The Propriety of Presidental Non-enforcement

[Coito ergo sum]

That's absolutely false. It carries no precedential force in court, as in common law precedent. But, it is the opinion of the executive branch which carries as much weight as an opinion of the judicial branch on this kind of an issue. That's why Congress sent an inquiry to the AG to get this opinion.

An Attorney General's opinion, whether it be at the state or federal level, is "to be given great weight" by a court, but does not in any way constitute a legal precedent that is binding upon a court.

We're not in court at the moment. We're talking about the issue of whether the President must enforce an unconstitutional law pending a decision of the SCOTUS which may never come.

It will come in due course, after due process, if and when the President chooses to file a case in the federal courts challenging the law, just like any other plaintiff is required to do when they allege that a law is unconstitutional.

This is where you have an incredibly huge misunderstanding of our legal system. The President never files a case in federal court challenging laws. The President enforces the law. In the case of DOMA, the President would never file a case "challenging the law." If it did, the defendant would stipulate to all the relief requested by the Government, and the case would be over.

It's an attorney's opinion, that's all.

It's the President's opinion. That's all, but also NO LESS than that.

And as his opinion, it has no legal force or weight, nor does it authorize him to disobey or disregard any law. He is bound by the law even more strictly than your average citizen. They are required only to not violate the law, but the President is constitutionally REQUIRED to see that the law is "faithfully enforced."

The Constitution authorizes him to disobey or disregard any unconstitutional law, just as it gives you and me that right. If a law is unconstitutional, we are not legally bound to follow it. If the state tries to enforce it against us, then we can defend based on our rights under the Constitution.

The President is bound to enforce the Laws of the land (Article VI of the Constitution). Those Laws include the Constitution, and the Constitution is superior to any law passed by Congress. The President is bound to enforce the Constitution and the laws of Congress. To the extent that a law passed by Congress violates a provision of the Constitution, the President is bound to enforce the Constitution.

It is most certainly does NOT "carry as much weight as an opinion of the judicial branch." No way, no how.

In this context, it does. In the context of the political separation of powers, it does.

Clearly you do not understand the Separation of Powers Doctrine. It does NOT describe a tripartite government of "equal" powers, each having the same duties and powers as the others that are entitled to equal respect by the other two branches. That's nonsensical. The SoPD is a doctrine that states that the three branches of our government, and the States and People as well, each have certain, defined powers and authorities specific to the particular branch. And all powers and rights that are not EXPRESSLY reserved to a branch of the federal government are RESERVED to the States, or to the People.

There is only one person in this conversation who doesn't understand Constitutional Law - and that ain't me.

Nevertheless, you keep ignoring the fact that the President is charged by the Constitution with enforcing the Laws of the United States, which includes the Constitution, and underneath that, the Laws passed by Congress. The President has the obligation to preserve, protect and defend the Constitution, and as such must not enforce unconstitutional laws, even when another, lesser, law is passed by Congress. The Constitution always trumps laws of Congress.

The President does not have to, and in fact CAN'T, file lawsuits challenging DOMA or other such laws as unconstitutional. If the President filed suit claiming the law was unconstitutional, the federal district court would enter an order dismissing the case, because the Defendant (presumably two gays who wanted to marry) would agree that it is unconstitutional, and the court would not have a "case or controversy" to decide. The parties would be in full agreement. Where the parties aren't in dispute, there is no case or controversy.

Let's do it this way: name one case filed by the President of the US to declare a federal statute unconstitutional. I'll wait.

The AG is the attorney for Congress,

He's in the President's Cabinet. No, he's not the attorney for Congress.

Wrong. Go read Holder's own website, where it specifically states that the Justice Department and the AG are the attorneys for the federal government, which includes the Congress. The AG serves at the pleasure of the President, but he's not the President's personal attorney.

He is a Cabinet level position and chief legal advisor to the President. The President may not ask for advisory opinions of the SCOTUS. He gets his advice from the AG as to how the law is to be Constitutionally enforced. Other government departments, including Congress, may request opinions of the AG as well.

and asking an opinion of the AG is merely one branch of government asking its lawyer for an opinion letter, which is no different from a corporation asking its corporate attorneys for an opinion on a legal matter.

No. According to former Supreme Court Justice John Jay, in a response to a request for an advisory opinion from President George Washington, asking the attorney general is the proper constitutional way for the President to decide a question on American law. Nobody can ask the SCOTUS for an advisory opinion on the constitutionality of a law. There must be a case or controversy for the SCOTUS to get involved, and even then it may never get involved even if there is a case or controversy.

The President can ask the AG for an advisory opinion, but that opinion has little legal force because it's a lawyer's opinion. The President may not ask the SCOTUS for an "advisory opinion," but he CAN ask the court for a ruling by presenting a proper case to the Court. He has standing to do so if he believes that enforcing a law will cause him to violate his oath to the Constitution.

Flat fucking balls ass wrong. The President has no standing to bring a case before the Supreme Court on the Constitutionality of a Statute.

It's called a Motion for Declaratory Judgment, in which any plaintiff who is, or even may be harmed by the enforcement of a law can ask a judge to render a judgment as to what the law says and how it's to be interpreted.

The President cannot file a motion for declaratory judgment in a case alleging the unconstitutionality of a law.

First of all, cases in federal court are not started on motions. They are started by filing a complaint against a defendant. The Federal Government will only file complaints in federal court to enforce laws against a defendant. If the federal government thinks that a defendant can't be prosecuted because a law was unconstitutional, then it won't bring a complaint, suit or indictment against that defendant in the first place. And, if the federal government sues a Defendant claiming that a law as applied to that Defendant is unconstitutional, the fucking defendant will agree! Can't you see that?

There is not now and never has been any case filed by the President "In re the Constitutionality of Statute X" - you are just plain, flat out, wrong - so wrong that it is indescribable how wrong you are. I've made this point now 2 or 3 times, and you just ignore it every time.

Now you make pronouncements about the President's standing to bring a case in federal court alleging that Statute X is unconstitutional? Please - tell us - when has this ever happened?

The President can also simply challenge the constitutionality of the statute directly, as can any other citizen who is affected by the law and has standing to sue.

While a court might grant more deference to the U.S. Attorney General when considering a case, it is absolutely untrue that the court is under any requirement whatsoever to defer to the AG.

I never said that a court was under any obligation to defer to the AG. I never said that, ever. Not once. Nor did I imply it.

I said that the President may decline to enforce unconstitutional laws. And, if he wants some legal basis to back up his determination, the proper person in the government for the President to ask is the AG, not the SCOTUS. If the President is satisfied with the opinion, he will act accordingly. If he isn't he won't. If the President doesn't enforce a law that he deems to be unconstitutional, then he doesn't.

An "opinion" of the judicial branch, which is to say a ruling by a court, has binding legal authority upon even the AG, the obverse is not true.

Some opinions of the judicial branch, not all. Often, opinions of the judicial branch conflict. So, if the US District Court in New York enters an opinion, but one in California issues an opinion in a similar case, holding exactly the opposite, then the AG may decline to follow one of them. And, if only one district court has opined on a topic, then the Executive branch may still keep arguing the opposite position, until (if ever) the case is decided by SCOTUS.

I never said the SCOTUS must defer. Did I?

I said the President didn't have to wait until the SCOTUS rules on a case, if ever, to make his own independent judgment that a law violates the Constitution.

But you cite no constitutional authority for making this statement. The best you have is an AG opinion, not a SCOTUS ruling.

Dude - YOU cite no constitutional authority. I've cited constitutional authority out the wazoo.

Can you please address the issue, rather than simply claim I haven't produced constitutional authority?

Article VI: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." And, "...all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution..."

Article II, Sec. 1 (in part): "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'

Article II, Sec. 3 (in part): "...he shall take Care that the Laws be faithfully executed.."

The "Laws" referred to in Article II, Sec. 3, include the Constitution and the laws of Congress. The Constitution is superior to the laws of Congress, as Congress may only act in accordance with the Constitution. Just as the President must enforce a law of Congress (which is what you are claiming), so too must the President enforce the Constitution itself. He's taken an oath to do so. So, if a law of Congress offends the Constitution, not only CAN the President refuse to enforce it, he is CONSTITUTIONALLY REQUIRED to refuse to enforce it.

I'm going to stop there, pending you actually addressing the legal and constitutional provisions. Do you agree that the Constitution is among the "Laws" the President must faithfully enforce? Do you agree that the Constitution is superior to laws passed by Congress? Do you agree that the President must, therefore, go with the Constitution when there is a conflict between it and a congressional law?

[Coito ergo sum]

[

And, I haven't suggested that they aren't empowered to do so. The President, however, has the obligation to preserve, protect, and defend the constitution to the best of his ability, and if he sees a law that is unconstitutional he need not wait for the SCOTUS to decide to accept the case.

Where is this authority cited in the Constitution?

Just above. Please address it.

That would result in years of enforcement of an unconstitutional law, all to no avail and leaving no recourse for convicted and fined persons who were subjected to unconstitutional governmental action.

Unconstitutional laws are enforced all the time because until they are RULED unconstitutional by a court of competent jurisdiction, the law is presumed to be constitutional absent a proper legal challenge. Since the President CAN bring a case himself, which I've said before and you soundly ignore, the situation is not as dire as you suggest.[/quote]

CAN'T - the President CAN'T bring that case. You couldn't be more wrong. I mean - the suggestion is ridiculous. The President has never brought such a case, nor would he. Rather than bring a case, he just doesn't enforce unconstitutional laws.

[

Nobody is suggesting the executive has the judicial authority

You are.

I am not. I'm suggesting he has executive authority, which includes the authority - and responsibility - to enforce the Constitution of the United States, which is superior to the laws passed by Congress.

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- which in the US is to decide cases and controversies arising under the laws of the US.

The absolute power to deem a law unconstitutional by the President is a judicial act in all but name.

Negative. It is expressly stated as part of his power to enforce, and duty to protect, preserve and defend, the Constitution, as prescribed in Article II of the US Constitution.

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What is suggested is that the President use the best of his ability to preserve, protect and defend the constitution.

Yes, but he is required to do so within the systems created to resolve such issues, not on his own authority and without recourse by the People.

He has the authority and the responsibility to enforce the Constitution, which is superior to the laws passed by Congress. It's set forth in Article II and Article VI - I quoted the provisions.

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If Congress passes a law stating that no gay person could vote, the President need not wait for the SCOTUS to decide a case, if one ever arose. He could refuse to enforce it.

We disagree.[/quote]

Of course, I've cited AND QUOTED Constitutional provisions that provide a basis for my view. You haven't.

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If the system was as you say it is, the Constitution would provide for an advisory opinion, so the President could submit questions of constitutionality to the SCOTUS for immediate review. As it happens, that is not the way it is. There must be a ripe and justiciable case or controversy brought by a willing litigant who voluntarily and privately decides to fight the good fight. The President need not wait on such events to do his duty.

You need to distinguish between an "advisory opinion" and a "case." The President does not have authority to demand an advisory opinion from the SCOTUS, but he does have authority to file a case. You consistently ignore this simple fact that makes your entire argument specious. The system is set up to deal with the threat you fear, and there is a carefully constructed process that allows the President to get an authoritative ruling on such matters, but he is required to actually go through the process of filing a case and defending it in court.

Wrong - the President can't file such a case. Who is the President going to sue alleging that a law is unconstitutional? Since whoever he sues will no doubt agree with him, where is the controversy? In short - you're wrong, and you won't find any such suit ever filed.

[

The Executive Branch is tasked with the day-to-day operations of the federal government and its employees, and it is bound to "faithful enforcement" of the laws passed by the Legislative Branch.

No no no. You're missing it.

Here is what the Constitution ACTUALLY says - The President, "...will to the best of my Ability, preserve,
protect and defend the Constitution of the United States." And, "...he shall take Care that the Laws be faithfully executed." The Constitution is above the laws passed by the Legislative Branch, and is the SUPREME LAW OF THE LAND. Article VI.

Therefore, the President is charged with taking care that "the Laws," which includes the Constitution, be faithfully executed. If he enforces a law passed by Congress when it violates a provision of the Constitution, the president has failed to take Care that the laws be faithfully executed, and has not preserved, protected or defended the Constitution. He has not done his duty.

The problem is that a law passed by Congress is presumed NOT to violate the Constitution,

There is no Constitutional authority to support this supposition.

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because the Congress is presumed to know what it's doing, unless and until judicial review reveals that the law is NOT constitutional.

You just made that up.

[

Therefore, the President is not violating his oath of office by enforcing a presumptively constitutional law any more than your local cop is violating his oath by enforcing a presumptively constitutional state or federal law.

