Fruits & Votes is the Web-log of Matthew S. Shugart ("MSS"), Professor of Political Science, University of California, Davis.
Perspectives on electoral systems, constitutional design, and policy around the world, based primarily on my research interests.
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The Italian electoral college (made up of members of parliament and regional representatives) selected Giorgio Napolitano for a second term in the “mostly ceremonial” post of president.
Via presseurop.eu (and originally from Corriera della Sera):
Napolitano was elected on April 20 with the votes of the Democratic Party (PD), Silvio Berlusconi’s People of Freedom Party and Mario Monti’s Civic Choice. Despite having earlier ruled out the possibility of a second term, Napolitano changed his mind after Franco Marini and Romano Prodi failed to get elected due to a dramatic split in the PD that prompted its head, Pier Luigi Bersani, and the party’s entire leadership to resign.
One of the faculties that makes the Italian presidency potentially more than ceremonial is the authority to dissolve parliament when a government can’t be formed. (This power does not exist in the final phase of a president’s term, but becomes active again once Napolitano starts his second term today.)
Does this mean a grand coalition (i.e. a Berlusconi-backed government)? Or will there be a new elections (leading to who knows what?)?
The Hurriyet Daily Newsreports that Latvian President Valdis Zatlers has called for a constitutional amendment permitting him to dissolve Parliament without the public’s consent at referendum. According to the article, he also has called for direct presidential elections.
Further, he has asked for the power to unilaterally dismiss the chief budget and central bank officers. Zalter’s stated reason for this is to ‘depoliticize’ these appointments.
There is no mention of any proposed change to presidential survivability. Will the dissolution of Parliament also trigger a presidential election, for example?
As is no surprise to F&V readers, the net effect of the above would be the diminution of arguably wise constraints on executive power.
About two months ago, I posed the question, will Karzai veto the Jihadis’ amnesty bill? It was a reference to a bill to provide a sweeping amnesty to former fighters in Afghanistan’s decades of fighting, passed by a congress largely dominated by former fighters themselves. President Hamid Karzai opposed the amnesty, as did international aid organizations. With his office having the constitutional authority to veto legislation, it seemed unlikely that the legislators’ act would be the final word. (A veto takes two thirds to override, although my reading of the constitution is that the override vote takes place only in the lower house, notwithstanding the bicameral nature of the Afghanistani congress.)
Indeed, congress did not have the final word. But that is not to say that Karzai vetoed the bill. Instead, he recommended amendments to some provisions, and congress passed a new bill that incorporated his suggestions–or some of then; details are sketchy in the several sources I consulted. Deep within an LA Times story, it is noted:
[Karzai's] office managed to add the provision about an individual’s right to file charges, amending what was virtually a blanket amnesty.
Separation of powers at work.
In previous discussions, I have noted how unrepresentative the Afghan congress is, given that it was elected in a purely candidate-based system (single nontransferable vote), with no party labels, and with a very high rate of wasted votes. A recent item in The Economist picks up on the theme of the party-less legislative process, and notes that parties are now forming from within the congress.
IN THE 18 months since it was elected, Afghanistan’s first democratic legislature has been in a peculiar limbo: it is a parliament without parties. Candidates were not allowed to declare party affiliations on the ballot paper. The result has been a chaotic parliament of individuals, often elected on the promise of patronage and by virtue of ethnic affiliation. The parliament has criticised the increasingly isolated president, Hamid Karzai. But its positive achievements have been few.
Now change is stirring. Several alliances with sketchy political platforms are being mooted. The first of these, the National Unity Front, was unveiled in March by a group of parliamentarians and members of the government. It proposes various constitutional reforms, including electing provincial governors directly and creating a new post of prime minister in order to curb the power of the president. The Front denies wanting to be an opposition party, promising to work alongside the government in pursuit of “national unity”. [read full article]
Both of these developments represent advances for the constitutional and legislative processes in that war-torn country.
