The Propriety of Presidental Non-enforcement

[Seth]

It's not ignoring a law, it's avoiding the irresponsible spending of public money and public servant work time to defend a law that will be overturned anyway because it is blatantly unconstitutional.

Sorry, but the law is presumptively constitutional, as I point out.

That's a rule of construction by the Supreme Court, and is not something that they are required to do by the Constitution or the law. They could just as well decide to start presuming them unconstitutional, and they essentially do presume laws unconstitutional when they are race related laws, etc. -- "strict construction."

Well, except for that whole "stare decisis" thing.

The President doesn't have to presume them constitutional. You and I don't have to presume them constitutional. And a presumption is rebuttable -- it just means that the party challenging constitutionality has to make the case to rebut the presumption, and the government doesn't have to come forward with proof or a good argument that it is constitutional.

Correct. But what it does mean is that the law can be enforced until that occurs.

The President has the unique authority to disagree and suspend enforcement, not repeal the law by executive order, but I'm not sure he has the authority order the Justice Department not to defend the constitutionality of the law in court.

He does, because the President is the boss of the Justice Department.

I'm not so sure. His authority to refuse to enforce a supposedly unconstitutional law is based in his duty to faithfully execute the law and his power of pardon, but there's a distinct difference between not enforcing a law against someone accused of breaking it and telling the whole Justice Department not to defend a presumptively constitutional law that's being adjudicated. This is because despite his appointed powers, he is still an employee of the People and the Justice Department is the agency tasked with defending duly enacted laws, and THEY work for the People too. I'm not sure that his position as chief executive gives him the power to simply ignore a challenge to a duly enacted law. To grant him that power is to make the entire structure of government and law susceptible to executive veto merely by refusing to allow the People's legal counsel from arguing their interests in the duly enacted laws. In theory someone could file a lawsuit challenging the Civil Rights Act and if the Justice Department refuses to defend it, the plaintiff could theoretically win by default and have the law overturned merely because the government refused to put up a defense. That would grossly distort the Separation of Powers doctrine in my view.

I think that's what the Court just said in fact. That unless a constitutional objection is raised by the Executive to a duty that has been commanded of an executive agency like the NRC by the Congress, that the President is compelled to follow the commands of Congress in executing that command.

This is a clear and on-point repudiation of the notion that the Executive has plenary power to ignore whatever law it disagrees with for reasons of policy.

[Seth]

The IRS actually publishes a document called "actions on decisions" where it tells everyone what court decisions they will obey and what ones they won't. LOL http://apps.irs.gov/app/picklist/list/a ... sions.html

That's not exactly true. The list you refer to is a directive as to whether the IRS and its agents will "acquiesce" or "not acquiesce" to a citation of the particular court case by another defendant. Acquiescence means that if the taxpayer raises the case and the case fits properly within the four corners of his case, the IRS will acquiesce to the defense and will not challenge the assertion in Tax Court. However, in a "non-acquiescence" case, when a taxpayer raises the decision as a precedent in his defense the IRS policy is NOT to simply roll over and admit that the case is relevant, it is to fight in Tax Court and maintain the position that the decision being raised is in error, with the hope that the court will agree and disallow the defense.

But if ANY court declines to agree with the IRS that a precedent raised is inapplicable or inappropriate or in error, the IRS is COMPELLED to respect that decision in favor of the taxpayer who raised it.

It's a procedural guide only telling agents whether or not to "take it to court" for a resolution of a case that raises a particular precedent as a defense. They are still bound by the decision of the court in the case under review, and eventually, if they are defeated often enough in their claim that the cited case is in error, they will have to change their policy and acquiesce or be sanctioned for contempt of court.

It doesn't tell them which case law they will "obey" or "disobey," they MUST obey the court, but precedents are just precedents and are usually subject to challenge by one side or the other in a specific case under a specific set of facts. The exception is when the Supreme Court makes an on-point ruling that has the effect of barring the IRS from some particular action or interpretation of a statute or regulation. In such a case the IRS must obey the Court whether or not it, or the President, agrees or not. The President has no power to tell the IRS to do what the Court has told it not to do.

