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You are here: Home / Politics / Bush’s Day In Court

Bush’s Day In Court

by John Cole|  July 25, 20069:37 am| 28 Comments

This post is in: Politics

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This is odd:

A powerful Republican committee chairman who has led the fight against President Bush’s signing statements said Monday he would have a bill ready by the end of the week allowing Congress to sue him in federal court.

“We will submit legislation to the United States Senate which will…authorize the Congress to undertake judicial review of those signing statements with the view to having the president’s acts declared unconstitutional,” Judiciary Committee Chairman Arlen Specter, R-Pa., said on the Senate floor.

Specter’s announcement came the same day that an American Bar Association task force concluded that by attaching conditions to legislation, the president has sidestepped his constitutional duty to either sign a bill, veto it, or take no action.

Bush has issued at least 750 signing statements during his presidency, reserving the right to revise, interpret or disregard laws on national security and constitutional grounds.

“That non-veto hamstrings Congress because Congress cannot respond to a signing statement,” said ABA president Michael Greco. The practice, he added “is harming the separation of powers.”

Bush has challenged about 750 statutes passed by Congress, according to numbers compiled by Specter’s committee. The ABA estimated Bush has issued signing statements on more than 800 statutes, more than all other presidents combined.

We have discussed the signing statements before, but what I found interesting was that you can actually sue the President. For some reason, I was under the impresssion you could not. Let me rephrase- I though the President could be sued for personal issues, but I was unaware he/she could be sued for official behavior.

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Reader Interactions

28Comments

  1. 1.

    Jim Allen

    July 25, 2006 at 9:46 am

    Maybe I’m confused about the word “sue”, but isn’t that how Congress got Nixon to cough up the tapes?

  2. 2.

    The Other Steve

    July 25, 2006 at 9:49 am

    They oughta just impeach the bastard.

    Apparently, though, spitting on the Constitution is not near as egregious as getting a blowjob.

  3. 3.

    Mr Furious

    July 25, 2006 at 9:50 am

    Not to worry, John. On Friday Specter will announce that he has reached a compromise with the President on signing statements… All of the signing statements issued so far are fine and dandy, and Congress won’t waste his Highness’s time by asking him to sign anything any more. Instead the Administration will simply submit all legislation to the Congress, and they will automatically enact it.

  4. 4.

    Punchy

    July 25, 2006 at 9:52 am

    Mr. Cole…however many minutes you wasted posting this, and however many minutes I’m burning to respond could be the biggest waste of time since Simple Minds Greatest Hits. We ALL know this will never actually happen, as Tim has alluded to. He’s spectering, and will never actually let anyone vote on this. It’s all for show…

    However, I do agree that suing the President seems odd. Here’s hoping Cindy Sheehan lays a big fat civil lawsuit on our Elected Tosspot for indirectly 86’ing her young’un.

  5. 5.

    VidaLoca

    July 25, 2006 at 9:53 am

    I thought the President could be sued for personal issues,

    And I had thought that, at least in the case BigDog v. Paula Jones that defendant BigDog was sued for transgressions that occurred before he became President — in other words, the President is pretty much protected from civil suits.

    I’m also not sure it matters much. If Specter’s recent behavior is any indication, he’ll take a strong but meaningless position now that will be bargained down to an endorsement of the signing statements, which will he will then proclaim to be a “historic compromise”. Which it will be, on his part.

  6. 6.

    Remfin

    July 25, 2006 at 10:01 am

    Don’t be confused by the language/etc of things like “sue”. This is just (from the descriptions) creating a process that allows the Supreme Court to listen to what are basically hypothetical cases, whereas right now they have to dismiss everything that doesn’t have specific facts in front of them

    Will the President listen? Probably not, but it unties the SC’s hands and frees them from the “judical acvitist” crap and they can put out some scathing and well-reasoned arguements against these things for public consumption. Of course the catch is Congress would actually have to “sue” instead of just talk about it…

  7. 7.

    Steve

    July 25, 2006 at 10:06 am

    We know, of course, that Bush is hardly the first President to issue signing statements, even though he has issued more of them than all the previous Presidents put together.

    But let’s compare and contrast. Take a look at this example Clinton signing statement:

    I do object to the provision in the Act concerning the transmittal of abortion-related speech and information. Current law, 18 U.S.C. 1462, prohibits transmittal of this information by certain means, and the Act would extend that law to cover transmittal by interactive computer services. The Department of Justice has advised me of its long-standing policy that this and related abortion provisions in current law are unconstitutional and will not be enforced because they violate the First Amendment. The Department has reviewed this provision of S. 652 and advises me that it provides no basis for altering that policy. Therefore, the Department will continue to decline to enforce that provision of current law, amended by this legislation, as applied to abortion-related speech.