Inevitably, the crisis over President Yushchenko’s decree dissolving parliament is generating political conflict at the regional level. Itar-Tass reports:
The Odessa Regional Council, the first in Ukraine since the beginning of the political crisis, will discuss at its next meeting a vote of no confidence to Governor Ivan Plachkov, who started in the Odessa Region preparations for new parliamentary elections.
All of the oblast governors signed a statement supporting the President’s decree–not surprisingly, as under Ukraine’s centralized political structure, the governors are appointed by the President.* The councils, on the other hand, are elected. Odessa is among the regions where Prime Minister Yanukovych has his base, having won almost two thirds of the vote there in the final round of the election in which Yushchekno was elected president.
___
* In both area and population, Ukraine is one of the largest countries in the world to be both a unitary state and a democracy. (And yes, Ukraine is a democracy, albeit a troubled one at this juncture.)
The deadlock in Ukraine continues. President Viktor Yushchenko claims that until the Constitutional Court rules, his decree calling early parliamentary elections (set for 27 May) should remain in effect. That is a remarkable claim, as it means that his decree would be presumed valid until declared otherwise, even though it takes quite an expansive reading of the constitution to find a dissolution power among the president’s unilateral capacities.
Meanwhile, the international press continues to say things like Prime Minister Viktor “Yanukovich staged a remarkable [post-Orange Revolution] comeback in Ukraine’s last parliamentary election.”
Pardon me for continuing to fail to see anything remarkable in Yanukovych’s party going from (an almost certainly inflated) 41.4% in the first round of the presidential election of 2004 (and 45.9% in the runoff) to 32.1% of the total vote, or 41.4% of the above-threshold vote, in the 2006 parliamentary election.
With the Afghan congress having passed an amnesty bill, all eyes are on President Karzai as he considers whether to issue a veto. The Afghan presidency has a veto on legislation that can be overridden only by a two-thirds vote in eachthe lower house of congress.*
The bill passed the upper house with more than a 75% support (50-16). However, despite considerable searching on both Google and Lexis Nexis, I was unable find a report of the vote in the lower house, except that it was by “majority” (obviously). Thus I am uncertain whether the lower house would have the two-thirds vote needed to override a veto.
I did, however, find an interesting transcript of a debate on Afghan Aina TV (via BBC Monitoring Service, 21 Feb., 2007), including this remark in support of the bill by Haji Abda, an MP from Balkh Province. The Moderator asked about international–specifically Human Rights Watch–opposition to the bill. The MP responded:
Those friends believe that jihadi leaders do not have a suitable status and are rights violators. When one looks at the election results, you will see how much respect these jihadi leaders enjoy amongst the people. When these objectors are asked as to how they entered parliament, then the problem will automatically be resolved. Those who entered parliament with majority of votes mean that the people elected them, but they say the people do not want them. If the people did not want them, why they voted for them?
I can’t deny the MP’s claim that the warlords and Jihadis and their allies who have seats are personally popular. But, of course, the idea that Jihadis in the Afghan parliament have majority support is a bit suspect, given the low turnout, and the small votes shares members received, thanks to the SNTV electoral system.
Abda himself won a whopping 3.7% of the vote in Balkh, where he was sixth of ten candidates elected. More than two thirds of the votes cast in Balkh did not go towards the election of any candidate.
_____
* Apparently, while both houses must give their approval before a bill is presented to the president for his signature or veto, an override vote takes place only in the lower house. At least that is how I read the provisions on legislation in the constitution:
Article 94 [Legislation, Veto, Qualified Vote]
(1) Law is what both Houses of the National Assembly approve and the President endorses unless this Constitution states otherwise.
(2) In case the President does not agree to what the National Assembly approves, he or she can send the document back with justifiable reasons to the House of Representatives [Wolesi Jirga] within fifteen days of its submission.
