79 MILLER supra note 27 at 87 The abortion gag rule which banned giving out

79 miller supra note 27 at 87 the abortion gag rule

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79 MILLER, supra note 27, at 87. " The abortion "gag-rule," which banned giving out abortion information at federally funded clinics, provides a relevant example. See 42 C.F.R. § 59.7 (1990). The rule was promulgated in the last year of the Reagan administration. Despite raising congressional fury, and being challenged in the Supreme Court, see Rust v. Sullivan, 111 S. Ct. 1759 (1991), the rule survived congressional attempts to overturn it. In fact, only an executive memorandum, issued by President Clinton in the first week of his administration, finally succeeded in retracting the gag-rule initiated by the Bush and Reagan administrations. See Exec. Mem., 58 Fed. Reg. 7455 (1993); Robin Toner, Clinton Orders Reversal of Abortion Restrictions Left by Reagan and Bush, N.Y. TIMES, Jan. 23, 1993, at Al. 81 MILLER, supra note 27, at 68. 82 Id. at 69. 83 See BURNS, supra note 40, at 316 (recognizing that Supreme Court appointments are "affected by the general set of ideas, as well as by the political interrelationships, of a presidential administration" (footnote omitted)); Guinier, supra note 72, at 398 ("Before offering prospective nominees appointments to the federal bench, [President Reagan's] advisers tested them by using ideological litmus tests on civil rights issues such as school desegregation, affirmative action, and other race-conscious remedies." (footnote omitted)). 2329
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2330 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 141: 2311 House." 8 4 And Congress rarely rejects a president's Supreme Court nominee, 8 5 for reasons similar to those given for cabinet appointments. 86 Meanwhile, the Supreme Court is limited in its ability to check the president's actions, due to the fact that it relies on the executive branch to enforce its judgments. As one commentator has noted: [T]he Court itself has no power other than public opinion, [and] the willingness of the people to abide by its decisions. It has no armies and few administrators. It depends upon the President and the executive branch to support its rulings and to carry out its edicts. Thus, one effect of the growth in judicial power [during the Earl Warren era] was an increase in the power of the Presi- dent. 8 7 In fact, another commentator has argued that due to the above factors "[t]he case of the Supreme Court approaches something of a study in institutional timidity." 88 Besides legislating through Supreme Court appointments, there is yet another means by which the president acts as an indirect legislator: the veto. 5. Legislation by Veto Although the foregoing presidential powers are substantial, probably the single most significant power that the president has relative to Congress is his power to veto, at his discretion, "[e]very bill which shall have passed the House of Representatives and the Senate . .. before it become[s] a Law." 89 Of course, if the 84 Shapiro, supra note 48, at 42; see also Linda Greenhouse, Lightening Scales of Justice: High Court Trims Its Docket, N.Y. TIMES, Mar. 7, 1992, at Al (noting that by the end of 1991, Presidents Reagan and Bush had appointed 64 percent of all federal appellate judges).
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