There is no such presumption in the Constitution. It's a "rule of construction" sometimes used by the SCOTUS - but there is no presumption of constitutionality used by the SCOTUS when statutes deal with civil liberties. Where the presumption of constitutionality exists, it is not a constitutional principle, it is a rule of construction that the courts have created within their purview. It's nothing more than that.

If he BELIEVES it to be unconstitutional, he need only challenge it in court and obtain a ruling, at which point he can cease enforcing it.

You keep saying that. He can't. Where in the world do you get this notion that the President can file suit whenever he wants, claiming a statute to be unconstitutional? Give me an example.

Constitutionality is PRESUMED for duly-enacted laws, and they may be enforced fully unless and until they are overturned by a court or they are repealed by Congress.

Again, the presumption of constitutionality is a judge-made rule of statutory construction. It's like the rule that presumes the legislature says what it means and means what it says in the statute. It's a rule of construction that courts create to aid them in deciding cases. Nothing more.

Hardly. My opinion is supported by the Constitution, history, and the statements of the Founders regarding the separation of powers.

Then why do you never quote the Constitution or any other authority to support your opinion?

I did.

Didn't. Quote it, please.

I have cited and QUOTED from the Constitution.

And then promptly misinterpreted it.

Ridiculous. My interpretation is from the plain language of the Constitution - I use the meaning of the plain wording - quoted. You invent concepts and call them Constitutional, when the Constitution says nothing about what you're asserting.

You haven't.

Sure I have.

I have cited and QUOTED Founding Fathers - you haven't.

I guess I missed the quote from a Founding Father that says that a President can disregard whatever law it pleases him to disregard.

Who said "whatever law it pleases him to disregard?" He has a duty to enforce the Constitution, and if that means that he can't enforce a law of Congress, then that's what he must do. He cannot deny a person equal protection of the laws. He cannot enforce a law that abridge's freedom of the press. He must use the best of his ability to make those enforcement decisions - so says the Constitution.

I depend on what the Constitution actually says, which is that the President is obliged to see that the laws of the nation are "faithfully executed."

Yes! Now - think - "the Laws" - Article VI - that includes the Constitution. If the President enforces a Congressional law that violates the Constitution, then he is NOT SEEING THE CONSTITUTION FAITHFULLY EXECUTED.

The "Laws" that need to be faithfully executed includes the Constitution. So, no, you aren't depending on what the Constitution actually says, you are ignoring what it actually says in favor of your own interpretation, which is that the President must not faithfully execute the Constitution, but must instead faithfully execute an unconstitutional law passed by Congress. Strangely, in your world, for the President to do his duty, he must decline to faithfully execute the top law of the Land - the Constitution.

Refusing to enforce a law is not "faithfully executing" the law.

Refusing to enforce the Constitution is not "faithfully executing" the Laws. Article VI, Article II.

Since the Constitution is a higher law than a law passed by Congress, the President must prefer the Constitution. Yes?

[Seth]

Unconstitutional laws are enforced all the time because until they are RULED unconstitutional by a court of competent jurisdiction, the law is presumed to be constitutional absent a proper legal challenge. Since the President CAN bring a case himself, which I've said before and you soundly ignore, the situation is not as dire as you suggest.

CAN'T - the President CAN'T bring that case. You couldn't be more wrong. I mean - the suggestion is ridiculous. The President has never brought such a case, nor would he. Rather than bring a case, he just doesn't enforce unconstitutional laws.

What provision of law prevents the President from bringing a claim of unconstitutionality in federal court, particularly if the law (like the Tenure in Office Act) allegedly trenches upon his executive authority?

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Nobody is suggesting the executive has the judicial authority

You are.

I am not. I'm suggesting he has executive authority, which includes the authority - and responsibility - to enforce the Constitution of the United States, which is superior to the laws passed by Congress.

Problem is, he has no executive authority to make a determination as to the constitutionality of any law. That's the point. It's about due process. He doesn't have authority to self-determine which laws he will "faithfully enforce" and which he will not, he is required to defer to Congress unless and until he gets a court ruling of unconstitutionality. THEN he can refuse to enforce the law.

In 1998, the Court rejected the Line Item Veto bill, stating that it was an unconstitutional exercise of legislative power by the President, nothwithstanding that Congress had made the law.

The line item veto power was exercised after the Congress had passed a budget, submitted to the President, and the bill had been signed and returned to the Congress by the President. Within five days of signing the budget, the President was given authority to veto line items.

The Court overturned the law, firmly stating that the Presidents only legislative authority is the veto power, which takes place BEFORE the bill becomes law if re-passed by Congress over his veto.

The same reasoning applies here. If the President has the authority to effectively "amend" a law duly passed by Congress by refusing to enforce part or all of it, he is exercising ex post facto legislative veto authority functionally identical to the line item veto, but without even the sanction of the Congress, which was ruled to be unconstitutional in any event as an improper delegation of power.

There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.
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There are important differences between the President's "return" of a bill pursuant to Article I, Section 7, and the exercise of the President's cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.

There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, procedure." Chadha, 462 U.S., at 951 . Our first President understood the text of the Presentment Clause as requiring that he either "approve all the parts of a Bill, or reject it in toto."

Source: Clinton v. New York, No. 97-1374

The President only gets one shot at preventing a law from being enacted and therefore enforceable: his veto prior to the Bill becoming law. He doesn't get a second chance to second-guess Congress on his own authority, he must, as the Court points out in Marbury, and Hamilton points out in Federalist No. 78, resort to the appointed judicial process. Until then, he must comply with the mandate in Article II, Section 3 that requires him to see that the laws are faithfully enforced.

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- which in the US is to decide cases and controversies arising under the laws of the US.

The absolute power to deem a law unconstitutional by the President is a judicial act in all but name.

Negative. It is expressly stated as part of his power to enforce, and duty to protect, preserve and defend, the Constitution, as prescribed in Article II of the US Constitution.

No, it's not. If he had such power, he could declare a provision of the Constitution "unconstitutional" and in conflict with his oath.

Thing is, an oath of office is NOT A GRANT OF POWER. Only the Constitution itself grants power to any federal official. An oath of office is an affirmation to the People that the President will faithfully perform the duties and exercise the powers granted to him by the Constitution. His duty under the Constitution is to "faithfully enforce" both the Constitution and the laws created by Congress, which are presumed to be constitutional because it is Congress' duty to write constitutional laws. He's required to "faithfully enforce" the laws regardless of his personal opinion about them, and if he cannot do so out of conscience or belief that a law is unconstitutional, his duty is to seek a ruling from the court, or resign his office as President if he is not able to perform his office faithfully.

Again, the oath is not a grant of power, it's a promise to perform. The grant of power is found in Article II, section 3 and the other sections that expressly grant him limited legislative and judicial powers. The duty to enforce is both a power and a mandate that is not discretionary.

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What is suggested is that the President use the best of his ability to preserve, protect and defend the constitution.

Yes, but he is required to do so within the systems created to resolve such issues, not on his own authority and without recourse by the People.

He has the authority and the responsibility to enforce the Constitution, which is superior to the laws passed by Congress. It's set forth in Article II and Article VI - I quoted the provisions.

Yes, ENFORCE, not ADJUDICATE. The issue before us is NON-enforcement, which is is not permitted to do on his own initiative.

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If the system was as you say it is, the Constitution would provide for an advisory opinion, so the President could submit questions of constitutionality to the SCOTUS for immediate review. As it happens, that is not the way it is. There must be a ripe and justiciable case or controversy brought by a willing litigant who voluntarily and privately decides to fight the good fight. The President need not wait on such events to do his duty.

You need to distinguish between an "advisory opinion" and a "case." The President does not have authority to demand an advisory opinion from the SCOTUS, but he does have authority to file a case. You consistently ignore this simple fact that makes your entire argument specious. The system is set up to deal with the threat you fear, and there is a carefully constructed process that allows the President to get an authoritative ruling on such matters, but he is required to actually go through the process of filing a case and defending it in court.

Wrong - the President can't file such a case. Who is the President going to sue alleging that a law is unconstitutional? Since whoever he sues will no doubt agree with him, where is the controversy? In short - you're wrong, and you won't find any such suit ever filed.

One does not have to sue an individual in order to ask the court for a declaratory judgment as to the meaning and constitutionality of a law, one only has to be negatively affected by the law. You have stated the controversy. If the President feels that enforcing a law would cause him to violate his oath of office, he has standing to demand adjudication of the issue.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.

"In all other cases," he says,

it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.

And afterwards, page 109 of the same volume, he says,

I am next to consider such injuries as are cognizable by the Courts of common law. And herein I shall for the present only remark that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice, for it is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress.

The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. Source: Marbury v. Madison

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The Executive Branch is tasked with the day-to-day operations of the federal government and its employees, and it is bound to "faithful enforcement" of the laws passed by the Legislative Branch.

No no no. You're missing it.

Here is what the Constitution ACTUALLY says - The President, "...will to the best of my Ability, preserve,
protect and defend the Constitution of the United States." And, "...he shall take Care that the Laws be faithfully executed." The Constitution is above the laws passed by the Legislative Branch, and is the SUPREME LAW OF THE LAND. Article VI.

Therefore, the President is charged with taking care that "the Laws," which includes the Constitution, be faithfully executed. If he enforces a law passed by Congress when it violates a provision of the Constitution, the president has failed to take Care that the laws be faithfully executed, and has not preserved, protected or defended the Constitution. He has not done his duty.

The problem is that a law passed by Congress is presumed NOT to violate the Constitution,

There is no Constitutional authority to support this supposition.

There are reams of judicial precedent and Founder's intent to the contrary at every level of government.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.Alexander Hamilton, Federalist No. 78

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because the Congress is presumed to know what it's doing, unless and until judicial review reveals that the law is NOT constitutional.

You just made that up.

Hardly. It's a fundamental canon of legislative interpretation and a fact of law expressed by the Supreme Court and every inferior court since the foundation of the Nation and indeed clear back into English law.

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Therefore, the President is not violating his oath of office by enforcing a presumptively constitutional law any more than your local cop is violating his oath by enforcing a presumptively constitutional state or federal law.

There is no such presumption in the Constitution. It's a "rule of construction" sometimes used by the SCOTUS - but there is no presumption of constitutionality used by the SCOTUS when statutes deal with civil liberties. Where the presumption of constitutionality exists, it is not a constitutional principle, it is a rule of construction that the courts have created within their purview. It's nothing more than that.

And since the courts have the exclusive power of determining constitutionality, as Hamilton outlines above in the Federalist No. 78 and the Court explains in Marbury v. Madison, it's the system by which every law in the US is enforced.

The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States.

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It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

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Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

Marbury v. Madison

If he BELIEVES it to be unconstitutional, he need only challenge it in court and obtain a ruling, at which point he can cease enforcing it.

You keep saying that. He can't. Where in the world do you get this notion that the President can file suit whenever he wants, claiming a statute to be unconstitutional? Give me an example.

Show me where he is forbidden to do so.

Constitutionality is PRESUMED for duly-enacted laws, and they may be enforced fully unless and until they are overturned by a court or they are repealed by Congress.

Again, the presumption of constitutionality is a judge-made rule of statutory construction.

So? It's been so upheld by the Supreme Court and is therefore a fundamental tenet of American jurisprudence.

It's like the rule that presumes the legislature says what it means and means what it says in the statute. It's a rule of construction that courts create to aid them in deciding cases. Nothing more.

It doesn't need to be anything more. A duly enacted law is enforceable until overturned. Since the President has a duty under Article II, Section 3 to "faithfully enforce" the law, he is obligated to enforce the law until it is overturned. As I've cited, he has no legislative powers beyond the veto, and no judicial powers beyond the pardon, so he has no authority to make what is fundamentally a judicial decision regarding the constitutionality of a law duly enacted by the Congress.

I have cited and QUOTED from the Constitution.

And then promptly misinterpreted it. [/quote]

Ridiculous. My interpretation is from the plain language of the Constitution - I use the meaning of the plain wording - quoted. You invent concepts and call them Constitutional, when the Constitution says nothing about what you're asserting.

Sorry, but trying to set the President up as a Supreme Supreme Court who can determine constitutionality is nowhere found in the "plain language" of the Constitution.

You haven't.

Sure I have.

I have cited and QUOTED Founding Fathers - you haven't.

I guess I missed the quote from a Founding Father that says that a President can disregard whatever law it pleases him to disregard.

