The Propriety of Presidental Non-enforcement

[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.

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.

Muskrat does not stand for the proposition that the President is forbidden to file a suit against Congress. It stands for the proposition that the Congress cannot assign extra-judicial duties to the Courts. In Muskrat, the Court considered a statute passed by Congress that explicitly permitted several individuals who had claims under the Indian Removals Act to file a case with the Court of Claims, and which directed the Court of Claims to determine the constitutionality of another law. The Supreme Court, in Muskrat, said that this constituted an encroachment on the judicial branch because it attempted to authorize the Court of Claims, and by appeal the Supreme Court, to rule on the constitutionality of a law without the matter being properly formed as a "case or controversy." The Court declined this expansion of judicial power, saying that Article III of the Constitution specifies that a "case or controversy" must first exist.

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

Does the President have a right, as the Chief Executive, to fire officers of the Executive Branch without Congressional approval? Yes, he does, according to Myers. If Congress tells him he cannot, as it did in the Tenure in Office Act, and could do again, can the President file a lawsuit against Congress for the enforcement of this right? Certainly. Nothing in the Constitution or laws prohibits him from doing so.

The court will have to examine the controversy to see if it's an inherently "political" question upon which the Court has said numerous times it is not authorized to pass judgment. But if it is a matter of Congress trenching upon the rights and duties of the President, by, for example, interfering with his duties as Commander in Chief, there is no reason why the President cannot file a lawsuit to have the matter decided by the Court.

You have cited NO constitutional or legal authority that PROHIBITS the President from doing so. That no President has CHOSEN to do so is utterly irrelevant.

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.

Cite one case saying that he doesn'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.

It's not an advisory opinion if it's a 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?

The Congress, or the United States. People sue the United States all the time.

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.

Incorrect. The purpose of the Declaratory Judgment statute is that an individual, any individual, including the President, may ask a court to declare what the law is if he has standing to ask for the judgment. In order to have standing, the plaintiff must be able to show that he will personally be negatively affected by enforcement of the law. Declaratory judgments exist as a check and balance precisely in order that an individual NOT be required to suffer an injury under an unconstitutional or ambiguous law before asking for a ruling as to how the law is to be interpreted and applied.

If the President, by enforcing the law, would be forced to violate his oath of office, an impeachable offense, he risks suffering a very real and palpable personal injury; the loss of his office and its emoluments. Therefore, he has standing to ask for a declaratory judgment.

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.

Please cite one case anywhere saying he doesn't. And don't repeat Muskrat, because it doesn't support your claim.

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.

It's only an advisory opinion if the officer is not at personal risk if he enforces the law. Under 42 USC 1983, any person who violates the constitutional rights of another under color of authority is personally liable for civil damages. Thus, a police officer who is asked to enforce a law he believes to be unconstitutional, on pain of being fired from his job, has a right to ask for a declaratory judgment, NOT AN ADVISORY OPINION, so that he may take refuge in a judicial ruling as his defense against a 1983 claim, unless he has qualified immunity for the actions required of him, in which case he cannot ask for a declaratory judgment.

Obversely, a District Attorney may not request a declaratory judgment in a criminal case as to whether the law permits a prosecution because as a DA, he is absolutely immune in his prosecutorial discretion. He can prosecute a case with no evidence whatsoever, merely to be malicious, and nobody can do a thing to him except vote him out of office.

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.

Sorry, my bad, the correct citation is: 18 U.S.C. § 242, Willful deprivations of federal rights under color of law;

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

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.

That would be a matter for the Court to decide, as the trier of fact, not you or I.

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.

Thanks for admitting that all it takes is a "case or controversy." Here's the definition from Muskrat, your alleged support:

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

Since the President is liable under 18 U.S.C. § 242, just like any other person is, should Congress enact a law that requires him, under the "faithful execution" provisions of the Constitution, to enforce a law that he believes will subject him to criminal liability under 18 U.S.C. § 242, he is entitled to request a declaratory judgment to prevent a wrong and enforce his right not to abuse the citizenry.

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.

Not a decision you get to make.

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.

Why can't Congress be a defendant? What provision of the Constitution precludes it? More importantly, why cannot the United States be sued by the President. It's sued all the time by everybody else.

