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Executive constitutional interpretation:

There are plenty of examples of presidents who supported/signed legislation thinking that the legislation was both constitutional and otherwise good policy.

There are plenty of examples of presidents who opposed/vetoed legislation, thinking that the legislation was both unconstitutional and otherwise bad policy. Andrew Jackson's veto of the Second National Bank is an example of this: he said in his veto message that he believed it was unconstitutional, but he also opposed it on policy grounds.

Both of the above scenarios involve presidents whose policy views lined up with their purported constitutional views. No conflict presented itself.

But here's a challenge for bloggers and commenters everywhere: give an example of a president who opposed/vetoed legislation on the ground that he believed it to be unconstitutional, even though he otherwise supported it on policy grounds? Here the president's view of the proper meaning of the Constitution would be opposed to his view of good policy. To put it in less abstract terms: it would be as if Andrew Jackson had loved the idea of a Second National Bank, but nevertheless vetoed it because he thought it was unconstitutional.

I guess it counts if you can find examples of presidents who supported a policy but opposed specific legislation implementing it on the ground that they believed the Supreme Court would find it unconstitutional, and thus wanted the legislation redrafted to satisfy the Court. But a cleaner example would be one where a president supported a policy but — independent of his view of what the Court might think — believed the legislation implementing it would be unconstitutional.

NOTE: I'm not looking for arguments about whether the president would/could/should do this, and I'm not looking for larger theoretical arguments about the executive role in constitutional interpretation. I'm looking for specific, concrete historical examples that can be supported in the public record.

Are there any such examples?

UPDATE: Thanks to readers for a number of interesting possibilities. Most seem confined to the Nineteenth Century. The one clear Twentieth Century example, President Wilson, is a case where the basis for the president's constitutional objection is the preservation of the executive's own removal power. The disjunction between executive policy preferences and executive constitutional interpretation seems to be very rare.

Thief (mail) (www):
Well, Grover Cleveland vetoed 584 pieces of legislation, most often because he thought they were unconstitutional. As the saying goes "with this much sh*t, there's got to be a pony in there somewhere." I have no knowledge of any specific things he would have supported but for that pesky founding document...

(P.S. And if you need an example of a president believing a piece of legislation to be unconstitutional but signing it anyway, there's always Bush II signing BCRA.)
4.27.2006 6:56pm
TomJ:
I came across this passage from Steven Calabresi, et. al., THE UNITARY EXECUTIVE DURING THE THIRD HALF-CENTURY, 1889-1945, 80 Notre Dame L. Rev. 1, 52-53 (2004). This series of articles may contain more examples:

Despite his avid support for the proposal [in the Budget and Accounting Act], Wilson nonetheless vetoed this measure on the grounds that it shielded an officer wielding executive power from direct presidential removal. As Wilson noted in his veto message, "the Congress is without constitutional powers to limit ... the power of removal derived from the Constitution." Wilson reasoned: "It has ... always been the accepted construction of the Constitution that the power to appoint officers of this kind carries with it, as an incident, the power to remove." Consequently, Wilson concluded: "Regarding as I do the power of removal from office as an essential incident to the appointing power, I cannot escape the conclusion that the vesting of this power of removal in the Congress is unconstitutional and therefore I am unable to approve the bill."
4.27.2006 7:00pm
Robert Ayers:
I recall reading that Cleveland vetoed a measure that
would have given Civil War widows pensions because the
constitution did not give that power to congress. But
google offers me several papers that state that Cleveland
vetoed many disability-payment bills and the general
pension bill because he thought the claims illl-founded
and the bills pork.
4.27.2006 7:07pm
JPS:
In 2002, President Bush signed the Campaign Reform Act, which he thought had serious First Amendment concerns. Thus he sign a bill into law believing the Supreme Court may strike it down. Moreover, this is an example of a president signing a bill into law that he disagreed with on policy grounds and thought had constitutional problems. His signing statement follows:

Today I have signed into law H.R. 2356, the "Bipartisan Campaign Reform Act of 2002." I believe that this legislation, although far from perfect, will improve the current financing system for Federal campaigns.

The bill reforms our system of financing campaigns in several important ways. First, it will prevent unions and corporations from making unregulated, "soft" money contributions -- a legislative step for which I repeatedly have called.

Often, these groups take political action without the consent of their members or shareholders, so that the influence of these groups on elections does not necessarily comport with the actual views of the individuals who comprise these organizations. This prohibition will help to right that imbalance.

Second, this law will raise the decades-old limits on giving imposed on individuals who wish to support the candidate of their choice, thereby advancing my stated principle that election reform should strengthen the role of individual citizens in the political process.

Third, this legislation creates new disclosure requirements and compels speedier compliance with existing ones, which will promote the free and swift flow of information to the public regarding the activities of groups and individuals in the political process.

I long have believed that complete and immediate disclosure of the source of campaign contributions is the best way to reform campaign finance.