Who said "whatever law it pleases him to disregard?" He has a duty to enforce the Constitution, and if that means that he can't enforce a law of Congress, then that's what he must do. He cannot deny a person equal protection of the laws. He cannot enforce a law that abridge's freedom of the press. He must use the best of his ability to make those enforcement decisions - so says the Constitution.

And the Constitution also says that Congress makes law, the Supreme Court adjudicates law, and the President enforces law. Nowhere does it say that the President makes or adjudicates law. If he disagrees with a law, he must, like everyone else, resort to the judicial system for a determination of the law's constitutionality.

I depend on what the Constitution actually says, which is that the President is obliged to see that the laws of the nation are "faithfully executed."

Yes! Now - think - "the Laws" - Article VI - that includes the Constitution. If the President enforces a Congressional law that violates the Constitution, then he is NOT SEEING THE CONSTITUTION FAITHFULLY EXECUTED.

True, but he doesn't get to decide which laws violate the Constitution and which don't, that's the province of the courts.

The "Laws" that need to be faithfully executed includes the Constitution. So, no, you aren't depending on what the Constitution actually says, you are ignoring what it actually says in favor of your own interpretation, which is that the President must not faithfully execute the Constitution, but must instead faithfully execute an unconstitutional law passed by Congress. Strangely, in your world, for the President to do his duty, he must decline to faithfully execute the top law of the Land - the Constitution.

Not at all. This dispute is entirely about who gets to determine whether a law is "unconstitutional," when, and how.

That duty is vested exclusively in the Judicial Branch, not the Executive Branch. The President may do one thing, and one thing only if he feels that a law of Congress has been unconstitutionally executed against a citizen, any citizen: he can issue a pardon. He may not obstruct justice or interfere with the judicial process.

He can seek adjudication if he believes the law trenches on his executive authority, or if he believes that he is aggrieved by the law, just like any other citizen can. Causing him to violate his oath of office by enforcing a purportedly unconstitutional law gives him standing to bring the question before the courts.

Refusing to enforce a law is not "faithfully executing" the law.

Refusing to enforce the Constitution is not "faithfully executing" the Laws. Article VI, Article II.

Since the Constitution is a higher law than a law passed by Congress, the President must prefer the Constitution. Yes?

Indeed, but he doesn't get to decide what the Constitution means, only the courts can do that.

[JimC]

Seth vs CES...

It's like the Hulk vs the Thing!

[Hermit]

Seth vs CES...

It's like the Hulk vs the Thing!

Or the right wing of libertarianism versus its left wing. Who says factionalism is limited to the political left?

I'm learning a bit about the American political structure and the convoluted trains of thought the loony far right (keep your shirt on, Coito ergo sum, I said loony far right) travel along on to come to their peculiar interpretations of it, and appreciate the discussion.

[Coito ergo sum]

Unconstitutional laws are enforced all the time because until they are RULED unconstitutional by a court of competent jurisdiction, the law is presumed to be constitutional absent a proper legal challenge. Since the President CAN bring a case himself, which I've said before and you soundly ignore, the situation is not as dire as you suggest.

CAN'T - the President CAN'T bring that case. You couldn't be more wrong. I mean - the suggestion is ridiculous. The President has never brought such a case, nor would he. Rather than bring a case, he just doesn't enforce unconstitutional laws.

What provision of law prevents the President from bringing a claim of unconstitutionality in federal court, particularly if the law (like the Tenure in Office Act) allegedly trenches upon his executive authority?

The Case and Controversy provision of article III. You need litigants on both sides of a case to have a controversy. To have a case, the executive must either indict someone, or sue someone, or the government must be sued by a person or entity. The President can't bring a case "In re: Constitutionality of Statute X. It doesn't qualify as a Case/Controversy.

Find me one case that is like what you say that President may bring as a matter of course.

[

Nobody is suggesting the executive has the judicial authority

You are.

I am not. I'm suggesting he has executive authority, which includes the authority - and responsibility - to enforce the Constitution of the United States, which is superior to the laws passed by Congress.

Problem is, he has no executive authority to make a determination as to the constitutionality of any law. That's the point. It's about due process. He doesn't have authority to self-determine which laws he will "faithfully enforce" and which he will not, he is required to defer to Congress unless and until he gets a court ruling of unconstitutionality. THEN he can refuse to enforce the law.

I cited you the provisions that give him that authority. He has the authority to enforce "The Laws" - which always requires him to determine what the Laws are. The Laws are defined in the Constitution as -- The Constitution - and the laws passed by Congress and Treaties, etc. The Constitution is at the top. He is under oath to preserve, protect and defend the Constitution to the best of his ability, and to faithfully execute the Constitution. If he thinks that the Constitution mandates one thing, and a statute another, his duty lies with seeing the Constitution done.

Please quote your Constitutional authority for "...he is required to defer to Congress unless and until he gets a court ruling of unconstitutionality. THEN he can refuse to enforce the law." Please QUOTE your constitutional authority.

In 1998, the Court rejected the Line Item Veto bill, stating that it was an unconstitutional exercise of legislative power by the President, nothwithstanding that Congress had made the law.

Because that's a different issue entirely. The Line Item Veto is the power of the President to change laws, and participate in writing them (by deleting portions of them). It has nothing to do with him doing his duty to enforce the Constitution.

The line item veto power was exercised after the Congress had passed a budget, submitted to the President, and the bill had been signed and returned to the Congress by the President. Within five days of signing the budget, the President was given authority to veto line items.

The Court overturned the law, firmly stating that the Presidents only legislative authority is the veto power, which takes place BEFORE the bill becomes law if re-passed by Congress over his veto.

The same reasoning applies here. If the President has the authority to effectively "amend" a law duly passed by Congress by refusing to enforce part or all of it, he is exercising ex post facto legislative veto authority functionally identical to the line item veto, but without even the sanction of the Congress, which was ruled to be unconstitutional in any event as an improper delegation of power.

The same reasoning does not apply here. What we're talking about here is not the power of the President to cross out a budgetary line item. What we're talking about is the obligation of the President to faithfully execute the Constitution.

There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.

Very true. Also not what we're talking about. Nothing is repealed. The difference of opinion between Congress and the President has to be worked out Politically. It's what is called a "political question."

The President only gets one shot at preventing a law from being enacted and therefore enforceable: his veto prior to the Bill becoming law. He doesn't get a second chance to second-guess Congress on his own authority, he must, as the Court points out in Marbury, and Hamilton points out in Federalist No. 78, resort to the appointed judicial process. Until then, he must comply with the mandate in Article II, Section 3 that requires him to see that the laws are faithfully enforced.

The Constitution is the highest "Law" that he must faithfully enforce. Article VI of the Constitution spells that out. He must not violate the Constitution, and if he enforces an unconstitutional law, he violates the Constitution and he violates his Oath of Office.

[

- which in the US is to decide cases and controversies arising under the laws of the US.

The absolute power to deem a law unconstitutional by the President is a judicial act in all but name.

Negative. It is expressly stated as part of his power to enforce, and duty to protect, preserve and defend, the Constitution, as prescribed in Article II of the US Constitution.

No, it's not. If he had such power, he could declare a provision of the Constitution "unconstitutional" and in conflict with his oath.

Yes, it is - it says so right in the provisions I have quoted. He must faithfully execute "the Laws" and you have even said that yourself. Our difference appears to be that you don't think the Constitution is one of "the Laws" he needs to faithfully enforce. You think that faithfully enforcing the the laws of Congress, even if they violate the Constitution, is the same as faithfully enforcing "the Laws" in Article VI. That is, in plain English, not what Article VI says. Article VI says that the Constitution is the highest "Law" (it is listed first among "the Laws").

He could breach his duty as President, and stop faithfully enforcing Constitutional laws, but then he'd be breaking his oath and would be subject to impeachment.

Thing is, an oath of office is NOT A GRANT OF POWER. Only the Constitution itself grants power to any federal official.

The oath of office is in the "Constitution itself." Have you read it? It's in Article II of the "Constitution itself." It is the imposition of an obligation on the President. He must "protect, preserve, and defend the Constitution to the best of his ability."

An oath of office is an affirmation to the People that the President will faithfully perform the duties and exercise the powers granted to him by the Constitution. His duty under the Constitution is to "faithfully enforce" both the Constitution and the laws created by Congress, which are presumed to be constitutional because it is Congress' duty to write constitutional laws. He's required to "faithfully enforce" the laws regardless of his personal opinion about them, and if he cannot do so out of conscience or belief that a law is unconstitutional, his duty is to seek a ruling from the court, or resign his office as President if he is not able to perform his office faithfully.

I love how you tell me that the oath is irrelevant because only the "Constitution itself" matters - all the while the oath IS PART OF THE CONSTITUTION. Then you go on to make statements that are simply made up - with no constitutional basis at all - like "if he cannot do so out of conscience or belief that a law is unconstitutional, his duty is to seek a ruling from the court." No such ruling is possible! He can't bring such a case. You impose upon him an obligation that he cannot meet, and is not set forth anywhere in the Constitution. And, then you suggest that he must resign from office if he is not able to perform his office faithfully. Sure - but enforcing a law he knows to be unconstitutional is not faithfully executing his office.

You admit that the Constitution is among the "Laws" that he must faithfully enforce. You admit that the Constitution is the top law. Yet you conclude that the President must ignore the Constitution and enforce an unconstitutional law on the if-come a case might reach the Supreme Court for a ruling - 4, 5, 10, 20 years down the road? That's your argument. You try to get out of it by suggest - wrongly - that the President may file a Complaint in the Supreme Court or a federal court asking for a ruling on the Constitutionality of law. He can't. And, he never has - you won't find one single case like that. So stop suggesting that it's a possibility.

Again, the oath is not a grant of power, it's a promise to perform.

It's a promise to perform THE OATH. Dude - he promises to protect preserve and defend the Constitution of the United States. Enforcing an unconstitutional law is not doing that. Also - in addition - we have his obligation to faithfully execute "the Laws" of the US. The highest law is the Constitution. If Congress passed a law under President Smith, and Smith didn't veto it, stating that African Americans may no longer be issued passports unless they passed a written intelligence test, and the next President - Jones - took office - it would be Jones' Constitutional duty to issue those passports without the unconstitutional intelligence test. He would declare that he must faithfully execute the laws of the US and that a law requiring only one race to take such a test to get a passport violates the Equal Protection clause, and that's that. He need not wait years for the Supree Court to hear it.

And, note - the Supreme Court conceivably might never hear it. What if there were a bunch of racists on the SCOTUS who refused to accept certiorari on the case, and the SCOTUS never heard it, and never issued a ruling - there might well be different opinions in the federal courts as to the law's constitutionality, or there could conceivably be no opinion at all. And, in your world, there there President would be - sitting there with an unconstitutional law, that he must enforce even though it is unconstitutional, and that's what you call "faithfully executing" the Constitution.

The grant of power is found in Article II, section 3 and the other sections that expressly grant him limited legislative and judicial powers. The duty to enforce is both a power and a mandate that is not discretionary.

The duty to faithfully execute the Constitution is likewise a power and a mandate that is not discretionary. The Constitution is superior to a statute. Right? If there is a conflict, he must prefer the Constitution, doesn't he?

[

What is suggested is that the President use the best of his ability to preserve, protect and defend the constitution.

Yes, but he is required to do so within the systems created to resolve such issues, not on his own authority and without recourse by the People.

He has the authority and the responsibility to enforce the Constitution, which is superior to the laws passed by Congress. It's set forth in Article II and Article VI - I quoted the provisions.

Yes, ENFORCE, not ADJUDICATE. [/quote]

He hasn't adjudicated anything. Determining what to do in the case of a conflict between two laws is what the Executive has to do all the time. Sometimes two statutes conflict - the President can read and make a decision as to what is his proper course of action to enforce the law. In the case of a conflict between the Constitution and a law that is in conflict with it, the duty lies in seeing that the Constitution is followed.

The issue before us is NON-enforcement, which is is not permitted to do on his own initiative.

The issue before us is faithful execution of "the Laws." The top law is the Constitution. He cannot leave the Constitution unexecuted, preferring to enforce an unconstitutional law.

[

If the system was as you say it is, the Constitution would provide for an advisory opinion, so the President could submit questions of constitutionality to the SCOTUS for immediate review. As it happens, that is not the way it is. There must be a ripe and justiciable case or controversy brought by a willing litigant who voluntarily and privately decides to fight the good fight. The President need not wait on such events to do his duty.

You need to distinguish between an "advisory opinion" and a "case." The President does not have authority to demand an advisory opinion from the SCOTUS, but he does have authority to file a case. You consistently ignore this simple fact that makes your entire argument specious. The system is set up to deal with the threat you fear, and there is a carefully constructed process that allows the President to get an authoritative ruling on such matters, but he is required to actually go through the process of filing a case and defending it in court.