[Seth]

Well, it's time to resurrect this thread because of the following Court of Appeals ruling:

Government
Federal Appeals Court: Obama Administration Is Violating Federal Law ‘Without Any Legal Basis’
Aug. 13, 2013 9:30pm Jason Howerton

WASHINGTON (TheBlaze/AP) –The Obama administration has been continuously violating federal law by delaying a law enacted by Congress “without any legal basis,” a federal appeals court ruled Tuesday. The decision refers to the Nuclear Regulatory Commission’s move to delay a proposed nuclear waste dump in Nevada.

The U.S. Court of Appeals for the District of Columbia voted 2-1 in favor of ordering the commission to complete the licensing process and approve or reject the Energy Department’s application for a never-completed waste storage site at Nevada’s Yucca Mountain.

Federal Appeals Court: Obama Administration Is Violating Federal Law Without Any Legal Basis

WASHINGTON, DC – JUNE 04: U.S. President Barack Obama walks to the Rose Garden to make Federal Judge nominations, in the Rose Garden of the White House June 4, 2013 in Washington, DC. If confirmed by the U.S. Senate the three nominees will fill three vacancies on United States Court of Appeals for the District of Columbia. Credit: Getty Images

In a sharply worded opinion, the court said the nuclear agency was “simply flouting the law” when it allowed the Obama administration to continue plans to close the proposed waste site 90 miles northwest of Las Vegas. The action goes against a federal law designating Yucca Mountain as the nation’s nuclear waste repository.

“The president may not decline to follow a statutory mandate or prohibition simply because of policy objections,” Judge Brett M. Kavanaugh wrote in a majority opinion, which was joined Judge A. Raymond Randolph. Chief Judge Merrick B. Garland dissented.

The same argument has been made by critics of Obamacare who are highly critical of President Obama’s move to delay key parts of the law, even though it was passed by Congress as a package.

The appeals court said the case has important implications for the separation of powers between the executive and legislative branches of government.

“It is no overstatement to say that our constitutional system of separation of powers would be significantly altered if we were to allow executive and independent agencies to disregard federal law in the manner asserted in this case by the Nuclear Regulatory Commission,” Kavanaugh wrote. “The commission is simply defying a law enacted by Congress … without any legal basis.”

A spokesman for the NRC said Tuesday the agency was reviewing the decision. He declined further comment.

Energy Secretary Ernest Moniz said the Energy Department was not a party to the lawsuit, but he characterized the Yucca Mountain project as “a complete stalemate.” He said he saw no evidence of that changing.

“Currently we do not have funding,” he told reporters at a clean energy conference Tuesday in Las Vegas.

The court’s decision was hailed by supporters of the Yucca site, which has been the focus of a dispute that stretches back more than three decades. The government has spent an estimated $15 billion on the site but has never completed it. No waste is stored there.

“This decision reaffirms a fundamental truth: The president is not above the law,” said South Carolina Attorney General Alan Wilson. The Obama administration “cannot pick and choose which laws to follow and which to ignore,” Wilson said.

South Carolina and Washington state were among several parties to a lawsuit seeking to force the NRC to rule on the Yucca Mountain application. The states both have large nuclear waste sites that would use the Yucca repository.

The Obama administration, under pressure from Senate Majority Leader Harry Reid of Nevada, abandoned the project early in the president’s first term. In 2011, the NRC allowed the shutdown to stand, citing “budgetary limitations” imposed by Congress. The NRC is an independent agency that oversees commercial nuclear operations.

Reid, a Democrat, called the appeals court decision “fairly meaningless,” noting that Congress has nearly eliminated funding for Yucca and is unlikely to restore it.

“This isn’t even a bump in the road,” Reid said. “This, without being disrespectful to the court, means nothing.”

Even if the Obama administration moves forward on the application, “there’s no money” for Yucca Mountain, Reid said. “We’ve cut out funding for many years now and there’s none in our budget to start it.”

Reid is a longtime opponent of the plan to bury waste at Yucca Mountain, which has drawn nearly unanimous opposition from Nevada elected officials, but support from lawmakers, especially Republicans, in many other states, as a crucial part of the country’s commercial nuclear operations.

