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Presidential Defiance of Unconstitutional Laws: Reviving the Royal Prerogative Christopher N Hastings Constitutional Law Quarterly Volume 21 Article 4 Number 4 Summer 1994 1-1-1994 Presidential Defiance of Unconstitutional Laws: Reviving the Royal Prerogative Christopher N. May Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Christopher N. May, Presidential Defiance of Unconstitutional Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol21/iss4/4 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. ARTICLES Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative By CHRISTOPHER N. MAY* Table of Contents Introduction .................................................... 867 I. The Framers' Conception ............................... 869 A. The Prerogative Power of Suspending the Laws .... 869 B. The Suspending Power and the United States Constitution of 1787 ................................ 872 1. The "Take Care" Clause ........................ 873 2. Suspending the Writ of Habeas Corpus ......... 874 3. The Rejection of an Absolute Veto ............. 876 4. The Executive Power ........................... 881 C. The Suspending Power and the Bill of Rights ...... 885 D. The Constitution as Higher Law .................... 889 E. The Framers' Conception: A Summary ............. 893 F. Presidential Invocation of the Constitution ......... 895 G. Two Constitutions ................................... 898 II. Presidential Practice, 1789-1981 ......................... 904 A. Constitutionally Based Vetoes Overridden by Congress ............................................ 906 1. Franklin Pierce ................................. 908 2. Andrew Johnson ................................ 908 * James P. Bradley Professor of Law, Loyola Law School, Los Angeles. A.B. Harvard, 1965; LL.B. Yale, 1968. I am most grateful to Allan Ides, David Leonard, Law- rence Solum, Laurie Levenson and Lary Lawrence for their thoughtful comments on drafts of this Article. Two outstanding librarians, Eleanor DeLashmitt and William Mulherin, were invaluable in helping me to locate source material. I am indebted to Clark Peterson and Christoph Nettesheim for their research assistance, and to Loyola Law School for providing generous financial support through the James P. Bradley Chair. I thank my wife, Barbara, for her love and support during the years this Article was in the making. 6 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 21:865 3. Chester A. Arthur .............................. 920 4. Grover Cleveland ............................... 921 5. William Howard Taft ........................... 923 6. Woodrow Wilson ............................... 923 7. Harry S. Truman ................................ 924 8. Richard M. Nixon .............................. 926 9. Gerald R. Ford ................................. 927 Sum m ary ............................................ 928 B. Constitutional Objections to Bills the President Signed Into Law .................................... 928 1. The Evolution of Presidential Signing Statem ents ...................................... 929 2. The Constitutional Grounds for Objection ...... 933 3. Presidential Compliance ......................... 937 4. Presidential Noncompliance .................... 945 a. James Buchanan: The Captain Meigs A ffair ....................................... 949 b. Chester Arthur: Appointing the Chief Examiner ................................... 952 c. William Howard Taft: The Presidential Budget ...................................... 954 d. Woodrow Wilson: The Termination of Treaties ..................................... 956 e. Dwight Eisenhower: The Agreement with Chile ........................................ 959 f. Gerald Ford: The Power of Appointment... 960 g. Jimmy Carter: Five Instances of Defiance .. 962 C. Constitutional Objections to Statutes Enacted During' A Prior Administration ..................... 969 1. Grover Cleveland: The Civil Service Chief Exam iner ....................................... 971 2. Woodrow Wilson: Removing a Postmaster ...... 971 3. Franklin Roosevelt: Removing a Commissioner .................................. 972 4. Lyndon Johnson: Impounding Watershed Funds ........................................... 973 5. Gerald Ford and Jimmy Carter: The War Powers Resolution .............................. 974 6. Jimmy Carter: Issuing Vetoed Regulations ...... 975 D. 1789-1981: A Summary ............................. 977 E. Postscript: A De Facto Item Veto ................... 979 III. Restraining Presidential Defiance ....................... 