Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Crooks and Liars has a report about Nancy Pelosi saying that Congress might sue Bush if he signs a negotiated compromise bill on Iraq but attaches a signing statement indicating that he reserves the right not to enforce all provisions if he feels it necessary. They are correct that this is a real possibility; after all, Bush has attached such signing statements to many laws as he signed them and there's no doubt he would do so again. They quote a report on Roll Call:
House Speaker Nancy Pelosi (D-Calif.) is threatening to take President Bush to court if he issues a signing statement as a way of sidestepping a carefully crafted compromise Iraq war spending bill.Pelosi recently told a group of liberal bloggers, "We can take the president to court" if he issues a signing statement, according to Kid Oakland, a blogger who covered Pelosi's remarks for the liberal website dailykos.com.
While I think this is a great idea, there's just one problem: the courts will almost certainly not grant standing to Congress to bring such a suit. The Georgetown law blog explains why:
Given that a number of members of Congress seem to be quite displeased by the President's actions, it would not be surprising if one or several members brought suit, claiming that the President violated statutory restrictions and exceeded his Constitutional authority. Since the Vietnam War, such legislator suits have been quite common. But if such a suit were to occur, it is unlikely that courts would grant standing to the legislator-plaintiffs.In the D.C. Circuit, there is a long jurisprudence on "legislator standing." But the Supreme Court has never ruled that federal legislators would have standing to sue members of the Executive Branch. In Raines v. Byrd, the Supreme Court was faced with a suit by several members of Congress relating to the constitutionality of the so-called Line-Item Veto." The Court ruled that the legislators in that case lacked standing and avoided pronouncing judgment on whether federal legislators would ever have standing.
That's why Bruce Fein, in his testimony before the Senate Judiciary Committee last year, urged Congress to pass a law explicitly granting standing to themselves to sue. Yes, they do have that authority and have exercised it many times to give standing to many different groups that otherwise would not have been granted standing by the courts. Congress can instruct the courts to handle different types of cases that they would otherwise not take for lack of standing.
What would get very interesting is if Bush vetoed that bill. Would there be enough votes in Congress to override the veto? One would think that enough Republicans would recognize that this would give them a potential tool against a Democratic president should they choose to follow Bush's example. And with Bush's political capital at an all-time low, I think they might get the votes to do so. I would go even further than that and establish legislative standing to challenge all instances where the executive has not faithfully executed any legislation. The president is, after all, bound by the Constitution to faithfully execute all laws, not just the ones they agree with.
Comments
Republicans won't vote for that bill, regardless of possible future use, because the GOP are nothing but power mongering hypocrites, and all that will matter is party unity and the fact that RIGHT NOW the GOP has the Presidency, so of course, the "principled" stand is not to give standing. Of course, as soon as a Dem is in office, then they'll vote for such a bill, but not before.
Posted by: Disgusted Beyond Belief | May 11, 2007 10:19 AM
I'm very glad you've written about this Ed. This whole "standing" thing is very important and very frustrating. At Downsize DC we discuss this issue with our attorneys all the time, and we are never statisfied or enlightened by those conversations. The legal profession, and by extension the courts, seems to have an "Alice in Wonderland" ideology about standing that I have never been able to parse.
Posted by: Perry Willis | May 11, 2007 12:33 PM
Isn't it about time that this "signing statement" issue go to the Supreme Court. First used by FDR(twice)and increasingly since until now most bills have them, they are not mentioned in the Constitution(not even in the penumbras and emanations section).
Posted by: lee | May 13, 2007 3:15 AM
FDR was not the first to issue signing statements. The problem is not signing statements in and of themselves, most of which are purely ceremonial and used to recognize a group that pushed for the legislation being signed. The problem is when a signing statement declares that the president has the authority to ignore some part of the law if they consider it necessary or unconstitutional. That's when it becomes a de facto line item veto.
Posted by: Ed Brayton | May 13, 2007 11:09 AM
The Constitution gives Congress a direct check on Presidents who ignore laws that they sign. It's impeachment. If Congress believes that the President is ignoring laws he has signed in bad faith, they shouldn't bother trying to get the Courts to force enforcement. A President who defies Congress cannot be relied upon to obey the judicial branch.
I say, impeach him. Of course I've been saying that for quite some time, going back to when it became clear that the administration had been secretly violating FISA for years.
Posted by: RickD | May 14, 2007 7:04 AM