For several weeks now, the president’s critics have imagined an entirely plausible scenario: Bush could sign a congressionally backed funding bill for the war in Iraq, with the various conditions included (i.e., a withdrawal timeline), and then decide he won’t follow the law. When he signs the bill, the president could issue one of his infamous signing statements, explaining that he’ll abide by the legislation’s provisions as he sees fit.
There’s ample reason to expect such a move. The president has “touched up” hundreds of bills with signing statements, in which Bush has announced his intention to treat legal provisions as suggestions, which he can accept or ignore, depending on how his lawyers interpret the law.
On a recent conference call, House Speaker Pelosi touched on how she might react to such a move. (Disclosure: I was on this call, but neglected to appreciate the newsworthiness of her remarks.)
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.
“The president has made excessive use of signing statements and Congress is considering ways to respond to this executive-branch overreaching,” a spokesman for Pelosi, Nadeam Elshami, said. “Whether through the oversight or appropriations process or by enacting new legislation, the Democratic Congress will challenge the president’s non-enforcement of the laws.”
It’s encouraging to know the Dem leadership won’t take signing statements lying down. This has been an extra-constitutional tactic, abused by Bush, for far too long.
But I’m not sure how a lawsuit like this one would work.
In order to hear an argument, a federal court would have to grant what is known as “standing,” meaning that lawmakers would have to show that Bush is willfully ignoring a bill Congress passed and that he signed into law.
The House would have to demonstrate what is called “injury in fact.” A court might accept the case if “it is clear that the legislature has exhausted its ability to do anything more,” a former general counsel to the House of Representatives, Stanley Brand, said.
I’m open to competing arguments on this — any constitutional law profs in the audience? — but people I’ve spoken with about the issue suggest that the courts wouldn’t hear a case like this, citing concerns over separation of powers. Federal courts would, in all likelihood, suggest Congress consider its own remedies — impeachment, for example — for a president who believes he can write and interpret his own laws.
Also, I was a little surprised to see how badly the right misunderstands the nature of this controversy. One far-right blog insisted that Pelosi would sue unless Bush goes along with the Democratic policy. Another made the same argument: “Can’t get the President to agree with you the old-fashioned way? Then sue him.”
The right is confused. The point here isn’t that Pelosi would sue Bush into agreement; the point is that if the president signs a bill into law and then announces he won’t abide by its provisions, that’s legally problematic.
Ideally, it won’t come to this anyway. The goal here is to shape a funding bill that changes the existing policy, either with Bush’s grudging signature or with enough Republicans to override his veto. But if the White House does explore the signing-statement route, it’s heartening to know the Dems will push back hard.