president as chief legislator?

Tue Feb 10 12:17:26 PST 2009

It is hard to sustain the argument that the founders opposed the policy-based veto when Washington used it.  In 1797, in only his second use of the veto, he vetoed a bill cutting off military funding, and there is not a word in the veto message that refers to the consitutionality of the measure.  The text follows.
I agree with Mark Graber about Magliocca's fine book.
Richard Dougherty
Gentlemen of the House of Representatives: Having maturely considered the Bill to alter and amend an Act entitled an Act to ascertain and fix the military establishment of the United States which was presented to me on the twenty second day of this Month I now return it to the House of Representatives, in which it originated with my objections. First. If the Bill passes into a law the two Companies of light dragoons will be from that moment legally out of service, though they will afterwards continue actually in service, and for their services during this interval, namely from the time of legal to the time of actual discharge, it will be unlawful to pay them, unless some future provision be made by law. Though they may be discharged at the pleasure of Congress, in justice they ought to receive their pay not only to the time of passing the law, but at least to the time of their actual discharge. Secondly. It will be inconvenient and injurious to the public to dismiss the light Dragoons as soon as notice of the law can be conveyed to them; one of the Companies having been lately destined to a necessary and important service. Thirdly. The Companies of Light Dragoons consist of one hundred and twenty six non commissioned Officers and privates, who are bound to serve as dismounted Dragoons, when ordered so to do; they have received in bounties about two thousand dollars; one of them is completely equipped, and above half of the non commissioned Officers and privates have yet to serve more than one third the term of their inlistment; and besides there will in the course of the year be a considerable deficiency in the complement of infantry intended to be continued. Under these circumstances to discharge the Dragoons does not seem to comport with œconomy. Fourthly. It is generally agreed that some Cavalry either Militia or regular will be necessary and according to the best information I have been able to obtain, it is my opinion, that the latter will be less expensive and more useful than the former, in preserving peace between the frontier settlers, and the Indians and therefore a part of the Military establishment should consist of Cavalry.
-----Original Message-----
From: "Mark Graber" <MGRABER at gvpt.umd.edu>
Sent 2/10/2009 1:28:48 PM
To: conlawprof at lists.ucla.edu, "Sean Wilson" <whoooo26505 at yahoo.com>
Subject: Re: president as chief legislator?Gerard Magliocca asserts in his wonderful book on Jacksonian America
that Jackson's use of the veto as a policy tool was a constitutional
innovation.  I confess to thinking this a bit of an overstatement.  My
own view of the history, far less informed than Magliocca, is that the
precise use of the veto was constitutionally contestable before the
Civil War.  Still, as any reading of Whig rhetoric demonstrates, that
the veto could be used as a policy tool was hardly uncontested in 1830.
>>> Sean Wilson <whoooo26505 at yahoo.com> 02/10/09 2:21 PM >>>
Sandy:
Where have you expressed these views? I'd like to read them. The idea
that the framing generation properly thought of the veto as being a
legally-principled mechanism is problematic for several reasons.
1. executives in the British system (royal governors, kings) held
absolute vetoes before "American constitutionality" was invented. Hence,
these decisions were either made by "will or force" (Hamilton's
distinction), or they were made according to "right reason" or "things
fundamental to the polity" (which is an important sense of
"constitutional" in an English vernacular). My point is that what you
call "policy reasons" fits under either calculus.
2. I really think you are confusing the rituals of American legal
positivism with the metaphysical and epistemological framework used by
the framer's enlightenment-centered, natural-law culture. In short, you
are throwing your life onto theirs. In the framing culture, not much in
government is "unprincipled."  Thinking a president must have
high-minded reasons to veto in a culture that disavowed (for a while, at
least) political parties is surely part and parcel of that culture, and
nothing more. Addressing your chief pontiff as "his excellency" and
giving him Aragorn status makes the idea of  "high minded" vetoes rather
only stylish to the dress. Can anyone honestly find an example of where
General Washington could not have dressed a veto into a stately format?
So my point here is that pomp is part of the politics in this era, and
that non-partisan culture would naturally speak of non-partisan reasons
for its actions.
3. I wonder, Sandy, why your constitutional-based argument can't be
reversed (Congress cannot override unless it has a constitutional
reason).
