Patriot Act Audits and Article II Powers:
In his signing statements for the Patriot Act reauthorization, President Bush included the following statement:
  The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties.
  The executive branch shall construe section 756(e)(2) of H.R. 3199, which calls for an executive branch official to submit to the Congress recommendations for legislative action, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to recommend for the consideration of the Congress such measures as he judges necessary and expedient.
  By way of background, Section 106A and 199 impose auditing requirement on access to business records and national security letters under FISA. They each require the Inspector General of the Department of Justice to "perform a comprehensive audit of the effectiveness and use, including any improper or illegal use" of these authorities going back to 2002 and then prospectively up for a few years. Section 756(e)(2) is a bit different. It involves a provision of the reauthorization that has nothing to do with terrorism --- it involves grants for programs on how to reduce the use of methamphetamine among pregnant and parenting women offenders. Specifically, the provision requires DOJ to "submit a report to the appropriate committees of jurisdiction that summarizes the results of the evaluations conducted by recipients and recommendations for further legislative action."

  Generally speaking, executive signing statements such as this have been common in the Bush Administration. Some influential lawyers in the Administration believe that Congress has only limited ability to interfere with the executive branch, and such statements express the Administration's intent not to follow provisions that its lawyers believe interfere with executive power. In most cases, we don't know what the statements mean: the executive branch announces that it is taking a position based on its view of Article II, but never discloses exactly what that position is.

  I wonder if this case will be a bit different. This isn't my area, so I hope some experts will correct my impression if I'm wrong, but it seems to me that we'll eventually know the executive branch's view in this situation. Congress has required DOJ to conduct audits and file reports, and we'll presumably learn the executive branch's view of the law when it refuses to comply in whole or in part with Congress's requirements. Whether that will lead to a legal challenge to be resolved in court is another matter, of course.

  Thanks to Marty for the link to the signing statement.