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Marine Log

October 14, 2006

Bush signs SAFE Port Act into law

President Bush has signed into law H.R. 4954, the "Security and Accountability For Every Port Act of 2006," or the "SAFE Port Act" (the "Act").

In ceremonies to mark the signing, the President said "the SAFE Port Act will make this nation more prepared, more prosperous and more secure" and noted "I want to thank the Congress for its good work."

The President also issued a "Presidential signing statement" on the Act that, among other things, said that the executive branch will construe some provisions of the Act as "advisory."

What are "signing statements?" You can read one explanation of their significance here:
http://writ.news.findlaw.com/dean/20060113.html

Following is the text of the signing statement. (Notes in italics are ours)

Today, I have signed into law H.R. 4954, the "Security and Accountability For Every Port Act of 2006," or the "SAFE Port Act" (the "Act"). The Act strengthens the Government's ability to protect the Nation's seaports and maritime commerce from attack by terrorists.

The executive branch shall construe provisions of the Act that purport to require executive branch officials to submit recommendations for legislation to the Congress, including section 201, in a manner consistent with the President's constitutional authority to recommend for the consideration of the Congress such measures as the President judges necessary and expedient and to supervise the unitary executive branch.

(Section 201 is entitled "Strategic Plan to Enhance the Security of the International Supply Chain).

The executive branch shall construe provisions of the Act, including subsection 401(c) and subsection 2(d) of the Act of March 3, 1927, as amended by section 402 of the Act, that purport to make consultation with congressional committees a precondition to execution of the law, to call for but not mandate such consultation, as is consistent with the Constitution's provisions concerning the separate powers of the Congress to legislate and the President to execute the laws.

(Section 401 of the Act deals with the Trade and Customs Revenue Functions of the Department of Homeland Security; Section 402 is entitled "Office of International Trade; Oversight")

The executive branch shall construe subsection 301(h)(2) of the Customs Procedural Reform and Simplification Act of 1978, as amended by section 403 of the Act, which purports to give a subordinate official within the executive branch authority to prevent an action by the superior official to whom the subordinate official reports, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch.

(Section 403 is entitled "Resources." Among other things it calls for creation of a "Resource Allocation Model to determine the optimal staffing levels required to carry out the commercial operations of United States Customs and Border Protection, including commercial inspection and release of cargo and ... revenue functions .")

The executive branch shall construe section 709 of the Act, which purports to direct the President to perform the President's duties "acting through" a particular officer, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch.

(Section 709 is entitled "Protection of Health and Safety During Disasters." The "particular officer" it expects the President to act through is the Director of Health and Human Services.)

The executive branch shall construe as advisory provisions of the Act that purport to direct or burden the conduct of negotiations by the executive branch with foreign governments, international organizations, or other entities abroad, that purport to direct executive branch officials to negotiate with foreign governments or in international organizations to achieve specified foreign policy objectives, or that purport to require the executive branch to disclose deliberations between the United States and foreign countries. Such provisions include subsections 205(d) and (i) and 803(b) of the Act; subsection 431(b) of the Homeland Security Act of 2002, as amended by section 301 of the Act; and subsection 629(h) of the Tariff Act of 1930, as amended by section 404 of the Act. 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.

(Section 205 covers the Container Security Initiative; Section 803 relates to Internet gambling; Section 301 deals with establishment of the Office of Cargo Security Policy; Section 404 is entitled "Negotiations.")

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