Wrong - the President can't file such a case. Who is the President going to sue alleging that a law is unconstitutional? Since whoever he sues will no doubt agree with him, where is the controversy? In short - you're wrong, and you won't find any such suit ever filed.

One does not have to sue an individual in order to ask the court for a declaratory judgment as to the meaning and constitutionality of a law,

Yes, Seth. One does. Absolutely. Positively. The Supreme Court has never decided a case filed by the Government against nobody for a declaratory judgment as to the meaning and constitutionality of a law. A case or controversy requires the presence of adverse parties who have some interest genuinely at stake in the case. In Muskrat v. United States, 219 U.S. 346 (1911). A case or controversy is an actual dispute between parties over their legal rights that remain in conflict at the time the case is presented and must be a proper matter for judicial determination.

I'll ask you again - cite ONE SCOTUS opinion since the signing of the Constitution that opines on a suit brought by the President alleging that a statute is unconstitutional. One.

one only has to be negatively affected by the law. You have stated the controversy. If the President feels that enforcing a law would cause him to violate his oath of office, he has standing to demand adjudication of the issue.

He does not. I mean - really, Seth. You are so wrong it's breathtaking. First of all - Standing is only one part of the case or controversy clause. Even if the President had standing because he claimed to be suffering an injury in fact as a result of the law - even if he had standing, he would still need to sue someone else or indict someone so there is another party to the lawsuit.

[

The Executive Branch is tasked with the day-to-day operations of the federal government and its employees, and it is bound to "faithful enforcement" of the laws passed by the Legislative Branch.

No no no. You're missing it.

Here is what the Constitution ACTUALLY says - The President, "...will to the best of my Ability, preserve,
protect and defend the Constitution of the United States." And, "...he shall take Care that the Laws be faithfully executed." The Constitution is above the laws passed by the Legislative Branch, and is the SUPREME LAW OF THE LAND. Article VI.

Therefore, the President is charged with taking care that "the Laws," which includes the Constitution, be faithfully executed. If he enforces a law passed by Congress when it violates a provision of the Constitution, the president has failed to take Care that the laws be faithfully executed, and has not preserved, protected or defended the Constitution. He has not done his duty.

The problem is that a law passed by Congress is presumed NOT to violate the Constitution,

There is no Constitutional authority to support this supposition.

There are reams of judicial precedent and Founder's intent to the contrary at every level of government. [/quote]

Bullshit. It's a rule of construction that courts use in interpreting a statute, and not all statutes are presumed to be constitutional. I already pointed that out.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.Alexander Hamilton, Federalist No. 78

All well and good - but has nothing to do with the issue at hand. The courts have the power to declare laws unconstitutional - that was ruled in Marbury v Madison as "implied" in the Constitution. We don't disagree on that. Just because the Court can declare a law unconstitutional does not mean that the President may not faithfully execute the Constitution in preference to an unconstitutional law.

Now, if you want to cut and paste something that relates to the President's powers and obligations - well, that might be helpful. You don't, of course, because you're wrong, and you can't find anything on point.

[

because the Congress is presumed to know what it's doing, unless and until judicial review reveals that the law is NOT constitutional.

You just made that up.

Hardly. It's a fundamental canon of legislative interpretation and a fact of law expressed by the Supreme Court and every inferior court since the foundation of the Nation and indeed clear back into English law.

Cite your authority. You're overstating it.

It's not in the Constitution, and you said earlier that these powers must come from the Constitution. You dismiss the President's Oath of Office - which is actually found in the Constitution - but then you rely as the foundation for your Constitutional argument on your flawed interpretation of what you call a "fundamental canon of legislative interpretation." So, now we have to base our constitutional law on "fundamental canons of legislative interpretation?"

[

Therefore, the President is not violating his oath of office by enforcing a presumptively constitutional law any more than your local cop is violating his oath by enforcing a presumptively constitutional state or federal law.

There is no such presumption in the Constitution. It's a "rule of construction" sometimes used by the SCOTUS - but there is no presumption of constitutionality used by the SCOTUS when statutes deal with civil liberties. Where the presumption of constitutionality exists, it is not a constitutional principle, it is a rule of construction that the courts have created within their purview. It's nothing more than that.

And since the courts have the exclusive power of determining constitutionality, as Hamilton outlines above in the Federalist No. 78 and the Court explains in Marbury v. Madison, it's the system by which every law in the US is enforced.

He did not say "exclusive." He did not say that the President did not have the power to faithfully execute the Constitution and ensure that the Constitution is followed over and above unconstitutional laws. You made that up.

The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case, because the right claimed is given by a law of the United States.
...

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

...

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

Marbury v. Madison

And, all that says is that the courts have the power to declare statutes unconstitutional. It does not say that the President does not have the authority to faithfully execute the Constitution by refraining from enforcing an unconstitutional law.

Look - even you and me - the average everyday citizen - are technically able to place the Constitution above statutes. If a statute is unconstitutional, we need not abide by it. If the cops arrest us for doing what we are constitutionally entitled to do, not only can we be vindicated in the criminal trial by having the court determine that we are not guilty and the law is unconstitutional - we can also sue the arresting officers and the police department and any other government agencies and actors who violated our rights. If a cop violates the Fourth Amendment in a search and seizure and we are injured as a result, we can sue the cop and the police department for money damages -- because the obligation of the cop is to abide by the Constitution. Even if the cop was told by his boss to conduct the illegal search and seizure - even if the cop was empowered by statute or local ordinance to do the illegal search and seizure - the Constitution is paramount. The paramount duty of the cop is to not violate the Constitution. The President is top federal cop -- his paramount duty is to see that the Constitution is faithfully executed, and he cannot break it even if instructed to do so by Congress.

If he BELIEVES it to be unconstitutional, he need only challenge it in court and obtain a ruling, at which point he can cease enforcing it.

You keep saying that. He can't. Where in the world do you get this notion that the President can file suit whenever he wants, claiming a statute to be unconstitutional? Give me an example.

Show me where he is forbidden to do so.

I've shown you. The Case or Controversy clause. Your type of case, where the President files "motion for declaratory judgment" on the constitutionality of a law is a request for an advisory opinion, unless he is suing someone or some entity and both parties have an interest in the litigation. Moreover, the idea is nonsensical because cases are not started on motions - they're started via complaints, and a complaint must be filed and served on a defendant. If there is no defendant, there is no case.

Show me where any President ever has brought a case such as the one you describe. Really, Seth. This is getting ridiculous. I'm telling you - seriously - this is not for some kind argumentation strategy - this is just absolute fact - there never has been one. Why do you think there never has been one, Seth? Because the President has never been in that situation before? Or, because he can't do it?

Constitutionality is PRESUMED for duly-enacted laws, and they may be enforced fully unless and until they are overturned by a court or they are repealed by Congress.

Again, the presumption of constitutionality is a judge-made rule of statutory construction.

So? It's been so upheld by the Supreme Court and is therefore a fundamental tenet of American jurisprudence.

It's not a constitutional principle, nor does it trump provisions of the Constitution, nor does it limit the president's power to faithfully execute the Constitution. The Constitution is above the statutes passed by Congress, and that too is a "canon of legislative intepretation."

Moreover, not all laws are presumed constitutional. I've already shown that to you. So, you're again - wrong.

It's like the rule that presumes the legislature says what it means and means what it says in the statute. It's a rule of construction that courts create to aid them in deciding cases. Nothing more.

It doesn't need to be anything more.

Yes it does - because all it is is a guide TO THE COURTS in deciding cases before them. It is not a limit on Presidential power to faithfully execute the Constitution - all the provisions of the Constitution - and to place the Constitution above the laws of Congress.

A duly enacted law is enforceable until overturned. Since the President has a duty under Article II, Section 3 to "faithfully enforce" the law, he is obligated to enforce the law until it is overturned.

That same provision, Seth, states that the President has a duty under Article II, Sec. 3 to "faithfully enforce" the fucking Constitution. He is obligated to enforce the Constitution until it is amended.

As I've cited, he has no legislative powers beyond the veto,

I've not suggested he has legislative powers. The veto is not a legislative power. It's an executive power. I've suggested what Article II, Sec. 3 states - that he has the duty to faithfully enforce the Constitution, above the statutes of Congress, and he is obligated to enforce the Constitution. You seem to want to exercise a "line item veto" over that little bit of the Constitution. You just ignore it, and state that the President doesn't have the duty to faithfully execute the Constitution - he only has the duty to faithfully execute laws passed by Congress.

and no judicial powers beyond the pardon,

The pardon is not a judicial power. But, I've also not suggested that he has any judicial powers. In the US judicial power of the SCOTUS and inferior federal courts created by Congress is limited to Cases and Controversies. What we're talking about is not a Case or Controversy. We're talking about the President doing his duty to the best of his ability to faithfully execute the Constitution as paramount law in the US. He is not deciding a case or controversy.

so he has no authority to make what is fundamentally a judicial decision regarding the constitutionality of a law duly enacted by the Congress.

He's not making a judicial decision. He's making an executive decision regarding how to faithfully execute the Constittution.

I have cited and QUOTED from the Constitution.

And then promptly misinterpreted it.

Ridiculous. My interpretation is from the plain language of the Constitution - I use the meaning of the plain wording - quoted. You invent concepts and call them Constitutional, when the Constitution says nothing about what you're asserting.

Sorry, but trying to set the President up as a Supreme Supreme Court who can determine constitutionality is nowhere found in the "plain language" of the Constitution. [/quote]

Yes - Article 2 and Article VI - the plain language gives the President the power to prefer to execute the Constitution over a conflicting federal law, which is inferior to the Constitution. I haven't set the President up as a Supreme Court.

Your argument is made up.

You haven't.

Sure I have.

I have cited and QUOTED Founding Fathers - you haven't.

I guess I missed the quote from a Founding Father that says that a President can disregard whatever law it pleases him to disregard.

Who said "whatever law it pleases him to disregard?" He has a duty to enforce the Constitution, and if that means that he can't enforce a law of Congress, then that's what he must do. He cannot deny a person equal protection of the laws. He cannot enforce a law that abridge's freedom of the press. He must use the best of his ability to make those enforcement decisions - so says the Constitution.

And the Constitution also says that Congress makes law,

And, they do. But, the President has to faithfully execute the Constitution, and if that conflicts with a Congressional law then the Constitution wins. Source: Article VI of the Constitution and Article 2, delineating the President's power and duties.

the Supreme Court adjudicates law,[/quote]

Nope - the constitution says the SCOTUS has judicial power to decide cases and controversies. They don't simply "adjudicate laws." They will never adjudicate a law unless and until there is a justiciable case and controversy.

and the President enforces law. Nowhere does it say that the President makes or adjudicates law. If he disagrees with a law, he must, like everyone else, resort to the judicial system for a determination of the law's constitutionality.

False - because he has no vehicle to resort to. He can indict people for violating the law and try to prosecute them - but then, he's not claiming the law to be invalid, that would be up to the defendant. If the government included in its indictment the allegation that a statute is unconstitutional, the defendant would stipulate and the case would be dismissed. What are you suggesting - that the President would appeal the dismissal of the charges claiming that the federal court of appeals needs to review a matter on which both the government and the defendant agreed?

What you're bitching about on this issue is the President making a decision to "not defend" DOMA in court. But, at the same time you want to give the President the power to not just "not defend" it. You want to say the President can affirmative advocate AGAINST it! Really? You think Obama doesn't have the power to "not defend" it, but he does have the power to sue to overturn it? So, in your world - the process works like this:

Congress passes DOMA under Bush, and Obama is bound to enforce it.
If Obama publishes his administration's statement that DOMA is unconstitutional and they will no longer expend resources defending it in court, then he is violating his oath of office. He must, in your world, faithfully execute DOMA and ignore the Equal Protection Clause and the Full Faith and Credit Clause of the Constitution.
Why must he do this, in your world? He must do it in your opinion, because he is not the legislature and he must enforce the law of Congress until the SCOTUS voluntarily decides to accept cert on a case involving DOMA, if it ever does so. If it never does so, then the Prez has to keep defending the law.
At the same time, though, you think the President can bring a lawsuit against nobody and file a motion for declaratory judgment against nobody, alleging that DOMA is unconstitutional.

I mean - the very idea is ridiculous.

I depend on what the Constitution actually says, which is that the President is obliged to see that the laws of the nation are "faithfully executed."

