“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.”The lawsuit presents an interesting, indeed possibly desparate, attempt to force action that Congress cannot attain on its own. Interestingly, the Hill article goes into the the legal issues of standing and injury in fact, two threshhold questions a court would have to address before doing anything. However, it is much more likely that the courts would find that this is a political question, one in which the courts are not capable of addressing due to a variety of factors.
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.
The theory of the signing statement would be that the President would sign the compromise bill, but issue a statement questioning its constitutionality and perhaps refuse to adhere to certain provisions, like any time lines included in the bill. The president is under a constitutional obligation to ensure the laws are faithfully executed. Yet there remains a question as to whether the President has the authority to determine on his own the constitutionality of certain laws or provisions of laws.
In this dispute, I would advise the President to stand firm and veto anything that crosses his desk that would tie his hands or require actions beyond responding to oversight requests. That means no timelines whatsoever, even "advisory" ones. Congressional Democrats are reluctant to undertake their only constitutional weapon, the power of the purse, because they don't want to be held responsible for what happens in Iraq and they certainly don't wan t the GOP to have a weapon in the 2008 elections.
The showdown would have two effects. One, it would force Democrats to put up or shut up on their "support the troops, oppose the war" strategy. In fact, if they pass a clean funding bill, they lose the PR war and likely control of Congress. Certainly the foundation of their "mandate" from 2006 would be shattered. Two, the longer Congress focuses on Iraq, the less damage they are likely to do domestically and that has a certain appeal as well.
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