PRESIDENTIAL CONSTITUTIONAL INTERPRETATION II

Jim Joyner says a little more about his grudging acceptance of judicial supremacy. Similar to Eugene Volokh, both Jim and Steven at Poliblog also take Dick Gephardt to task for claiming that he could counter an anti-affirmative action ruling when he probably couldn't. I repeat my point: the fact that opponents of Gephardt can't figure out how he could issue an executive order to counter Grutter if it had gone the other way means absolutely nothing.

I'll admit, if the opinion countering Grutter read in its entirety as follows:

Government can't use race for any purposes; the "colorblind constitution" is the correct interpretation. Thus say we, the Supremes.

then Gephardt would have a difficult task (except that he could probably prove that the majority had fallen off its collective rocker and should be impeached). But that's an abstraction. In Court opinions as we know them, there are always ambiguities, interstices, and opportunities for further political contestation.

But I think that Gephardt's statement point to a larger issue, and it's that issue that I'm really interested in. Back when he signed the BCRA, President Bush flatly stated that he thought the law was unconstitutional, but he signed it anyway, with no ceremony. . .and then flew off to a Republican BBQ fundraiser. This act on the part of President Bush was politically smart, maybe, but should be troubling. On March 22, 2002, the Washington Times editorialized as follows:

[I]t is downright inexcusable that President Bush, residing in a White House that is overflowing with political capital, cannot muster the courage to veto a bill he genuinely believes is unconstitutional. The president will be violating what he has personally conveyed are his convictions about the First Amendment when he signs into law, as he has said he will, the blatant attack on free speech that Shays-Meehan represents.

And in an editorial titled "Bush's Cynical Act," from March 28, 2002, the Herald-Sun (Durham, NC) also criticized Bush, as follows:

Bush's refusal to veto the bill, knowing all the while it is fodder for the courts, is a cynical and disappointing act.

What was disappointing about Bush's act, I would submit, is that he did not act on his own professed views of the constitutionality of the bill before him. I say this even though I like BCRA. On the other hand, Bush did indicate that he thought that "constitutionality" was something for the courts to figure out. The division of labor implied by that implicit claim may be popularly accepted but it is nonetheless unfortunate.

So I agree with Gephardt on principle: Presidents should act on their own considered notions of what is constitutional. If anyone is interested in these topics, they should read some of the growing literature in law and political science on departmentalist theories of interpretation. Keith Whittington and Mark Tushnet are good people to start with. And let me plug my favorite Con Law casebook, Brest, Levinson, Balkin and Amar: Processes of Constitutional Decisionmaking, which -- among other things -- starts out by challenging students to take departmentalism seriously.

MORE: Note also Jeff Cooper's posts here and here. For reasons that should be clear, I think that Prof. Cooper isn't generous enough in his interpretation. See also Steven Taylor's response, which, as I note in his comments, evidences quite an astounding lack of constitutional imagination, given his earlier defenses of constitutional sleights of hand with respect to executive agreements.

MORE: See the post by Stuart Buck, here, defending presidential constitutional interpretation. (Via Jeff Cooper) Anyone who is interested in a fuller articulation of the view that there is such a thing as "independent executive review," see Michael Stokes Paulsen, "The Most Dangerous Branch: Executive Power to Say What the Law Is," 83 Geo. L.J. 217. See also Keith Whittington, "Extrajudicial Constitutional Interpretation: Three Objections and Responses," 80 N.C.L. Rev. 773.

I thought that the "blogosphere" was supposed to be a place where people engage in creative thinking. Why, then, do lefty law-thinking types practically roll over and die if the slightest whiff of a challenge to judicial interpretive supremacy is advanced? Come on! Gephardt was saying something eminently defensible, but so far only Stuart Buck (!!!) has bothered to even try to defend him. Jack Balkin comes the closest with this statement:

If all he meant was that he would try to migitate the effect of Supreme Court decisions he does not like through various executive orders, (which can sometimes be done constitutionally, especially if the decision in question is statutory or a construction of administrative regulations rather than based on an interpretation of the Constitution) he expressed himself very badly indeed and should work harder at being more precise and not misleading his audience.

Jeff Cooper thinks that the comment is so bad that he says the following:

if Gephardt says something similar in the future, then I'll be willing to consider calling for his withdrawal from the race.

Professor Cooper is too willing to give up the ship here, in my view. What is so threatening about Gephardt's claim that it merits even thinking about calling for his withdrawal from the race? That a President might disagree with the Supreme Court on a matter of constitutional interpretation, and then use executive orders to express his own view of the constitutionality of the issue at hand? For my part, I'd love to see a President who had the integrity to refuse to defer to the Supreme Court's policy-based decisions, rather than Presidents who practice the cynical avoidance of constitutional confrontations (as Bush did with BCRA).

There should be no secret by now, I would hope, from either left or right, that the Supreme Court is setting affirmative action policy, abortion policy, educational policy, and so on. Sure, they advance arguments that are persuasive to a lot of people with respect to the broad universe of arguments that can be labelled "constitutional." But sometimes reasonable people can claim that they get it wrong on matters of the constitution, and sometimes they just get it wrong on matters of policy.

Just a mere two years ago supporters of Gore were tearing their hair out claiming that the Court had make a political decision in an election -- and some (like Bruce Ackerman) were claiming that in order to frustrate the Justices' apparent desire to "pick their own successors," Democratic Senators should flat-out refuse to allow any Bush Supreme Court nominee to sit on the Supreme Court should there be a retirement. I don't know how else you could describe such a view as "Senators using their legislative powers to overcome a wrong thing that the Supreme Court did." But when a candidate hints in the direction of asserting a similar power in the Presidency -- a power that, pace facile comparisons between "a republic" and a "dictatorship" and un-thoughtful references to the text of the Constitution, can be defended both theoretically and as a matter of (admittedly limited) historical practice -- that candidate should be praised, not left to the wolves. Come on, folks!!