Yesterday, an American Bar Association Task Force issued a report on presidential signing statements. (pdf) Among its unanimous conclusions, the Task Force recommended to:

• urge Congress to enact legislation enabling the President, Congress, or other entities or individuals, to seek judicial review of such signing statements to the extent constitutionally permissible, and urge Congress and the President to support a judicial resolution of the President's claim or interpretation.
  

In a floor speech, Senator Arlen Specter responded to the report and indicated that legislation was being drafted to give members of Congress standing to sue the President over signing statements. Specter explained:

During the course of the hearing before the Judiciary Committee, in my capacity as chairman, I made the request to Bruce Fein, who had been a lawyer in the Department of Justice during the Reagan administration, to take the lead and prepare legislation on the  subject. Mr. Fein and my staff have been working on legislation. It is my expectation that, before the weekend, we will submit legislation to the Senate which will give the Congress standing to seek relief in the Federal courts in situations where the President has issued such signing statements and which will authorize the Congress to undertake judicial review of those signing statements, with the view to having the President's acts declared unconstitutional. That is our view as to the appropriate status of these signing statements. (emphasis added)

I am quite troubled by the use of signing statements and would generally agree with the ABA Task Force's conclusions. But I think it may be very difficult to obtain congressional standing.

The Supreme Court on Legislator Standing

The Supreme Court has never ruled that federal legislators qua legislators have standing to sue the President or other members of the Executive Branch. In the 1939 case of Coleman v. Miller, the Court ruled that certain members of the Senate of Kansas had standing to sue the Secretary of State of Kansas and other officials of the state. The facts of this case are a bit strange. The legislature of Kansas was considering the Child Labor Amendment to the U.S. Constitution. When the vote came up in the Senate of Kansas, 20 senators voted in favor; and 20 senators voted against. The Lieutenant Governor broke the tie by voting in favor of the measure, and then the House of Representatives approved it. All 20 members of the Senate that voted against the measure, 1 member who voted for the measure, and 3 members of the House brought suit against the Secretary of State and other state officials to prevent them from certifying the resolution as adopted. The U.S. Supreme Court ruled that the legislators had standing, noting:

the plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.

But in Raines v. Byrd (1997), the Court declined to grant federal legislators standing to sue President Clinton over the constitutionality of the Line Item Veto Act. While not ruling on whether federal legislators would ever have standing, the Court noted that if it applied the standard of Coleman, the legislators suing Clinton would not have standing:

It is obvious, then, that our holding in Coleman stands (at most . . .) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified. (footnotes and internal citations omitted)

Thus,

It should be equally obvious that appellees' claim does not fall within our holding in Coleman, as thus understood. They have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated. In the vote on the Line Item Veto Act, their votes were given full effect. They simply lost that vote. Nor can they allege that the Act will nullify their votes in the future in the same way that the votes of the Coleman legislators had been nullified. In the future, a majority of Senators and Congressman can pass or reject appropriations bills; the Act has no effect on this process. In addition, a majority of Senators and Congressman can vote to repeal the Act, or to exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act; again, the Act has no effect on this process. Coleman thus provides little meaningful precedent for appellees' argument. (footnotes and internal citations omitted)

The Court did go on to point out two other considerations:

We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit. We also note that our conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach), nor forecloses the Act from constitutional challenge (by someone who suffers judicially cognizable injury as a result of the Act). Whether the case would be different if any of these circumstances were different we need not now decide.

Legislator Standing and Signing Statements

So how would these cases translate to legislator standing regarding signing statements?

First,  the Court in Raines did not hold that federal legislators would ever have standing. Rather the Court held that if they were to have standing, the applicable principle would be Coleman, and that principle precluded the legislators in Raines from having standing. Accordingly, it is still not clear that if a case were to arise over signing statements that the Court would grant standing even if the Coleman standard were met. It may be that separation of powers concerns preclude members of Congress from ever having standing-- an argument made by Justice Scalia when he was on the D.C. Circuit Court of Appeals.

Second, the standard in Coleman is complete nullification of a vote. The legislators would need to show that the sigining statement had in reality nullified their vote. It would seem to me that they would have to demonstrate that  the signing statement was not just arguably contrary to the legislation in question but rather constituted behavior that was tantamount to a nullification. This seems quite difficult to prove. Indeed, it may be that a signing statement alone could never constitute a true nullification of a vote. There might have to be some other executive branch action that would need to follow the statement.

Third, as I read Coleman and Raines, the plantiffs would have to be "legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act."  In other words, there would have to be a majority of the House and a majority of the Senate bringing suit because they would be the "legislators whose votes would have been sufficient to enact" a piece of legislation allegedly nullified by a signing statement and/or subsequent action.

Fourth, it may be that the Court would relax the Raines  approach if Congress specifically authorized the suit in question. Depending upon how the legislation were to be drafted, it might be possible that the entire disenfranchised class would not need to be party to the suit. As noted earlier, the Court did "attach some importance" to that fact that the plaintiffs had not be authorized to sue by their Houses of Congress.

Fifth, depending upon the signing statement in question, it may be that Congress would be deprived of "an adequate remedy." If a signing statement did, somehow, nullify a vote, simply passing new legislation would not seem to fix the problem. Moreover, it is possible that, unlike with the Line Item Veto Act, where non-legislator plantiffs who were affected by a line item veto did have standing to sue, there may be no other possible plaintiffs. If that were the case, the Court might look more favorably on granting federal legislator standing.

Conclusion

We will have to wait until Senator Specter has finished drafting the bill before a full evaluation is possible. But, that having been said, I think it is going to be difficult to establish a case where the Court would grant federal legislators  standing to sue over a signing statement. At the very least, it would seem to me that the statement alone would never be enough to consitute a nullification of a vote. There would have to be some executive action that followed. Take, for example, the signing statement that followed the McCain Amendment--

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

I worry with Marty Lederman, that this statement seems to translate--

I reserve the constitutional right to waterboard when it will "assist" in protecting the American people from terrorist attacks.

But it is not in and of itself a nullification of a vote. Perhaps if the President were to engage in actions that demonsrated a complete disregard for the McCain Amendment those actions might qualify as such a nullification.

[This post draws from some of the analysis in an article that my colleague Catherine Lotrionte and I did, Congress Goes to Court: The Past, Present, and Future of Legislator Standing, 25 Harv. J. L. & Pub. Pol'y 210 (2001)]