From The Law and Politics Book Review

Vol. 8 No. 12 (December 1998) pp. 420-22.

 

PRESIDENTIAL DEFIANCE OF “UNCONSTITUTIONAL” LAWS by Christopher N. May. Westport, Connecticutt: Greenwood Press., 1998. Hardcover $59.95. 215 pp. ISBN: 0-313-30064-X.

Reviewed by James Meernik, Department of Political Science, University of North Texas. Email: meernik@unt.edu.

Do United States presidents have the right or power to refuse to enforce laws passed by Congress when they believe all or some part of the law is unconstitutional? Christopher May analyzes this question throughout 200 years of American politics and some early British history as well. May finds that even though this royal prerogative was expressly taken away from British monarchs by Parliament, and despite the founding fathers’ rejection of this power, in recent years presidents have increasingly signaled their displeasure with laws that they themselves sign into force and agree to execute. May’s book provides us with an incisive analysis of why the framers never supported this type of executive veto, and how earlier presidents, despite their reservations regarding the constitutionality of certain laws, nonetheless accepted their responsibility to enforce the law. With the growth of the imperial presidency, however, chief executives have claimed such an unqualified veto is constitutionally legitimate and politically necessary.

As background to this controversy, May first describes the confrontations between British monarchs and Parliament over the right of the king to refuse to enforce laws he disagreed with. These disputes culminated in the removal from power of James II, the “Glorious Revolution” and the passage of the Bill of Rights, which expressly forbids such actions. May then goes on to discuss the views and actions of the framers of the Constitution. Since the framers unanimously rejected the idea of an absolute executive veto, one that would not allow for legislative override, May argues this strongly implies they would have never consented to a power to suspend laws the president found offensive without further judicial or legislative recourse. In fact, one has to look long and hard before finding any statement by any framer of the Constitution that supported an unqualified executive veto.

Nor do we find that the practices of presidents before the modern era established any precedents in this regard. To search for instances where presidents disagreed with laws passed by Congress in order to understand what actions presidents considered permissible, May examines every presidential veto from 1789-1981. He first finds that presidents vetoed 462 public bills, not including pocket vetoes. Eighty-seven (87) of these vetoes were overridden. Of those that were overridden, in 27 instances the president had objected to the bill on constitutional grounds. And in only one possible case where a president made constitutional objections to a bill that was passed over his veto did he fail to honor the bill. That one instance was Andrew Johnson’s alleged defiance of the Tenure in Office Act. Johnson dismissed Secretary of War Stanton, even though the Act supposedly required congressional consent before such actions could be taken. But even here May finds that the evidence is murky. It is not entirely clear Johnson expressly defied the law since the Tenure in Office Act forbade presidents from firing their own appointees. Stanton was a Lincoln appointee. Thus, recent presidents who have embraced this practice of refusing to enforce particular laws will not find much support in historical precedent.

Why then have presidents increasingly claimed they have a right and a duty to refuse to enforce certain laws? Most fundamentally, recent presidents (e.g., Reagan, Bush, and Clinton), have argued that it is their constitutional duty to refuse to enforce laws that they believe to be unconstitutional. The other, more often-cited argument advanced to support this practice would seem to belie presidents’ real motives for their claim to this power. Presidents have taken to registering their constitutional objections to omnibus bills when signing such legislation as a way of indicating their displeasure with particular provisions of bills. As we know, Congress passes many pieces of omnibus legislation that lump together a multitude of disparate issues and provisions, and often at the very end of legislative sessions when there is no time to redraft a bill more streamlined and acceptable to the president. Presidents have argued that because of such practices and their lack of a line-item veto, it has become necessary to register their objections to supposedly unconstitutional provisions in such bills. Some have even claimed they would not enforce disputed provisions. May demonstrates that not only is this a specious claim, since presidents always have their normal veto power, but that presidents’ claims that omnibus legislation is a recent development unforeseen by the framers is inaccurate as well. Such bills have routinely been passed by Congress and signed into law since 1789, and never was any thought given to providing presidents with added veto powers to counteract such practices.

Despite the lack of any constitutional or precedential basis for this unqualified veto power, since the late 1970s presidents have repeatedly registered their objections to disagreeable laws in their signing statements. These statements are typically issued when presidents apply their signature to a bill, but note presidents’ objections to certain provisions of such laws. May finds that while there were only a handful of such statements outlining constitutional objections in the years before World War II, in recent years some presidents have issued such statements 20% of the time a bill comes to their desk. May also finds that such statements increase dramatically during election years.

Is executive non-compliance with duly passed laws ever permissible? May argues that under very narrow circumstances, a refusal to enforce, or a decision to defy a law is legitimate. Such actions are permissible 1) if defiance is the only way to bring the issue to the judiciary’s attention for proper resolution, 2) if the unconstitutionality of the law must be clearly supported by the text of the Constitution itself, the intent of the founders, or prior Supreme Court rulings, 3) if the White House has exhausted all other possible remedies, and 4) if, when the executive chooses to defy the law, it takes all possible steps to ensure that judicial review does occur. Such conditions have never been met in practice.

May does an admirable job of discussing this increasingly important practice and its lack of support in the Constitution and precedent. His review of the various cases where previous presidents had the opportunity to defy laws, but chose not to illustrates well their scrupulous adherence to the law. And certainly his data regarding the recent usage of signing statements demonstrates how modern presidents have broken away from such a faithful reading of the Constitution. The only major failing of the book is that it does not analyze what presidents since Jimmy Carter have done when they indicate they find unconstitutional provisions in the law. Since we know, thanks to the author, that presidents have increasingly indicated their unwillingness to enforce such laws, we must wonder if their words were followed by action, or were just bluster. If, in fact, the assertion of an unqualified veto represents a major break with history and the Constitution, the reader might legitimately wonder if these assertions indicate a willingness to act. Since the data on constitutional objections to laws passed over the president’s veto extend only to 1981, we cannot know. It would seem the most crucial evidence has been left out. Still, this book is a valuable contribution to our growing understanding of the balance of power among the three branches of government and can be recommended to scholars of any of the three branches of government.