Republican Reps. Fred Upton of Michigan and John Shimkus of Illinois called the court ruling a “significant milestone” that made clear the Obama administration acted prematurely in terminating Yucca Mountain. Upton chairs the House Energy and Commerce Committee, while Shimkus heads a subcommittee on environment and the economy.

“Congress and the courts have spoken out to prevent billions of taxpayer dollars and three decades of research from being squandered,” Upton and Shimkus said. Last month, 335 House members voted to boost funding for the Yucca project in a larger spending bill on energy and water.

Washington state Attorney General Bob Ferguson called the ruling good news for his state – particularly residents near the Hanford nuclear complex in central Washington, where millions of gallons of nuclear waste is stored in leaking underground tanks.

“Our attorneys presented a strong case that the federal government must follow the laws passed by Congress, and the court agreed,” Ferguson said.

Officials in Washington and other states expect the NRC to conduct “a fair and objective processing of the Yucca Mountain licensing application and look forward to a decision on the merits of the application,” Ferguson added. “This is what Congress intended and affords the best opportunity for a permanent disposal facility for the nation’s high-level radioactive waste.”

Garland, the chief judge on the appeals court, said in a dissent that Congress has already spoken on Yucca Mountain by rejecting funding for it.

The court’s decision in the case “will indeed direct the Nuclear Regulatory Commission to do a useless thing,” Garland wrote.

Kavanaugh and Randolph were appointed by Republican presidents, Garland by a Democrat.

Note the highlighted text, which applies to the subject of this thread exactly!

The Executive Branch may not ignore federal law and refuse to enforce it for political reasons, as I claimed at the beginning of this thread. He has a Constitutional duty to "faithfully execute" the laws passed by Congress and may not simply ignore them.

Yay for the Court of Appeals.

[Coito ergo sum]

There are significant points to understand there. Note that the court said that the commission was simply defying a federal law WITHOUT ANY LEGAL BASIS.

That is not the same thing as saying it is always without legal basis for the executive to defy a federal law. If the President has a reasonable basis to conclude that Congress is violating the Constitution, then that would be a legal basis. For example, if Congress tried to pass a law requiring federal agents to jail black people on sight, and it was passed into law, the President could refuse to enforce it on the legal basis that it violates constitutional requirements of due process and equal protection.

The President may, as stated in the opinion, not simply refuse to enforce a law based merely on a "policy objection" -- i.e., because he doesn't like it. However, if the law contravened the Constitution then the President would be under a legal duty to protect and defend the Constitution before following the law passed by Congress.

[Seth]

There are significant points to understand there. Note that the court said that the commission was simply defying a federal law WITHOUT ANY LEGAL BASIS.

That is not the same thing as saying it is always without legal basis for the executive to defy a federal law. If the President has a reasonable basis to conclude that Congress is violating the Constitution, then that would be a legal basis.

Would it? I haven't read the case yet but the question remains under what constitutional principle or legal precedent does the President presume to rule an act of Congress to be "unconstitutional?"

The standing rule of law and statutory interpretation says quite clearly that an act of ANY legislature, anywhere in the nation, which has been duly considered and voted into place by that elected public body is PRESUMED to be constitutional. The burden is and has always been on the PLAINTIFF in any case or controversy to PROVE that there is a "gross constitutional violation," NOT merely assert. And the constitutional adjudicators of such questions are the courts, not the Attorney General or the President.

From Lawnotes
Presumption of Constitutionality

In Constitutional Law, the Presumption of Constitutionality of a statue or provision occurs when two possible interpretations for a statute occur - one favoring the constitution while the violating, the one that is in favor of the constitution is taken as valid.

