I Object

“We live in a free country!” This is something you have likely heard if you live anywhere in the U.S. other than under a rock. Even with all its flaws, the United States is at least more free than most other countries (cato.org). We are a constitutional republic, a representative democracy in which the government is bound to a written constitution. One feature of our constitution that some say lends to our freedom is our system of checks and balances. Each of the three branches of government works to counter and balance each other out so that no one branch becomes too powerful. This system works in several ways, among the most notable being the presidential veto power. The veto power allows presidents to overrule congressional decisions, forcing congress to re-vote and requiring the vetoed bill to pass with a two-thirds majority in both the House and Senate to bypass the veto. This power, though great, is rarely used and instead presidents often choose to use alternative methods of dissuading congress from taking certain action. Three veto alternatives that presidents have used are signing statements, issuing veto threats, and the line-item veto. Should the president use these methods though, or do they represent executive overreach?

The first veto alternative that a president may choose to utilize is the signing statement. As the name would imply, a signing statement is a statement the president attaches to a bill when they sign it that gives the president’s reason for signing the bill, what parts of the bill the president objects to, and how the president plans to enforce the bill. In other words, a signing statement serves as a footnote of sorts (loc.gov). This makes it clear that even if a bill successfully passes, the president will ignore parts of the bill, making those parts non-existent or at least weaker in their real world application. While effective in the short run, this may become problematic once the issuing president leaves office, especially if the new president is a member of the opposite party or otherwise chooses to reenforce the previously ignored clause(s). For this reason it might be smart not to use this method if the president hopes for their policy preference to last beyond their presidency. Additionally there is the issue of constitutionality.

The constitution is clear about the legislative authority of the House and Senate. The constitution is equally clear that when the president signs a bill that has been passed by the House and Senate, the bill becomes law. I would argue that as such, the president must enforce the entirety of the law, not just the parts they like. One need not look further than Article 2 Section 3 of the U.S. constitution to find evidence of this; “he shall take Care that the Laws be faithfully executed” (U.S. Constitution). In other words, it is the constitutionally sanctioned duty of the president to execute laws without bias. It is for this reason that I believe that signing statements represent excessive presidential involvement in the legislative process. Simply put, it is not the president’s place to say what parts of laws should be enforced, and this is a viewpoint that has been echoed by federal courts. In 1972 President Nixon signed a signing statement for a bill stating that a particular provision did not “represent the policies of this Administration” and that he would be ignoring them. This sparked the case of DaCosta v. Nixon, in which a federal district court ruled that no signing statement “denying efficacy to the legislation could have either validity or effect” (loc.gov). Simply put, any aspect of a signing statement that seeks to ignore or invalidate the law is nonbinding and is in essence little more than a written opinion. There are more constitutionally sound ways that the president can dissuade congress from certain action.

One way in which a president may dissuade congress from passing a certain bill or keeping certain clauses in a bill is to threaten to veto. Discussing, debating, and voting on legislation is a time consuming process. As such, it makes sense that congress would prioritize legislation that is likely to either be signed by the president or receive favor from two thirds of members from both the House of Representatives and the Senate. The beauty of this reality is that it creates an opportunity for the president to stop a bill in its tracks before it ever clears congress. All the president has to do is threaten to veto the bill. If this threat is seen as being serious or congress does not call the president’s bluff, then chances are that congress will give up. Why give time to something that will be shot dead in the water when you could use time more effectively by working on legislation that actually has a chance to pass? This is a consideration that has been taken by congress in the past after a president threatens a veto.

Veto threats have worked in the past. As previously mentioned congress may scrap a bill if they think it will just be vetoed. This happens regularly, and just last year the House scrapped a surveillance bill after President Trump had threatened to veto it. After urging GOP House members to oppose the bill, President Trump threatened to veto a bill that would have renewed expired authorities used by federal agencies in tracking suspected terrorists and spies. Without the numbers needed to override the veto, House Speaker and Democratic leader Nancy Pelosi withdrew the bill (bloomberg.com). This serves as a reminder of the power a president can wield with just the threat of a veto. No executive order was issued nor was any formal action taken. All Trump had to do was send out a Tweet threatening to use his constitutionally sanctioned veto power and because he had support from GOP legislators it is difficult to argue that this action was an overstep by the executive into the realm of the legislature. The veto threat is perfectly constitutional. Not all veto alternatives are this solid though, and some have even been ruled as being unconstitutional by the Supreme Court.

Presidents have found multiple different crafty ways to influence congress without actually vetoing legislation. Some methods of doing so, however, have been ruled unconstitutional by the Supreme Court. One such method is the line-item veto. The line-item veto, established in 1996, refers to the vetoing of specific items within a piece of legislation, line by line. With this power a president could sign a bill without passing into law the parts they do not like or deem unconstitutional. This power, however, only lasted for two years and was ruled as being unconstitutional in 1998 in the Supreme Court case Clinton v. City of New York.

The U.S. Supreme Court case Clinton v. City of New York combined two separate challenges to the constitutionality of line-item vetos. The first was a challenge by two New York hospital associations, two New York healthcare unions, and a New York hospital who were all challenging President Clinton’s right to line-item veto a provision in the Balanced Budget Act of 1997 that would stop the Federal Government from reclaiming over $2 billion in taxes that had been put on Medicare providers in New York. The second case was a challenge by the Snake River farmer’s cooperative of a provision in the Taxpayer Relief Act of 1997. The provision would have allowed some food refiners and processors to sell some of their stock to certain farmer co-ops in exchange for deferring recognition of capital gains. In both cases the line-item veto was recognized as constituting sufficient enough injury to warrant suit. In a 6-3 decision the court ruled that any legislation that passes both the House of Representatives and Senate must be either signed or vetoed in its entirety by the president. The power to issue a line-item veto, the court ruled, served as a de facto single actor amendment of legislation, a clear violation of the constitution’s Presentment Clause (oyez.org). The line-item veto represents excessive involvement in the legislative process. As such, not only should the line-item veto not be used, it cannot be used. This could only change if a constitutional amendment providing this power was passed.

Being the president is hard. The office is under constant scrutiny and holds massive responsibility. Among these responsibilities is the duty to check and balance out congress through the veto. When the veto is not preferable, other tactics may be utilized. While signing statements are a mixed bag and are ultimately unenforceable and the line-item veto is downright unconstitutional, veto threats still exist to serve as a viable method of dissuading congress.

Work Cited

"Clinton v. City of New York." Oyez. Accessed March 25, 2021.

https://www.oyez.org/cases/1997/97-1374.

“Compiling a Federal Legislative History: A Beginner's Guide: Presidential Signing Statements.”

Research Guides. Accessed March 25, 2021. https://guides.loc.gov/legislative-history/presidential-communications/signing-statements.

House, Billy. “House Scraps Surveillance Bill Vote After Veto Threat From Trump.”

Bloomberg.com. Bloomberg, May 27, 2020. https://www.bloomberg.com/news/articles/2020-05-27/fisa-vote-in-jeopardy-as-trump-administration-warns-of-veto.

McMahon, Ian Vásquez and Fred. “Human Freedom Index: 2020 Index.” Cato Institute, March

15, 2021. https://www.cato.org/human-freedom-index/2020.

U.C. Const. art II,§3