These provisions of the bill will go a long way toward fixing some of the most pressing problems in campaign finance today. They will result in an election finance system that encourages greater individual participation, and provides the public more accurate and timely information, than does the present system. All of the American electorate will benefit from these measures to strengthen our democracy.

However, the bill does have flaws. Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections.

I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment.

I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.
As a policy matter, I would have preferred a bill that included a provision to protect union members and shareholders from involuntary political activities undertaken by their leadership.

Individuals have a right not to have their money spent in support of candidates or causes with which they disagree, and those rights should be better protected by law. I hope that in the future the Congress and I can work together to remedy this defect of the current financing structure.

This legislation is the culmination of more than 6 years of debate among a vast array of legislators, citizens, and groups. Accordingly, it does not represent the full ideals of any one point of view.

But it does represent progress in this often-contentious area of public policy debate. Taken as a whole, this bill improves the current system of financing for Federal campaigns, and therefore I have signed it into law.

GEORGE W. BUSH
THE WHITE HOUSE,
March 27, 2002.
4.27.2006 7:09pm
Goodrich:
James Madison vetoed the so-called "Bonus Bill" (to allocate funds from National Bank dividends to be set aside for constructing roads and canals), even though he had "browbeaten" Congress to pass it from the beginning of his term. As David Currie describes it, "In 1816 he had pushed Congress to exercise its 'existing powers' to that end. In 1817 he said that Congress could not do it after all."

The reason for the change of heart? Madison apparently came to believe that although the Bonus Bill was good policy, it could not be reconciled with the Constitution because, "'The power to regulate commerce among the several States' can not include power to construct roads and canals . . . ." According to Madison, "the precedents [were] 'insufficient' to support congressional authority." See David P. Currie, The Constitution in Congress: The Jeffersonians 1801-1829 260-66 (2001).
4.27.2006 7:34pm
GMUSL 2L (mail):
See Calabresi's forthcoming manuscript on the history of the Unitary executive (includes all 3 law review articles and then a whole lot more), which goes president-by-president through the end of Bush 43's first term. We read a pre-publication copy for one of my seminar classes.

I'm studying for exams now or I'd hunt through it for you, but Dale, if you're interested, I'd highly suggest emailing him and seeing if he'd release a copy to you. Worst case scenario is that he says no.
4.27.2006 7:45pm
Dave Hardy (mail) (www):
Not a president, but I recall seeing in a Congressional Globe the fire-eater Sen. John Calhoun taking a position against a federal bill to prevent mailing of anti-slavery materials, on the basis that (1) the first amendment precludes such a measure and (2) if the precedent were established, a future congress might as easily outlaw mailing of pro-slavery tracts.
4.27.2006 7:50pm
Archon (mail):
Sorry, I don't have the cite, but I remember reading in a Con Law class long ago that Presidents until Andrew Jackson only exercised their veto power if they were of the belief a peice of legislation was unconstitutional. George Washington started this trend by signing several pieces of legislation he disagreed with and made a remark that it was the Congress' sole power to make laws.
4.27.2006 8:06pm
Dilan Esper (mail) (www):
I have an example of a governor doing it. Mike Dukakis vetoed a pledge of allegiance bill, which he said he supported, after he was advised by his attorney general that it violated West Virigina v. Barnette as well as the state Constitution. This was the act that Lee Atwater and company pumped up into a huge issue in the 1988 presidential campaign. George H.W. Bush, shamefully, said clearly that even if it was unconstitutional he would have signed it anyway.
4.27.2006 8:33pm
eeyn524:
Monroe, Cumberland Road Bill, 1822. See quote below from
here


As the United States continued to grow, many Americans advocated a system of internal improvements to help the country develop. Monroe thought this a good idea; he believed that the young nation needed an improved infrastructure, including a transportation network to grow and thrive economically. However, he did not think that the Constitution said anything about the authority to build, maintain, and operate a national transportation system. He therefore urged Congress to introduce a constitutional amendment granting it such power. Congress never acted on his suggestion because many legislators thought they already had the implied authority to enact such measures.

The issue came to a head when Congress passed a bill in 1822 to repair the Cumberland Road, or National Road, and equip it with a system of tolls. This great national road ran from Cumberland, Maryland, to the town of Wheeling in western Virginia. Monroe vetoed the bill, however; it was his contention that the states through which the road passed should undertake the setting up and collecting of tolls because Congress lacked the authority to do so.
4.27.2006 9:23pm
David Hecht (mail):
I don't remember all the particulars, but I seem to recall being taught in high school that Thomas Jefferson agreed to the Louisiana Purchase on policy and prudential grounds, even though he did not believe he had the authority under the Constitution to consummate it.
4.27.2006 9:41pm
M. Lederman (mail):
You've posited three conditions:

1. The President is in favor of the substance of the provision.

2. The President thinks it's unconstitutional.

3. The President thus vetoes the bill in which it appears.

As the comments have demonstrated, there are a handful of historical examples. But if you get rid of the third condition -- the veto -- there are *tons* of examples. The current President, for one, has signed scores of bills that he has concluded contain unconstitutional provisions. There are many other such high-profile examples of this -- e.g., the laws at issue in Bowsher, Morrison v. Olson, Lovett, Chadha, Turner Broadcasting, Metro Broadcasting, etc., etc. In most of these cases, if the constitutionality was challenged in court, the Executive argued against the legislation.

