Litigating Presidential Signing Statements

Abstract

In response to President George W. Bush's aggressive use of presidential signing statements, several members of Congress as well as a prominent Taskforce of the American Bar Association have proposed legislation to provide for judicial review of signing statements. These critics assert that the President must veto legislation with which he disagrees, rather than use signing statements to refuse to enforce statutes that he signs into law. This article explores whether Congress can litigate presidential signing statements, concluding that they are not justiciable even if Congress enacts a law granting itself standing to raise such a challenge. Congress might be able to piggyback on litigation brought by private parties through the procedural tools of intervention and amicus. However, private parties may also be hard-pressed to challenge signing statements, even if the President follows through on the views expressed in his signing statements and declines to enforce the laws as written. As a result, Congress must exercise its political powers if it wishes to confront the President over his signing statements.

Keywords: presidential signing statement, congressional standing