• It is presumed that Acts made by Legislations are valid and that they do not intent to enact a law that is ultra vires to the constitution.
• When a situation occurs to question the validity of the law, the burden is on the petitioner to prove contra.
• Courts generally do not want to interpret the Acts unless, by way of language, they are proved to be unconstitutional.
• While interpretation, the provision which is unconstitutional should be avoided and when proved to be unconstitutional, should become void.
• A statute is constitutional till the time that it was established to be unconstitutional.
• The interpretation that creates unjust and discriminatory situation should be avoided.
• The Presumption of Constitutionality says that a court having a jurisdiction cannot invalidate a statute unless there is a gross constitutional violation in a statute.
• When an interpretation is possible that will save an Act from an unconstitutionality attack, the court should accept the affirmative interpretation that will save it to the extent possible.
• Presumption fails to operate when it is clearly shown that the statute is unconstitutional.
• When a statute is retrospective in operational, it should not be constructed to have greater retrospective operation that its language makes necessary.
• The courts should not go into the act of adding words, reading words that are not in the statute, correct or make up to the deficiency as it will lead to casus omissus.

For example, if Congress tried to pass a law requiring federal agents to jail black people on sight, and it was passed into law, the President could refuse to enforce it on the legal basis that it violates constitutional requirements of due process and equal protection.

The President may, as stated in the opinion, not simply refuse to enforce a law based merely on a "policy objection" -- i.e., because he doesn't like it. However, if the law contravened the Constitution then the President would be under a legal duty to protect and defend the Constitution before following the law passed by Congress.

Again, a law duly passed by Congress is presumptively constitutional unless and until it is determined by the court having jurisdiction that it is unconstitutional and "the burden is on the petitioner to prove contra."

Under what authority does the President presume to the position of Supreme Court Justice, or indeed a judge of any court of competent jurisdiction in deciding, sua sponte, that a particular statute is "unconstitutional"? Does that not clearly violate the Separation of Powers Doctrine?

His duty is quite clearly and explicitly expressed in Article 2, Section 3, Clause 5.

Here's the Wikipedia entry on that Clause, which appears to support my construction (emphasis added):

Clause 5: Caring for the faithful execution of the law

The President must "take care that the laws be faithfully executed."[16] This clause in the Constitution imposes a duty on the President to take due care while executing laws and is called the Take Care Clause,[17] also known as the Faithful Execution Clause.[18] This clause is meant to ensure that a law is faithfully executed by the President,[17] even if he disagrees with the purpose of that law.[19] By virtue of his executive power, the President may execute the law and control the law execution of others. Under the Take Care Clause, however, the President must exercise his law-execution power to "take Care that the Laws be faithfully executed."[18] Addressing the North Carolina ratifying convention, William Maclaine declared that the Faithful Execution Clause was "one of the [Constitution's] best provisions."[18] If the President "takes care to see the laws faithfully executed, it will be more than is done in any government on the continent; for I will venture to say that our government, and those of the other states, are, with respect to the execution of the laws, in many respects mere ciphers."[18] President George Washington interpreted this clause as imposing on him a unique duty to ensure the execution of federal law. Discussing a tax rebellion, Washington observed, "it is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to" that duty.[18]

According to former United States Assistant Attorney General Walter E. Dellinger III the Supreme Court and the Attorneys General have long interpreted the Take Care Clause as standing for the proposition that the President has no inherent constitutional authority to suspend the enforcement of the laws, particularly of statutes.[20] Quite the contrary: The Take Care Clause demands that the President obey the law, the Supreme Court said in Humphrey's Executor v. United States, and repudiates any notion that he may dispense with the law's execution.[21] In Printz v. United States, 521 U.S. 898 (1997), the Supreme Court explained how the President executes the law: "The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, "shall take Care that the Laws be faithfully executed," Art. II, §3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the "Courts of Law" or by "the Heads of Departments" who with other presidential appointees), Art. II, §2."

The President possesses wide discretion in deciding how and even when to enforce laws. He also has a range of interpretive discretion in deciding the meaning of laws he must execute. When an appropriation provides discretion, the President can gauge when and how appropriated moneys can be spent most efficiently. However, the President may not prevent a member of the executive branch from performing a ministerial duty lawfully imposed upon him by Congress. (See Marbury v. Madison (1803); and Kendall v. United States ex rel. Stokes (1838)). Nor may the President take an action not authorized either by the Constitution or by a lawful statute. (See Youngstown Sheet & Tube Co. v. Sawyer (1952)). Finally, the President may not refuse to enforce a constitutional law, or "cancel" certain appropriations, for that would amount to an extra-constitutional veto or suspension power.[18]

