Oh, pardon me, I didn’t mean to reveal yet again my corrupt use of executive prerogative

So, can a US President pardon a convict who had generously given to the President’s party, and after a direct lobbying campaign on behalf of the convict himself? Yes, he can.

But can a US President revoke a pardon after it becomes too embarrassing even for him? That is less clear.

It is well past time to take the pardon power out of the hands of one person–and especially out of the hands of a lame duck.

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Candidates on executive power

I had not seen this till tipped off by a comment today at a LGM thread, and most of these candidates are long forgotten. Still, it is important for the record: Candidates on executive power: a full spectrum—They assess use of signing statements (Boston Globe, 22 December, 2007). It includes links to the answers provided by each candidate. Here I will focus on answers to the question about signing statements.

Clinton, unsurprisingly, takes the Bush Lite position:

she might attach a so-called signing statement to a bill reserving a right to bypass “provisions that contradict the Constitution.”

Bill Richardson gets it right, making the point I have made at F&V in the past.

if a president thinks that parts of a bill are unconstitutional, then “he should veto it,” not issue a signing statement.

McCain also is forthright (though I do not necessarily believe him, especially given that he would face divided government):

As President, I won’t have signing statements. I will either sign or veto any legislation that comes across my desk.

Obama’s position is less than reassuring:

“No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush administration has gone much further than that.”

I don’t see where in the Constitution the President is given the right to issue statements dissenting with provisions of bills he or she has signed into law. It is take it or leave it. All of it. In fact, off the top of my head, I am aware of two Constitutionally given rights–obligations, actually–to issue statements of any kind in an official constitutional capacity: (1) an annual message on the state of the union, and (2) an explanation for a veto. Richardson is right that if the President thinks a law infringes on his or her “constitutional prerogatives” that’s precisely the occasion for a veto. In fact, the founders never appear to have countenanced a veto (let along a “I sign, but dissent”) based on policy objections; protecting constitutional prerogatives was the basic intent of the veto.

Of course, I say this as someone who would abolish the veto altogether, other than to allow the president to delay implementation pending abstract review of constitutionality by a panel of independent judges. That is more or less what Madison originally proposed, and is the model found nowadays in several European constitutions.

By the way, Giuliani and Huckabee declined to answer the question on signing statements, and Romney thinks that the way Bush has used them is just dandy.

__________

Related planting: The 2008 candidates on political reform.

A veto override

For the first time in the Bush presidency, Congress has overridden a presidential veto. Of course, the incumbent president has vetoed very few bills (4, if I recall correctly).

In my discussion of his first veto–back when his own party still had congressional majorities–I noted that there are two basic types of veto. There are vetoes that follow the apparent intentions of Madison and Hamilton as being a defensive tool by the executive against acts of congress that impose burdens on the national treasury for particularistic advantage. And then there are those vetoes that allow the president to defend an ideological minority whose preferences were defeated in the bill congress passed.

Each veto issued by Bush before the one just overridden would be of the second type: The ideologue protection veto: The stem-cell research bill, the Iraq war “timeline” bill, and the S-CHIP bill.

The one now overridden, on the other hand, was clearly of the first type: the anti-particularism veto.

So, of course, congress overrides the latter. After all, as the Houston Chronicle notes in the headline of its article on the override–“Water projects in Texas authorized by veto override“–no matter how principled a conservative ideologue may be, he or she still lives somewhere and that location has canals and floodways and aqueducts that would benefit from a little federal assistance.

If the logroll is big enough, it can survive the veto. And water projects know no real ideological boundaries.

Next up the farm bill. Lots of pork, threatened veto, but will the pro-ag members of the House of Representatives be able to spread enough largesse around the country’s districts to get the needed two thirds vote?

Chips and vetoes

As expected, Thursday the House of Representatives voted again, by a large majority, in favor the State Children’s Health Insurance Program. The vote was 273-156. That’s more that three-fifths of the House membership, and the vote included 44 members of the minority party.

In most democracies, such a vote, combined with the 69 votes the bill previously received in the Senate, would be sufficient to approve this bill and make it law. But not in the USA. Thursday’s vote was to attempt an override of President Bush’s earlier veto of the bill. And that, of course, requires two thirds of each house to succeed.

Americans take the veto for granted, and given how hard it is to amend the constitution, there is little chance it could be changed. But it might at least be a good lesson on democracy if we debated this question: Should we allow presidents a veto, subject to override only by a super-majority?

