Specter Looking to Sue President Bush Over Signing Statements

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

You may also like...

8 Responses

  1. Joe Friday says:

    The group is bipartisan, although I believe the Republicans in the group had already condemned the practice before being invited to be on the ABA panel.

  2. Paul Gowder says:

    That’s very elegant. Rather than suing right off, create the cause of action first. Looks like Bush might get to use his veto a second time…

  3. Haninah says:

    I believe that’s Harold *Koh*, if it’s the fellow from Yale.

  4. Laz says:

    Let’s assume a bill like this passes over Bush’s veto and creates statutory standing. Isn’t there still a problem with Article III standing under Lujan?

  5. Joe Friday alludes to an important point – the (blue ribbon??)Task Force’s findings & recommendations were pre-determined in the member selection process.

    The ABA continues to make the case for its own irrelevancy

  6. Deven Desai says:

    As for the bipartisan nod, fair enough I was quoting and you may have real reasons to doubt the panel (though some seem to have Republican credentials).

    How about addressing the findings nonetheless?

  7. I think signing statements are a natural counterpoint to the use of legislative history and accordingly have no philosophical problem with their use. The president is an important part of the bill-enacting process and his/her views on what’s being signed are relevant.

    As to the findings, I agree that the President should veto bills he considers unconstitutional – President Bush’s signing of McCain-Feingold was simply wrong given his correct mis-givings about the bill. But much of the rest of the recommendations are just silly – the President should not have to present “official” signing statements to the Congress. And despite the legion of “living constitutionalists” who embrace Judicial review for just about everything, such judicial review should not be encouraged as the last word on legislative intent (which is how I read the last recommendation) – Justice Stevens spectacular botching of that in Hamdan should have us all suspicious of the Court’s ability to do this correctly.

    Finally, this line from the report surely qualifies as a howler:

    “Our recommendations are not intended to be, and should not be viewed as, an attack on

    the current President.”

    (I mean why else would the ABA House of Delegates vote for the resolution if it wasn’t an attack on this President)

  8. L. says:

    This point probably isn’t worth further elaboration, but I just have to ask: MC, in what way did Justice Stevens “botch” judicial review of legislative intent? I’m sure you can’t possibly mean that simply because a decision turned out differently than you would have hoped, that this constitutes judicial error. Surely.

    (Also, for what it’s worth, I read the last recommendation a bit differently than you did: Rather than urging a requirement for judicial review of legislative intent, I think the ABA was encouraging review of executive intent. (“The [ABA] urges Congress to enact legislation . . . to seek judicial review . . . in any instance in which the President claims the authority, or states the intention, to disregard or decline to enforce all or part of a law he has signed . . .” See also p. 26 of the recommendations report.))