Some Presidents have claimed the authority under this clause to impound money appropriated by Congress. President Jefferson, for example, delayed the expenditure of money appropriated for the purchase of gunboats for over a year. President Franklin D. Roosevelt and his successors sometimes refused outright to expend appropriated money.[18] The Supreme Court, however, has held that impoundments without Congressional authorization are unconstitutional.[22]

It has been asserted that the President's responsibility in the "faithful" execution of the laws entitles him to suspend the privilege of the writ of habeas corpus[citation needed]. Article One provides that the privilege may not be suspended save during times of rebellion or invasion, but it does not specify who may suspend the privilege. The Supreme Court ruled that Congress may suspend the privilege if it deems it necessary. During the American Civil War, President Abraham Lincoln suspended the privilege, but, owing to the vehement opposition he faced, obtained congressional authorization for the same.[citation needed] Since then, the privilege of the writ has only been suspended upon the express authorization of Congress.

In Mississippi v. Johnson, 71 U.S. 475 (1867), the Supreme Court ruled that the judiciary may not restrain the President in the execution of laws. In that case the Supreme Court refused to entertain a request for an injunction preventing President Andrew Johnson from executing the Reconstruction Acts, which were claimed to be unconstitutional. The Court found that "[t]he Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance."[23] Thus, the courts cannot bar the passage of a law by Congress, though it may strike down such a law as unconstitutional. A similar construction applies to the executive branch.

Therefore, the Court is the only branch of government authorized to "strike down" a duly-enacted Congressional law on the basis that it is unconstitutional.

[Cormac]

In a recent statement, U.S. Attorney General Eric Holder stated that the Justice Department would refuse to defend the Defense of Marriage Act in court, on the orders of President Barack Obama.

This, and similar refusals by various Presidents in history, including Bill Clinton and George Bush, to defend and/or enforce a duly-enacted law of Congress raises important questions about the Separation of Powers Doctrine and the powers and duties of the President of the United States regarding his duty to enforce the law as explicated in Article II, Section 3 of the Constitution which says that the President "shall take care that the laws be faithfully executed."

Is a refusal on the part of the President to abide by this duty an impeachable offense?

Is the Attorney General of the United States obliged, under the canons of legal ethics and his oath of office, required to vigorously defend all laws duly enacted by the Congress in court?

Discuss.

Governments ignore laws all the time.

It is disgraceful.

[Svartalf]

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

[Seth]

So, having actually reviewed the case, I must correct my thesis and agree partially with Coito. It is well recognized authority, going right back to George Washington, that a President has wide latitude to do two things administratively; he has plenary authority to decline to prosecute a person under federal law; and he has wide authority to refuse to enforce a law that he believes to be unconstitutional, as Coito said.

The first power is based in both his duty to "faithfully execute" the law and his constitutional power of pardon, which is plenary. The President is given power to pardon anyone for any crime at all, including treason. George Washington used that power, from which the power not to prosecute flows, to refuse to prosecute participants in the Whiskey Rebellion (or a whiskey rebellion...it wasn't clear).

The second power is also based on the powers granted to the President and the "faithfully execute" clause. Where the President has a constitutional objection to a law he may suspend enforcement unless and until his decision is challenged in court and (ultimately) the case is resolved by the Supreme Court. Once the case has been heard and decided in favor of constitutionality however, the President is then compelled to faithfully execute that law.

In the NRC case at issue, the court determined that refusing to permit the Yucca Mountain nuclear waste repository was a ministerial obligation that Congress laid on the NRC by appropriate legislation that commanded the NRC to complete the permitting within 3 years. The court determined that Obama's policy decision to order the NRC NOT to complete it's congressionally mandated duty, which was not constitutionally infirm, was not a power the President was allowed to exercise under the same "faithfully execute" clause.

The court agreed with me in saying that to allow the President to pick and choose which laws he will enforce and which he will not, absent some genuine "case or controversy" about the constitutional legitimacy of the law, would radically change the intended form of our government.

But the burden of appealing a presidential decision not to enforce what he believes is an unconstitutional statute lies with the Congress or someone else who has standing to sue.

