
refusal to recognize Cuba’s Communist government.
But the holding was that the courts could not substi-
tute their judgment for that of the President. Banco
Nacional, 376 U.S. at 410-411. The Court was not
analyzing the relative roles of the legislative and
executive branches, and the case should not be
interpreted that way.
Similarly, in Williams v. Suffolk Ins. Co., 38 U.S.
415 (1839), this Court held that the judiciary is
bound by a presidential determination as to which
country exercises sovereignty over particular terri-
tory. Zivotofsky v. Sec’y of State, 571 F.3d at 1231.
But there was no legislative-executive quarrel in
Suffolk Ins. Co. The question of which would prevail
in the face of such a conflict was not presented, and
not decided. The question remains open.
No, there is no distinct constitutional assignment
of foreign policy to the executive department. Nor
does any specific grant of foreign policy authority
apply to this case. Thus, what is really at stake in
this case is the Article II, section 3 requirement that
the President "take Care that the Laws be faithfully
executed."
In this case, the President asserts the right to
ignore a law passed by Congress (and signed by him!)
on the ground that it touches on foreign affairs.
Justice Jackson’s words from Youngstown reverbe-
rate:
When the President takes measures incompatible
with the expressed or implied will of Congress,
his power is at its lowest ebb, for then he can rely
only upon his own constitutional powers minus
any constitutional powers of Congress over the
matter. Courts can sustain exclusive presidential
 14
control in such a case only by disabling the
Congress from acting upon the subject.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at
638 (1952) (emphasis added) (Jackson, J., concurring).
The President’s claim of exclusive power over
foreign relations can be sustained only if Congress is
constitutionally ousted from acting in this arena. Or
it is a presidential usurpation, and Congress remains
the national legislature after all.
II. USING A PRESIDENTIAL SIGNING
STATEMENT AS A BACKDOOR VETO IS
UNCONSTITUTIONAL.
The signing statement is not intrinsically illegiti-
mate. But when abused as it was in this case, it
violates Article I, section 7, clause 2, the Presentment
Clause of the Constitution. It also violates Article II,
section 3’s requirement of faithful execution.
The institution of the presidential signing state-
ment goes back to our fifth president, James Monroe,
in the first quarter of the nineteenth century. Ameri-
can Bar Association, Report of the Task Force On
Presidential Signing Statements And The Separation
Of Powers Doctrine, http://www.abanet.org/op/signing
statements/aba_final_signing_statements_recommen
dation-report_7-24-06.pdf 7 (2006). Presidents used
their signing statements, among other things, to
signal their policy disagreements with Congress. Id.
In the 20th century, presidents started dealing
with constitutional doubts about bills by announcing
statutory interpretations that satisfied their con-
cerns. For example, President Truman stated that he
would regard a section in an appropriations bill as
"an authorization" rather than as a "directive." Id. at
8-9.
 15
Gradually, presidents, including Eisenhower, Nixon,
Ford and Carter, began to use the signing statements
to declare portions of laws unconstitutional, and
announce their intentions not to enforce the
repugnant bits. Id. at 9.
This practice achieved a climax with President
George W. Bush:
From the inception of the Republic until 2000,
Presidents produced signing statements con-
taining fewer than 600 challenges to the bills
they signed. According to the most recent update,
in his one-and-a-half terms so far, President
George W. Bush (Bush II) has produced more
than 800.
Id. at 14.
Remarkably, President Bush apparently viewed
the signing statement as a substitute for vetoing
legislation: "Bush had also virtually abandoned his
veto power, signing every bill that reached his desk
during his first term even as he used signing state-
ments to eviscerate them." Charlie Savage, Sympo-
sium: The Last Word? The Constitutional Implicao
tions Of Presidential Signing Statements: Introduc-
tion, 16 Wm. & Mary Bill Rts. J. 1, 2 (2007).
However, Amicus emphasizes that this is not a
partisan issue. The presidential abuse has been
bipartisan. Congress has a bipartisan interest in
ending the abuse.
Article I, section 7, clause 2, states:
Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it
becomes a Law, be presented to the President of
the United States; If he approve he shall sign it,
 16
but if not he shall return it, with his Objections
to that House in which it shall have originated,
who shall enter the Objections at large on their
Journal, and proceed to reconsider it.
The Constitution contemplates either presidential
approval or veto of a "bill." If vetoed, Congress gets a
chance to override that veto. There’s no authority for
carving up a bill, approving part of it and vetoing the
rest. But that is precisely what has been done with
some signing statements, including the one at issue
here.