986 Summer 19941 REVIVING THE ROYAL PREROGATIVE A. Principles Governing Executive Noncompliance ....986 1. A Clearly Unconstitutional Law ................ 988 2. Exhausting Legislative Avenues of Redress ..... 990 3. Defiance as the Sole Route to Judicial Review. 992 4. Assuring That Judicial Review Occurs .......... 994 5. Presidential Practice and the Principles Governing Noncompliance ...................... 996 B. The Need for Congressional Action ................ 999 Conclusion ..................................................... 1010 Introduction With growing frequency, Presidents have asserted that they have the power to disregard any law that they believe to be unconstitu- tional. Ronald Reagan, during his two terms in the White House, ob- jected to almost 90 statutes on these grounds.' In his four years in office, President Bush asserted such claims against 116 acts of Con- gress, 2 an annual rate almost three times that of his predecessor. The Justice Department, seeking to defend the Reagan Administration's refusal to comply with the Competition in Contracting Act of 1984,3 told a federal court in January, 1989 that the "President has the au- thority to decline, in the absence of a judicial resolution of the matter, to implement a statute that is patently unconstitutional or that he rea- sonably believes undermines his powers under the Constitution."4 To the extent that Presidents make good on their constitutional objections to statutes by refusing to enforce them, they are in effect asserting an absolute item veto-"absolute" because Congress gets no opportunity to override the President's action, and an "item veto" be- cause it operates surgically against only those parts of a statute that the White House finds objectionable. 5 This is an alarming develop- ment, for it threatens to further enhance the power of what already has many of the trappings of an Imperial Presidency.6 That this emerg- ing presidential claim to an absolute item veto is limited to allegedly 1. See infra Table 2. 2. See infra Table 2. 3. Competition in Contracting Act of 1984, Pub. L. No. 98-369, 98 Stat. 1175. 4. Supplemental Brief for Appellants at 21, Lear Siegler, Inc. v. Ball, 863 F.2d 693 (9th Cir. 1988), quoted in Morton Rosenberg, Congress's PrerogativeOver Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration's Theory of the Unitary Executive, 57 GEo. WASH. L. REv. 627, 633 (1989). 5. See H.R. REP. No. 138, 99th Cong., 1st Sess., at 15-16 (1985). 6. See ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY (1973); ARTHUR M. SCHLESINGER, JR., THE CYCLES OF AMERICAN HISTORY 277-301 (1986). 868 HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 21:865 unconstitutional laws offers little comfort, for as Judge Frank Easter- brook has noted, "[C]onstitutional 'questions' are everywhere-it is easy to pose questions and occasionally is possible to characterize a mistaken view of the law or the facts as 'arbitrary,' an 'abuse of '7 power,' hence unconstitutional. This Article will examine presidential refusals to enforce alleg- edly unconstitutional8 laws at several levels. Part I ascertains how such a practice squares with the scheme of government which the Founders contemplated in 1787. The evidence on this score rather convincingly demonstrates that the Framers did not envision that Presidents would possess the power to suspend laws, even where a President thought that the law was unconstitutional. Part II examines the historical record-from George Washington through Jimmy 7. Marozsan v. United States, 852 F.2d 1469, 1490 (7th Cir. 1988) (en banc) (Easter- brook, Coffey & Manion, JJ., dissenting). 8. This Article does not directly address the issue of how much autonomy the Execu- tive has when it interprets the Constitution; i.e., must a President follow the Supreme Court's constitutional interpretations, does the Executive have complete autonomy to con- strue the Constitution for itself, or does the answer lie somewhere in between? While the issues are related, the question of presidential autonomy in construing the Constitution is distinct from that of whether the Executive may~decline to honor a law that it believes, using whatever standard, to be unconstitutional. Regardless of how one resolves the issue of executive autonomy, there remains the separate question of whether the President may refuse to comply with an assertedly unconstitutional law. See David A. Strauss, Presiden- tial Interpretationof the Constitution, 15 CARDOZO L. REV. 113, 117-19 (1993) ("In every case ...the question whether the President
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