The Extra-legislative Veto
Citation: 102 Geo L.J. 351 (2014)
Presidents check statutory mandates outside the legislative process in a variety of ways. They may hold up implementation of a law, decide not to enforce a law, or decline to defend a law, to name just a few. This Article argues that these “extra-legislative vetoes” serve functions similar to the President’s Article I veto, only with respect to enacted law. The extra-legislative veto (1) requires that legal mandates maintain a threshold level of political support, (2) allows the President to protect the people from laws that the President views as bad, and (3) encourages deliberation regarding controversial policies. But the extra-legislative veto also poses dangers to our Madisonian system by virtue of the distinct institutional constraints on its exercise. A unilateral check on congressional acts threatens to transform the President into a “Legislator in Chief” and undermine the stability and transparency of government policy.
Based on this reconceptualization of the extra-legislative veto, this Article reviews some of its most prominent forms. The Article concludes that decisions not to defend a statute provide some of the benefits of an extra-legislative veto without raising significant concerns with transparency, executive lawmaking, or policy destabilization. Enforcement policies provide greater deliberation-forcing benefits, political responsiveness, and protection from “bad law” but also increase executive lawmaking. Although judicial review sets boundaries on policy instability, it does little to ensure the transparency of enforcement discretion. Conversely, judicial review of rulemaking does a better job promoting the transparency of statutory implementation but limits the extra-legislative veto’s political responsiveness. Finally, the presidential nonenforcement theory advanced by some scholars would dramatically increase the President’s power to protect the people from unconstitutional laws but would risk greater executive lawmaking and oscillations in policy, without the same deliberative benefits or political responsiveness of other extra-legislative vetoes. Accordingly, this Article proposes institutional mechanisms to preserve Congress’s voice in inter-branch policy deliberation while leveraging the extra-legislative veto’s power to protect the people from “laws gone bad.”