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Hastings Constitutional Law Quarterly

Abstract

The yet to be authorized 'line item veto' advocated by recent administrations pales in comparison to the 'absolute item veto' already wielded by an 'Imperial Presidency'. When the Executive refuses to enforce disfavored statutes, the effect is a veto without Congressional override. Can such a power be reconciled with our government scheme? A review of the Framer's intent shows that it was believed that the Constitution conferred on the Executive no general power to avoid enforcing unconstitutional statutes. Rather, the Executive must work within the parameters of its grant to achieve its objectives.

Evidence of presidential defiance can be traced through overridden vetoes, signing statements and objections to laws deemed unconstitutional. Andrew Johnson lost his presidency due to Congress' perception of noncompliance with the Tenure Act. With increasing frequency in recent years, Presidents have asserted constitutional objections in the signing statements which accompany reluctantly signed bills. George Bush's record is notable for raising the highest number of constitutional objections while enacting statutes. Woodrow Wilson chose not to comply with certain requirements in the Jones Act, yet no person had standing to adjudicate the issue. And, Jimmy Carter refused to comply with five statutes he had signed. These are among the many instances of the assertion of the absolute item veto examined in the article.

Presidential noncompliance with allegedly unconstitutional laws is proper only if four conditions are met. First, the unconstitutionality must be clearly apparent. Second, the President must have exhausted all avenues for redressing the problem through the legislative process. Third, defiance must be the best way to subject the law to judicial scrutiny. Lastly, the Executive must actively seek judicial review. Congress should encourage judicial review and deter refusals to comply. Without Congressional action, Presidents will surely continue to ignore laws with impunity.

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