4. Why doesn't principality apply to all of the powers, everywhere? Why
is the pardon power so vacant and the veto power not? Surely His
Excellency would have had imminent reasons for pardoning. Why shouldn't
all legislation be subject to a reasonableness requirement (like the
Lochner days of old)? Shouldn't all government action be obedient to
natural wisdom and external truth? Why are you picking only the
president's powers to judge out of cultural context?
5. The biggest problem with your suggestion is that it would turn the
presidency into a legal office, which would be quite strange indeed (if
you just think about it). Show me one government on earth or elsewhere
with separation of powers and three branches, and a constitution above
them all, where the president is a legal judge. Just as those who want
to historically place judicial review (wrongly) in the Congress, it
would cause havoc upon the constitutional system (making it more
resemble one of  its competitors). I honestly wonder when I read
scholars who teleologically dig up the past whether all they really want
to say is that American constitutionalism was never invented in the
first place. Either this is the program of the scholar or it is the
confusion. These works simply say, in effect, that the framers never
actually invented their great accident. As I read more and more of these
works -- particularly the ghost debate about
judicial review -- I wonder what on earth is going on. It's like we
pick an choose what from the past that we want to promote.
Regards and thanks.
Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
Daily Visitors: http://seanwilson.org/homepagelucy.html
SSRN papers: http://ssrn.com/author=596860
________________________________
From: Sanford Levinson <SLevinson at law.utexas.edu>
To: guayiya <guayiya at bellsouth.net>; Mae Kuykendall
<mae.kuykendall at law.msu.edu>
Cc: LawCourts-L at usc.edu; Conlawprof at lists.ucla.edu
Sent: Tuesday, February 10, 2009 12:43:23 PM
Subject: RE: president as chief legislator?
I’m grateful to Dan Hoffman for stimulating this conversation.  It
is, I think, debatable (which means in this context, only that it can
legitimately be debated) whether the veto power “intended” or
“presumed” in 1787) extended beyond Constitution-based vetoes or
“glitches” in legislation that could presumably be cleared up.  The
“policy-based” veto as we know it comes along far, far later than
the Early Republic .  Even the Jackson Bank Veto was constitutionally
justified and not merely a set of arguments as to why he thought the
Bank was a bad idea.
As I have argued elsewhere, the modern presidential veto has turned us
into a tricameral system, I believe without sufficient justification.  I
would either eliminate the policy-based veto entirely or, at the very
least, require less than the present 2/3 to override it.  Perhaps it
should require 2/3 to override a Constitution-based veto, but I cannot,
for the life of me, figure out what is wise about giving a single
individual (or even the “institutional presidency”) the power to
negate the will of sometimes hefty (though not 2/3) majorities of both
houses of Congress.  What drives me crazy is that law professors are
obsessed about the more-or-less non-existent “countner-majoritarian
difficulty” surrounding judicial review and fail to recognize that the
far, far more important instantiation of such a difficulty is the
policy-based presidential veto (unless, of course, one adopts a
basically Caesarist view of the presidency that views the
President as the unique instantiation of We the People and thus
entitled to such deference).
sandy
________________________________
From:conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of guayiya
Sent: Monday, February 09, 2009 10:29 PM
To: Mae Kuykendall
Cc: LawCourts-L at usc.edu; Conlawprof at lists.ucla.edu
Subject: Re: president as chief legislator?
There was controversy over art 2 sec 3 at the convention, and the
original "shall recommend" was changed to "may."
But let's stipulate that the P has power not only to call for action,
but also to draw up a specific proposal, have it introduced as a bill,
and threaten to veto any law that deviates too far from his plan.
Does that not make congressional legislation an empty formality?
DNH
Mae Kuykendall wrote:
Brian Kalt requested that I post the following comment by him:
"Some thoughts, after reading the Constitution:
First, art. II, § 3 does direct the president to "recommend to
[Congress's] Consideration such Measures as he shall judge necessary and
expedient." So it certainly seems fair to consider the Constitution as
settnig the president up a leader in the legislative process.
Second, given that the president has the power to veto, it seems
unexceptional to me that this translates into a power to shape the
content of legislation ex ante.
Given these two things, and given that the commentators have ample
basis to place more confidence in the president than in Congress, it
doesn't seem that disturbing to me."  Brian Kalt
guayiya <guayiya at bellsouth.net> 02/08/09 9:00 PM >>>
I find it very disturbing that many commentators are chiding the
President for allowing Congress to legislate, instead of dictating to
them the stimulus package he desires.  Have these folks ever read the
Constitution?
Daniel Hoffman
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