[Coito ergo sum]

It's not ignoring a law, it's avoiding the irresponsible spending of public money and public servant work time to defend a law that will be overturned anyway because it is blatantly unconstitutional.

Sorry, but the law is presumptively constitutional, as I point out.

That's a rule of construction by the Supreme Court, and is not something that they are required to do by the Constitution or the law. They could just as well decide to start presuming them unconstitutional, and they essentially do presume laws unconstitutional when they are race related laws, etc. -- "strict construction."

Well, except for that whole "stare decisis" thing.

Stare decisis is a rule of court decisionmaking and is also not something they have to do Constitutionally. And, stare decisis does not prevent the SCOTUS from reversing itself, as it has done many times.

The President doesn't have to presume them constitutional. You and I don't have to presume them constitutional. And a presumption is rebuttable -- it just means that the party challenging constitutionality has to make the case to rebut the presumption, and the government doesn't have to come forward with proof or a good argument that it is constitutional.

Correct. But what it does mean is that the law can be enforced until that occurs.

It can be, because the President has a colorable claim to the constitutionality of the statute. If there is court precedent where the constitutionality was challenged and the Court upheld it, then the government can say that they are acting in good faith and enforcing the law. However, "can be" does not mean "must be," and the President has an independent obligation to uphold and follow the Constitution above laws made pursuant to the Constitution, so if the Executive Branch sees a law that it believes is not constitutional then it is bound to enforce the Constitution first. If the Congress disagrees, then they can impeach the President. If the Court disagrees, it can rule a law constitutional. If the President decides to follow the principle of "nonacquiescence" then we may have a constitutional crisis.

The President has the unique authority to disagree and suspend enforcement, not repeal the law by executive order, but I'm not sure he has the authority order the Justice Department not to defend the constitutionality of the law in court.

He does, because the President is the boss of the Justice Department.

I'm not so sure. His authority to refuse to enforce a supposedly unconstitutional law is based in his duty to faithfully execute the law and his power of pardon, but there's a distinct difference between not enforcing a law against someone accused of breaking it and telling the whole Justice Department not to defend a presumptively constitutional law that's being adjudicated.[/quote] The justice department, led by the President, can decide what resources to put into what cases. If they don't want to fight hard on Doe v Government, then so be it. The court decides disputes between parties, and if the parties agree, there is no dispute. Frankly, by suggesting that they aren't going to defend the case, they are signalling to the Court that the Executive Branch agrees with the Plaintiff, or at least doesn't care either way. So the Court decides the constitutionality of the law, and then they take it from there.

This is because despite his appointed powers, he is still an employee of the People and the Justice Department is the agency tasked with defending duly enacted laws,

duly enacted and CONSTITUTIONAL laws.

and THEY work for the People too. I'm not sure that his position as chief executive gives him the power to simply ignore a challenge to a duly enacted law.

Nothing in the Constitution says he has to defend every challenge.

To grant him that power is to make the entire structure of government and law susceptible to executive veto merely by refusing to allow the People's legal counsel from arguing their interests in the duly enacted laws.

Speculative and hypothetical -- most of the time the President wants laws to be enforced, so they have an interest in upholding them. In the very few cases where the Executive believes a law is unconstitutional, then he has to proceed in good conscience based on his independent obligation to protect and defend the Constitution. The Constitution doesn't say "the Executive must enforce all laws until such time as the SCOTUS rules them unconstitutional." It might have, if that's what people wanted. But, it wasn't. The framers wanted 3 coequal branches of government each with its own obligation to abide by the constitution and stay within its powers. In the theory you are advancing, the President would be justified and obligated in enforcing laws it honestly thinks are unconstitutional and if you have pro-racist justices appointed to the SCOTUS you could conceivably have a legislature enact a racist law which is upheld by the SCOTUS and then the Prez would not be able to do anything about it.

