In response to highly controversial statements issued by President George W. Bush upon signing various bills into law, an American Bar Association Task Force and Senator Arlen Specter both recently called for the creation of a cause of action to obtain a federal judicial declaration concerning the legal validity of future presidential signing statements. This essay argues that such legislation would be ill-advised and counterproductive. It would exacerbate existing underlying institutional infirmities. More fundamentally, the inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President's constitutional obligations is premised on an unidentified, unjustified (and in my view unjustifiable) assumption about the relative roles of Congress and the Court. Specifically, the proposed law assumes that the Court, rather than Congress, is primarily responsible for ensuring that the President remains subject to the rule of law.
This premise has matters backwards. Under our constitutional text, structure, and traditions, properly understood, Congress has far greater competence and legitimacy than do the courts to undertake the awesome task of compelling presidential compliance with the Constitution and laws of the United States. It is the judicial role in so doing that can be best understood as incidental and sharply circumscribed by concerns about competence and legitimacy. Indeed, absent longstanding congressional neglect of its many, powerful tools for disciplining the executive branch, routine and open presidential assertions of the intent to disregard statutory provisions just signed into law would be all but inconceivable. Were Congress to act on Senator Specter's pending bill, the resulting legislation would further entrench this congressional neglect and atrophy the congressional muscles alone capable of resisting a truly lawless President. Ironically, the bill's unintended but most significant long-term consequence would be to make all the more likely the kind of presidential usurpation of the law-making function that the ABA Task Force report and Senator Specter warn against.
Bryant, A. Christopher, "Presidential Signing Statements and Congressional Oversight" (2007). Faculty Articles and Other Publications. 60.