Balkinization  

Wednesday, July 19, 2006

What the Bush Veto Means

JB

Perhaps you think that the Bush veto of the stem cell bill today suggests a divided Republican Party, or a weakened presidency, or a newfound ability of Democrats to form bipartisan collations with their colleagues across the aisle. In fact, it means none of these things.

Bush has never vetoed a bill before because (1) his party has controlled both houses of Congress throughout most of his presidency and because (2) vetoing was not the most politically propitious alternative. That's to be expected when the President and the Congress are from the same party. Usually the President could get what he wanted-- or avoid most of what he didn't want-- through his Republican allies reshaping or watering down bills, jamming up legislation in committee, or through Presidential signing statements. It just so happened that with this particular piece of legislation, politics dictated that the veto was the best alternative both for Bush and for the Republicans in Congress.

To understand why, over five years into his Presidency, George W. Bush finally vetoed a piece of legislation, it's worth comparing President Bush's veto of the stem cell bill with two other pieces of legislation that he strongly opposed but nevertheless allowed to become law: The McCain Feingold Campaign Finance Bill and the McCain Amendment which became part of the Detainee Treatment Act (DTA). (You will note, not entirely coincidentally, the presence of John McCain's name in both pieces of legislation).

First let's compare the stem cell bill with the DTA. The DTA was part of a very large defense appropriations bill that it would have been quite difficult to veto. Congressional leaders deliberately attached it to that appropriations bill. Hence the President worked hard to weaken the bill by limiting the jurisdiction of the federal courts to hear allegations of prisoner mistreatment. This is what the Graham-Kyl amendments did (Senators Graham and Kyl even went so far as to insert bogus legislative history in the Congressional Record to help the President's cause). Moreover, when the President signed the bill, he offered a signing statement that indicated that he reserved the right, at some undisclosed point in the future, and in various undisclosed ways, to refuse to enforce it. So although he signed the bill, we have no idea whether it will really do what it says. And that's just the way the President wants it.

The stem cell bill was different from the DTA in two important respects. First,the Congress arranged matters so that the bill was not hitched to other crucial legislation that the President would be politically unable to veto. The fact that Congressional leaders did this is quite significant, and it suggests that Republican supporters of the bill were far less upset about the possibility of a Presidential veto than the public debate might lead one to believe. Indeed, the most important story is not why the bill was vetoed, but what political bargains (and Congressional rules) led to it not being attached to other more important pieces of legislation.

Second, a signing statement made far more sense in the case of the DTA than in the case of the stem cell bill. The President might have issued a signing statement announcing that he would withhold any funds appropriated for stem cell research. But a signing statement to this effect would be a far less effective alternative. A signing statement threatening to withhold funding would have no obvious constitutional basis for objection-- unlike the signing statement for the DTA-- and would itself have precipitated a constitutional debate about impoundment of appropriated funds that had lain mostly dormant since the Nixon years. It was far cleaner and easier just to veto the legislation, especially since Congress had not attached it to a crucial appropriations measure. Perhaps equally important, a veto is a far more powerful political gesture; a signing statement would seem particularly devious and unsatisfying, both to the public at large, and, perhaps more importantly, to the President's supporters in the pro-life movement, who would have demanded a clear rejection of the bill rather than allowing it to become law.

An equally interesting comparison is to the McCain-Feingold Campaign Finance bill, which the President opposed but ultimately signed rather than veto. The most important difference is the political meaning of the veto. The White House probably predicted that vetoing McCain-Feingold in early 2002 would portray the Republicans as the party of corruption and would hurt the party's chances in the 2002 and 2004 elections. (Remember that the House didn't pass McCain-Feingold until after the collapse of Enron). By contrast, the White House probably imagines that vetoing the stem cell bill does more good than harm for Republicans: it signals to the conservative base that the President supports the pro-life agenda while allowing individual Republican Congressmen and Senators to signal to moderates and independents that their views are different.

In sum, this first veto of the Bush Presidency does not signal anything out of the ordinary, other than ordinary politics. Of course, if the Republicans lose one or both houses of Congress in the 2006 elections, we may see a lot more vetoes coming from this White House. But that, too, will be an entirely predictable consequence of ordinary politics.


Comments:

Am I the only one wondering where the words "signing statement" appear in the Constitution?

Must be somewhere between "privacy" and "separation of church and state."
 

Plus, members of Congress get to go back to their districts and tell their constituents they voted for a popular bill.
 

Martin Magnusson has a good discussion of signing statements over on ACSBlog. The ABA has apparently formed a task force to examine the practice.

Personally, I don’t see how the practice of issuing a signing statement could itself be constitutionally suspect. The President is part of the legislative process and he should be able to go on the record to explain his interpretation of a bill when he signs it into law. In fact, I would even say that creating legislative history to aid future generations in the interpretation of a bill is laudable.

What I do think is highly suspect, though, is if the President chooses not to enforce bills that he has signed into law because he believes they are unconstitutional. If a President believes a bill is unconstitutional, then his duty is to exercise his veto. I don’t see how the Constitution gives him the option of signing it into law and then simply deciding to ignore it. If Congress overrides the President’s veto, then the courts will decide the Constitutional issue. Wasn’t this system of checks and balances settled by Marbury v. Madison?
 

I would say that the President's obligation to uphold and defend the Constitution, against all enemies, foreign AND domestic, certainly encompasses refusing to enforce laws he believes to be unconstitutional, as the higher law of the Constitution trumphs the statutory law. And this is an independent obligation, quite aside from the Supreme court's tendency to uphold unconstitutional statutes.

However, there's no question but that this obligation of the President extends also to *vetoing* unconstitutional legislation, and we might reasonably take the position that if he signed a bill, he has no standing to complain of it's unconstitutionality.
 

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