For Immediate Release
Office of the Press
Secretary
October 4, 2006
President's
Statement on H.R. 5441, the "Department of Homeland Security Appropriations Act,
2007"
Today, I have signed into law H.R. 5441, the "Department of Homeland Security
Appropriations Act, 2007" (the "Act"). The Act appropriates the funds needed to
protect the United States against terrorism, secure the Nation's borders, assist
States and localities in dealing with natural disasters, and perform the other
important functions of the Department of Homeland Security. The Act also
strengthens the capabilities of the Federal Emergency Management Agency to
prepare for and respond to emergencies requiring action by the Federal
Government.
The executive branch shall construe as calling solely for notification the
provisions of the Act that purport to require congressional committee approval
for the execution of a law. Any other construction would be inconsistent with
the principles enunciated by the Supreme Court of the United States in INS v.
Chadha. These provisions include those under the headings "United States Visitor
and Immigrant Status Indicator Technology;" "Automation Modernization, Customs
and Border Protection;" "Border Security Fencing, Infrastructure, and
Technology, Customs and Border Protection;" "Air and Marine Interdiction,
Operations, Maintenance, and Procurement, Customs and Border Protection;"
"Automation Modernization, Immigration and Customs Enforcement;" "Protection,
Administration, and Training, United States Secret Service;" "Preparedness,
Management and Administration;" "United States Citizenship and Immigration
Services;" "Management Administration, Science and Technology;" "Research,
Development, Acquisition, and Operations, Science and Technology;" and sections
504, 505, 509, 511, and 552.
Section 513 of the Act purports to direct the conduct of security and
suitability investigations. To the extent that section 513 relates to access to
classified national security information, the executive branch shall construe
this provision in a manner consistent with the President's exclusive
constitutional authority, as head of the unitary executive branch and as
Commander in Chief, to classify and control access to national security
information and to determine whether an individual is suitable to occupy a
position in the executive branch with access to such information.
To the extent that section 514 of the Act purports to allow an agent of the
legislative branch to prevent implementation of the law unless the legislative
agent reports to the Congress that the executive branch has met certain
conditions, the executive branch shall construe such section as advisory, in
accordance with the constitutional principles enumerated in the Chadha decision.
The executive branch shall construe section 522 of the Act, relating to
privacy officer reports, in a manner consistent with the President's
constitutional authority to supervise the unitary executive branch.
To the extent that provisions of the Act, such as section 558, purport to
direct or burden the conduct of negotiations by the executive branch with
foreign governments or other entities abroad, the executive branch shall
construe them as advisory. Such provisions, if construed as mandatory rather
than advisory, would impermissibly interfere with the President's constitutional
authorities to conduct the Nation's foreign affairs, participate in
international negotiations, and supervise the unitary executive branch.
Provisions of the Act, including under the heading "Office of the Secretary
and Executive Management" and sections 521, 539, 540, and 559, refer to joint
explanatory statements of managers accompanying conference reports on specified
acts. Such statements do not satisfy the constitutional requirements of
bicameral approval and presentment to the President needed to give them the
force of law.
Section 503(c) of the Homeland Security Act of 2002, as amended by section
611 of the Act, provides for the appointment and certain duties of the
Administrator of the Federal Emergency Management Agency. Section 503(c)(2)
vests in the President authority to appoint the Administrator, by and with the
advice and consent of the Senate, but purports to limit the qualifications of
the pool of persons from whom the President may select the appointee in a manner
that rules out a large portion of those persons best qualified by experience and
knowledge to fill the office. The executive branch shall construe section
503(c)(2) in a manner consistent with the Appointments Clause of the
Constitution. Also, section 503(c)(4) purports to regulate the provision of
advice within the executive branch and to limit supervision of an executive
branch official in the provision of advice to the Congress. The executive branch
shall construe section 503(c)(4) in a manner consistent with the constitutional
authority of the President to require the opinions of heads of departments and
to supervise the unitary executive branch. Accordingly, the affected department
and agency shall ensure that any reports or recommendations submitted to the
Congress are subjected to appropriate executive branch review and approval
before submission.
Section 507(f)(6) of the Homeland Security Act of 2002, as amended by section
611 of the Act, and sections 689i(a)(4)(B)(iv) and 689j(b)(2)(E) of the Act,
purport to require in certain cir-cum-stances that an executive branch official
submit legislation for the consideration of the Congress. The executive branch
shall construe such provisions in a manner consistent with the President's
constitutional authority to supervise the unitary executive branch and to
recommend for congressional consideration such measures as the President shall
judge necessary and expedient.
Several provisions of the Act purport to direct the President to perform the
President's duties "acting through" a particular officer. These provisions
include section 303(b) of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, as amended by section 633 of the Act, section 1802 of the
Homeland Security Act of 2002, as amended by section 671 of the Act, and
sections 643, 644, 689i, and 689j of the Act. The executive branch shall
construe such provisions in a manner consistent with the constitutional
authority of the President to supervise the unitary executive branch.
The executive branch shall construe provisions of the Act relating to race,
ethnicity, and gender, such as sections 623 and 697 of the Act, in a manner
consistent with the requirement of the Due Process Clause of the Fifth Amendment
to the Constitution to afford equal protection of the laws.
Section 1802(a) of the Homeland Security Act of 2002, as amended by section
671 of the Act, calls for the Secretary of Homeland Security "in cooperation
with the Department of National Communications System (as appropriate)" and
others to develop and update a National Emergency Communications Plan. An
examination of the text and structure of the Act reveals that the term
"Department of National Communications System" in section 1802(a) is most
reasonably construed as a reference to the National Communications System in the
Preparedness Directorate of the Department of Homeland Security, to which
section 611 of the Act refers in amending section 505 of the Homeland Security
Act of 2002, and the executive branch shall so construe it.
GEORGE W. BUSH
THE WHITE HOUSE,
October 4, 2006.
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