The Presidential Role in the Constitutional Amendment Process

By Joshi, Sopan | Northwestern University Law Review, April 1, 2013 | Go to article overview
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The Presidential Role in the Constitutional Amendment Process


Joshi, Sopan, Northwestern University Law Review


ABSTRACT-The President should have the power to veto constitutional amendment proposals. After all, Article I, Section 7 of the Constitution provides that "[e]very Order, Resolution, or Vote" requiring "the Concurrence" of both houses of Congress must be "presented to the President" for approval or veto. Constitutional amendment proposals unmistakably require the concurrence of both houses of Congress (by two-thirds majorities, no less). Yet all three branches of the federal government, with varying degrees of consistency, have decided that constitutional amendment proposals need not be presented to the President. I argue that Article V, which defines the amendment process, is bound by Article I, Section 7's strictures and the President is thus empowered to veto congressional amendment proposals as both a textual and a normative matter. Recognizing the implications of this conclusion, I propose broad definitions of presentment and approval to rescue the validity of the existing twenty-seven amendments while requiring all future constitutional amendment proposals to be presented to the President for approval or veto.

INTRODUCTION

During the 2012 Republican presidential primary campaign, an interviewer asked candidate Herman Cain whether he supported a constitutional amendment banning abortion:

Q: Are you for some sort of pro-life amendment to the Constitution that in essence would trump Roe v. Wade?

CAIN: Yes. Yes, I feel that strongly about it. You know, if we can get the necessary support and it comes to my desk, I'll sign it. That's all I can do. I will sign it.1

Commentators were quick to derisively question Cain's "grasp of the Constitution" because the President is presumed to have no official role in the constitutional amendment process.2 I contend that the former pizza mogul's "error" was perfectly understandable and his grasp of the Constitution-at least, that of its plain text-is perfectly sound.

Article I, Section 7, Clause 2 of the United States Constitution provides: "Every Bill . . . shall, before it become a Law, be presented to the President" for approval or veto.3 Article I, Section 7, Clause 3 extends the presentment requirement to "[e]very Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment)."4

Article V prescribes the method for amending the Constitution: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, . . . which . . . shall be valid . . . when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof . . . ."5 Article V is silent on whether amendment proposals must be presented to the President, and in Hollingsworth v. Virginia, the Supreme Court-in a footnote-summarily declared that the Presentment Clause does not apply to Article V and the President has no formal role in the constitutional amendment process.6 Predictably, Congress has embraced the President's absence from the Article V process, albeit with some inconsistency.7 Less predictably, presidents, perhaps following the early example of George Washington,8 have acquiesced to this long-standing practice.9

I argue that the Presentment Clause does indeed apply to Article V based on the text of the Constitution and the structure of our federal government. Article I, Section 7 is clear that every bill, order, resolution, and vote must be presented to the President, and Article V, like other provisions calling for congressional action, makes no explicit exception to this rule, thereby leaving the default presumption in place. And although the Constitution requires Congress to muster a two-thirds majority in each house to pass constitutional amendments (the same supermajority required to override a presidential veto), vote tallies may change once the President formally weighs in on the matter.

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