This is the website of Abulsme Noibatno Itramne (also known as Sam Minter). Posts here are rare these days. For current stuff, follow me on Mastodon



May 2006

Ways and Means

Another example of interesting Constitutional stuff:

Executive constitutional interpretation
(Dale Carpenter, Volokh Conspiracy)

There are plenty of examples of presidents who opposed/vetoed legislation, thinking that the legislation was both unconstitutional and otherwise bad policy. Andrew Jackson’s veto of the Second National Bank is an example of this: he said in his veto message that he believed it was unconstitutional, but he also opposed it on policy grounds.

Both of the above scenarios involve presidents whose policy views lined up with their purported constitutional views. No conflict presented itself.

But here’s a challenge for bloggers and commenters everywhere: give an example of a president who opposed/vetoed legislation on the ground that he believed it to be unconstitutional, even though he otherwise supported it on policy grounds? Here the president’s view of the proper meaning of the Constitution would be opposed to his view of good policy. To put it in less abstract terms: it would be as if Andrew Jackson had loved the idea of a Second National Bank, but nevertheless vetoed it because he thought it was unconstitutional.

In the comments, very few examples of this could be found. And the most recent one was Woodrow Wilson.

See, the thing here, this should be a lot more common than it is. Presidents should view one of their primary goals as upholding the law of the land (especially the constitution) and that should take priority over their own policy viewpoints in the cases where they contradict each other. Lets review the oath of office:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Oops. This should mean that if Congress passes an unconstitutional law (never mind the Congressional oath) then it shouldn’t have to wait to get to the Supreme court… the President should veto it out of principal EVEN IF HE/SHE AGREES WITH THE GOALS OF THE LAW.

Of course, not only does that not happen these days, but the executive seems to just routinely do whatever the hell they want, with no regard to the Constitution, Congress, or pretty much anything. So looking for an executive that would even consider vetoing a bill they agree with on policy grounds because it is unconstitutional… It may be another 100 years before it happens again…