Bar association task force urges Congress to push for judicial review of Bush signing statements
The "standing" obstacle could be the most difficult to surpass. In the past, the court has disagreed over Congress's authority to sue in separation of powers cases. A 1997 case — Raines v. Byrd — judged that Congress had standing to sue only in very limited cases.
Fein plans to send the draft of his legislation, which would confer standing, to Specter's office in the next week.
But passing such legislation—and getting it approved in court—will likely be difficult. At the Judiciary Committee hearing, two experts warned Senator Specter against the idea. Christopher Yoo, a law professor at Vanderbilt who has studied presidential power, told Specter that kind of legislation would certainly "face formidable obstacles."
"Standing doctrine is notoriously complicated," agreed Nicholas Rosenkranz, a law professor at Georgetown, "and Congress's ability to construe standing on itself is definitely a sort of vexed question."
But Charles Ogletree, a Harvard Law School professor who is a member of the aba task force, gave different advice. "So you think we could draft a statute, take the president to court?" Specter asked him. "I think not only can you, I think you must," Ogletree replied.
Meanwhile, an advocacy group called the Constitution Project, which issued a report condemning the signing statements in June, is now contemplating further action, including a lawsuit against the Justice Department, which has failed to comply with a Freedom of Information Act request the group filed on June 22, said Virginia Sloan, the group's president. The request would require the Justice Department to report on uses of signing statements since 1977.
This story was updated July 21, 2006 at 6:30 p.m.
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