Yes! Now - think - "the Laws" - Article VI - that includes the Constitution. If the President enforces a Congressional law that violates the Constitution, then he is NOT SEEING THE CONSTITUTION FAITHFULLY EXECUTED.

True, but he doesn't get to decide which laws violate the Constitution and which don't, that's the province of the courts.

That's where you are wrong. He can make that determination. It may result in the SCOTUS announcing the opposite opinion. Then we have a constitutional crisis.

But, if it is "true" as you said that the President is not seeing the Constitution faithfully executed, then he is violating his oath of office and subject to impeachment. That would allow Congress to impeach him.

The "Laws" that need to be faithfully executed includes the Constitution. So, no, you aren't depending on what the Constitution actually says, you are ignoring what it actually says in favor of your own interpretation, which is that the President must not faithfully execute the Constitution, but must instead faithfully execute an unconstitutional law passed by Congress. Strangely, in your world, for the President to do his duty, he must decline to faithfully execute the top law of the Land - the Constitution.

Not at all. This dispute is entirely about who gets to determine whether a law is "unconstitutional," when, and how.

That duty is vested exclusively in the Judicial Branch, not the Executive Branch. The President may do one thing, and one thing only if he feels that a law of Congress has been unconstitutionally executed against a citizen, any citizen: he can issue a pardon. He may not obstruct justice or interfere with the judicial process.

He can seek adjudication if he believes the law trenches on his executive authority, or if he believes that he is aggrieved by the law, just like any other citizen can. Causing him to violate his oath of office by enforcing a purportedly unconstitutional law gives him standing to bring the question before the courts.

He can't. Please - cite one example where the president has sought this declaratory judgment you seem to think occurs as a matter of course.

Refusing to enforce a law is not "faithfully executing" the law.

Refusing to enforce the Constitution is not "faithfully executing" the Laws. Article VI, Article II.

Since the Constitution is a higher law than a law passed by Congress, the President must prefer the Constitution. Yes?

Indeed, but he doesn't get to decide what the Constitution means, only the courts can do that.

Yes he does. Article I, Sec. 3. Nothing you have cited says the SCOTUS is the EXCLUSIVE determiner of what is and is not Constittuional. The Congress decides what is constitutional when it makes a law. The private citizen decides what is constitutional when he or she acts in contravention to an unconstitutional statute. The President decides how a law should be enforced, and must decide whether federal laws contravene his highest duty, seeing that the Constitution is faithfully executed. The courts, of course, may rule on cases and controversies and may decide things differently. They may decide that Congress was wrong in thinking that a law was constitutional. They may decide that the President was wrong in either executing or not executing a law. But, the SCOTUS doing that in cases and controversies does not strip the other branches of their power.

[Coito ergo sum]

Seth - before we go on, we need to get one thing settled.

The President can't file a motion for declaratory judgment in SCOTUS (or any lower federal court) against nobody seeking a determination that a statute is unconstitutional.

That's a fact.

Do you still maintain that he has that power? If so, please cite some examples or even one, where a President has done just that.

This is very important - because critical to your argument is the idea that the courts have exclusive power to decide on statutory constitutionality, and that if Obama questions DOMA he can simply file a motion to have a federal court decide that a statute is unconstitutional and the matter will be decided.

[Seth]

Seth - before we go on, we need to get one thing settled.

The President can't file a motion for declaratory judgment in SCOTUS (or any lower federal court) against nobody seeking a determination that a statute is unconstitutional.

That's a fact.

Do you still maintain that he has that power? If so, please cite some examples or even one, where a President has done just that.

This is very important - because critical to your argument is the idea that the courts have exclusive power to decide on statutory constitutionality, and that if Obama questions DOMA he can simply file a motion to have a federal court decide that a statute is unconstitutional and the matter will be decided.

The question presented is whether the President has standing to file a lawsuit in federal court alleging that a statute is unconstitutional. As you have so vigorously maintained, an unconstitutional statute either trenches upon the President's executive powers directly (as in the Tenure in Office Act) or the enforcement of the law required by Article II, Section 3 of the Constitution would require that the President violate his oath of office to "preserve, protect and defend the Constitution."

While the Supreme Court has been extremely careful not to unnecessarily inject itself into disputes between the branches of government over their respective powers without great need, there is ample precedent for the President suing Congress, or Congress suing the President that demonstrates that the concept is not unknown in federal jurisprudence.

All the President needs in order to have standing to sue the Congress is a particularized, personal injury.

"It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately [418 U.S. 166, 178] in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." Ex parte Levitt, 302 U.S., at 634

Further, when the harm is to the power of the office, a higher standard of justicability is required, but adjudication is not precluded.

To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added). For our purposes, the italicized words in this quotation from Allen are the key ones. We have consistently stressed that a plaintiff's complaint must establish that he has a "personal stake" in the alleged dispute, and that the alleged injury suffered is particularized as to him. See, e.g., Lujan, 504 U. S., at 560-561 and n. 1 (to have standing, the plaintiff must have suffered a "particularized" injury, which means that "the injury must affect the plaintiff in a personal and individual way"); Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-544 (1986) (school board member who "has no personal stake in the outcome of the litigation" has no standing); Simon, supra, at 39 ("The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement").

We have also stressed that the alleged injury must be legally and judicially cognizable. This requires, among other things, that the plaintiff have suffered "an invasion of a legally protected interest which is . . . concrete and particularized," Lujan, 504 U. S., at 560, and that the dispute is "traditionally thought to be capable of resolution through the judicial process," Flast v. Cohen, 392 U.S. 83, 97 (1968). See also Allen, 468 U. S., at 752 ("Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable?"). Raines v. Byrd, 521 U.S. 811 (1997)

As you have pointed out, a legislative requirement that the President violate his oath of office is an invasion of a legally-protected personal interest that is concrete and particularized. There is nothing more personal than one's oath of office, and in particular the President is whipsawed by his oath, which compels him to preserve, protect and defend the Constitution, but also by the mandates of Article II, Section 3, which compel him to see that the laws are faithfully executed.

Therefore, while the bar is deliberately set high for one branch of government to challenge the acts of another, it is neither unknown nor immune from adjudication. That such cases only rarely arise is not really relevant.

So, I believe it is pretty clear that the President has standing to sue Congress and seek an adjudication when Congress unconstitutionally trenches upon his duty and authority to both enforce the law and defend the Constitution.

[Warren Dew]

Let's say that Congress went hog-wild and passed a bill of attainder and ex post facto law stating that it shall henceforth be a felony for one Warren Dew to post on on http://www.Rationalia.com any expressions of political opinion, and that all previous posts are retroactively illegal. Is the Executive Branch - through the FBI - required to prosecute you for that? Or, could POTUS make the independent determination that this law is an unconstitutional and they will not pursue it?

The administration should enforce that law, providing an opportunity for the judiciary to rule it unconstitutional, thus establishing a precedent. If the president can't bring himself Otherwise Congress could continue passing such bills, and the administration - possibly even local administration officials - could pick and choose which people they wanted to detain.

The FBI should arrest you? And, then whether the judiciary addresses it depends wholly on whether you or your attorney are smart enough to raise the constitutional issue (some attorneys don't know a constitutional question if it jumps up and bites them on the ass, an old friend of mine once said)? And, whether you have the wherewithal to appeal your conviction?

Hey, don't complain when you ask a question and someone answers you. You asked about me, and I answered. I know about the constitutional issue and would raise it, so the case would never even go to a jury.

And if that didn't happen, well, miscarriages of justice occur all the time. You know those cop killers that "commit suicide" in jail? Let's just say they often get some friendly help from uniformed public servants in doing so. That violates equal protection, but hey, it happens.

If you aren't convicted, then a decision is never reached on the issue.

Sorry, you're mistaken. Decisions on writs of habeas corpus can be appealed by either side.

It's not "ignoring" the SCOTUS's power to interpret the law.

Yes, it is. Refusing to enforce a law denies the supreme court any opportunity to render an opinion on it.

If the president is in doubt about the the constitutionality of a law, he may request an advisory opinion from the supreme court.

No, he may not.

He certainly may, and presidents have done so. The supreme court can refuse to give one, of course, if they think it would depend on the facts of a particular case, which in fact they usually do, but that isn't a reason not to ask.

It's true the president cannot require an advisory opinion, but that's not what I was talking about.

It decides "cases and controversies." Article III, US Constitution.

And an advisory opinion would decide a controversy. Even if it didn't, nothing in the constitution prohibits the supreme court from doing other things as well.

It's true that the courts generally prefer to have cases before them. However, the supreme court has recently started deciding more controversies that don't technically constitute a "case" because they are moot.

[Coito ergo sum]

Seth - before we go on, we need to get one thing settled.

The President can't file a motion for declaratory judgment in SCOTUS (or any lower federal court) against nobody seeking a determination that a statute is unconstitutional.

That's a fact.

Do you still maintain that he has that power? If so, please cite some examples or even one, where a President has done just that.

This is very important - because critical to your argument is the idea that the courts have exclusive power to decide on statutory constitutionality, and that if Obama questions DOMA he can simply file a motion to have a federal court decide that a statute is unconstitutional and the matter will be decided.

The question presented is whether the President has standing to file a lawsuit in federal court alleging that a statute is unconstitutional.

Please cite some of the "ample precedent" for this, that you claimed existed. And, please cite one case in the last 230+ years in which the President brought such a suit. (I'll give you a hint - there is no such precedent, and there has never been such a case. No President has ever brought a case alleging a statute to be unconstitutional). In short. You are wrong.

As you have so vigorously maintained, an unconstitutional statute either trenches upon the President's executive powers directly (as in the Tenure in Office Act) or the enforcement of the law required by Article II, Section 3 of the Constitution would require that the President violate his oath of office to "preserve, protect and defend the Constitution."

Note - the case that found the Tenure of Office Act unconstitutional was Myers v. US. We never had a President Myers. Myers was a Postmaster who was removed from office by President Woodrow Wilson. Myers sued to keep his job.

While the Supreme Court has been extremely careful not to unnecessarily inject itself into disputes between the branches of government over their respective powers without great need, there is ample precedent for the President suing Congress,

Cite one case.

or Congress suing the President that demonstrates that the concept is not unknown in federal jurisprudence.

Again, no there is not "ample precedent" for Congress suing the President. But, let's not confuse the issue. The issue is whether the President can sue alleging a statute of Congress to be unconstitutional. You said there was "ample precedent" for that. Cite it. You can't. So you won't.

Note, Congress suing the President would, at a minimum, take an Act of Congress, like in 2006 when the Congress created a Bill that would let Congress sue President Bush. Sen. Specter created a bill in 2006 to try to give standing to Congress to sue the President over Presidential "signing statements." If Congress already had "ample precedent" to sue Bush in 2006, they didn't need the Specter bill.

All the President needs in order to have standing to sue the Congress is a particularized, personal injury.

Wrong. Just, wrong. There is no case anywhere ever - no legal authority anywhere ever - that states that the President suffers an injury when Congress passes a law that he thinks is unconstitutional. The gauntlet is thrown again: cite the "ample precedent" please.

"It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately [418 U.S. 166, 178] in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." Ex parte Levitt, 302 U.S., at 634

Has nothing to do with what we're talking about. Standing is a necessary requirement of any litigant, yes. But, the President can't sue Congress to determine a law unconstitutional.

If you're claiming that the Prez may argue affirmatively in a case over DOMA that DOMA is unconstitutional, then why in the world would it be a problem that he simply refrain from arguing the case at all. You think he can set his team of DoJ lawyers on the issue, making their best argument to overturn it, but in the same case, he can't lay there like a slug, taking a neutral position?

Further, when the harm is to the power of the office, a higher standard of justicability is required, but adjudication is not precluded.

Do you have a case on point? A constitutional provision? A statute? Any support whatsoever?

To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added). For our purposes, the italicized words in this quotation from Allen are the key ones. We have consistently stressed that a plaintiff's complaint must establish that he has a "personal stake" in the alleged dispute, and that the alleged injury suffered is particularized as to him. See, e.g., Lujan, 504 U. S., at 560-561 and n. 1 (to have standing, the plaintiff must have suffered a "particularized" injury, which means that "the injury must affect the plaintiff in a personal and individual way"); Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-544 (1986) (school board member who "has no personal stake in the outcome of the litigation" has no standing); Simon, supra, at 39 ("The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement").

Conspicuously absent is any citation of any authority relating to a suit by the President of the United States. This is just a general statement of the issue of standing in federal court for any litigant. The passage of Congress of a law that the President determines is unconstitutional has NEVER been held to be a particularlized injury to the President. No suit has been brought in 230 years.