(3) With the passage of this period or in case the House of Representatives [Wolesi Jirga] approves a particular case again with a majority of two-thirds votes, the bill is considered endorsed and enforced.
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 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).
Kingdaddy tells it like it is: Like hell he can (declassify any document).
Sample passages (with my emphasis in bold, his in italic):
If you’re shocked, shocked to discover that Cheney wants to stretch Article II, section 2 even further [than warrantless wiretaps and the Gitmo Gulag], you just haven’t been paying attention.
The only surprising development is the absence of mass demonstrations over a clear subversion of the Constitution.
[...]
Rather than defending the Constitution that somehow saw them through these national emergencies [past wars and the Cold War], Americans are watching docilely while the Administration says, Because some terrorists got lucky, the Consitution is now whatever we say it is. Or we just ignore it.
[...]
Americans should have already been on their guard when, in 2001, Bush broke with centuries of political tradition and Constitutional interpretation in naming Cheney as a virtual “co-President.”
To that last passage, I would add: If Americans were not already on their guard between November 7 and December 12, 2000, it was probably by then already too late.
It is a great post. As bloggers are required by our union to say: Read the whole thing.
So, why are so many so-called conservatives in the Republican party and in sympathizing legal circles so willing to advance a doctrine that asserts that the US president has sweeping inherent powers in times of war–even wars declared, paraconstitutionally, by the president himself? Or perhaps herself? Steven Taylor alludes to this puzzle in a post from 16 February, effectively asking those on the right whether they really are willing to countenance the possibility that a President Hillary Clinton or other Democrat might be able to assert such powers.
Ever since the theory of the “unitary executive” (which really ought to be called the unilateral executive) first came to my attention, I have wondered the same thing. But only after reading Steven’s post and pondering it over the last few days did it dawn on me that the answers to this puzzle have been right there in both my own body of academic work, and in a simple understanding of the ideology and constituency base of the Democratic party, as well is in structural conditions that make a politically supported unilateral Democratic President highly improbable. Republicans presumably know how implausible a unilateral President Clinton is, and thus do not fear her.
The broad outline of the connections to my academic work is that certain types of politicians favor a programmatically weak legislature alongside a unilateral executive. A programmatic legislature is one that passes detailed legislation with universal application, which in turn requires that it control the process of implementation to ensure that the executive follows the programmatic mandate. A non-programmatic legislature is one that is more interested in setting broad parameters than in the details of policy, and that is also relatively more inclined to the use of the pork barrel and other means of targeting benefits at the service of powerful constituent groups and campaign contributors. It is no accident, then, that the Republican congress has greatly increased the use of earmarks and established ever-closer relations with big-business lobbies, at the same time that it advances a “theory” of a unilateral executive that can selectively reinterpret statutes and selectively implement them. But all of this concerns domestic policy-making, not foreign policy or the domestic arm of “national security” actions. It is on the latter that I want to keep this post focused.*
The reasons why Republicans need not fear that the expansive inherent powers they are asserting on behalf of the Bush administration in the area of “national security” will come back to haunt them post-Bush have to do with the preferences of the parties and their support bases, and closely related matters such as their internal discipline. They also have to do with structural features of the US political system that make a unilateral Democratic presidency unlikely, even if my assessment of partisan differences were to prove incorrect.
I will list these factors in rough descending order of importance to the question of whether a future Democratic president would be likely to assert inherent “national security” powers such as those being asserted by the current administration, and whether such assertions, if they happened, would harm Republican interests.
1. In the area of foreign policy, Democrats and their supporters do not have an agenda of Global Domination, or more precisely, imperialism. It is not that Democrats are not in favor of advancing the interests of US capital and “security” abroad. It is that they prefer to do so in a tandem with other countries and international organizations while also promoting broader conceptions of the US “national interest.” Republicans know this, and hence a stronger presidency in “national security” policy is not against Republican interests, independently of any given incumbent’s party. Arguably, such a strong presidency, regardless of party, is even in favor of those interests, inasmuch as a presidency with unilateral foreign-policy powers but held by a party whose supporters do not endorse such policies is more capable of acting against the preferences of its own support base.
