I think that the executive operates under less oath-related constraints than this discussion has supposed. The judiciary's role as the final arbiter for determining the constitutionality of laws has itself been constitutionalized by various Court holdings (Marbury, the Meese case, I forget the name). Therefore, to the extent that the Governor of South Dakota swears to uphold the Constitution he swears to the principles of judicial review that the Constitution, via those decisions, entails.
While his good conscience might keep him from signing or vetoing legislation that is in obvious contradiction to a Supreme Court holding, as a political officer, he is entitled to rely on the structural checks present at the very limit of executive authority, namely, the power of the other branches (in this case, perhaps, an injunction).
Alex gets at an important question here: whether executives still have a duty to interpret the constitutionality of legislation in a system where there is judicial review. Let me respond by saying that I think that even though executives may not have the final word on constitutionality under our system, that does not necessarily mean that they do not have the duty to make the determination of whether a piece of legislation is unconstitutional. Nor does it necessarily mean that said duty is unimportant. I think that it means that the executive (or the legislature) simply does not have the last word on constitutionality in some instances.
In the final analysis, this question comes down to how one conceptualizes the process of determining a measure's constitutionality. One view is that all three branches of the government (state and federal) have the responsibility to assess constitutionality, with the judiciary having the final say if there is a dispute. In another view, the only branch with the responsibility to make that assessment is the judiciary itself. I think our history supports the former proposition, and one piece of evidence for that is the oath to uphold the constitution itself.
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Brian,
I think you’re right: an executive still has a duty to interpret to the best of his abilities the constitutionality of a given act. But I think that the Court has changed or lessened the seriousness of that duty by in many cases monopolizing final constitutional review. Judicial review, plus the relative strength of each branch, will prevent an executive’s infidelity from becoming too harmful.
Also, one thing that our study of constitutional law has impressed upon me is just how politicized all these institutions are. I don’t remember off hand the cases establishing “political question” jurisprudence, but I was amazed to learn how even the highest offices of government were designed to be open to the most basic and base political motives.
So, because the Court has declared itself to have final constitutional review, the executive, knowing this (even if not knowing the specific contours of the case law, he will know that the Court has the final say), can plausibly leave final review up to the Court. Even if a law is facially unconstitutional or if the executive wants to advance an explicitly contrary constitutional interpretation, maybe he should swing for the fences and let the Court strike it down. I don’t know if I want to say that an executive’s constitutional duty is his advancement of political, executive branch interests rather than impartial judicial-style review, but his ability to rely on the Court as a final check does give him more of a free hand politically.
Though, when structural checks and balance don’t work, we might have to call the National Guard.
P.S. On a similar note, I have wanted to discuss the role of politics in the Supreme Court confirmation process. Republican senators mentioned how they voted to confirm Ginsburg and Breyer overwhelmingly while Democrats did not extend the same treatment to Alito.
I think the Democrats were right in this instance. Republicans were wrong to give Breyer and Ginsburg a free pass simply because they are legal geniuses. I think their nominations should have been fought tooth and nail. This is the last best majoritarian check on the Court and it should count for something.
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