Author Archives: dnield

Two Vetoes

NPR recently ran an article highlighting the unusually low amount of vetoes President Obama has issued during his time in office.

Speaking more specifically, President Obama has used the presidential power of the veto only two times during his over 4 years in office thus far.

The article goes into detail about the reasons for this number being so low, but in this post I really just want to highlight how meaningful “two vetoes” really is.

“Two” doesn’t seem like particularly significant number, that is until you compare it to other modern presidents. For example, Reagan used his power of the veto 78 times during the 1980s, while Bill Clinton used this power 37 times during his time in office.

At this point some of you may object saying “Hold on, that’s not really a fair comparison! Reagan and Clinton both had 2 terms and used the veto more frequently in their second term!” which is a fair objection to make, however even ol’ George H.W. pulled out his trusty veto pen 44 times during his single term in office.

If modern comparisons doesn’t make “two vetoes” significant, here’s some historical context: every president since Martin Van Buren, who served as our president almost 175 years ago has vetoed more legislation than President Obama (with the exception of those that did not complete a full term in office)

Now, it’s important as a matter of journalistic and personal integrity for me to admit that you could have received any information I just told you from the article I talked about, however, I’m not sure even the writer of that article understands the significance of having the least amount of vetoes since Van Buren.

Allow me to explain.

You see, while Van Buren doesn’t really stick out in most Americans’ minds as being an particularly consequential president, he really and truly is an important milestone in American political history. What’s significant about Van Buren you may ask? Well, Martin Van Buren was the last president to hold the traditionalist view of the veto, the view held by the presidents of the 18th and early 19th centuries.

What I mean by the traditionalist view is simply this: from George Washington up until Andrew Jackson presidents long had the view that the presidential veto was a constitutional power meant only to uphold the Constitution. In other words, it was their way of shutting down legislation that they believed to be unconstitutional.

Now in all technicality the Constitution doesn’t concretely lay out the justification a president can use for a veto. In fact, the words “presidential veto” don’t appear once in the United States Constitution, the clause the power comes from simply states:

“Every Order, Resolution, or Vote … shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.”

– United States Constitution, Article One, Section 6

There is no statement as to what constitutes a “valid” veto. However for decades most people viewed the veto as the presidential last resort to unconstitutional legislation (at least until the Supreme Court sets things straight)

That is until Andrew Jackson revolutionized how we see the presidential veto in 1832.

You see, one of the biggest debates in American politics in the 19th century was whether the United States should have a national bank. It was essentially the Healthcare debate of its time.

Critics of the establishment of a United States National Bank cried that it was unconstitutional, until the Supreme Court ultimately ruled that Congress was constitutionally allowed to establish a national bank under the Necessary and Proper Clause in McCulloch v. Maryland in 1819.

However did that close off debate? To answer that question, let me ask another, did critics of Obamacare quiet down after the Supreme Court ruled that the individual mandate was constitutional?

And Andrew Jackson was the leader of these critics of the National Bank, and it is one of the biggest issues that he ran on when he ran for the presidency in 1828.

So when the Charter for the 2nd Bank of the United States came up from renewal in 1832 and Congress renewed it, Jackson found his chance to shut it down.

On July 10th, 1832 Andrew Jackson issued his veto to the renewal of the Charter of the 2nd Bank of the United States.

He made no claims of vetoing it on constitutional grounds, after all, the SCOTUS had already ruled the bank constitutional over a decade earlier, he made it very clear it was on political grounds.

This veto was revolutionary in how it shaped American politics, the power of the presidency, and the view of the veto. In essence, Andrew Jackson inaugurated the modern veto.

So what does all this have to do with Martin Van Buren and Obama’s “two vetoes”?

Martin Van Buren was Andrew Jackson’s successor. That’s why.

And unlike Jackson, Van Buren subscribed to to the traditionalist view of the presidential veto, perhaps the last of the presidents to do so.

This is where you might expect me to come out with “Until Obama”, but that’s not true. The NPR article I keep mentioning lists several reasons for why President Obama has used the veto so little. I’m also not going to pass judgement on whether the Obama administration’s non obstructionist attitude is a good or bad thing.

I will however say this: when NPR highlights President Obama’s use of less vetoes than any president since Martin Van Buren, they’re actually highlighting that President Obama has used the veto less times than any president in the history of the modern presidential veto other than Van Buren.

That’s why “two vetoes” is significant.

Supreme Court Takes On LGBT Rights: Bitch’s Predictions

Today (Friday, December 7th, 2012) the Supreme Court announced that they’re going to be hearing two cases this March.

One is a challenge to constitutionality of the Defense of Marriage Act, and the other is a challenge to California’s Proposition 8 ban on gay marriage.

For those of you who aren’t savvy when it comes to LGBT rights legislation or just need a quick refresher, the Defense of Marriage Act (or DOMA) is the federal act, passed in 1996, that defined marriage as the legal union between one man and one woman for all federal purposes (including insurance benefits for government employees, immigration, or filing joint tax-returns), while Proposition 8 is a 2008 state constitutional amendment that banned gay marriage in California.

These cases mark the Supreme Court’s first entry into the gay marriage debate, and while the SCOTUS currently stands (or rather, sits) at a count of 5 conservatives to 4 liberals, it’s my prediction that the ruling will actually stand 6-3, invalidating both DOMA and Proposition 8.

The justification for this prediction is comes down to looking at the the past records of one conservative justice (Anthony Kennedy) and the motivations of another (Chief Justice Roberts)

Despite often being clumped in with the conservatives, Anthony Kennedy in many ways has been the flag bearer of LGBT rights in the last 16 years.