    Thus, Clinton was declining to enforce what he believed to be an unconstitutional law; he specifically advised what portion of the law he saw as unconstitutional and why he believed it to be so. This gives Congress an opportunity to push back; they can either amend the law to avoid the constitutional problem, or they, or a private litigant, can seek a court ruling that there is no constitutional violation.

    Bush’s signing statements, on the other hand, tend to be considerably more vague and mysterious. Consider this excerpt from his signing statement on the Detainee Treatment Act of 2005:

    The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

    What the heck does this mean? We’ve seen from the FISA debates that different people have very different views of what the “constitutional authority of the President to supervise the unitary executive branch” means. The President does not define it, nor does he state in specific terms what portions of the law he will or won’t enforce. Congress, and the people, simply have to guess, which means they can’t really do anything to fix the problem.

    There’s nothing wrong with signing statements, in principle, but Bush’s misuse of them really needs to be reined in. This is our government; we shouldn’t be left in the dark as to what laws will and won’t be enforced. Bush’s practice is dangerous for our constitutional system.

  8. 8.

    VAMark

    July 25, 2006 at 10:26 am

    I though [sic] the President could be sued for personal issues, but I was unaware he/she could be sued for official behavior.

    Up until Jones v. Clinton, it was the opposite – the President was pretty much immune from personal law suits during his term, but could be sued for official behavior, although the bar to get standing was pretty high. This has always been the way to get the courts to rule on the legality or constitutionality of Executive actions.

    In the ’90’s the SCOTUS broke with tradition by making the brilliant judgement that Jones wouldn’t be much of a distraction and let it proceed – a “one-off” decision that foreshadowed Bush v. Gore. They obviously needed a better crystal ball.

  9. 9.

    Jill

    July 25, 2006 at 10:26 am

    “…but I was unaware he/she could be sued for official behavior.”

    Let’s go, I think malpractice, negligence or willful disregard might work.

  10. 10.

    Punchy

    July 25, 2006 at 10:30 am

    So….assuming the incredible…this passes…this’ll be Bush’s second veto, right?

    Why wouldn’t Bush veto this bill?

  11. 11.

    Pb

    July 25, 2006 at 10:45 am

    Could someone explain to me again why signing statements should be given any recognition or considered to have any legal weight whatsoever, in the first place? There’s no historical precedent for them. Of course if there’s an actual, legitimate Constitutional issue, the Supreme Court should take it up (but there isn’t). And past that, it really doesn’t matter WTF the President’s *opinion* of a law is–if he doesn’t faithfully execute the law, then he’s in dereliction of his duty as President, and should be impeached, signing statements or no.

  12. 12.

    Jack Roy

    July 25, 2006 at 10:47 am

    Remfin, you’ve got it a little bit off. SCOTUS’s jurisdiction under any supposed statute wouldn’t allow the Court to entertain hypothetical questions as that exceeds their constitutional jurisdiction (case & controversy).

    John: Doing a little bit of research (on an issue which my corporate practice predictably doesn’t give me a lot of occasion to study), it appears that during a Reconstruction Era case, Mississippi v. Johnson, the Court said you cannot sue the president. However, it’s always been true that you can sue Cabinet secretaries, inferior officials, etc., and enjoin them from doing certain things—which achieves exactly the same result, since the president exercises his power through his subordinates. The Court has not fully explained its reasoning in the Reconstruction case, and it would seem to be at odds with the result in the Watergate tapes case.

    It’s also important to note that, while the president and former presidents have an immunity to suits for damages arising from actions within their official duties, that immunity turns on two necessary elements: That the suit is for “damages” (i.e., money, not asking for an injunction), and that the actions be within official duties. Thus, just as Clinton was sued because his actions were outside his official duties, so would the immunity not apply to suits not for damages.

  13. 13.

    Salvo

    July 25, 2006 at 10:50 am

    Oh he can be sued for offical acts, by Congress, but the major question is whether the courts will decline to rule on the case, which, unfortunately, in all probability, they will do. It’s called the political question doctrine, and it’s the legal doctrine that allows the court to punt whenever a dispute occurs between the major players(i.e. President and Congress) of two branches. Basically, the court can say, “this is a political question, you kids go sort it out for yourselves, now leave mommy alone with her Vicodin.”

    Specter is attempting to craft legislation that will circumvent the political question doctrine, but much like a law that says “we remove the judicial branch’s jurisdiction to hear this case”, the courts probably won’t pay it much mind and do whatever the hell they feel.

  14. 14.

    Jack Roy

    July 25, 2006 at 10:53 am

    Pb, the short answer is they don’t have any legal weight, other than as persuasive authority. Just as if Congress says the law is X, and the courts say the law is X, and I, the humble citizen, say the law is instead Y—that’s my right as an American to say so, but no one’s particularly obliged to agree with my judgment.

