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.
(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.)
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."
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.
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.
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).
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.
here
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.
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.
His support led to the Dixiecrats and contributed mightily to his initial abysmal popularity deficit to Dewey.
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.
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.