Few Americans would ever think to ask this question. That’s a shame. The ultimate answer might come down either way, but the important thing is to think about the consequences of institutions, and political settlements made over 200 years ago, and whether we might do better. Just over a month ago, it was Constitution Day, which marked the day, in 1787, of the final meeting of the Constitutional Convention in Philadelphia. There were some low-key celebrations of the event, but most of them were more about patting ourselves on the back that we have such a great Constitution. Few were about how we might make it better. We do have a great constitution. Yet we might make it better, more democratic. And the veto provision would be one good place to start.

We should not fear reform, or shrink from even “radical” ideas for improvement in our democracy. Thomas Jefferson, in a letter to Samuel Kercheval, July 12, 1810, and in words that are literally carved in stone in the Jefferson Memorial, said:

I am certainly not an advocate for frequent and untried changes in laws and constitutions… But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

Even more, Jefferson warned against what he referred to as “sanctimonious reverence” for the Constitution and its founders.

So, now that we have a veto of a bill to expand children’s health care, supported by wide bipartisan majorities in both houses, we should ask ourselves: Does the veto provision of the constitution still “go hand in hand with the progress of the human mind”?

Before answering that, we might want to go back and think about what the founders themselves felt about the veto. Why do we even have it?

The primary justification for the veto given in the Federalist Papers is to protect the executive from encroachments on its authority. For instance, Madison in Federalist 51, in a passage immediately after offering his defense of bicameralism:

As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

Hamilton elaborates the institutional argument for the veto in Federalist 73:

The propensity of the legislative department to intrude upon the rights and to absorb the powers of the other departments…; the insufficiency of mere parchment deliniation of the boundaries of each…; and the necessity of furnishing each with constitutional arms for its defense… From these clear and indubitable principles results the propriety of the negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. Without one or the other the former would be absolutely unable to defend himself against the depredations of the latter.

Independent institutions, in Madison’s and Hamilton’s logic, will have an incentive to cooperate with one another, and to respect each other’s domains, only to the extent that they also have overlapping powers. That is, separation of powers also requires sharing of powers. Through such sharing of powers between separate institutions, two (or more) branches are induced to transact with one another, i.e., to exchange and cooperate to accomplish their respective functions.

That is to say that the founders’ justification for the presidential veto is an entirely institutional one. The reader of the Federalist papers or other works of the founders of the US Constitution would be hard pressed to find a political justification, by which I mean one that speaks to the electoral and policy-making consequences of the veto.

I am aware of no normative justification for the veto that says it should be used to defend the interests of an ideological minority against the democratic expression of a majority. Nonetheless, defend an ideological minority is just what Bush has done with this veto. In his veto message, he said:

This bill would shift SCHIP away from its original purpose and turn it into a program that would cover children from some families of four earning almost $83,000 a year. In addition, under this bill, government coverage would displace private health insurance for many children. […]

Because the Congress has chosen to send me a bill that moves our health care system in the wrong direction, I must veto it.

Maybe Bush has a point. Maybe this is a bad decision by Congress. If so, score one for Hamilton: The President has used his discretion to save us from moving policy in the “wrong direction.”

But, of course, all these issues were debated in Congress. And the President’s position was defeated. It obtained only around 40% of the votes.

Hamilton and Madison, in making the institutional logic for why the veto is in our constitution, did not contemplate the possibility that the President would simply represent another minority faction, and use his veto to enforce the will of that minority against the majority. (Madison did not even want a strong veto; he proposed a president elected by Congress and with no ability to block what a majority wanted. He also did not want a Senate as we know it. His so-called Virginia Plan was quite a radical, majority-rule document!)

Do we still want a veto? Maybe, maybe not. But we ought to at least be willing to ask the question! We should be willing to have a debate about how democratic our constitution’s lawmaking process is, and let the chips fall where they may.

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Some of this planting draws on a similar critique of Bush’s first veto, of the stem-cell bill, in July, 2006. There, I contrast Bush’s veto message on that bill with one issued by Madison himself, when he was President. The difference are striking!

Bush signing statement reassures one Congress, circumvents another

President Bush signed into law the controversial US-India Peaceful Atomic Energy Cooperation Act, passed by the lame-duck US Congress. Then he issued a signing statement in which he says that a provision of the law that India’s Congress Party-led government objected to will be treated as “advisory.” According to the Hindustan Times, Section 103

says the US should try to work with other Nuclear Suppliers Group (NSG) members to deny India enrichment, reprocessing and heavy-water technology. It has several provisions which New Delhi is not particularly happy about.

Bush’s statement says:

My approval of the act does not constitute my adoption of the statements of policy [of Section 103] as US foreign policy.

