Fee Shifting as a Congressional Response to Adventurous Presidential Signing Statements

Abstract:     
President Bush's signing statements have sparked outrage among academics, the press, and the ABA leadership. The ABA Task Force urged Congress to enact legislation that would confer on Congress as an institution or its agents . . . standing in any instance in which the President uses a signing statement to claim the authority, or state the intention, to disregard or decline to enforce all or part of a law. Senator Specter, for his part, has spearheaded legislation to create a justiciable case or controversy out of a congressional objection to a signing statement.

The problem with the course championed by the ABA Task Force and Senator Specter is that courts would not likely find such challenges justiciable. The Supreme Court has rejected similar congressional efforts to confer standing on one of its own members. Moreover, the proposals ignore that many of President Bush's signing statements state only that the president will interpret the statute consistent with presidential powers if a clash ever arises. The signing statements by themselves do not create injury but rather leave open that possibility for the future.

This essay assesses an alternative that was ignored by both Senator Specter as well as the ABA Task Force. Congress could subject the executive branch to an attorney's fees award in every case in which the executive branch loses when 1) it has declined to enforce the law as written for reasons of presidential prerogative, and 2) has, in a signing statement, previously articulated its intent to disregard the law. Congress through the fee shifting mechanism would place, for the first time, some legal consequence upon use of signing statements that signal an intent to negate or trump a legislative enactment. Indeed, the Ninth Circuit years ago used the occasion of a fee dispute to castigate the President for his assertion of prerogative in a signing statement.

I conclude by considering whether adoption of such a fee shifting provision would serve the public interest. I doubt whether the prospect of a fee award significantly would deter presidents from articulating reservations in signing statements based on presidential prerogative. Nonetheless, the one-way fee shifting provision could, at the margins, furnish incentive for private parties to challenge presidential departures from the legislative command that are announced in signing statements, providing occasion for courts to assess the propriety of not only executive branch refusals to enforce but also particular signing statements. In short, the fee shifting provision would send a powerful message to presidents that attachment of routine messages taking exception to legislation on the basis of presidential prerogatives is not cost free.

Keywords: signing statement, fee shifting, law enforcement

JEL Classifications: H11, K23, K41

Accepted Paper Series