“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.”
Well, Madame Speaker, signing statements predate this President, and have been used by all parties in the past. In fact, to use an example from the lasst Democratic Administration, Assistant Attorney General Walter Dellinger wrote to White House Consel Bernard Nussbaum in 1993 on the subject of signing statements, saying in part,
More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it. This species of statement merits separate discussion.(6)
In each of the last three Administrations, the Department of Justice has advised the President that the Constitution provides him with the authority to decline to enforce a clearly unconstitutional law.(7) This advice is, we believe, consistent with the views of the Framers.(8) Moreover, four sitting Justices of the Supreme Court have joined in the opinion that the President may resist laws that encroach upon his powers by "disregard[ing] them when they are unconstitutional." Freytag v. C.I.R., 111 S. Ct. 2631, 2653 (1991) (Scalia, J., joined by O'Connor, Kennedy and Souter, JJ., concurring in part and concurring in judgment).(9)
If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.(10) And indeed, in a recent decision by the United States Court of Appeals for the District of Columbia Circuit, Federal Election Comm'n v. NRA Political Victory Fund, supra, the court cited to and relied upon a Presidential signing statement that had declared that a Congressionally-enacted limitation on the President's constitutional authority to appoint officers of the United States was without legal force or effect. Id. at * 11.
This clearly shows that Pelosi either fails to understand that signing statements have been used in the past to declare a part of an otherwise palatable bill unconstitutional, or she is angling to set up what amounts to a shadow government, usurping the powers vested in the President. The first option makes her incompetent, the second makes her a potential criminal. Neither is a good place to be for the Speaker.
Personally, I think Pelosi would be better advised trying to make good on the Democratic promises to clean up and reform the ethics of Congress than trying for yet another showdown with the President. But then this Democratic leadership has already shown that they are neither competent nor ethical- just power-hungry.