Of course, as I have noted before, the US President has no authority to set aside parts of a law that may have been (and this case almost certainly were) crucial to its being passed in the first place.

Signing statements, again

I recommend Professor Steven Taylor’s review of the recent Congressional Research Service report on signing statements by US Presidents.

One thing Steven reports that the study reveals is that, while signing statements have been around a long time, the current president uses them in a manner that is qualitatively different from his predecessors. It is not signing statements, per se, that are troubling. It is the frequency with which they are invoked to challenge the very bill being signed.

For example, compare the four most recent presidents: GW Bush has used statements to claim constitutional objections in 86% of his 128 signing statements. The current president’s father, GHW Bush, made constitutional objections in 68% (of 214), Clinton in only 27% (of 391), and Reagan in 26% (of 276). A remarkable fact about these presidencies is that the current incumbent is the only one of these four who has had unified government (and not only majorities of his own party, but largely compliant ones) throughout most of his tenure, and has used this tool rather than the veto.

What is the big deal about a president claiming a bill is unconstitutional? The big deal is that if the president really believes that provision of a bill are unconstitutional, he has a right–no, a duty–to veto the bill. In our system, that means the entire bill. He has no constitutional right to sign the bill and then claim that parts of it are not binding on the executive branch, for any reason.

Under some (for instance, many Latin American) constitutions, presidents have this authority. Not in ours.

For previous dicusssions here about signing staments, please click on “Vetoes & Signing Statements,” above.

The veto–why?

The right of the president to veto bills passed by majorities of the legislative branch is enshrined in the constitutions of most presidential systems. Not all such constitutions, however, require a super-majority to override, as is the case in the USA.

With the sudden rediscovery by President Bush of the veto pen that his predecessor must have hidden deep within the Oval Office desk drawer, it is worth asking why the veto? Why should one man or woman have the right to block a bill passed by a majority of the people’s elected representatives, and in the US case, also a majority of senators?

The primary justification for the veto given in the Federalist Papers is to protect the executive from encroachments on its authority. For instance, Madison in Federalist 51, in a passage immediately after offering his defense of bicameralism:

As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

Hamilton elaborates the institutional argument for the veto in Federalist 73:

The propensity of the legislative department to intrude upon the rights and to absorb the powers of the other departments…; the insufficiency of mere parchment deliniation of the boundaries of each…; and the necessity of furnishing each with constitutional arms for its defense… From these clear and indubitable principles results the propriety of the negative, either absolute or qualified, in the executive, upon the acts of the legislative branches. Without one or the other the former would be absolutely unable to defend himself against the depredations of the latter.

Independent institutions, in Madison’s and Hamilton’s logic, will have an incentive to cooperate with one another, and to respect each other’s domains, only to the extent that they also have overlapping powers. That is, separation of powers also requires sharing of powers. Through such sharing of powers between separate institutions, two (or more) branches are induced to transact with one another, i.e., to exchange and cooperate to accomplish their respective functions.

That is to say that the founders’ justification for the presidential veto is an entirely institutional one. The reader of the Federalist papers or other works of the founders of the US Constitution would be hard pressed to find a political justification, by which I mean one that speaks to the electoral and policy-making consequences of the veto.

I am aware of no normative justification for the veto that says it should be used to defend the interests of an ideological minority against the democratic expression of a majority. Nonetheless, that is what Bush has done with his veto of the stem-cell research bill. This bill was passed by about 55% of the House and 63% of the Senate, including in both cases substantial minorities of the party holding the majority of seats and the presidency itself. That is, it was a broadly approved piece of national policy, opposed by a minority. The presidential veto, in this case, allowed the president to enforce the will of an ideological minority that could not prevail in either chamber of the legislature. Such an outcome could not happen in a parliamentary democracy, or in a presidential democracy in which the veto is only a delaying measure (i.e. where it can be overridden by a majority).

In its political consequences, the veto thus empowers one branch over the other inasmuch as the legislative majority is prevented from being sovereign over policy. The executive branch is made into an addtional quasi-legislative branch consisting of one “legislator.” From a democratic (or for that matter, republican) perspective, turning the president into an additional legislative chamber can be tolerated if the legislature is so structured as to fail to represent popular majorities, but the presidency is so elected as to be representative of such majorities.

