The Propriety of Presidental Non-enforcement

[Seth]

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.

[Gallstones]

What if the duly-enacted law isn't so duly?

[Ayaan]

That is a very good question and one I had not thought about before, Seth. Many people may praise Obama for his action regarding DOMA because they regard the law as unjust. But does that give various government officials the right to ignore such laws? It could truly be a double-edged sword.

[Robert_S]

That is a very good question and one I had not thought about before, Seth. Many people may praise Obama for his action regarding DOMA because they regard the law as unjust. But does that give various government officials the right to ignore such laws? It could truly be a double-edged sword.

It sets a bad precedent for the next GOP president to abuse.

[JimC]

You seem to have the potential for such tension built into the structure of your government. I wonder if, sometime in a somewhat extreme future, it could lead to civil war?

The President's Men vs the Congress Militia...

Shades of Cavaliers and Roundheads...

[Seth]

What if the duly-enacted law isn't so duly?

Wouldn't that be a matter for the Court to decide, not the President?

[Seth]

That is a very good question and one I had not thought about before, Seth. Many people may praise Obama for his action regarding DOMA because they regard the law as unjust. But does that give various government officials the right to ignore such laws? It could truly be a double-edged sword.

Indeed. Clinton used it regarding booting HIV-positive soldiers out of the military, and Bush, of course used it as well, with his "signing statements."

The first time this was threatened was in 1832, with Andrew Jackson's famous statement regarding Chief Justice Marshall's ruling in the Cherokee removals cases that Jackson could not eject the Cherokee from Georgia, “John Marshall has made his decision; let him enforce it now if he can.”
That conflict was resolved by legislative action that eventually removed the Cherokee without a direct constitutional crisis.

The first instance where presidential non-enforcement was squarely faced was in 1868, in the impeachment of Andrew Johnson for violating the Tenure in Office Act. Johnson escaped removal by one vote in the Senate.

I examine this issue in my blog a The Broadside.

The problem is that presidential non-enforcement amounts to a usurpation of both legislative and judicial authority. According to the Constitution, the President has only two roles in legislating; the veto and the pardon. And he has NO role in the judicial process.

To say that the President may simply choose not to enforce the law is to turn him into a tyrant and dictator.

What if the President were to simply decide that the Writ of Habeas Corpus or the Taxpayer Protection Act that protects citizens from abusive conduct by IRS agents is "unconstitutional?"

While the President has a dual duty; to "preserve, protect and defend the Constitution of the United States," and to see that the laws are enforced, the Progressive notion that these duties may conflict (which is to say a law of Congress may violate the Constitution) and that the President must obey his higher duty to the Constitution than to the law is to grant the President adjudicatory powers that he simply does not have. If he views a law of Congress to be unconstitutional, his duty is clearly to challenge the statute before the Court, which is the entity that is tasked with making such determinations, not acting on his own to judge the law.

[Seth]

That is a very good question and one I had not thought about before, Seth. Many people may praise Obama for his action regarding DOMA because they regard the law as unjust. But does that give various government officials the right to ignore such laws? It could truly be a double-edged sword.

It sets a bad precedent for the next GOP president to abuse.

Interestingly, the precedent was set by a Democrat, Andrew Johnson, in 1868, and has been exercised mostly by Democrat/Progressive Presidents including Woodrow Wilson, FDR, Clinton and now Obama. It's also been used by at least one Progressive Republican, George Bush Jr..

[Seth]

You seem to have the potential for such tension built into the structure of your government. I wonder if, sometime in a somewhat extreme future, it could lead to civil war?

The President's Men vs the Congress Militia...

Shades of Cavaliers and Roundheads...

I doubt it. The proper response to presidential non-enforcement is to impeach and remove the President. It's doubtful, though remotely possible, that civil war would erupt over the impeachment of a President. One of the good things about our system is that we replace Presidents regularly, so they never gain the sort of popular status that some 20 or 30 year tin-pot dictator does, and our military is not only relatively small, it's loyal to the Constitution, not the President or the Congress, and it's grossly outnumbered by the citizens and their capacity to form a Militia.

The system is set up to prevent exactly the sort of military dictatorship that Saddam enjoyed, in large part by allowing the citizenry to be armed in the event that some tyrant does try to cling to power after being unelected or impeached and removed from office.

[hiyymer]

That is a very good question and one I had not thought about before, Seth. Many people may praise Obama for his action regarding DOMA because they regard the law as unjust. But does that give various government officials the right to ignore such laws? It could truly be a double-edged sword.

He deemed it to be unconstitutional (not unjust), since lower courts have already thus ruled. In other words he's saying there doesn't seem to be a good legal basis for enforcing it based on court decisions involving discrimination based on sexual orientation since it was legislated. Members of congress still have the option to join the outstanding suits in their official capacity to try to see it defended. I think this is quite far from "ignoring the law".