  15. 15.

    Tsulagi

    July 25, 2006 at 10:57 am

    It’s just Specter engaging in a little more pre-spectering puffery. Another form of Republican toughiness. He’ll wilt faster than iceberg lettuce sitting outside on a downtown Phoenix street.

  16. 16.

    tzs

    July 25, 2006 at 11:15 am

    So finally we’re getting “princeps legibus non solutus est”?

    (“princeps legibus solutus est”–literally, “the leader is not bound by the law” ended up getting quoted ALL over the place by medieval jurists to give what looked like a free pass to kings, princes, and the Pope. The counterweight was that the “law” was “Roman law”, which was considered to be superceded by lex natura and lex dei. Heck of a lot of stuff was able to be shoved in under both of those.)

    (And the use of “princeps legibus solutus est” got the final kibosh put on it when someone backtracked (finally!) to the original documentation it had arisen from and discovered it was a comment on fixing a loophole in testaments in some very specific cases–can’t remember the specifics but it made perfect sense that the Emperor not be bound by it.)

    Moral of the story: check your sources. You may have less authority than you think you do.

  17. 17.

    cekeri

    July 25, 2006 at 11:30 am

    Plame and Specter are pals.

  18. 18.

    Jack Roy

    July 25, 2006 at 11:48 am

    Cekeri, that’s no way to start a flamewar. You need to include Cindy Sheehan, too.

  19. 19.

    sal

    July 25, 2006 at 11:53 am

    Specter’s preparing a bill? So would Bush veto it, or issue a signing statement saying it doesn’t apply to him?

  20. 20.

    Mr Furious

    July 25, 2006 at 12:04 pm

    the biggest waste of time since Simple Minds Greatest Hits

    Hey! That’s not a terrible album. For 80s pop, I mean.

  21. 21.

    The Other Steve

    July 25, 2006 at 12:18 pm

    Cekeri, that’s no way to start a flamewar. You need to include Cindy Sheehan, too.

    Michael Moore is fat.

  22. 22.

    LITBMueller

    July 25, 2006 at 12:30 pm

    “We will submit legislation to the United States Senate which will…authorize the Congress to undertake judicial review of those signing statements with the view to having the president’s acts declared unconstitutional,”

    “Holy spectering, Batman!” Specter, a lawyer himself, pleases the ABA by submitting legislation he knows has absolutely no chance of being passed by the Senate, keeping his masters happy, too!

    “Diabolical…”

  23. 23.

    Steve

    July 25, 2006 at 12:50 pm

    Simple Minds used to be my favorite group in the 80s. You jerks.

  24. 24.

    Richard 23

    July 25, 2006 at 1:29 pm

    Simple Minds used to be my favorite group in the 80s.

    I liked Art of Noise, Cabaret Voltaire, Front 242, Skinny Puppy and Yello better.

    And have you seen Michael Moore? Boy is he fat! Gross!

  25. 25.

    Richard 23

    July 25, 2006 at 1:40 pm

    Back on topic.

    The ABA estimated Bush has issued signing statements on more than 800 statutes….

    ABBA? Damn Swedes. I bet Darrell kicks it to Dancing Queen.

  26. 26.

    lard lad

    July 25, 2006 at 6:50 pm

    Simple Minds used to be my favorite group in the 80s. You jerks.

    I confess to having called them “Empty Minds” back in the day… but I was (am) a music store employee and am therefore a huge snob. Still, Simple Minds hasn’t aged well — we can’t even sell their Greatest Hits collection. On the other hand, such ignored-at-the-time-but-for-critics groups like Wire, Gang of Four, Liliput and the Minutemen move briskly indeed. Most gratifying.

    Oh, and count me as one of those who takes “Reacharound” Specter’s gesture with the football-sized grain of salt it deserves. Wouldn’t it be funny if the guy had split personalities — the “kick Bush” hemisphere versus the “fellate Bush” side? Make a great comedy sketch, that would…

    Of course, since the half of Arlen’s brain that flosses with Our Beloved Leader’s pubes always prevails in the end… well, it makes the joke a sour one indeed.

  27. 27.

    Once-ler

    July 25, 2006 at 11:43 pm

    Pb, the short answer is they don’t have any legal weight, other than as persuasive authority.

    Apparently they do, if you’re Antonin Scalia.

  28. 28.

    Steve

    July 26, 2006 at 12:25 am

    Eh, to tell you the truth, I think Scalia was simply saying “if you’re going to consider the stupid legislative history, why not consider the stupid signing statement too.” Scalia is a staunch opponent of consulting legislative history. He’s just taking a jab at those who espouse the contrary view.

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