For instance, a legislature that is highly malapportioned and/or elected without significant national parties to structure national policy debate may pass legislation that is a logroll of favors for special regional and group interests. In such a context, a presidency elected by a majority (or close to it) of the national electorate can prevent the legislature from passing such bills. (Whether the result is just bigger logrolls to overcome the veto or legislation that is more national in scope is a separate question; it is likely to be more “national” to the extent that a nationally accountable president’s preferences must be taken into account.*)

Clearly, the US congress has elements of the logrolling minority-protecting type I just sketched. The Senate is highly malapportioned (an idea, by the way, that Madison fought against until it became clear that the small states would rather break up the US confederation than accede to the democratic two-chamber legislature he was proposing). The House, although not especially malapportioned, is much more localized in its election process than those of most other “advanced” democracies, and our parties are far less programmatic and cohesive than those of most other democracies.

If Bush had vetoed any of the many pork-laden or budget-busting bills that this congress has sent his way since he became president, he could have been said to have been defending “national” priorities against special-interest logrolls. This is the normative political justification for the veto that most coincides with the institutional one that the founders recognized: The president is responsible for the overall execution of national policy and is empowered to defend his prerogatives against legislative encroachments–such as raiding the national treasury for particularistic purposes.

In fact, it was just for such a purpose that Madison, when he was President, issued a veto in March, 1817:

Having considered the bill this day presented to me entitled “An act to set apart and pledge certain funds for internal improvements,” and which sets apart and pledges funds “for constructing roads and canals, and improving the navigation of water courses…”

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers…

I am not aware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the national prosperity.

Needless to say, the bill on which Bush issued his first veto is neither a claim on the treasury for local interest nor an overreach of the legislature’s constitutional prerogatives. In fact, the key passage of his short veto message is:

H.R. 810 would overturn my Administration’s balanced policy on embryonic stem cell research. If this bill were to become law, American taxpayers for the first time in our history would be compelled to fund the deliberate destruction of human embryos. Crossing this line would be a grave mistake and would needlessly encourage a conflict between science and ethics that can only do damage to both and harm our Nation as a whole.

[…]

I hold to the principle that we can harness the promise of technology without becoming slaves to technology and ensure that science serves the cause of humanity. If we are to find the right ways to advance ethical medical research, we must also be willing when necessary to reject the wrong ways. For that reason, I must veto this bill.

In other words, the president appeals to ethical and scientific issues that were debated in Congress, and in which his opinions on the matter were defeated. The reference to “my Administration’s policy” may sound like a defense of institutional prerogatives, but inasmuch as it refers to an executive order, it is trumped by legislation. Or it would be so trumped if the president were not empowered to protect his executive order from an attempt by a two-house majority of the elected Representatives and Senators to legislate an alternative policy course preferred by majorities of citizens. (The parties’ respective electorates have polarized somewhat on this issue in recent years, thereby increasing the size of the ideological minority that the veto catered to. Nonetheless, it is still a minority view that Bush’s veto has protected.)

By this veto, Bush has protected an ideological minority against the greater majority–a majority that happens to be bipartisan in nature.

This episode is a good argument for abolishing the veto, or at least lowering the override threshold to a majority of each house (as is the case in some other presidential systems and a few US states).** The risk in doing so would be, of course, that it would make congressional logrolls easier to pass. The “fix” for that problem is changing legislative incentives, via electoral reform, but that is a topic that I have covered extensively in other plantings at F&V. The bottom line is that there is no way to endow the presidency with a veto to block pork and “raids on the treasury” without also allowing it to protect ideological minorities. And this president has shown throughout his presidency that he is unwilling to employ the anti-logroll veto, but he showed this week his willingness to employ the ideologue-protection veto.


* The veto would be even more likely to be “nationalizing” were the president directly elected, rather than by an electoral college. While I think the electoral college is a piece of the larger puzzle of presidential incentives in the USA, it is not clear to me how relevant it is to the specific case of this veto.

** UPDATE: On reflection, I do not think I could go so far as to advocate that a president whose authority originates and survives separately from that of the legislature, and who is the head of government, should have no veto. However, I do think we should consider the possibility that a vote by a majority of all members–that is, more than a majority of those present and voting, but far less than our current two thirds–might be sufficient for an override. Such a provision would allow the President to force a reconsideration of a matter that he and his constituency really care about, and would also prevent legislators from ducking accountability and allowing something to pass with majorities of a quorum when many are perhaps conveniently absent. But it would prevent the President from blocking the passage of a measure that actually had the support of majorities of the people’s Representatives and Senators.

Quotes from Hamilton and Madison are from the respective Writings volumes published by The Library of America–treasured items in my own library.

Elsewhere, it is nice of El Criador to have picked up on the discussion for his Argentine audience (en español).