As you have pointed out, a legislative requirement that the President violate his oath of office is an invasion of a legally-protected personal interest that is concrete and particularized.

You can't say "As you have pointed out..." and then make something up that I never pointed out. I never pointed that out. Ever. Never. Cite your legal authority for YOUR assertion. There is none. So you won't.

There is nothing more personal than one's oath of office, and in particular the President is whipsawed by his oath, which compels him to preserve, protect and defend the Constitution, but also by the mandates of Article II, Section 3, which compel him to see that the laws are faithfully executed.

There is no whipsaw. He simply enforces the provisions of the Cosntitution as if it was law, because it is law. Where there is a conflict between the Constitution and a law, he defers to the Constitution, not Congress. Even an individual citizen can defer to the Constitution. If a cop or a governor or the President tries to stop you from publishing a newsletter, you have a constitutional right to publish it, and if Congress passes a law that says you can't, then that law is unconstitutional. You are not LEGALLY required to follow that law. That's why criminal prosecutions seeking to enforce unconstitutional laws are dismissed and the defendant set free. The person had an right to disobey the law in favor of the Constitution.

Therefore, while the bar is deliberately set high for one branch of government to challenge the acts of another, it is neither unknown nor immune from adjudication. That such cases only rarely arise is not really relevant.

Let's discuss the rare cases. Cite the ones you're referring to. You know, the ones filed by the President wherein he moved for a declaratory judgment that a statute is unconstitutional. Right? The one you said was a readily available as a means to resolve the DOMA issue.

So, I believe it is pretty clear that the President has standing to sue Congress and seek an adjudication when Congress unconstitutionally trenches upon his duty and authority to both enforce the law and defend the Constitution.

He doesn't.
You didn't cite any authority that says he does.
Your citation above all related to the standing of a private litigant to sue in federal court, and had no reference to the President. There has never been such a suit filed, which ought to tell you how "clear" it is, given that it's never happened in the last 230 years.
Come on, Seth.

[Coito ergo sum]

Let's say that Congress went hog-wild and passed a bill of attainder and ex post facto law stating that it shall henceforth be a felony for one Warren Dew to post on on http://www.Rationalia.com any expressions of political opinion, and that all previous posts are retroactively illegal. Is the Executive Branch - through the FBI - required to prosecute you for that? Or, could POTUS make the independent determination that this law is an unconstitutional and they will not pursue it?

The administration should enforce that law, providing an opportunity for the judiciary to rule it unconstitutional, thus establishing a precedent. If the president can't bring himself Otherwise Congress could continue passing such bills, and the administration - possibly even local administration officials - could pick and choose which people they wanted to detain.

The FBI should arrest you? And, then whether the judiciary addresses it depends wholly on whether you or your attorney are smart enough to raise the constitutional issue (some attorneys don't know a constitutional question if it jumps up and bites them on the ass, an old friend of mine once said)? And, whether you have the wherewithal to appeal your conviction?

Hey, don't complain when you ask a question and someone answers you. You asked about me, and I answered. I know about the constitutional issue and would raise it, so the case would never even go to a jury.

I didn't complain. And, yes, you could raise the issue. But, that doesn't preclude the President, or the prosecutor, from concluding that a prosecution would be violative of the Constitution, and dismissing it themselves.

And if that didn't happen, well, miscarriages of justice occur all the time.

The legal duty of a prosecutor is to see that justice is done. Yes, miscarriages happen all the time. But, if the prosecutor KNOWS that a miscarriage of justice is about to happen, and doesn't act to stop it, then they violate their oat as an attorney, violate their oath of office if they are federal official, and if the miscarriage of justice is the enforcement of an unconstitutional law, then they breach the constitution.

You know those cop killers that "commit suicide" in jail? Let's just say they often get some friendly help from uniformed public servants in doing so. That violates equal protection, but hey, it happens.

It violates the laws against murder. It violates the Constitution in more ways than just "equal protection." And, of course, is a completely different issue than whether the President is justified in not defending DOMA or whether, as Seth erroneously claims, the President may sue in federal court (sue Congress?) and argue that the DOMA is unconstitutional. He is constitutionally justified in doing the former, and he has zero ability to do the latter.

If you aren't convicted, then a decision is never reached on the issue.

Sorry, you're mistaken. Decisions on writs of habeas corpus can be appealed by either side.

The losing side. The winning side can't appeal. A party can appeal only an adverse order, judgment or decision. If the ruling was in your favor, you can't appeal and say, "I really really want you to say again that I was right."

And, writs of habeas corpus are not issued in every case, and are not issued in the vast majority of cases. A writ of habeas corpus is a demand to a custodian/prison official that a person being detained be released. It can only be brought by a prisoner or someone on his behalf. So, again, it has nothing to do with this matter.

It's not "ignoring" the SCOTUS's power to interpret the law.

Yes, it is. Refusing to enforce a law denies the supreme court any opportunity to render an opinion on it.

The Court only decides cases and controversies. So, if there is no controversy, there is no judicial function to perform.

Further, the Supreme Court only hears cases after they have been decided by a District Court, appealed to a Circuit Court, and then appealed to the SCOTUS on writ of certiorari. The SCOTUS only hears the cases it wants to hear, and only accepts about 1% of the writs of cert filed with it.

The President has the Constitutional obligation to faithfully execute "the Laws" of the US. Article VI, Constitution. The Constitution itself is a "Law" of the US, and is above the laws passed by Congress. The President is charged, however, with faithfully executing the Constitution and the statutes passed by Congress, and to the extent that there is a Conflict, he must follow the superior Law (the Constitution). That doesn't have anything to do with the SCOTUS's power to decide cases and controversies, it is wholly within the express language of Article II and Article VI of the Constitution and in line with his Constitutionally prescribed oath of office to preserve, protect and defend the Constitution of the US.

Neither you, nor Seth has cited one shred of evidence or legal authority that even suggests that the President must wait for there to be a court action by the government against gays trying to marry, or by gays trying to marry against the government, that is successfully appealed from district court, to the circuit court of appeals, and then luckily granted cert by SCOTUS. If SCOTUS never decides it, then a Circuit Court of Appeals case is precedent only in that Circuit - and there are 11 Circuits. And, it costs $100,000 plus, minimum, to take a case from district court to the SCOTUS.

If the president is in doubt about the the constitutionality of a law, he may request an advisory opinion from the supreme court.

No, he may not.

He certainly may,

Not. The SCOTUS does not issue advisory opinions. It's constitutionally prohibited under Article III, and the SCOTUS has so ruled. John Jay refused to give Geo. Washington an advisory opinion for that very reason.

and presidents have done so.

Haven't. I have access on my computer to every Supreme Court opinion ever published. Please, by all means, cite the advisory opinion to which you refer, and I'll look it up and link to it.

The supreme court can refuse to give one, of course, if they think it would depend on the facts of a particular case, which in fact they usually do, but that isn't a reason not to ask.

The SCOTUS will never issue an advisory opinion because it is unconstitutional. Muskrat v United States 219 U.S. 346.

In Muskrat, the SCOTUS went so far as to say that Congress may not even expand judicial authority by providing that the Court may issue advisory opinions. Advisory opinions are unconstitutional.

That might be why there never was one...

It's true the president cannot require an advisory opinion, but that's not what I was talking about.

The SCOTUS may not grant one. That's why it never has in the last 230 years issued an advisory opinion to the President on the constitutionality of a law.

It decides "cases and controversies." Article III, US Constitution.

And an advisory opinion would decide a controversy.

If there is a controversy, the Court's opinion is not advisory.

Even if it didn't, nothing in the constitution prohibits the supreme court from doing other things as well.

The SCOTUS doesn't agree with you. Advisory opinions are unconstitutional, according to SCOTUS.

It's true that the courts generally prefer to have cases before them.

SCOTUS and inferior federal courts are REQUIRED to have cases before them. Muskrat v United States.

However, the supreme court has recently started deciding more controversies that don't technically constitute a "case" because they are moot.

[/quote]

Mootness is a completely different doctrine, and mootness is still a reason for the court do dismiss a case. If a case is moot, it will be dismissed except in three exceptions: Voluntary cessation of the conduct in light of pending or threatened litigation, or the matter is capable of repetition yet evading review (like when a high school senior files suit for a Constitutional violation, but graduates before the case can be heard before the SCOTUS), or class action representatives (where a person is named as representative of a class, and the case becomes moot as to the representative, but not as to the rest of the class - since the class is still effective, it's pointless to worry about who in particular is the named plaintiff).

In any case, none of that changes the fact that the SCOTUS will not give the President an advisory opinion on DOMA, and if the President filed such a case asking for one, the Court would tell him it is Constitutionally barred from issuing one.

[Seth]

The President can't file a motion for declaratory judgment in SCOTUS (or any lower federal court) against nobody seeking a determination that a statute is unconstitutional.

That's a fact.

Do you still maintain that he has that power? If so, please cite some examples or even one, where a President has done just that.

This is very important - because critical to your argument is the idea that the courts have exclusive power to decide on statutory constitutionality, and that if Obama questions DOMA he can simply file a motion to have a federal court decide that a statute is unconstitutional and the matter will be decided.

The Declaratory Judgment Act, 28 U.S.C. § 2201 provides that a district court may "declare the rights . . . of any interested party . . . whether or not further relief is or could be sought." The [p518] availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U.S. 103 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers v. Mitchell, 330 U.S. 75, 93 (1947); 6A J. Moore, Federal Practice ¶ 57.08[3] (2d ed.1966); cf. United States v. California, 332 U.S. 19, 25-26 (1947). We thus conclude that, in terms of the general criteria of justiciability, this case is justiciable. Powell v. McCormack, 395 U.S. 486 (1969)

You must now demonstrate that the President is denied this legal right.

The question presented is whether the President has standing to file a lawsuit in federal court alleging that a statute is unconstitutional.

Please cite some of the "ample precedent" for this, that you claimed existed. And, please cite one case in the last 230+ years in which the President brought such a suit. (I'll give you a hint - there is no such precedent, and there has never been such a case. No President has ever brought a case alleging a statute to be unconstitutional). In short. You are wrong.

I said that there is ample precedent indicating that the President has STANDING TO SUE. He does, that is clear from the cases and from the law itself. Please cite a precedent that denies the President the right to file a federal lawsuit challenging the constitutionality of a statute. If what you say is true, there must be examples of Presidents illegally filing lawsuits challenging laws that have been thrown out. You won't find one.

We have always insisted on strict compliance with this jurisdictional standing requirement. See, e.g, ibid. (under Article III, "federal courts may exercise power only `in the last resort, and as a necessity' ") (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892)); Muskrat v. United States, 219 U.S. 346, 356 (1911) ("[F]rom its earliest history this

ourt has consistently declined to exercise any powers other than those which are strictly judicial in their nature"). And our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional. See, e.g., Bender, supra, at 542; Valley Forge, supra, at 473-474 . As we said in Allen, supra, at 752, "the law of Art. III standing is built on a single basic idea--the idea of separation of powers." In the light of this overriding and time honored concern about keeping the Judiciary's power within its proper constitutional sphere, [n.3] we must put aside the natural urge to proceed directly to the merits of this important dispute and to "settle" it for the sake of convenience and efficiency. Instead, we must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable. Raines v. Byrd, 521 U.S. 811 (1997)

Note that while the Court expresses the strong belief that it SHOULD not interfere in disputes between the branches of government, unless the matter is properly before the court, not that the Court CANNOT adjudicate such disputes. Marbury v. Madison completely refutes that specious notion. The courts are granted "all" judicial powers, and that includes the power to adjudicate claims that a particular law of Congress is in violation of the Constitution. Nowhere is either Congress or the President forbidden from seeking such judicial determinations. The only questions that may NOT be adjudicated by the courts are "political" questions that are the proper province of the legislative process.

A claim by the President that a given law is unconstitutional and cannot therefore be lawfully and faithfully enforced by him because of his oath and duty to the Constitution and his duty from the Constitution to enforce the law is not a "political" question, it is quintessentially a matter ripe for judicial examination, just as any other officer of the United States who is being asked to enforce a law he believes to be unconstitutional has standing to ask for at least a declaratory judgment, so that he will be relieved from the civil and criminal penalties that follow from violating someone's constitutional rights under color of authority found in 42 USC 1983.

Otherwise, it's simply a matter of first impression at worst. That no President has done so does not act to prohibit them from doing so. Nothing in the Constitution explicitly precludes or forbids the President from filing a lawsuit alleging an injury. Nothing in federal jurisprudence prohibits the President from doing so. Plenty of precedent demonstrates that all any plaintiff needs to show to have standing to sue is a particularized personal injury to some right that he enjoys.