So I'm partly right and partly wrong in my conclusions. This means that the original claim regarding DOMA and his duty to enforce it until it's ruled unconstitutional was in error. He is entitled NOT to enforce it until it is ruled UNconstitutional.

But any law ruled constitutional or for which there is no constitutional question MUST be enforced by the Executive Branch, although the PROSECUTION of any particular individual who violates a federal law is also within the discretion of the President.

That being said, part of the original question is whether the Attorney General has a duty to defend duly-enacted and therefore presumptively constitutional laws before the courts in any case or controversy where the President asserts unconstitutionality.

In other words, the question remains as to whether the Attorney General can decline to defend the law in court based on the President's objection to the law on constitutional grounds.

Does the Attorney General represent the President or the People? Would the President be required to order the AG to defend the law, which is different from declining to prosecute an individual charged under the law, and find someone else to advocate for his position before the court? Or would the Justice Department have to oppose itself and take both roles?

[Seth]

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

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

[Svartalf]

He did not repeal, that law has been/will be overturned by proper judicial review.

[Seth]

He did not repeal, that law has been/will be overturned by proper judicial review.

Yes it has. But that's not the point. I just said that the President does have the authority to refuse to ENFORCE a law he disputes the constitutionality of. This means that in the deciding case, United States v. Windsor, where the controversy was very real, the actions of the IRS in refusing to give Windsor spousal survivorship recognition under the Death Tax law, which cost her $363,063 in death taxes were unconstitutional under the Due Process Clause because the State of New York had enacted laws recognizing and authorizing same-sex marriage.

The Court did NOT rule that a state cannot prohibit same-sex marriage, merely that same-sex couples residing in states where same-sex marriage is lawful under STATE law are entitled to the same spousal benefits from the FEDERAL GOVERNMENT as opposite-sex couples.

In other words, it was a victory for federalism and state's rights, not in and of itself a victory for same-sex proponents. The Court limited its decision to the particular facts of the case and did not declare that gay marriage is a federally-protected right.

Just that where a State authorizes gay marriage the federal government may not deny federal spousal protections and benefits to such couples. That's a limitation on federal power and a recognition of the principle of state's rights.

So now it's up to the individual states to either acknowledge and recognize same-sex marriage or not.

The question this leaves open is whether the provisions of DOMA that say that the states are not obliged to recognize gay marriages that take place in other states as it pertains to STATE LEVEL spousal benefits is constitutional or not.

I believe that clearly this aspect of DOMA was always the most obviously UNconstitutional provision because it directly violates the Full Faith and Credit clause of the Constitution and should have been overturned on that basis alone.

Article IV, Section 1:

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Thus, in my opinion, the moment the first state voted to recognize same-sex marriages all other states were automatically required to recognize those marriages as fully valid and entitling the persons to ALL spousal benefits that accrue to "married persons" under both federal AND all state laws in each and every state.

[Coito ergo sum]

There are significant points to understand there. Note that the court said that the commission was simply defying a federal law WITHOUT ANY LEGAL BASIS.

That is not the same thing as saying it is always without legal basis for the executive to defy a federal law. If the President has a reasonable basis to conclude that Congress is violating the Constitution, then that would be a legal basis.

Would it? I haven't read the case yet but the question remains under what constitutional principle or legal precedent does the President presume to rule an act of Congress to be "unconstitutional?"

Yes, but it doesn't require a ruling. The President has to enforce the law as well as protect and defend the Constitution. The constitution is the Supreme Law Of the Land and is therefore above all other laws. If a lesser law requires violation of the Supreme Law of the Land, then the executive must enforce the supreme law of the land.

There is nothing in the Constitution that gives the Supreme Court the power to rule things unconstitutional, either. And, nothing gives Congress the power to declare things unconstitutional. However, when making laws, Congress is bound to follow the Constitution, and nothing prevents Congress from including in a bill or law that it passes a declaration that something violates the constitution. The Supreme Court may agree or disagree. The President may agree or disagree. This is what being three separate and equal branches of government mean.

