CHICAGO – Rep. Richard Gephardt (search) is backpedaling on a comment he made over the weekend regarding what he would do if the Supreme Court ruled against affirmative action policies.
"When I'm president, we'll have executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day," Gephardt said at a presidential forum sponsored by Jesse Jackson's Rainbow/PUSH Coalition (search) in Chicago on Sunday.
All Democratic contendors for their party's nomination to run against President Bush in 2004 were asked what action they would take if the Supreme Court this week struck down affirmative action admissions policies at the University of Michigan. On Monday, the court ruled that the University of Michigan's (search) law school admissions policy fairly took race into account, but struck down the more formulaic system used by the undergraduate school.
However, Paul Rothstein, a constitutional law professor at Georgetown University, said a president's power to issue an executive order does not extend to the arena of constitutional issues, since the Constitution is the supreme law of the land. The court's role is to interpret that document.
On Tuesday night, Fox News asked Gephardt — an alumnus of Michigan's law school who filed legal briefs in support of the school's position — if he wanted to clarify his Sunday statement.
"It was a basic statement you would make about anything," Gephardt said.
"You would always try to use an executive order to overcome things that you think have been done wrong. It may not be possible to overcome a Supreme Court decision if the decision had gone the other way, but there are times in the past where presidents have done important things through executive order that were legal."
But Gephardt acknowledged that it's rare for a president to exercise that kind of power over a Supreme Court (search) ruling. If elected, Gephardt said he would exercise his powers in a legal, constitutional way.
"Usually, the court's decisions stand and we have separation of powers and you can't overcome everything that you might want to," he said. "So you have got to follow the law, you have got to follow the precedence.
"But there are cases in the past where presidents have been able to use executive orders to get things done and I would use the executive orders in a proper and legal way."
Gephardt said that if he were elected, an option to overcome a court ruling striking down the affirmative action programs might be to pass a law outlining a formula for a diversity program more favorable to the court.
"We often have Supreme Court decisions where the Congress and a president will try to pass a law to solve the problem in a way that a court in the future would say is the right way," Gephardt added. "That's the best way to do it."
The Bush administration filed legal papers in opposition to Michigan's admissions policy, which has provided fuel for criticism by his potential Democratic rivals.
When asked what he would do regarding the affirmative action issue, Rep. Dennis Kucinich, D-Ohio, also pledged to turn affirmative action policies into law.
"If this president doesn't want to let us be one nation, then it's time to elect a president who will let us be one nation," Kucinich said.
"The president has divided us," former Vermont Gov. Howard Dean (search) said. "He's divided us by race by using the word 'quotas.' There's no such thing as a quota at the University of Michigan, never has been."
"We deserve a president of the United States who doesn't call fairness to minorities a special preference," added Sen. John Kerry (search), D-Mass.
When the Supreme Court decision was announced Monday, each Democratic presidential candidate used it as a chance to bash Bush on his stance on the issue, with Gephardt calling the president's position "backward-looking," among other things.
The decision against the undergraduate policy "will not prevent well-crafted affirmative-action programs from going forward," Sen. Joe Lieberman (search), D-Conn., said in a statement. "The ruling may be mixed, but the message is clear: Affirmative action is constitutional and President Bush's efforts to undermine it have failed."
"The president was wrong about equality in America, wrong about the promise of opportunity for all and, according to the Supreme Court, wrong about the law," Sen. John Edwards (search), D-N.C., said Monday after the ruling.
Fox News' Yolanda Maggi and the Associated Press contributed to this report.