2. In the domestic side of US “national security” policy, Democrats’ support base would abandon a president, even of their own party, who pursued an expansive invasion of basic civil liberties at home. The Republican party contains principled conservatives (really, they are liberals stuck in the wrong party by the two-party straightjacket) who value civil liberties. But they tend to fall in line behind their party and president on essential matters of inter-partisan conflict (recent example: Specter and others voting for Judge Alito). Democrats would not fall in line. Republicans know this.
3. Somewhat in tension with my first point, while in further development of my second point, party discipline in congress–or at least the absence of clearly articulated opposition from congress–is essential to anything other than short-term unilateral action by the executive. That is, it is one thing to act unilaterally without prior explicit authorization from congress, but another to sustain such action in the face of opposition. So, while a president may be able to act in the short term against her support base or against the manifest wishes of congress (which was my first point), she cannot do so in the longer run unless she has support in the legislature and in her own party, and my second point was that a Democratic president would be unlikely to have such support within her party.
So, taken together, the first three points say that a Democratic president would have a different set of foreign-policy preferences, a lack of intra-partisan support for assertions of extraordinary “national security” powers at home, and could not do these things anyway without such support. But suppose I am wrong and a future President Clinton (or Kerry or Warner, or whoever) does want to take advantage of unilateral powers and does enjoy partisan backing. What are the chances that the conditions that came together to allow Bush to assert such powers would prevail for Clinton (or another Democrat)? Not very.
4. A Democrat is less likely to enjoy unified government, yet support by majorities in both houses is essential to the employment of unilateral powers for partisan gain, and that really is the issue here. If Republicans favor a Democratic president’s assertion of unilateralism, no problem. The risk for them is that a Democrat uses these powers against Republicans and Republican policy preferences much as the Bush administration has used them against Democratic policy preferences. A president facing divided government could not do so. Republicans know this. The House and Senate are somewhat unlikely both to turn Democratic, except perhaps precariously and for short periods (2006-08 or -10?). Partly this assessment is due to gerrymandering (in the House), malapportionment (especially in the Senate, but over time, increasingly so in the House), and partly it is due to campaign-finance imbalances, and the rampant use of earmarks to cement critical local financial support. Democrats are somewhat unlikely to take and hold both houses for more than a term or two, but let’s suppose that they do hold congressional majorities for an extended time. If they do, it will be with a broad an internally diverse party, because the party would have to expand its reach and its “big tentness” in order to secure these majorities (which then gets us back to point 3). Republicans know this.
5. As the Supreme Court becomes ever-more partisan, a Democratic president is less likely to obtain judicial backing for an assertion of disputed unilateral powers, even if that president wants to, even if the Democratic party does not turn on the president for doing so, and even if the party remains unified and controls both houses of Congress. The Court remains an ultimate check on a Democratic president pursuing a narrow partisan agenda with the aid of unilateral powers. Republicans know this.
6. Finally, Democrats can win presidential elections under current conditions only in close contests. The playing field, especially with the electoral college, is stacked against them unless they “run the table” of the most critical swing states, as Gore did in 2000. And we know how that turned out. If you can win only close elections, but it is precisely in those close elections that the other party has the advantages of partisan control of swing-state electoral authorities, and at the end of the day, the Supreme Court, the only Democrat who can win is one who has a broad mandate, and not one with a narrow partisan agenda, a la Bush. Republicans know this.
For a variety of reasons, both partisan and structural, the probability of a Democratic president seeking to assert expansive “wartime” powers abroad and domestically and having the partisan, congressional, and judicial backing to do this against Republican interests is low. I do not know how low, but it is too low to offset the considerable gains they obtain from having one of their own assert such powers. And Republicans know this.
