Academic journal article The William and Mary Bill of Rights Journal

Fee Shifting as a Congressional Response to Adventurous Presidential Signing Statements

Academic journal article The William and Mary Bill of Rights Journal

Fee Shifting as a Congressional Response to Adventurous Presidential Signing Statements

Article excerpt

Much of the recent controversy over President George W. Bush's signing statements stems from his repeated assertions that he would not abide by particular legislative provisions that undermine his Article II powers. For example, President Bush objected to legislative qualifications for officeholders,1 to requiring reports from agencies that include suggestions for budgetary revisions,2 and to provisions directing the President to act through particular executive branch officials,3 all based on a threat to the unitary executive. Moreover, he has challenged many provisions on the ground that Congress should not interfere with his powers to control the foreign relations ofthe nation. To that end, he has objected to provisions vesting in subordinate executive branch officials the power to negotiate with foreign entities,4 directing the President to take particular stances in foreign affairs,5 and mandating compliance with international agreements.6 Indeed, at times he has objected to provisions on the ground of legislative interference with both his power to superintend the executive branch and to serve as Commander in Chief. President Bush responded to the McCain Amendment7 banning torture with a signing statement declaring that:

The executive branch shall construe [the Amendment] ... in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President ... of protecting the American people from further terrorist attacks.8

President Bush's reliance on Article ? powers in signing statements to signal his refusal to comply with numerous congressional directives has sparked outrage among academics,9 the press, 10 and the American Bar Association (AB A) leadership, which issued a Task Force Report1 1 condemning President Bush' s use of signing statements.

Given justiciability concerns, judges likely will have no occasion to assess the constitutional assumptions in such statements. No party can demonstrate the requisite injury from a signing statement to give rise to a case or controversy. 12 There is little way currently, therefore, for courts to step in to resolve the ongoing disputes between the President and Congress generated by presidential assertions of prerogative in the signing statements.

Senator Arlen Specter introduced legislation to create a justiciable case or controversy out of a congressional objection to a signing statement.13 The bill provided that:

Any court of the United States, upon the filing of an appropriate pleading by the United States Senate . . . may declare the legality of any presidential signing statement, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.14

Senator Specter summarized that the provision would "permit[] the Congress to seek what amounts to a declaratory judgment on the legality of Presidential signing statements that seek to modify - or even to nullify - a duly enacted statute."15 Senator Specter's goal is to obtain a judicial test of whether a President's constitutional objections to a particular provision have validity. In turn, if signing statements were subject to review, Presidents might be deterred from rote incantation of presidential prerogatives in the statements.

Senator Specter' s bill implemented one ofthe ABA TaskForce' s recommendations. The ABA Report urged Congress

to enact legislation that would enable the President, Congress, or other entities to seek judicial review, and contemplatela] that such legislation would confer on Congress as an institution or its agents (either its own Members or interested private parties as in qui tarn actions) standing in any instance in which the President uses a signing statement to claim the authority, or state the intention, to disregard or decline to enforce all or part of a law. …

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