In addition, what lawyers at OLC do virtually every day is take bills that the President approves of, identify constitutional infirmities, and then work hard with Congress to fix the problems *before* the signing. That's the basic function of the bill-comment process.

I know of only one case, other than perhaps the very irregular Buckley v. Valeo example (two "dueling" briefs filed), where the President approved of a provision, announced that it was unconstitutional, and then DOJ nevertheless *defended* its constitutionality in litigation: The 18-year-old vote in Oregon v. Mitchell.
4.27.2006 9:50pm
Wild Bill:
I believe Lincoln vetoed the Wade-Davis Bill that would have abolished slavery on constitutional grounds, and that led to the passage of the 13th Amendment instead. By that point (1864) Lincoln was on-board with abolition, but thought Congress couldn't do it without an amendment.
4.27.2006 9:50pm
Perseus:
President Monroe's veto of the 1822 Cumberland Road bill for the same reason as Madison (i.e., he believed that the federal government lacked the such power, but favored having the federal government undertake internal improvements).
4.27.2006 10:21pm
Robin Roberts (mail) (www):
My recollection is that Grover Cleveland vetoed a bill to pay relief to farmers in Texas suffering from drought and then helped raise funds in excess of the appropriated amount through a private charity drive.
4.28.2006 12:04am
Perseus:
Sorry for the duplication with Monroe.

Here's a different example.

President Rutherford Hayes:


I am satisfied the present Chinese labor invasion (it is not in any proper sense immigration—women and children do not come) is pernicious and should be discouraged. Our experience in dealing with the weaker races—the negroes and Indians, for example—is not encouraging. We shall oppress the Chinamen, and their presence will make hoodlums and vagabonds of their oppressors. I therefore would consider with favor suitable measures to discourage the Chinese from coming to our shores. But I suspect that this bill is inconsistent with our treaty obligations.... If it violates the National faith, I must decline to sign it.




President Hayes vetoed the 1879 bill restricting Chinese immigration because it violated the Burlingame treaty:

The bill, as amended in the Senate and now presented to me, includes an independent and additional provision which aims at and in terms requires the abrogation by this Government of Articles V and VI of the treaty with China commonly called the Burlingame treaty, through the action of the Executive enjoined by this provision of the act...


Technically, a treaty is not the same as the Constitution, but it enjoys similar superior status over federal statute law.
4.28.2006 5:35am
Marduk (mail):
In McCullogh's Truman biography he quotes Truman, who supported civil rights legislation (despite claims that he was a racist and Klan member)in a letter to his wife, "I support it because I believe the constitution compels me to." [the quoted material may be a paraphrase, I list it from memory].

His support led to the Dixiecrats and contributed mightily to his initial abysmal popularity deficit to Dewey.
4.28.2006 9:06am
Alan Meese (mail):
I understand how Truman's support for Civil Rights Legislation caused some Democrats to form the Dixiecrat Party. But . . .

Didn't Dewey ensure that the 1948 Republican Party Platform called for Federal Civil Rights Legislation? Was the proposed legislation different from that advocated by Truman? If not, how did Truman's support for such legislation place him at a disadvantage vis a vis Dewey.
4.28.2006 9:44am
DK:
A president who vetoes something for conflicting with a treaty is making a policy decision; he is saying that while there are good reasons for the proposed law, he places our foreign policy and credibility above it.
4.28.2006 9:50am
Perseus:
In his message, Hayes said that to the extent that the bill is regarded as an attempt at a modification of the treaty (though Hayes thought that it "seem[ed]" more like a denunciation of the entire treaty):

As the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the Constitution, its exercise is not competent for Congress, nor would the assent of China to this partial abrogation of the treaty make the action of Congress in thus procuring an amendment of a treaty a competent exercise of authority under the Constitution.
4.28.2006 2:35pm
David M. Nieporent (www):
The disjunction between executive policy preferences and executive constitutional interpretation seems to be very rare.
Part of that, I think -- certainly the drought in the 20th century -- is because of the increasing prominence of the Supreme Court. It's easier for the president to say, "Is it constitution? Not my job to decide. Let the courts sort it out."
4.28.2006 3:33pm
markm (mail):
Alan: Up until 1948, the Democratic party had been the only party for unreconstructed Rebels, while the Republicans were the only party that were at all for civil rights - although not consistently enough to have earned any loyalty from black voters. Truman embracing (limited) civil rights didn't drive voters to Dewey, but it drove a wedge between him and one of the Democrats' most solid supporting groups, and sent many Democratic votes to a third party.
4.28.2006 3:57pm