If one has a sufficiently robust notion of judicial power, isn't this the
logical equivalent of seeking a declaratory judgment that it would be
unconstitutional for the President not to veto a law because to sign it
would violate his/her oath of office? If Sheriff Jones announces
that the police will come out in force to prevent a political gathering
in the public forum, I presume that one can go to court immediately upon
the announcement rather than wait until the police actually try to
prevent the gathering. (And, indeed, one can probably get
injunctive, and not simply declaratory, relief.) Is the
difference in the two hypotheticals the fact that the President merely
signs the legislation, he doesn't actually declare an intention to act
upon it? Or do we simply regard it as lese-majeste to bring
the president to court when he announces an intention to violate his oath
of office? (I'm not advocating that suits for such injunctive
relief are desirable, but I do wonder what the difference is between this
and any other suit for a declaratory judgment based on anticipated future
action.
sandy
At 02:13 PM 10/31/2003, you wrote:
Talk
about your races to the courthouse -- in this case, before the
fact!
The ACLU and CPR have each filed suit
challenging the constitutionality of the so-called Partial Birth Abortion
Act, which the President has not yet signed.
http://www.washingtonpost.com/wp-dyn/articles/A47078-2003Oct31.html
"We want the judge to be in a position to
issue an order as soon as the bill is signed," said one of the
attorneys.
Anyone aware of any precedent for such a
preemptive move? I'm fairly certain no injunction could be issued
before the bill becomes law. But If the President signs the bill,
can a court then issue an injunction in these suits? I would
imagine she could, because the originally unripe suit would have ripened
in the interim between the filing of the complaint and the issuance of
the injunction; but I don't think I've ever seen a case quite like this
one.
