Wednesday, May 9, 2007

A Justiciability Question

For any of you legal-minded folk, there is an interesting problem posed by Speaker Pelosi in a comment she made to a reporter from the Daily Kos. She said "[w]e can take the President to court," if he decides to issue a signing statement on an upcoming war funding bill.

Signing statements are, oddly enough, statements that the President files when he signs a bill. These statements outline how the Executive plans to interpret the bill and often state objections that the Executive branch has to provisions of the bill that it considers to be unconstitutional. Signing statements have been around for a while, but nobody has used nearly as many as President Bush.

In effect, a signing statement is a junior veto. By issuing the statements, which go into the Federal Register (I think) but do not have the force of law, the Executive Branch says what it thinks the Constitution means in relation to the law with which the statement is issued. If the President thinks a law is unconstitutional, he obviously does not want to enforce it. Congress, likewise, has cited unconstitutionality as a reason for voting against a proposed bill.

What makes all of this stuff interesting is the Speaker's idea of taking the President to court over signing statements. This task may prove really difficult.

Signing statements don't actually do anything. They tell the Executive branch (which includes the Departments of State, Justice, Interior, Homeland Security et al.) how the President wants the law enforced. The Departments have no legal duty to obey the statements.

If the Speaker wants to sue the President, she'll have to get standing. I'm sure all of you remember that someone has standing if they have some injury, not too widely shared, that is caused or fairly traceable to the defendant's actions and can be redressed by the relief requested.

I imagine the Speaker's injury would be that the President cannot interpret the law--that "it is precisely the role of the judiciary to say what the law is." But that is an injury to the judiciary, not to the Speaker of the House.

Furthermore, if these statements do not really affect legal rights under a statute, I am not sure that they can give rise to a judicially-cognizable injury. Saying "the President disagreed with me" does not make me injured if nothing actually done or left undone does not injure me.

All of these questions are deeply political: enter the political question doctrine. The political question doctrine keeps questions out of court if deciding the issue would involve stepping too much on another branch's toes. Conflicts between branches are the classic case for invoking the doctrine.

But, Madam Speaker: If you're reading, I've got a way that might work. You couldn't have Pelosi v. Bush for your case caption, but you might find a way to get a plaintiff with standing.

If there is an employee of the Executive Branch that will directly involved in enforcing the law, and that employee both agrees with the law as passed by Congress and disagrees with the policies expressed in the signing statement, AND that employee is willing to disobey the signing statement AND willing to get fired for disobeying, that person would have standing to challenge the legal effect of the signing statement.

But I think our poor employee would lose. Bosses can fire us for anything.

If you're dissatisfied with a coordinate branch of government, don't sue. Please. Resolving these kinds of disputes is precisely what politics are for.

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