More grandstanding from Specter


One of the more direct and obvious post Bush v. Gore threats to our form of government is the use the Bush Administration has made of signing statements. While he is not the first to use them, he is the first to use them as a tool to veto without vetoing and to assert a claim that he is personally exempt from legal strictures. The legal underpinnings (to the extent any actually exist) of this practice were developed by, among others, Sam Alito. It is a practice that needs to be reined in, and riding to the rescue is that profile in courage, Arlen Specter.

Today he introduced the "Presidential Signing Statements Act of 2006"; something he felt free to propose because he knows it's DOA. In any event, if he runs true to form, if anything does pass it will have been transmogrified into an endorsement of Bush's actions. That's his pattern after all. Still, since Justin Rood at TPM Muckraker (the bill is at the link too) wondered what we lawyers thought of the bill, I thought I would add my two cents.

The bill begins with a series of Congressional findings. We can skip those, and get to the meat of the bill. Section 4 reads as follows:

In determining the meaning of any Act of Congress, no state or federal court shall rely on or defer to a presidential signing statement as a source of authority,

So far, so good, and if he had stopped there, the law would probably be fine. Next we have Section 5, which gives the Congress the right to sue the president for a declaratory injunction to test the legality of a signing statement:

Any court of the United States, upon the filing of an appropriate pleading by the United States Senate, through Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, 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.

This sounds good, but let's drill a little deeper, and let's assume that the present cast of characters populates both Congress and the presidency from here on in. Let's also assume that the Senate continues to rubber stamp judges who believe in untrammeled executive power. One would think that Section 4 had done the job. It state pretty clearly that a signing statement has no precedential authority-it is not law. That alone should render a signing statement so much hot air. What is there to declare illegal? Well, there's the insistence of a president with the middle initial W that he will act in a manner consistent with his signing statement, secure in the knowledge that there's nothing the Congress can do about it. But in fact, there's nothing this Congress will do about it. The legislation does not give standing to individual Congresspersons. In fact, a good argument can be made that by giving standing to Congress as a whole, it is implicitly stating that individual Congress persons have no standing. That means a majority of one house has to vote to sue, and that means that no such vote will be successful so long as the Republicans control Congress and Bush is in the White House. So, as a practical matter, this bill is aimed at future, Democratic presidents who might seek to emulate Frat Boy. Even worse, it's quite likely that Congress failure to bring suit, or to intervene under Section 6 (which I'll discuss later) will be viewed by a Bush friendly judiciary as Congressional endorsement of the thrust of a challenged signing statement. Courts often do that. They will interpret legislative inaction after a court ruling interpreting a statute as an endorsement of the interpretation. Odds are they will do the same thing with the signing statements. Remember, we have entered an historical period where our courts are more politicized than at any time since 1800. They will not need much to arrive at their preferred results.

Section 6 allows Congress to intervene in any litigation where the legality of a signing statement is at issue, and also permits the Congress (both houses must agree) to submit a resolution to the courts expressing Congress's interpretation of the bill at issue. Apparently the courts are not bound by the Congressional resolution, so the separation of powers problem in such a procedure is minimized. But again, Congressional inaction will inevitably be interpreted as endorsement of the executive's position. Also, one must wonder, how can a sitting Congress authoritatively interpret legislation that may have been passed by a predecessor Congress that might have been controlled by an ideologically dissimilar majority?

So, for what it's worth, in my view the practical effect of this would be nil so far as the current president is concerned. In the hands, let's say, of a Newt Gingrich led House with a Bill Clinton in the White House, it would be a great tool for perpetual harassment, though to be honest, any president issuing an illegitimate signing statement deserves all the harassment he (or she) gets. But the fact is, the likelihood that Congress will use this power is inversely related to the necessity that it be used. It is least likely to be used against a president of the same party as the Congressional majority, which is precisely the time signing statements are most likely to be abused.

This law is basically a band-aid, an admission that Congress has failed in its oversight responsibilities and that it has no intention of discharging them in the future. Instead, the question is punted to the courts, by creating a procedure that is almost guaranteed to be used only when it's not needed. Perhaps Specter is proposing this because it makes him look good. He knows it will not garner any Republican support , so he will look like he's trying to do something, even if ineffectually, to curb Bush's power grabs. In the end, it's ludicrous for one branch of government to look to another to protect it's constitutional prerogatives. If Congress insists on ceding its powers to the president, the courts will eventually go along, particularly as the bench becomes stocked with little Alitos.
Posted: Wednesday - July 26, 2006 at 09:17 PM          

©