As cited above in Powell v. McCormac, any "interested party" may seek a declaratory judgment in the federal courts, if he has standing to do so and it's a justicable case, which we will examine presently.

You now have to show statute or precedent that PROHIBITS the President from being an "interested party" and asking for a declaratory judgment. Stating that no President has done so is insufficient, and does not act to bar or estop any particular President from doing so.

The reasons why a President, or many Presidents might choose NOT to seek such a declaratory judgment are perfectly obvious: Presidents would naturally prefer to implicitly defend the proposition that you forward that they are simply under no obligation to challenge a law in court because they have some implied executive authority to render judgment on the constitutionality of a particular law and simply refuse to enforce it if it comes to their mind that it's violative...or inconvenient to their political agenda.

For a President to seek a declaratory judgment from the courts is to also admit that the President does not have plenary power to disregard any law he finds inconvenient and can argue is "unconstitutional" according to his own personal interpretation. Thus, it's hardly surprising that various Presidents might simply cling to the notion that they can ignore the law at their Executive Pleasure. Nowhere in the Constitution is this executive pleasure found. In fact, the Congress has full authority to regulate the operations of the Executive Branch by legislation, thereby restricting the President's authority to act, or not act.

Take the Civil Service Act, and subsequent legislation that interferes substantially with the President's executive powers of appointment and dismissal. As Justice Brandeis points out in his dissent in Myers, Congress has extensively intruded on executive authority in the past, and will no doubt do so in the future. Executive authority is not plenary or absolute, it is inherently constrained by the Acts of Congress, because Congress is the representative of the People, from whom ALL political power flows.

The separation of the powers of government did not make each branch completely autonomous. It left each in some measure dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial. Obviously the President cannot secure full execution of the [p292] laws, if Congress denies to him adequate means of doing so. Full execution may be defeated because Congress declines to create offices indispensable for that purpose. Or because Congress, having created the office, declines to make the indispensable appropriation. Or because Congress, having both created the office and made the appropriation, prevents, by restrictions which it imposes, the appointment of officials who in quality and character are indispensable to the efficient execution of the law. If, in any such way, adequate means are denied to the President, the fault will lie with Congress. The President performs his full constitutional duty if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted. Compare Kendall v. United States, 12 Peters 524, 613, 626.
...
Checks and balances were established in order that this should be "a government of laws, and not of men." As White said in the House in 1789, an uncontrollable power of removal in the Chief Executive "is a doctrine not to be learned in American governments." Such power had been denied in Colonial Charters, [n82] and even under Proprietary [p293] Grants{83} and Royal Commissions. [n84] It had been denied in the thirteen States before the framing of the Federal Constitution. [n85] The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. In order to prevent arbitrary executive action, the Constitution provided in terms that presidential appointments be made with the consent of the Senate, unless Congress should otherwise provide, and this clause was construed by Alexander Hamilton in The Federalist, No. 77, as requiring like consent to removals. [n86] Limiting further executive [p294] prerogatives customary in monarchies, the Constitution empowered Congress to vest the appointment of inferior officers, "as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Nothing in support of the claim of uncontrollable power can be inferred from the silence of the Convention of 1787 on the subject of removal. For the outstanding fact remains that every specific proposal to confer such uncontrollable power upon the President was rejected. [n87] In America, as in England, the conviction prevailed then that the people must look to representative [p295] assemblies for the protection of their liberties. And protection of the individual, even if he be an official, from the arbitrary or capricious exercise of power was then believed to be an essential of free government. Myers v. U.S., J. Brandeis, dissenting

Thus, we see that the President is indeed held subservient, as the "CEO" of the United States, not its King. As the "CEO," the President is subject to the rule of the "Board of Directors" known as "the Congress," who are in turn ruled by the "Shareholders," who are the People.

Those authorities the President exercises are only those authorities that are inherent in the function of an executive, and those functions that are immune from Congressional oversight and control are ONLY those functions that are explicitly mentioned and authorized by Article II of the Constitution. Other parts of Article II imposes OBLIGATIONS and DUTIES of the President which he may not shirk at his whim and caprice, including the requirement that he see that the laws of Congress are "faithfully executed.

Every other executive function of the President is subject to the general supervision of the Congress, as the People's representative.

It should be noted, for example, that Presidents obeyed the Tenure in Office Act for more than 50 years after its enactment WITHOUT challenging it, and it was NEVER directly challenged by the President as trenching on his constitutional authority. It was overruled only in 1925, in a case that was not brought by the President. In his dissent in Myers, Justice Brandeis said:

In Marbury v. Madison, 1 Cranch 137, 167, it was assumed, as the basis of decision, that the President, acting alone, is powerless to remove an inferior civil officer appointed for a fixed term with the consent of the Senate, and that case was long regarded as so deciding. [n4] In no [p243] case has this Court determined that the President's power of removal is beyond control, limitation, or regulation by Congress. Nor has any lower federal court ever so decided. [n5] This is true of the power as it affects officers in the Army or the Navy and the high political officer like heads of departments, as well as of the power in respect to inferior statutory offices in the executive branch. Continuously for the last fifty-eight years, laws comprehensive in character, enacted from time to time with the approval of the President, have made removal from the [p244] great majority of the inferior presidential offices dependent upon the consent of the Senate. Throughout that period these laws have been continuously applied. We are requested to disregard the authority of Marbury v. Madison and to overturn this long established constitutional practice. Myers v. U.S., J. Brandeis, dissenting

As you have so vigorously maintained, an unconstitutional statute either trenches upon the President's executive powers directly (as in the Tenure in Office Act) or the enforcement of the law required by Article II, Section 3 of the Constitution would require that the President violate his oath of office to "preserve, protect and defend the Constitution."

Note - the case that found the Tenure of Office Act unconstitutional was Myers v. US. We never had a President Myers. Myers was a Postmaster who was removed from office by President Woodrow Wilson. Myers sued to keep his job.

No, he didn't. He sued in the Court of Claims to be paid his wage, and lost. He did, however, consistently petition the Congress for restoration of his position, which was also denied. Myers v. U.S. addressed the specific question of whether or not Myers was entitled to be compensated as a result of his dismissal, which he alleged was in violation of the Tenure in Office act. The Court held that he was not entitled to compensation because the Tenure in Office Act, insofar as it constrained the President's executive authority to dismiss federal officers, was unconstitutional.

While the Supreme Court has been extremely careful not to unnecessarily inject itself into disputes between the branches of government over their respective powers without great need, there is ample precedent for the President suing Congress,

Cite one case.

UNITED STATES v. NIXON, 418 U.S. 683 (1974)

If the United States may sue the President, the President may sue the United States. To say that the President may be sued, but the President may not himself sue is to deny him equal protection of the law and both substantive and procedural due process.

or Congress suing the President that demonstrates that the concept is not unknown in federal jurisprudence.

Again, no there is not "ample precedent" for Congress suing the President. But, let's not confuse the issue. The issue is whether the President can sue alleging a statute of Congress to be unconstitutional. You said there was "ample precedent" for that. Cite it. You can't. So you won't.

The dispute between the Special Prosecutor and the President presents a justiciable controversy. Pp. 692-697.

(a) The mere assertion of an "intra-branch dispute," without more, does not defeat federal jurisdiction. United States v. ICC, 337 U.S. 426 . P. 693.

(b) The Attorney General by regulation has conferred upon the Special Prosecutor unique tenure and authority to represent the United States and has given the Special Prosecutor explicit power to contest the invocation of executive privilege in seeking evidence deemed relevant to the performance of his specially delegated duties. While the regulation remains in effect, the Executive Branch is bound by it. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 . Pp. 694-696.

(c) The action of the Special Prosecutor within the scope of his express authority seeking specified evidence preliminarily determined to be relevant and admissible in the pending criminal case, and the President's assertion of privilege in opposition thereto, present issues "of a type which are traditionally justiciable," United States v. ICC, supra, at 430, and the fact that both litigants are officers of the Executive Branch is not a bar to justiciability. Pp. 696-697.
...
Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e. g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U.S. 186, 211 .
...
In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here [418 U.S. 683, 697] at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President. Whatever the correct answer on the merits, these issues are "of a type which are traditionally justiciable." United States v. ICC, 337 U.S., at 430 . UNITED STATES v. NIXON, 418 U.S. 683 (1974)

Note, Congress suing the President would, at a minimum, take an Act of Congress, like in 2006 when the Congress created a Bill that would let Congress sue President Bush. Sen. Specter created a bill in 2006 to try to give standing to Congress to sue the President over Presidential "signing statements." If Congress already had "ample precedent" to sue Bush in 2006, they didn't need the Specter bill.

How do you explain U.S. v. Nixon?

All the President needs in order to have standing to sue the Congress is a particularized, personal injury.

Wrong. Just, wrong. There is no case anywhere ever - no legal authority anywhere ever - that states that the President suffers an injury when Congress passes a law that he thinks is unconstitutional. The gauntlet is thrown again: cite the "ample precedent" please.

"It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately [418 U.S. 166, 178] in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public." Ex parte Levitt, 302 U.S., at 634

Has nothing to do with what we're talking about. Standing is a necessary requirement of any litigant, yes. But, the President can't sue Congress to determine a law unconstitutional.

If you're claiming that the Prez may argue affirmatively in a case over DOMA that DOMA is unconstitutional, then why in the world would it be a problem that he simply refrain from arguing the case at all. You think he can set his team of DoJ lawyers on the issue, making their best argument to overturn it, but in the same case, he can't lay there like a slug, taking a neutral position?

Further, when the harm is to the power of the office, a higher standard of justicability is required, but adjudication is not precluded.

Do you have a case on point? A constitutional provision? A statute? Any support whatsoever?

Yes. Marbury v. Madison and U.S. v. Nixon.

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison, 1 Cranch 137 (1803), that "t is emphatically the province and duty of the judicial department to say what the law is." Id., at 177. UNITED STATES v. NIXON, 418 U.S. 683 (1974)

That being the case, the proper resort of the President in matters regarding the enforcement or non-enforcement of an allegedly unconstitutional statute is to the courts, whose "province and duty" it is to "say what the law is." No such authority is granted to the President.

To meet the standing requirements of Article III, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751 (1984) (emphasis added). For our purposes, the italicized words in this quotation from Allen are the key ones. We have consistently stressed that a plaintiff's complaint must establish that he has a "personal stake" in the alleged dispute, and that the alleged injury suffered is particularized as to him. See, e.g., Lujan, 504 U. S., at 560-561 and n. 1 (to have standing, the plaintiff must have suffered a "particularized" injury, which means that "the injury must affect the plaintiff in a personal and individual way"); Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-544 (1986) (school board member who "has no personal stake in the outcome of the litigation" has no standing); Simon, supra, at 39 ("The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. III requirement").

Conspicuously absent is any citation of any authority relating to a suit by the President of the United States. This is just a general statement of the issue of standing in federal court for any litigant. The passage of Congress of a law that the President determines is unconstitutional has NEVER been held to be a particularlized injury to the President. No suit has been brought in 230 years.

Article III, § 1, provide that the "judicial Power . . . shall be vested in one supreme Court, and in such inferior Courts as the Congress may . . . establish." Further, § 2 mandates that the "judicial Power shall extend to all Cases . . . arising under this Constitution. . . ." It has long been held that a suit "arises under" the Constitution if a petitioner's claim "will be sustained if the Constitution . . . [is] given one construction and will be defeated if [it is] given another." [n37] Bell v. Hood, 327 U.S. 678, 685 (1946). See King County v. Seattle School District No. 1, 263 U.S. 361, 363-364 (1923). Cf. Osborn v. Bank of the United States, 9 Wheat. 738 (1824). See generally C. Wright, Federal Courts 48-52 (1963). Thus, this case clearly is one "arising under" the Constitution as the Court has interpreted that phrase. Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law.
...
We have noted that the grant of jurisdiction in § 1331(a), while made in the language used in Art. III, is not in all respects coextensive with the potential for federal jurisdiction found in Art. III. See Zwickler v. Koota, 389 U.S. 241, 246, n. 8 (1967). Nevertheless, it has generally been recognized that the intent of the drafters was to provide a broad jurisdictional grant to the federal courts. See, e.g., Mishkin, The Federal "Question" in the District Courts, 53 Col.L.Rev. [p516] 157, 160 (1953); Chadbourn & Levin, Original Jurisdiction of Federal Questions, 90 U.Pa.L.Rev. 639, 6 645 (1942). And, as noted above, the resolution of this case depends directly on construction of the Constitution. The Court has consistently held such suits are authorized by the statute. Bell v. Hood, supra; King County v. Seattle School District No. 1, supra. See, e.g., Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112 (1936); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913).
...
Having concluded that the Court of Appeals correctly ruled that the District Court had jurisdiction over the subject matter, we turn to the question whether the case is justiciable. Two determinations must be made in this regard. First, we must decide whether the claim [p517] presented and the relief sought are of the type which admit of judicial resolution. Second, we must determine whether the structure of the Federal Government renders the issue presented a "political question" -- that is, a question which is not justiciable in federal court because of the separation of powers provided by the Constitution.
...
In deciding generally whether a claim is justiciable, a court must determine whether

the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.
...
Powell v. McCormack, 395 U.S. 486 (1969)

There is nothing more personal than one's oath of office, and in particular the President is whipsawed by his oath, which compels him to preserve, protect and defend the Constitution, but also by the mandates of Article II, Section 3, which compel him to see that the laws are faithfully executed.