The standing rule of law and statutory interpretation says quite clearly that an act of ANY legislature, anywhere in the nation, which has been duly considered and voted into place by that elected public body is PRESUMED to be constitutional. The burden is and has always been on the PLAINTIFF

That's what the Supreme Court does. The Executive Branch is equal to the Judiciary in our system, and as such he can, and must, make independent determinations as to whether what he's doing is unconstitutional. And, it applies to economic laws. When things relate to free speech or race or etc., the court places the burden on the government to prove it is constitutional. See the case of US v Carolene Products, which came up with this bifurcated manner of evaluating laws in 1938. It reversed the court's practice, which before Carolene Products essentially took a presumption of unconstitutionality approach even to economic regulation.

in any case or controversy to PROVE that there is a "gross constitutional violation," NOT merely assert. And the constitutional adjudicators of such questions are the courts, not the Attorney General or the President.

"gross" violation is not required to invalidate. Any violation found invalidates the law.

There is nothing in the constitution itself that says the constitutional adjudicators are the courts. And, the President doesn't "adjudicate." He's making a decision as to what is the way to honor his oath of office to protect and defend the constitution and how to uphold the laws. The Constitution is the supreme law of the land and supersedes federal laws passed by congress. Courts are not the only ones that read laws. The executive and the citizenry must read them and follow them too. If a person working for the government, like a cop, thinks a search he is being told to do is unconstitutional, then he is bound by his obligation to obey the laws to obey the Constitution.

For example, if Congress tried to pass a law requiring federal agents to jail black people on sight, and it was passed into law, the President could refuse to enforce it on the legal basis that it violates constitutional requirements of due process and equal protection.

The President may, as stated in the opinion, not simply refuse to enforce a law based merely on a "policy objection" -- i.e., because he doesn't like it. However, if the law contravened the Constitution then the President would be under a legal duty to protect and defend the Constitution before following the law passed by Congress.

Again, a law duly passed by Congress is presumptively constitutional unless and until it is determined by the court having jurisdiction that it is unconstitutional and "the burden is on the petitioner to prove contra."

That is the rule of construction used by the Supreme Court, and that's not binding on the President. The President could say that he won't violate equal protection of the laws and won't deprive citizens of due process because the Constitution is the Supreme Law of the land. If he's being accused of acting out of turn, then he could be impeached.

Under what authority does the President presume to the position of Supreme Court Justice, or indeed a judge of any court of competent jurisdiction in deciding, sua sponte, that a particular statute is "unconstitutional"? Does that not clearly violate the Separation of Powers Doctrine?

He doesn't do that. The President is bound to enforce the law. The Constitution is the Supreme Law of the Land. If Congress passes a law that required the jailing of black people on sight, the President must decide for himself whether it comports with equal protection and due process requirements. If he determines that the Constitution forbids the law, then he needs to not enforce it or he violates his oath of office to protect and defend the Constitution. He is also placing lower federal laws over the Constitution, which is in violation of the Supremacy Clause.

Someone can sue him if he's not enforcing the law properly, or Congress can impeach him.

His duty is quite clearly and explicitly expressed in Article 2, Section 3, Clause 5.

Here's the Wikipedia entry on that Clause, which appears to support my construction (emphasis added):

Clause 5: Caring for the faithful execution of the law

Yes, and the Constitution is the Supreme Law of the land. He need not disregard it because Congress tells him to violate it. Like, if Congress passed a law that only blacks could be hired by the government to work in executive agencies. The President could instruct the agencies to hire based on qualifications and not race because of the violation of equal protection. If Congress has the muscle, it could impeach him.

The President must "take care that the laws be faithfully executed."[16] This clause in the Constitution imposes a duty on the President to take due care while executing laws and is called the Take Care Clause,[17] also known as the Faithful Execution Clause.[18]

Yes, and that includes the Constitution, which supersedes federal law and is the Supreme Law of the Land under the Supremacy Clause. "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, anything in the constitution or laws of any state to the contrary notwithstanding." The laws of the US (federal laws) are made "in pursuance thereof" -- i.e. pursuant to. I.e., all federal laws must comply with the Constitution. If they don't, the Constitution wins.

