Analysis: ABA, the courts and the presidency
on Jul 24, 2006 at 2:29 pm
UPDATE: Chairman Arlen Specter (R-Pa.) of the Senate Judiciary Committee announced on Monday that he will introduce legislation before week’s end to “give the Congress standing to take into the federal courts situations where the President has issued such signing statements and to authorize the Congress to undertake judicial review of those signing statements with the view to having the President’s acts declared unconstitutional.” Specter’s statement can be found here.
A task force of the American Bar Association is urging Congress to give the Supreme Court and lower federal courts the power to judge the constitutionality of a president’s public statements of how new laws will be enforced — apparently, before a president ever takes action to carry out such a statement. For the first time in history, it appears, the courts would have the authority to review presidential intentions, as opposed to fully formed or final actions. That is perhaps the boldest (though least explained) of the recommendations that the task force made on Monday in a new report that is sharply critical of presidential “signing statements” — the official utterances of presidents when they sign a new piece of legislation into law, putting their spin on meaning.
For years, a controversy has raged in the legal academy and among federal government insiders about that presidential practice, often used to register presidential complaints without actually exercising a veto to block what the White House perceived to be a flawed legislative product. Often, such statements have been used to resist apparent curbs on presidential prerogative. Back in the Reagan Administration, it was an active project at the Justice Department to encourage greater use of presidential signing statements. And, the Bush Administration has made it a priority tool in its wide claims of presidential power, even if such claims run directly contrary to what Congress has enacted (as in last year’s signing statement excepting to Congress’ attempt to ban torture of detainees in the war on terrorism).
More recently, this became a side issue in the Supreme Court confirmation hearings of Justice Samuel A. Alito, Jr., who, as a young Justice Department aide, was involved in that project in the Reagan years. Now that the media had belatedly discovered this controversy, however, it has been gaining in political prominence. And the ABA task force report is likely to give it a new push of publicity. (The ABA task force speaks only for that 11-member task force, at least until the ABA’s House of Delegates gets a chance to say, at a convention in early August, whether to make the report a formal part of ABA policy.)
The task force’s full report can be found here. For purposes of this post, the focus is on the proposal for granting new judicial review of presidential signing statements. That reads as follows::
“Further resolved, that the American Bar Association urges Congress to enact legislation enabling the President, Congress, or other entities or individuals, to seek judicial review, to the extent constitutionally permissible, in any instance in which the President claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed, or interprets such a law in a manner inconsistent with the clear intent of Congress, and urges Congress and the President to support a judicial resolution of the President’s claim or interpretation.”
The report’s explanations of that provision show that the task force primarily wanted to cure a problem of a lack of “standing” (lack of a right to sue) that now confronts anyone who would bring a challenge to a presidential signing statement. If an individual tried to pursue such a case, the report indicates, that might not constitute a case or controversy in the constitutional sense, because such an individual could not show actual harm from such a statement. To cure that, it would confer on Congress as a whole or through its agents (members of either House or stand-ins for the official body) to sue whenever a president in a signing statement claimed the authority or stated the intention to “disregard or decline to enforce all or part of a law” or stated an interpretation of a law’s meaning “in a manner inconsistent with the clear intent of Congress.”
The injury to be claimed in such a lawsuit, the report suggests, would be “the usurpation of the lawmaking powers of Congress,” including the denial of an opportunity to override a presidential veto.
It appears that the task force has in mind a declaratory judgment on constitutional issues raised by a presidential signing statement. It goes on to suggest that the outcome of such a lawsuit could be an order directing the president to fully enforce the law, or a broader court order against such use of a signing statement, thus compelling the president either to enforce a bill in full or veto it. “It is to be hoped that the President would obey any constitutional declaration of the Supreme Court,” it says.
The report also suggests that Congress should seek to override the courts’ use of the “political question” doctrine for avoiding passing upon issues of controversy between Congress and the White House.
With considerable optimism, the task force appears to contemplate a single test case. It remarks: “It would be expected that one case before the Supreme Court would put to rest the constitutionality of a signing statement that announces the President’s intent not to enforce a provision of a law or to do so in a manner contradictory to clear congressional intent.”
Recognizing possible flaws in these ideas, the task force says the ABA should stand ready to work them out with Congress. And, while it suggests its ideas might ultimately not pass constitutional muster in the Supreme Court, it argues that “it would still have been worth the undertaking.”
Among the things that might have to be worked out, aside from the question of Article III standing, would be whether the Constitution would allow the courts — even with congressional authorization — to judge a presidential intention, whether the Constitution would ever allow the courts to command the president to exercise a veto, how to figure out what a president actually contemplated doing that needed to be prevented, when such a presidential plan would be thought to ripen into something that could be challenged (or whether the signing statement itself would be treated as a final action), and how to judge the supposed gap between presidential intepretation and “clear congressional intent.” The task force report makes no effort to provide answers to such questions, contributing to an impression that the report was hastily prepared to get it done in advance of the ABA House of Delegates meeting.