*I have already presented some elements of the domestic-politics side of this story to a degree, in my post on the “Latin Americanization” of the US presidency. There I focused more on the executive itself, and less on the legislature or why some politicians–even legislators–would actually favor such a presidency. Here I want to focus on the partisan differences between Democrats and Republicans, and why these differences mean that Republicans have little to fear from the specter that a future Democratic president might use the unilateral powers in the area of “national security” that this administration claims are inherent.
This week, as Alito goes before the Senate Judiciary Committee, it will be seen whether Bush’s boldness in asserting powers of the presidency has complicated the confirmation prospects for his nominee to the Supreme Court. Along with abortion rights, executive power has moved to the forefront in the battle over Alito’s confirmation.
As well it should. I noted a few days ago that Alito has been on record since 1986 as favoring signing statements as a means by which the President could seek to have the courts accept the President’s understanding of a law in future litigation over that law. Courts have tended not to take such statements into account, but if a fan of signing statements were on the Supreme Court, he might seek to raise their prominence.
So, if 1986 seems too long ago, there is this statement from November, 2000, before the Federalist Society, reflecting on his time in the Reagan administration’s Justice Department:
We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president. And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure.
The Times then notes that,
In a sense, the “unitary executive” theory states the obvious. There is only one president. But many of its Reagan-era proponents applied this theory to say independent government agencies were unconstitutional because they were not under the direct control of the president.
In combination, the support for signing statements and opposition to independent regulatory agencies constitute a theory of executive power in which the legislature only makes broad pronouncments of policy, which a single man (or, theoretically, woman) then can reshape. In the absence of independent agencies and with sympathetic justices on the highest court, the President could issue decrees to bureaucrats to implement a law in a way consistent with the Presidential signing statement, and expect the courts to back up the executive’s re-interpretation of the legislative mandate.
In other words, in Alito we have a potential Supreme Court justice who believes that the United States would be better if we had a more Latin American style presidency: One that has much more than a veto, but instead has the constitutional right to implement laws as it sees fit.
Among my research specialties are comparative presidential authority and executive-legislative relations. I have long believed, as a product of my research, that Latin American countries need their congresses to assert more authority over the details of policy-making and create more independent agencies to check executive unilateralism in implementation.
In other words, for all my zeal for reform of certain features of US political institutions–see “the core” list on the left sidebar and “The Mission” above–in terms of executive powers I have long seen the US as the model that other “pure”* presidential systems should emulate.
Apparently, Alito believes the best models of presidentialism are to be found farther south. That is disturbing. The United States Senate–hardly my favorite US institution–needs to force the President to nominate option no. 3 for the critical O’Connor seat on the United States Supreme Court.
*I.e., “pure” in the sense of being unitary at the top: President as head of government as well as head of state, as opposed to “semi-” presidential hybrids, in which the head of government is subject to the confidence of the majority of the lower/sole house of the legislature. The latter is a still-better model, in my view.
Just yesterday I posted a note and some questions on Bush’s recent signing statement, in which he reinterprets a ban on torture as not meaning what it says. Now I ran across a Washington Post article from yesterday that notes that Associate Justice nominee Samuel Alito is a fan of signing statements.
In a memo from February 5, 1986, Alito outlined a strategy for
having the president routinely issue statements about the meaning of statutes when he signs them into law.
Such “interpretive signing statements” would be a significant departure from run-of-the-mill bill signing pronouncements, which are “often little more than a press release,” Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president’s take on a law as to “legislative intent.”
“Since the president’s approval is just as important as that of the House or Senate, it seems to follow that the president’s understanding of the bill should be just as important as that of Congress,” Alito wrote.