In fact, Kennedy wrote the opinions for the most significant pro-gay rights cases in history, Romer v. Evans (1996), where the court held that a Colorado constitutional amendment preventing gays from attaining protected status under the law was constitutional, and Lawrence v. Texas (2003) where the court held that states could not ban consensual homosexual sex as illegal sodomy.

Roberts, on the other hand, is going to be dipping his feet into his first major LGBT rights case as a supreme court justice. While Roberts is also usually clumped in with the conservatives, it’s usually justified. However, Roberts I think is forward looking enough to realize that these cases are both going to be incredibly historical cases, the LGBT equivalents to Brown v. Board of Education, and with the Healthcare ruling last year, I think Roberts has shown that he cares more about his legacy as Chief Justice than he does being a party line voter.

~~~~~~

So here is the prediction: It’s going to be a 6-3 vote on each case (or at least a 5-4 vote, if Roberts yields to his faction), invalidating DOMA and Proposition 8

Kennedy will write the opinion(s) as LGBT rights cases have largely become his legacy, and he will continue to use the rationale he used in Romer v. Evans, where he states that discrimination against homosexuals is not rationally related to a legitimate state interest. (Which is, not coincidentally, the language that the lower courts have used in their opinions invalidating the two pieces of legislation)

Scalia will write the dissent(s) (which Alito and Thomas will join) where he’ll say that there’s nothing in the Constitution about equal protection of marriage and will say that if the LGBT community wants constitutionally protected marriage, then they should pass an amendment changing the constitution rather than interpreting the constitution outside of its intended bounds (this is the same originalism argument that he used in Lawrence v. Texas, the very case I talked about earlier that Kennedy wrote the majority opinion for)

It’s hard to see the court’s decision to hear these cases as anything but a great thing for LGBT rights advocates everywhere. Even with the court composition as it is, it’s hard to imagine a situation in which the court upholds either of the two laws being presented, especially with Kennedy on the court. LGBT rights is his legacy, and the cases coming before them have been sent up the lower courts who have consistently found the challenged legislation illegal, using the exact same language Kennedy has been using for over a decade.

I imagine there will be a lot of happy couples in California and across the United States come this June (when the opinions will be released)

Why This Election Mattered (Hint: It’s Not For The Reasons You Think!)

A president’s legacy is often hard to discern, even after its been decades since they left office.

Why? Because their decisions are still writing decisions!

The justices and justices a president appoints have far-reaching consequences, and with life-terms, they often times end up becoming their living legacy. Hell, John Paul Stevens, a Gerald Ford-appointed Supreme Court justice retired only two years ago, and considering incredibly close SCOTUS decisions Stevens voted in and how he voted in them, it’s likely that this Republican-appointed justice is the reason that women retain the right to choose¹ and the reason that minorities can still receive special consideration from universities² (as long as there aren’t quotas!)

The point being that the justices that a president selects often times have larger historical impacts than the presidents themselves have.

So what does this have to do with this election?

Well, some presidents get lucky, some don’t. Some, like Jimmy Carter, don’t get to appoint a single Supreme Court justice, while another, like Ronald Reagan, might hit the jackpot and get to appoint four, including a Chief Justice!

This was followed by George H.W. who got 2 more conservative appointees in his term in office, and ever since their 6 appointee spree, conservatives have retained at least a 5-4 majority in the court, as Democrats received two appointments over Clinton’s two terms and Republicans received two appointments under Bush’s (Clinton got Ginsburg/Breyer, W. got Roberts/Alito)

Well ladies and gentlemen, President Obama might be about to hit the Judicial Jackpot as his predecessor Reagan did about three decades ago.

Thus far, Obama has already hit the average quota of two appointed justices in Elena Kagan and Sonia Sotomayor, however, with four more years, it’s likely he may be hitting the sweet spot to get some more, and might even flip the majority of the court for the first time in decades.

The court is aging. Ruth Bader Ginsburg is the oldest at 79 and has been hinting that this may be her last year on the court. The other Clinton appointee, Stephen Breyer, is also getting on in age, turning 74 just last August.

However, these are Clinton appointees and Obama appointing replacements for the two isn’t what makes this election so significant.

It’s the next two that should have conservatives worried. Antonin Scalia and Anthony Kennedy both turned age 76 earlier this year, both conservatives appointed by Ronald Reagan over 24 years ago. Looking at their age and comparing it to previous retirees, this should definitely be a cause of worry for conservatives and a cause to rejoice for liberals.

With the exception of John Pauls Stevens (who we mentioned earlier), all of the recent Supreme Court retirees have retired between the ages of 70 and 80; Souter at 70, O’Connor at 76, and Byron White at 76.

This means that on top of the two justices he has already appointed, Obama is currently in the position to potentially make four more Supreme Court appointees.

Is he likely to get all of them? Of course not, but he doesn’t need to. Scalia and Kennedy are his targets, and this next four years is likely going to become a staring contest between the Old Guards of the conservative wing of the court and President Obama, as with Ginsburg retiring soon, he will already be at three appointees and if either Scalia or Kennedy retire, President Obama is going to be the president to flip the majority to the liberal wing for the first time in the Court in about 2 decades.

With recent decisions like Bush v. Gore, Citizens United, the Arizona Immigration Law and the Healthcare Reform rulings being decided by thin majorities and largely partisan votes, and the questions of Gay Marriage, Voting Rights, and Affirmative Action facing the court on the horizon, Obama’s re-election is more significant than you might think.

¹ Casey v. Planned Parenthood
² Grutter v. Bollinger & Grutz v. Bollinger

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