In Clinton v. City of New York, 524 U.S. 417 (1998),
the question was whether the line item veto was
constitutional. The answer was No. In an analysis
relevant to our case, the Court said:
In both legal and practical effect, the President
has amended two Acts of Congress by repealing a
portion of each. "Repeal of statutes, no less than
enactment, must conform with Art. I." There is
no provision in the Constitution that authorizes
the President to enact, to amend, or to repeal
statutes .... Moreover, after a bill has passed
both Houses of Congress, but "before it becomes a
Law," it must be presented to the President. If he
approves it, "he shall sign it, but if not he shall
return it, with his Objections to that House in
which it shall have originated, who shall enter
the Objections at large on their Journal, and
proceed to reconsider it." Art. I, § 7, cl. 2. His
"return" of a bill, which is usually described as a
"veto," is subject to being overridden by a two-
thirds vote in each House.
There are important differences between the
President’s "return" of a bill pursuant to Article
 17
I, § 7, and the exercise of the President’s cancel-
lation authority pursuant to the Line Item Veto
Act. The constitutional return takes place before
the bill becomes law; the statutory cancellation
occurs after the bill becomes law. The constitu-
tional return is of the entire bill; the statutory
cancellation is of only a part.
Id. at 438-439 (citations and footnotes omitted).
The Court rejected the line item veto, concluding
that "the power to enact statutes may only be exer-
cised in accord with a single, finely wrought and
exhaustively considered, procedure." Id. at 439-440
(citation and quotation marks omitted).
When a presidential signing statement declares
part of a bill unconstitutional and not to be enforced,
it effectively vetoes that fragment of the bill. As
in Clinton v. City of New York, the "finely wrought"
constitutional procedure for enacting legislation is
vandalized, because the Constitution does not allow a
partial veto.
Thus, this case presents a procedure similar to the
line item veto condemned in Clinton v. City of New
York, but even worse: first, signing statements are
not limited to spending bills; second, Congress cannot
vote to override a signing statement.
This executive branch abuse has escaped judicial
review. As the ABA Task Force on Presidential Sign-
ing Statements Report wryly notes:
At present, the standing element of the "case or
controversy" requirement of Article III of the
Constitution frequently frustrates any attempt to
obtain judicial review of such presidential claims
of line-item veto authority that trespass on the
lawmaking powers of Congress ....
 18
For individual plaintiffs, a signing statement
might well elude the case or controversy
requirement because the immediate injury is to
the lawmaking powers of Congress. The Presi-
dent thus becomes the final judge of his own
constitutional powers, and he invariably rules in
favor of himself.
ABA Task Force on Presidential Signing Statements
Report at 25.
Congress, however deeply interested it may be in
abusive signing statements, suffers only an "institu-
tional injury." Despite the recurring nature of the
injury, Congress lacks standing. Raines v. Byrd, 521
U.S. 811,821 (1997).
But the president’s signing statement refusing to
enforce section 214(d) of the 2003 Foreign Relations
Authorization Act, which he signed into law, has
injured Petitioner and given him standing. Thus, the
Court should seize the opportunity to address this
constitutional issue~so important, yet otherwise so
unlikely to receive judicial scrutiny. The opportunity
may never recur.
CONCLUSION
Foreign policy is not a presidential preserve. But
there is as ongoing executive branch attempt to erect
a barricade topped with a banner: "FOREIGN POL-
ICY MADE HERE--CONGRESS KEEP OUT." If
successful, the President essentially becomes the leg-
islator of American foreign policy. This does violence
to the constitutional scheme of separation of powers.
The executive’s monopolistic impulse is sometimes
coupled with a presidential signing statement prac-
tice that violates the constitutional requirement of
faithful execution of the laws.
 19
This case would not require the Court to become
mired in adjudicating the status of Jerusalem.
Zivotofsky v. Sec’y of State, 610 F.3d 84, 86 (D.C. Cir.
2010) (statement by Senior Circuit Judge Edwards
upon denial of petition for rehearing en banc). But it
would be an excellent vehicle for the Court to straigh-
ten out the confused and misguided doctrine and
practice revealed in this case.

Respectfully submitted,

PAUL KUJAWSKY
LAW OFFICE OF PAUL
KUJAWSKY
5252 Corteen Place No. 35
Studio City CA 91607
818-389-5854
pkuj [email protected]
Counsel of Record
December 29, 2010 for Amicus Curiae
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