Therefore, the Court is the only branch of government authorized to "strike down" a duly-enacted Congressional law on the basis that it is unconstitutional.

That is not actually in the Constitution, first of all. But, I acknowledge that the SCOTUS did assert for itself that power.

However, the President is not striking down the law by not enforcing it. The President is upholding his own independent duty to protect and defend the Constitution, and to enforce the laws, starting with the Constitution and followed by the laws of the US made in pursuance thereof.

I.e. -- he can refrain from enforcing an unconstitutional law, or can adjust his enforcement to be in accord with the Constitution.

If Congress doesn't like it, they can impeach him.

If SCOTUS doesn't like it, they can rule in a Case or Controversy that the law is Constitutional, and then the President is forced to decide if he's going to follow his conviction or the Supreme Court decision. If he refuses to follow a Supreme Court decision, then there may be a Constitutional Crisis, as these things are called. If he follows it, he may be doing what he thinks is wrong and what is a violation of his oath. He may, as a result, be forced to consider to resign his office. Or, he could stand firm, and hold to his convictions and see if Congress impeaches him. Congress may change the law. There may be referendums or constitutional conventions, etc.

[Coito ergo sum]

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

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

Of course he has the authority to order the Justice Department to do or not do that. The Justice Department is an executive agency and reports to the President who is the Justice Department's boss.

[Seth]

If a person working for the government, like a cop, thinks a search he is being told to do is unconstitutional, then he is bound by his obligation to obey the laws to obey the Constitution.

Only until a court of competent jurisdiction (ultimately the Supreme Court) says the law is constitutional. At that point, as the instant case clearly says, to refuse to enforce a constitutional law is a violation. While the President may or may not be compelled to act (Marbury v. Madison) may be a matter of contention, the duty of an Executive Branch department or employee to obey the ruling of the Supreme Court OVER the orders of the Chief Executive (President) is clearly stated in the instant case.

[Coito ergo sum]

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

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

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

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

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

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

[Coito ergo sum]

If a person working for the government, like a cop, thinks a search he is being told to do is unconstitutional, then he is bound by his obligation to obey the laws to obey the Constitution.

Only until a court of competent jurisdiction (ultimately the Supreme Court) says the law is constitutional.

That gives him a legal defense to engaging in the search - he would claim good faith, which gives him qualified immunity. HOWEVER, a higher court or another court of competent jurisdiction could rule the exact opposite. Two district courts of appeals in the southern district of New York could rule the same kind of search to be constitutional and unconstitutional respectively. One district court in the Southern District is not bound by prior district court rulings. They are only bound by higher court rulings in the same or similar circumstance.

It is always incumbent on government employees to act constitutionally, and they take an oath to do so. They will have immunity from civil liability if they have good faith that their actions are legal, and a court case that backs them up is a good basis for good faith. But, that doesn't mean that they are, in fact, acting constitutionally. If they disagree with the district court and think that the search at issue is unconstitutional, then they may have to either proceed in doing what they think is unconstitutional, or resign.

At that point, as the instant case clearly says, to refuse to enforce a constitutional law is a violation. While the President may or may not be compelled to act (Marbury v. Madison) may be a matter of contention, the duty of an Executive Branch department or employee to obey the ruling of the Supreme Court OVER the orders of the Chief Executive (President) is clearly stated in the instant case.

Well, yes, if there is a SCOTUS decision on point, then there is an issue for federal employees. If the Prez tells a lower administrator to disobey the supreme court, and NOT, say, integrate the schools -- well, we have a Constitutional Crisis because there is no real resolution of the issue in the text of the constitution. We don't know which branch should prevail. The branches are all equal. The Court says "to be constitutional you must do this" -- and the Executive Branch says, "no." What is the resolution? Why wold we assume the SCOTUS has the deciding vote as between two EQUAL branches of government?

We have a general practice, however, over the last couple centuries, of avoiding constitutional crisis. But, there have been times where Presidents have acted in blatant contempt of the SCOTUS. Democratic President Andrew Jackson is reported as having said about Worcester v Georgia -- "They have made their decision, now let them enforce it." There was never a constitutional crisis, though, because nobody asked for federal enforcement nor was it needed as the state of Georgia figured it out.

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