Wednesday, May 09, 2007

Pelosi Threatens Legal Action Over Signing Statements

Nancy Pelosi is threatening to sue Bush if he uses a signing statement to get around complying with a future Iraq War spending bill. This is from a report in The Hill newspaper:

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

“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 is a scenario for which few lawmakers have planned. Indicating that he may consider attaching a signing statement to a future supplemental spending measure, Bush last week wrote in his veto message, “This legislation is unconstitutional because it purports to direct the conduct of operations of the war in a way that infringes upon the powers vested in the presidency.”

A lawsuit could be seen as part of the Democrats’ larger political strategy to pressure — through a series of votes on funding the war — congressional Republicans to break with Bush over Iraq.

This is not going to be easy. Americans are fond of repeating the cliche that the United States has three separate and co-equal branches of government. This is not exactly correct. The judicial branch of government exists to resolve disputes, but before any dispute can be resolved it has to be a dispute that is susceptible to judicial resolution.

Courts have been very reluctant to get involved in struggles between the other two branches of government. This is because courts have very blunt instruments to assert their will.

When a court issues a judgment it is issuing a piece of paper. If the paper isn't followed, then the issuing court can, in appropriate cases, use its contempt to enforce its ruling. In the final analysis the contempt power depends on the willingness of the issuing court to jail someone who doesn't follow its order because putting someone in jail to enforce an order is the ultimate power to get compliance.

Now, put yourself in the position of a Federal Court Judge who is being asked to compel Bush to either follow a congressionally enacted bill or face what??? Is a Federal Judge really going to jail Bush over not following congressional legislation when the Congress can force its will on Bush by either impeachment or cutting off funding totally? Our guess is no, a Federal Judge is not going to put himself or herself in that position. Our guess is that the Federal courts will find a way to avoid the whole situation by either saying that Congress doesn't have standing, or that this controversy is not one capable of judicial resolution.

United States Supreme Court Justice Felix Frankfurter once warned his fellow Supreme Court Justices not to enter a "political thicket" by taking on the issue of gerrymandering, see Baker v. Carr, 369 U.S. 186 (1962). Well, if legislative redistricting is a "thicket", then trying to compel a President to obey a Congressional enactment would be a veritable freaking forest.

1 comment:

ohdave said...

It's interesting, because I wondered out loud on my blog a while back why Bush didn't just issue a signing statement. I mean if he really thinks they're legal, just do it. He KNOWS he can't get away with it now. That's the difference. It was all about vote record before... Republican senators like McCain got to "vote their conscience" on issues like torture while knowing full well that Bush would never follow the law, nor would Congress expect him to.

Elections have consequences. Their little charade is over.