Jonathan E. Kaplan and Elana Schor / The Hill – 2007-05-12 22:59:23

http://www.hillnews.com/leading-the-news/pelosi-threat-to-sue-bush-over-iraq-bill-2007-05-08.html

WASHINGTON, DC (May 09, 2007) — House Speaker Nancy Pelosi (D-Calif.) is threatening to take President Bush to court if he issues a signing statement as a way of sidestepping a carefully crafted compromise Iraq war spending bill.

Pelosi recently told a group of liberal bloggers, “We can take the president to court” if he issues a signing statement, according to Kid Oakland, a blogger who covered Pelosi’s remarks for the liberal website dailykos.com.

“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.”

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.

Democrats floated other ideas during yesterday’s weekly caucus meeting. Rep. Jay Inslee (D-Wash.) suggested that the House consider a measure to rescind the 2002 authorization for the war in Iraq. Several senators and Democratic presidential candidates recently have proposed that idea.

“There was a ripple around the room” in support of the idea, said Rep. Lynn Woolsey (D-Calif.).

In the 1970s, congressional Democrats tried to get the courts to force President Nixon to stop bombing in Cambodia. The courts ruled that dissident lawmakers could not sue solely to obtain outcomes they could not secure in Congress.

In order to hear an argument, a federal court would have to grant what is known as “standing,” meaning that lawmakers would have to show that Bush is willfully ignoring a bill Congress passed and that he signed into law.

The House would have to demonstrate what is called “injury in fact.” A court might accept the case if “it is clear that the legislature has exhausted its ability to do anything more,” a former general counsel to the House of Representatives, Stanley Brand, said.

Lawmakers have tried to sue presidents in the past for taking what they consider to be illegal military action, but courts have rejected such suits.

A law professor at Georgetown Law Center, Nicholas Rosenkranz, said Bush is likely to express his view on the constitutionality of the next supplemental in writing. Whether Bush has leeway to treat any provision of the supplemental as advisory, however, depends on the wording Congress chooses, Rosenkranz added.

Bruce Fein, who was a Justice Department official under President Reagan, said Democrats seeking to challenge a signing statement would have to try to give themselves standing before filing a lawsuit.

“You’d need an authorizing resolution in the House and Senate … to seek a declaratory judgment from the federal district court that the president, by issuing a signing statement, is denying Congress’s obligation to [hold a veto override vote],” Fein said.

Sen. Arlen Specter (R-Pa.) introduced legislation to that end last year, but the idea of a lawsuit has yet to gain traction in Congress.

Senate Armed Services Committee Chairman Carl Levin (D-Mich.) said that “the odds would be good” for a signing statement on the next supplemental, considering that Bush has in the past shown a predilection for excusing his administration from contentious bills. But Levin did not offer any clues as to how Democratic leaders would counter Bush.

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