Here’s a classic example of what I’m talking about when I say that the president has an independent duty to uphold the Constitution rather than simply defer to the Supreme Court: George W. Bush’s decision to sign the McCain-Feingold campaign finance reform bill into law. President Bush clearly believed significant parts of the bill were unconstitutional. His own presidential signing statement cited “serious constitutional concerns,” “questions [that will] arise under the First Amendment,” and “reservations about the constitutionality of the broad ban on issue advertising.”
Yet he signed the bill anyway, saying that the courts would ultimately resolve the constitutional questions. In this particular case, the Supreme Court did strike down many of the problematic provisions. But when Bush signed McCain-Feingold, there was no guarantee. It was a 5-4 decision that could have easily gone the other way with one more Democratic appointment or one liberal argument that won over Anthony Kennedy. Even conservative judges tend to allow constitutionally dubious legislation to stand in deference to the legislature out of judicial restraint.
Bush had a constitutional duty to veto a bill he thought substantially unconstitutional. Members of Congress have a duty to vote against bills they believe to beg unconstitutional. Neither should simply rubber stamp the bills and wait for the courts to act. And when the courts fail to act or issue constitutionally dubious rulings themselves, the elected branches should consider legal challenges, changing the composition of the judiciary, defunding, impeachment, and jurisdiction-stripping. (Their preferred solution, constitutional amendments, should actually only be used when the courts are right about the Constitution and the Constitution really needs to be changed.)
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