JURIST Guest Columnist
Elizabeth Price Foley of Florida International University College of Law says that President Bush's veto of stem cell research legislation is an abuse of his constitutional authority antithetical to the rulings of the US Supreme Court...
For the first time in his presidency, President Bush last week exercised raw power to veto legislation, rejecting a bill that would have expanded federal funding for stem cell research cells from discarded embryos created by in vitro fertilization (IVF). He explained that a veto was necessary to prevent “the taking of innocent human life” because “each of these human embryos is a unique human life with inherent dignity and matchless value.” By exercising the veto in this manner, the President has abused his Executive Power and violated his Article II oath to “preserve, protect and defend the Constitution of the United States.”
The Constitution, as interpreted by the U.S. Supreme Court for the last thirty-three years, does not recognize pre-viable embryos as “human life.” Although there has been fierce continuing debate about when constitutionally cognizable life begins, the law has remained essentially unchanged since the 1973 decision in
Roe v. Wade, when the Court declared that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” The Court further concluded that the government’s interest in protecting a “potential” life is not sufficiently compelling to justify infringing the fundamental liberty to choose parenthood until the point of viability, “because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” At the point of viability, in other words, there are two lives deserving of governmental consideration and protection; prior to that time, the liberty of the already born is paramount.
The basic analytical framework of Roe has been reaffirmed numerous times by arguably much more conservative Supreme Courts, most notably in the 1992 decision in
Planned Parenthood of Southeastern Pennsylvania v. Casey and again in the 2000 decision in
Stenberg v. Carhart. These decisions make it clear that under the Constitution of the United States, parental liberty trumps any interest government might have in protecting pre-viable human embryos. And whether President Bush supports the Court’s constitutional interpretation or not, it is undeniably the law of the land.
What does all of this mean for stem cell research and President Bush’s veto? First, it means that those who donate sperm and eggs to create IVF embryos have a constitutional liberty, subject to contractual modification, to decide whether those embryos should be born – thus making them parents. They can choose to implant the embryos and attempt pregnancy, freeze them indefinitely, discard them, donate them to others for adoption, or even donate them for medical research (including stem cell research). Under the Constitution as interpreted by the Supreme Court, giving these choices to potential parents is necessary in order to honor the “liberty” protected by the Due Process Clauses. This word “liberty” is the source of our freedom to use contraceptives, avoid involuntary sterilization, and even employ IVF or other reproductive technologies in the first place. We have, in short, a constitutional right to decide whether we want to bear or beget children. And there is no such thing, constitutionally speaking, as a pre-viable “child.”
Second, it means that when President Bush justified the use of his veto power to prevent “the taking of human life,” he was using Executive power to effectuate a personal moral view that is fundamentally antithetical to the law as declared by the Constitution and interpreted by the U.S. Supreme Court. He was defeating a legislative act – thwarting the will of “We the People” – to pursue an agenda contrary to our declared Constitution.
I am not suggesting that the President abuses his power by holding intense moral beliefs and working for their enactment into law. Presidents may (and should) lobby for legitimate constitutional change when they believe it desirable, as well as appoint federal judges who embrace harmonious views regarding constitutional interpretation. These kinds of activities are legitimate because they reflect presidential acceptance of and respect for the rule of law and the obligation, as the Chief Executive, to faithfully execute those laws while they are in effect.
But when a President vetoes a law because he disagrees with the constitutional rights the law acknowledges, he violates his oath of office and assumes near dictatorial power over both the legislative and judicial branches. By vetoing the stem cell bill, President Bush was not preserving, protecting, and defending our Constitution: he was giving it the finger.
Elizabeth Price Foley is Professor of Law at Florida International University College of Law, where she teaches health care law and constitutional law. She was formerly a member of the National Academy of Science’s Committee on Stem Cell Guidelines.
Last time I checked, the Constitution does not require the President to give a reason for exercising veto power. The President did not "give the finger" to the Constitution, he used a power granted to him by the Constitution. A power he probably should have used more often in the past six years.
Representatives and Senators take a similar oath of office. Did all those that voted against the stem cell bill "give the finger" to the Constitution?
If Senators and Reps voted against the bill for the same reason-- to "protect human life"-- then yes, I think her point still stands. True, the veto power is not limited. But the point is that there is a disrespect here for established law. Do you think it would be alright for the President to use his veto power to nix a civil rights law because he thought it was beyond the scope of the commerce power (a la Clarence Thomas's view)? The Court has upheld civil rights legislation grounded in commerce (Heart of Atlanta, e.g.), and a veto under such circumstances would be just another finger aimed at the Constitution. The stem cell bill veto is the same idea.
The presidential veto did nothing to infringe on the rights of parents to control the use of their pre-viable embryos. They can still donate the embryos for research and even donate the money to fund the research. All of these legal commentaries are treating this veto like it is a executive ban on the research rather than a veto of a funding bill. The Supreme Court has already ruled that the government is not required to fund abortions and the Hyde Amendment restricting such funding has been in place for decades. I guess all of the legislators who voted for that were violating their duty as well.
Last time I checked, the Constitution did not originate 33 years ago. Using such a simplistic view of constitutional jurisprudence for the rather novel claim that a Presidential veto violates his duties to uphold the Constitution is incredibly short-sighted and reckless. I have a hard time giving credence to people who think the world began in the 1970's.
Some of you conservative types seem to be missing her point. As I understand it, she's making an insightful observation that there is patent disrespect for the rule of law by many in power these days (executive and, yes, legislative branches, too) that manifests itself essentially in an attitude of "Who cares what the Constitution says?" Bush exhibits this attitude almost daily with his secret domestic wiretaps, "need to know only" information about Iraq, etc. And of course the Republican-controlled Congress rolls along with him. They can't seem to change the Constitution in legitimate ways to suit their preferences (e.g., failed one man, one woman definition of marriage amendment), so they prefer to undermine the Constitution in these more subtle ways. Kudos to Foley for telling it like it is.
