Litigating Presidential Signing Statements
Gilman, Michele Estrin, The William and Mary Bill of Rights Journal
Presidential signing statements have been variously portrayed as much ado about nothing,1 a cause for concern,2 and a constitutional crisis.3 Clearly in the latter category, the American Bar Association (ABA) Task Force on Presidential Signing Statements and the Separation of Powers Doctrine called presidential signing statements "contrary to the rule of law and our constitutional system of separation of powers."4 The ABA Task Force concluded that the President must veto legislation he believes is constitutionally objectionable, rather than use presidential signing statements to refuse to enforce statutes that he signs into law.5 In this view, such refusals effectuate unconstitutional line-item vetoes.6 Accordingly, the ABA Task Force urged Congress to enact legislation that would subject presidential signing statements to judicial review in order to halt this presidential practice altogether.7
Senator Arlen Specter took up the ABA Task Force's suggestion and introduced the Presidential Signing Statements Acts of 2006 and 2007,8 which would give either the Senate or the House of Representatives standing to seek a declaratory judgment about the legality of a presidential signing statement. It is easy to see why some members of Congress want the judicial branch to referee this tug-of-war between the executive and legislative branches. By pushing the issue to the judiciary, Congress does not have to expend political capital in repeated showdowns with the President over the scope of executive power. Moreover, once a clear-cut case involving executive inaction gets into federal court, the courts generally will order executive officials to act in accordance with the law.9 This Article explores whether Congress can litigate presidential signing statements, concluding that they are not justiciable even if Congress enacts a law granting itself standing. Furthermore, if the President follows through on his signing statements and declines to enforce the laws as written, those acts of presidential nonenforcement will face significant justiciability barriers. As a result, Congress must use political tools to force the President's hand if the President is refusing to enforce laws that he has signed.
Part I of the Article discusses the ripeness and standing barriers Congress would face in seeking judicial review of presidential signing statements. Given these barriers, Part II explores ways in which Congress can piggyback on hypothetical litigation brought by private parties to challenge presidential signing statements, such as intervention and amicus briefs. While these are viable methods to give Congress a voice in this interbranch dispute, Part III discusses why such private lawsuits are unlikely to succeed because of various hurdles to justiciability, including standing.
To illustrate these obstacles, Part III discusses six actual instances in which the executive branch did not enforce statutes that President Bush had previously objected to in signing statements. These acts of executive nonenforcement were uncovered by the Government Accountability Office (GAO) when it examined all of the presidential signing statements that accompanied appropriations legislation in 2006. 10 Part III also addresses threatened instances of nonenforcement contained in some of President Bush's more high-profile signing statements, such as his objections to statutes that require the head of the Federal Emergency and Management Agency (FEMA) to be qualified, ban torture against foreign detainees, and set forth how the United States should execute foreign policy in Sudan. This Part concludes that plaintiffs would likely not be able to challenge actual or threatened acts of nonenforcement because standing and other justiciability doctrines would pose insurmountable barriers. In short, Congress will have to exercise its political powers if it wishes to confront the President over his signing statements.
I. BARRIERS TO JUDICIAL REVIEW
In over 149 signing statements, President Bush has threatened executive nonenforcement of at least 800 statutory provisions that he deems inconsistent with the Constitution. …