The quote from Alito’s memo is remarkable. While it is true that the President’s approval is “just as important as that of the House or Senate” inasmuch as all three institutions must consent to the same text of a bill (ignoring bills passed over a veto), it does not follow from that fact that the “president’s understanding of the bill should be just as important.” Congress consists of two chambers, numerous members, and committees. It debates alternate versions, strikes amendments, and replaces provisions. It thus has a lengthy record of why it approved one version and not others that were considered. However, under our constitution, the President is provided a take it or leave it option. If he does not like the bill, he can veto it, and thus re-start the transactional process, leading–maybe–to a new bill emerging from Congress that he’ll like better. But there is no such thing as sign light–taking this provision, blocking that, and reinterpreting others. Many presidential systems give the president such authority, thereby inserting the president more directly into the lawmaking process. But not ours. (I expand this idea a bit in a comment at Lawyers, Guns, and Money.)
The Post article quotes from an article by Phillip J. Cooper in the September, 2005, Presidential Studies Quarterly (now added to my must-read list), noting that the Bush administration
has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress.
This adds another item to the list of reasons why Alito should be given a very long and skeptical look by the US Senate in exercise of its constitutional power of advice and consent, two of which I have identified here previously:
He considers Baker v. Carr (on malapportionment) an improper ruling
The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action.
This passage from a signing statement is Bush’s way of not vetoing the unvetoable–the anti-torture rider to a defense bill–but asserting he’s not checked in these matters by Congress or the courts, anyway. The rider was unvetoable because 89 Senators had agreed to the amendment, sponsored by John McCain. Its vote in the House was around 70%, so it is not out of the question that on an override vote enough Republicans would have changed votes to prevent embarrassing their president with an override of his first veto. But, really, would it not have been far more embarrassing for this president to have gone five years without ever seeing a bill he wanted to veto, until he was presented with one to outlaw torture? Well, no. It seems that when it comes to unilateral executive power assertion, this president does not embarrass particularly easily.
But if this statement is indeed Bush’s way of saying he will do what he pleases anyway, is he not essentially asserting a right to veto a provision he disagrees with? Is he not in effect asserting a right to act as arbiter of what his executive authority is, and that Congress therefore can’t constrain him? Remarkable. On this point, see Balkanization, who reports the whole text of Title X, and who also notes that amendments secured by Lindsey Graham to the same bill, “by precluding substantial avenues of judicial review, are far more beneficial to their detention and interrogation policies than the McCain Amendment is detrimental.”
I do not know what the political science or legal literatures have to say about presidential bill signing messages. Do these have any significance in subsequent court proceedings? In any event, Bush’s statement is clear in its intentions. What was that I was saying about an ongoing constitutional crisis?
I must add that I am quite struck by the assertion about supervising “the unitary executive branch.” Two things about this statement:
(1) The more I watch this administration, the more I come around closer to the mainstream view in political science that I once rowed against: that unitary executives (as opposed to responsible cabinets, where the head of the executive is at best a “first among equals”) are dangerous. I never held the pro-presidential view sometimes attributed to me by people who either read Presidents and Assemblies too quickly, or relied on a less-than-careful review. But I was certainly skeptical of the Linzian critique of concentrated executive powers, notwithstanding my having come to political awareness during a time that included the Watergate era (the lesson of which appeared to be, at the time, that checks and balances, in the end, worked).
(2) Treatement of prisoners (I refuse to use the neologism) captured during military or covert operations is hardly about supervising the executive branch. It is about enforcing, or ignoring, statutes, the Constitution, and international treaties.
If by my laws you walk, and my commands you keep, and observe them,
then I will give-forth your rains in their set-time,
so that the earth gives-forth its yield
and the trees of the field give-forth their fruit.
--Vayikra 26: 3-4
F&V time: This blog's date function is so set as to start a new day at approximately local sunset.
(Why, if we have "day" and "night," should a new "day" start in the middle of the night?)
FRUITS: Support your local, organic growers; and, plant vines and fig trees and pomegranates for the generations to come...
VOTES: For democratization and full representation, for environmental sustainability, social justice, and peace, always sincerely...