Look - nothing in the Constitution says the SCOTUS can "rule" duly enacted laws unconstitutional either. It's just that we are so used to the practice that it seems to go without saying. But, it doesn't go without saying. It had to be said, in Marbury v Madison I think is the case. It WAS an issue that we did not know how it would be resolved. The Court declared for itself the power to rule statutes unconstitutional and it made itself an arbiter of constitutionality. An argument can just as easily be made that the Court is bound to follow the duly enacted laws of the Congress because Congress is beholden to the people. But the constitution doesn't say that either. The only thing it does say is, essentially, that each branch of government is bound by the Constitution. It doesn't say each branch is bound by the decisions of one of the other branches as to Constitutionality. They each make their own determination as coequal branches. By way of custom, the Executive does generally follow the Court's rulings on these matters -- like the controversial Brown v Board of Education, etc. And, that prevents constittutional political crises from arising. But, your view of it is NOT anything founded on anything other than what you perceive as making sense.

and In theory someone could file a lawsuit challenging the Civil Rights Act and if the Justice Department refuses to defend it, the plaintiff could theoretically win by default and have the law overturned merely because the government refused to put up a defense. That would grossly distort the Separation of Powers doctrine in my view.

Not true, because (a) the case could not be filed in the SCOTUS because the SCOTUS does not have original jurisdiction over such cases, and (b) the case could not be won by default in a federal district court because federal district courts are bound by prior precedent of Courts of Appeal and SCOTUS upholding the law, and (c) even if there were no prior precedents a federal district court would not have to rule in favor of unconstitutionality by default -- it could fashion a default without doing so, and (d) even if the federal district court did enter a default judgment that the Civil Rights Act is unconstitutional it would be meaningless because a federal district court only operates in a small area of jurisdiction and its decisions are NOT binding precedent on any other district courts, even district courts in its district. It's authority could only, at most, be considered "persuasive" authority, but default judgment's lack all persuasive value because nothing was ever aired at trial. So, in short, it wouldn't mean shit other than to the litigants involved in that particular case and would do nothing to effect the validity of the law.

There are many instances where you can find district court cases ruling this law or that law "unconstitutional" and other district court cases ruling the same laws "constitutional." Doesn't mean the laws get wiped off the books. There are even cases where Circuit Courts of Appeal (the next level up from the district courts) have different opinions about the same law. So, a federal law can be unconstitutional in the 9th Circuit and constitutional in the 3rd Circuit, and undecided in the rest.

Very few cases are ever decided by SCOTUS so it is simply unworkable to require the executive to only not enforce statutes that are unconstitutional according to the SCOTUS.

I think that's what the Court just said in fact. That unless a constitutional objection is raised by the Executive to a duty that has been commanded of an executive agency like the NRC by the Congress, that the President is compelled to follow the commands of Congress in executing that command.

"compelled to follow the commands?" That's an overstatement. What the court said was that the Executive can't decline to enforce laws it thinks are wrongheaded policy-wise. It can't just "not like" the law.

This is a clear and on-point repudiation of the notion that the Executive has plenary power to ignore whatever law it disagrees with for reasons of policy.

Who said "plenary?" The Executive has not only the power, but the DUTY to disobey an unconstitutional law. And, it doesn't have to wait for SCOTUS because nothing in the Constitution says the Executive has to wait for SCOTUS to decide. Nothing even says SCOTUS has the power to decide, except SCOTUS which seized the power to strike down laws as unconstitutional by its own court case and not by the Constitution and not by federal law.

The Executive has the duty to see that the laws are faithfully executed. Yes. However, executing an unconstitutional law is not faithfully executing the laws, because the constitution is the top law and ignoring in order to enforce a lower law made "in pursuance" of the Constitution is NOT faithful execution. It's a violation of his duty to protect and defend and enforce the Constitution.