There is no whipsaw. He simply enforces the provisions of the Cosntitution as if it was law, because it is law. Where there is a conflict between the Constitution and a law, he defers to the Constitution, not Congress. Even an individual citizen can defer to the Constitution. If a cop or a governor or the President tries to stop you from publishing a newsletter, you have a constitutional right to publish it, and if Congress passes a law that says you can't, then that law is unconstitutional. You are not LEGALLY required to follow that law. That's why criminal prosecutions seeking to enforce unconstitutional laws are dismissed and the defendant set free. The person had an right to disobey the law in favor of the Constitution.

Only if the law is unconstitutional, and that determination is not made by the individual, it's made by the court. Unless and until the law is challenged and overturned by a competent court, it's both constitutional and enforceable, and there are many people in jail who can attest to that fact. And it matters whether the law is facially invalid or only invalid as applied to a particular case. In the case of the former, everyone convicted under the law must be released because, as you imply, an unconstitutional law is "no law at all" and never was. But if the law survives facial invalidity, it can still be applied to an individual in an unconstitutional manner that relieves HIM, but not everyone else, of legal liability.

So yes, in the abstract sense, a person has a right to disobey an unconstitutional law, but he does not get to determine for himself which laws are unconstitutional and which are not. That's the province of the courts, who "say what the law is."

Therefore, while the bar is deliberately set high for one branch of government to challenge the acts of another, it is neither unknown nor immune from adjudication. That such cases only rarely arise is not really relevant.

Let's discuss the rare cases. Cite the ones you're referring to. You know, the ones filed by the President wherein he moved for a declaratory judgment that a statute is unconstitutional. Right? The one you said was a readily available as a means to resolve the DOMA issue.

Hasn't happened yet. But it could. There is nothing in the Constitution or the law that bars him from doing so. Indeed, the Attorney General's prior defense of the law demonstrates that it's a justiciable case or controversy. Under 28 U.S.C. § 2201, the President is fully empowered to ask a court for a declaratory judgment if he believes that enforcement of the law would cause him to violate his oath of office, the Constitution, or Article II, Section 3's requirement that he "faithfully execute" the law. Since a violation of his oath, the Constitution, or Article II, Section 3 could, as it did to President Johnson, subject him to impeachment and removal from office, as well as personally impacting his right not to be forced to violate his oath to the Constitution, he certainly has standing because he is likely to suffer immediate and direct harm. That's all he needs to file a case in federal court.

That he chooses not to do so, and that other Presidents have chosen not to do so does not bar him from doing so, it merely means that heretofore, Presidents have not desired to confront the constitutional question directly, preferring to stand on the not constitutionally-supported notion that they only have a duty to see that "some laws be faithfully executed." The fact that Andrew Johnson was impeached is an indication of how dimly the House of Representatives views Presidential intransigence in fulfilling the obligations of the "faithful execution" clause.

So, I believe it is pretty clear that the President has standing to sue Congress and seek an adjudication when Congress unconstitutionally trenches upon his duty and authority to both enforce the law and defend the Constitution.

He doesn't.
You didn't cite any authority that says he does.
Your citation above all related to the standing of a private litigant to sue in federal court, and had no reference to the President. There has never been such a suit filed, which ought to tell you how "clear" it is, given that it's never happened in the last 230 years.
Come on, Seth.

The President is a "private litigant" to the same degree as any other person, and if the Congress trenches upon his rights, he can sue like anybody else. Moreover, as U.S. v. Nixon demonstrates, the President can be sued by the Congress, in the persona of the Special Prosecutor. Which means that the President can likewise sue the United States, if he has a justiciable case and standing to sue.

That no President has exercised this right himself is not relevant. Presidents have been sued, so they can be litigants. U.S. v. Nixon proves that fact.

[Seth]

The supreme court can refuse to give one, of course, if they think it would depend on the facts of a particular case, which in fact they usually do, but that isn't a reason not to ask.

The SCOTUS will never issue an advisory opinion because it is unconstitutional. Muskrat v United States 219 U.S. 346.

In Muskrat, the SCOTUS went so far as to say that Congress may not even expand judicial authority by providing that the Court may issue advisory opinions. Advisory opinions are unconstitutional.

That might be why there never was one...

That the SCOTUS does not give advisory opinions does not support your contention that the President cannot file a case challenging the constitutionality of a law of Congress.

By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties, whose contentions are submitted to the court for adjudication." Muskrat v. United States citing In re Pacific Railway Commission, 32 Fed. 241, 255

[Coito ergo sum]

The President can't file a motion for declaratory judgment in SCOTUS (or any lower federal court) against nobody seeking a determination that a statute is unconstitutional.

That's a fact.

Do you still maintain that he has that power? If so, please cite some examples or even one, where a President has done just that.

This is very important - because critical to your argument is the idea that the courts have exclusive power to decide on statutory constitutionality, and that if Obama questions DOMA he can simply file a motion to have a federal court decide that a statute is unconstitutional and the matter will be decided.

The Declaratory Judgment Act, 28 U.S.C. § 2201 provides that a district court may "declare the rights . . . of any interested party . . . whether or not further relief is or could be sought." The [p518] availability of declaratory relief depends on whether there is a live dispute between the parties, Golden v. Zwickler, 394 U.S. 103 (1969), and a request for declaratory relief may be considered independently of whether other forms of relief are appropriate. See United Public Workers v. Mitchell, 330 U.S. 75, 93 (1947); 6A J. Moore, Federal Practice ¶ 57.08[3] (2d ed.1966); cf. United States v. California, 332 U.S. 19, 25-26 (1947). We thus conclude that, in terms of the general criteria of justiciability, this case is justiciable. Powell v. McCormack, 395 U.S. 486 (1969)

You must now demonstrate that the President is denied this legal right.

Live dispute BETWEEN PARTIES. He cannot file a motion unless he's first filed a Complaint. He can't file a Complaint unless he has a defendant to sue.

Who will he sue? It can't be Congress, unless Congress is trying to marry someone of the same sex. The mere fact that a law is passed that the Prez thinks is unconstitutional does not allow a suit to be filed by the President to declare it's constitutionality. The SCOTUS passed on that in the Muskrat case I cited before.

I'm still waiting for you to cite ONE SINGLE EXAMPLE of a suit by the President against Congress.

The question presented is whether the President has standing to file a lawsuit in federal court alleging that a statute is unconstitutional.

Please cite some of the "ample precedent" for this, that you claimed existed. And, please cite one case in the last 230+ years in which the President brought such a suit. (I'll give you a hint - there is no such precedent, and there has never been such a case. No President has ever brought a case alleging a statute to be unconstitutional). In short. You are wrong.

I said that there is ample precedent indicating that the President has STANDING TO SUE.

Cite one case!!!! One! One case saying "The President has standing to sue someone to declare a statute unconstitutional." You won't find one. It doesn't exist. Because you're dead wrong.

He does, that is clear from the cases and from the law itself.

Doesn't and isn't.

Please cite a precedent that denies the President the right to file a federal lawsuit challenging the constitutionality of a statute. If what you say is true, there must be examples of Presidents illegally filing lawsuits challenging laws that have been thrown out. You won't find one.

No - they haven't filed any such lawsuits, for the obvious reason that it's a request for an advisory opinion - meaning that there is no actual case or controversy.

We have always insisted on strict compliance with this jurisdictional standing requirement. See, e.g, ibid. (under Article III, "federal courts may exercise power only `in the last resort, and as a necessity' ") (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892)); Muskrat v. United States, 219 U.S. 346, 356 (1911) ("[F]rom its earliest history this

ourt has consistently declined to exercise any powers other than those which are strictly judicial in their nature"). And our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional. See, e.g., Bender, supra, at 542; Valley Forge, supra, at 473-474 . As we said in Allen, supra, at 752, "the law of Art. III standing is built on a single basic idea--the idea of separation of powers." In the light of this overriding and time honored concern about keeping the Judiciary's power within its proper constitutional sphere, [n.3] we must put aside the natural urge to proceed directly to the merits of this important dispute and to "settle" it for the sake of convenience and efficiency. Instead, we must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable. Raines v. Byrd, 521 U.S. 811 (1997)

Note that while the Court expresses the strong belief that it SHOULD not interfere in disputes between the branches of government, unless the matter is properly before the court, not that the Court CANNOT adjudicate such disputes. Marbury v. Madison completely refutes that specious notion. The courts are granted "all" judicial powers, and that includes the power to adjudicate claims that a particular law of Congress is in violation of the Constitution.

Yes, in an actual case or controversy, and not in an advisory opinion. Whose the defendant?

A claim by the President that a given law is unconstitutional and cannot therefore be lawfully and faithfully enforced by him because of his oath and duty to the Constitution and his duty from the Constitution to enforce the law is not a "political" question, it is quintessentially a matter ripe for judicial examination,

Isn't. It's not ripe for judicial review because there is no case. The court can't evaluate a law based on a hypothetical set of facts. The law has to be either enforced against someone, or someone who is subject to the law must sue about it.

Please cite one case anywhere that says the President may file a suit to determine a law unconstitutional. One. Just one. You can't, and you won't.

just as any other officer of the United States who is being asked to enforce a law he believes to be unconstitutional has standing to ask for at least a declaratory judgment,

NO OTHER OFFICER HAS THAT RIGHT! That's asking for an adivsory opinion. That's what an advisory opinion is. I'm not speculating or gleaning this from what I'm pondering, Seth - I'm telling you what is Black Letter constitutional law.

so that he will be relieved from the civil and criminal penalties that follow from violating someone's constitutional rights under color of authority found in 42 USC 1983.

Name one time where any officer of the United States has ever asked for and received such an opinion or "declaratory judgment." Name ONE! You can't and you won't because it doesn't exist.

Moreover, to illustrate your complete lack of any knowledge in this area, and why you ought to quit while your ahead. Officials of the United States are NEVER LIABLE UNDER 42 USC Sec. 1983. Sec. 1983 is ONLY applicable to STATE officials acting under color of law. LOL. So, absolutely not - you will NEVER find United States official worried about liability under sec. 1983.

Otherwise, it's simply a matter of first impression at worst. That no President has done so does not act to prohibit them from doing so. Nothing in the Constitution explicitly precludes or forbids the President from filing a lawsuit alleging an injury.

There is no injury to the Presidnet here.

Nothing in federal jurisprudence prohibits the President from doing so.

Article III of the Constitution and the SCOTUS have determined that a request by the President for a declaration that a law is unconstitutional, outside of an actual case or controversy, is an advisory opinion. He can't get one, never has.

Plenty of precedent demonstrates that all any plaintiff needs to show to have standing to sue is a particularized personal injury to some right that he enjoys.

And there is no justiciable injury here.

And standing is a necessary, but not a sufficient condition to bringing suit. There must also be an actual case and controversy. How are they going to initiate such an action - who is the Defendant? A gay couple who agrees the law is unconstitutional? No controversy there. Congress can't be a defendant here, never has, and never will.

[Coito ergo sum]

The supreme court can refuse to give one, of course, if they think it would depend on the facts of a particular case, which in fact they usually do, but that isn't a reason not to ask.

The SCOTUS will never issue an advisory opinion because it is unconstitutional. Muskrat v United States 219 U.S. 346.

In Muskrat, the SCOTUS went so far as to say that Congress may not even expand judicial authority by providing that the Court may issue advisory opinions. Advisory opinions are unconstitutional.

That might be why there never was one...

That the SCOTUS does not give advisory opinions does not support your contention that the President cannot file a case challenging the constitutionality of a law of Congress.

Yes it does, because without an actual case or controversy, no matter what the fuck you call it, it's still an advisory opinion.