Seems to me that thinking the "Constitution did not originate 33 years ago" is a great example of the trouble we're in. Sounds to me like this person has a similar lack of respect for the Constitution as interpreted by the Court. We might disagree with the Court's interpretation of the Constitution, but to think the President is free to ignore it because its abortion decision is only 33 years old indicates an attitude of "it's only the Court expounding the Constitution; so it's not really law anyway-- especially since it's only 33 years old." Besides, when did we learn in law school that the amount of time a precedent was on the books was an important indicator of how "real" the law was?
constitutional law didn't "begin" in the 1970s, or the 1920s, or the 1870s, or pick any other date! it continues to evolve, but its evolutionary character doesn't mean it's junk. defending and protecting the constitution shouldn't hinge on how "old" the applicable precedent is. since when is the age of a constitutional decision indicative of the degree of respect it deserves????? talk about a strange view of the constitution!
"But when a President vetoes a law because he disagrees with the constitutional rights the law acknowledges, he violates his oath of office and assumes near dictatorial power over both the legislative and judicial branches."
If we took this statement seriously, does that mean that anything passed under 14A sec 5 can't be vetoed? That's some pretty serious due process.
(*I'm aware that the legislation at issue was not passed under 14A sec 5, but I imagine that's another reason Foley's making this argument in an op/ed and not a real article.)
There are too many legal errors in this piece to fully address in a comment, but some glaring ones stand out. As noted in prior comments, the President’s veto is plenary; it is not limited by a need for explanation or any showing of good cause. In fact, it would be difficult to ever argue that a veto could deny a person of constitutional rights, since Congress has the power to override any veto. In addition, since the abortion right is a matter of constitutional law, Congress cannot define its scope or existence by legislation. The Supreme Court established in Marbury v. Madison (and essentially reiterated in City of Boerne v. Flores) that it is the province of the Court, not Congress, to say what the Constitution requires. Any argument that the veto of legislation somehow deprives a constitutional right is simply misplaced. Finally, the Court’s precedent has established that the liberty interest at issue is protection of free access to abortion of a pre-viable fetus without any undue burden. As the professor likely realizes, since she fails to cite any authority for her claims regarding a protected interest in the fetus post-abortion, there is no precedent supporting a claim that the liberty interest goes beyond the right of free access. Since the veto in question does not affect this right of access, the entire premise of the article is flawed. After all, the Court has long recognized that the government can legitimately act in arenas of constitutionally protected rights, even those subject to strict scrutiny, as long as it does not burden the right itself. See, for instance, the power to regulate certain types of speech and conduct associated with speech that does not overly burden the right. Here, the legislation at issue, at most, concerns a matter that is only indirectly related to the abortion liberty interest
you guys really seem to be missing her interesting-- and much deeper than you acknowledge-- point. i think she's making a point that's very worthy of consideration. let's look at what she's saying: the president violates his oath of office by vetoing this bill. she's not saying he cannot veto this bill. she's not denying that the veto power is plenary. she's saying that, in exercising his veto power, he's violating his oath of office because of the somewhat devious motives motivating his veto (namely, his dislike of constitutional law as interpreted by the highest court). look, we all know (foley included) that these "oaths of office" taken by all branch officials are more precatory than anything else. and no one is suggesting that there's some remedy for violating one's oath (other than getting kicked out of office, either by impeachment or the ballot box). but she's asking us to just stop and think about that oath for a nano-second (more time than we usually give it, since many government officials violate their oath, perhaps on a daily basis in some cases). i like the boldness of this piece and larger message it contains. i think you nay-sayers are taking this way too doctrinally and forgetting it's a piece more directed toward macro-theory. put your myopia aside and open up your minds!
Nowhere in this piece does Foley suggest that the legislation (or the veto) violates a constitutional right. She is telling is that the spirit in which the veto was exercised violated the President's oath of office to preserve, protect and defend the Constitution. These are two entirely different things. So if this is your objection to her piece, you are wrestling a straw man and really missing her entire point.
The comment regarding sec. 5 of the 14th illustrates well how the critics of this interesting op-ed just don't get it. Let's take section 5. Say Congress passes a bill to prohibit some specific type/manifestation of sexual discrimination. Then let's say the President vetos this legislation, stating publicly that he is doing so because he believes that men and women are not equal-- that God did not make them so, so this bill violates his moral beliefs in this regard. Obviously the Constitution, as interpreted by the Supreme Court, protects (by intermediate scrutiny of gender-based distinctions) individuals on the basis of gender. The President's stated reason for vetoing the bill (passed pursuant to its sec. 5 power) is obviously at odds with the Constituiton as stated by the Court. This presents the same scenario that the op-ed addresses. And just like the op-ed, the point is the same. A President who exercises the veto power to further personal moral agendas rather than honoring the individual liberties protected by the Constiution is forgetting his/her oath of office.
Wow-great op-ed! I've read all the comments-- including criticisms-- but have to say that I side with Foley. I agree with earlier comments that the critics are wrestling straw men. Foley is clearly not claiming that the funding bill itself had anything to do with the liberty interest identified in Roe and Casey, etc. Instead, she argues that the Chief Executive, by exercising the veto power based solely on moral opposition to the idea that "legal" life begins post-viability, sends a strong message to many Americans that the Court's ideas about when "life" begins for constituitonal purposes is a bunch of baloney. It is this deeper message-- the heart of the theory of this piece-- that is so disconcerting. Interesting angle; worth posting and has generated some good debate.
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