[Seth]

That is a very good question and one I had not thought about before, Seth. Many people may praise Obama for his action regarding DOMA because they regard the law as unjust. But does that give various government officials the right to ignore such laws? It could truly be a double-edged sword.

He deemed it to be unconstitutional (not unjust), since lower courts have already thus ruled. In other words he's saying there doesn't seem to be a good legal basis for enforcing it based on court decisions involving discrimination based on sexual orientation since it was legislated. Members of congress still have the option to join the outstanding suits in their official capacity to try to see it defended. I think this is quite far from "ignoring the law".

The question remains. Where in the Constitution is the President authorized to pick and choose which laws he "deems" unconstitutional he is permitted to not enforce or not defend?

His duty under Article II, Section 3 is to see that the laws are "faithfully executed." How is making an individual decision not to enforce or defend laws duly enacted by the Congress "faithfully executing" the law?

Is this not a dangerous usurpation of both legislative and judicial authority? If he can decide not to enforce this law, why cannot another President decide not to enforce other anti-discrimination laws, or the laws which prevent the IRS from harassing and abusing people, or any other law he "deems" unconstitutional? If he is free to pick and choose, then what constraints are there upon this Presidential discretion in law enforcement, and how are those constraints constitutionally enforced? Does such action not give the President an entirely unconstitutional veto power over legislation that has been passed over his constitutionally-authorized veto?

"Well, Congress passed the law, I vetoed it, and Congress re-passed it over my veto, I challenged it before the Supreme Court and lost, so I'm going to exercise my Imperial Veto by refusing to enforce it because I happen to disagree with both Congress and the Supreme Court about its constitutionality!"

Would that not be cause for impeachment?

[hiyymer]

That is a very good question and one I had not thought about before, Seth. Many people may praise Obama for his action regarding DOMA because they regard the law as unjust. But does that give various government officials the right to ignore such laws? It could truly be a double-edged sword.

He deemed it to be unconstitutional (not unjust), since lower courts have already thus ruled. In other words he's saying there doesn't seem to be a good legal basis for enforcing it based on court decisions involving discrimination based on sexual orientation since it was legislated. Members of congress still have the option to join the outstanding suits in their official capacity to try to see it defended. I think this is quite far from "ignoring the law".

The question remains. Where in the Constitution is the President authorized to pick and choose which laws he "deems" unconstitutional he is permitted to not enforce or not defend?

His duty under Article II, Section 3 is to see that the laws are "faithfully executed." How is making an individual decision not to enforce or defend laws duly enacted by the Congress "faithfully executing" the law?

Is this not a dangerous usurpation of both legislative and judicial authority? If he can decide not to enforce this law, why cannot another President decide not to enforce other anti-discrimination laws, or the laws which prevent the IRS from harassing and abusing people, or any other law he "deems" unconstitutional? If he is free to pick and choose, then what constraints are there upon this Presidential discretion in law enforcement, and how are those constraints constitutionally enforced? Does such action not give the President an entirely unconstitutional veto power over legislation that has been passed over his constitutionally-authorized veto?

"Well, Congress passed the law, I vetoed it, and Congress re-passed it over my veto, I challenged it before the Supreme Court and lost, so I'm going to exercise my Imperial Veto by refusing to enforce it because I happen to disagree with both Congress and the Supreme Court about its constitutionality!"

Would that not be cause for impeachment?

I think you are over-reading it. He is saying, in effect, that the law cannot be enforced. In other words when the US Attorney gets before the judge and makes his argument that the law should be enforced there is no argument any longer because of recent decisions, including court rulings that the law is unconstitutional. In other words there is plenty of legal basis for not bothering to try and enforce it. In this case it is basically a matter of trying to disallow state laws allowing marriages between any two consenting adults. The courts have already ruled against the federal law a few times and found it unconstitutional. So why bother to expend the resources trying to enforce something that can't be enforced. The administration is saying, "The courts have spoken. Congress goofed. Not my problem."

[Seth]

That is a very good question and one I had not thought about before, Seth. Many people may praise Obama for his action regarding DOMA because they regard the law as unjust. But does that give various government officials the right to ignore such laws? It could truly be a double-edged sword.

He deemed it to be unconstitutional (not unjust), since lower courts have already thus ruled. In other words he's saying there doesn't seem to be a good legal basis for enforcing it based on court decisions involving discrimination based on sexual orientation since it was legislated. Members of congress still have the option to join the outstanding suits in their official capacity to try to see it defended. I think this is quite far from "ignoring the law".

The question remains. Where in the Constitution is the President authorized to pick and choose which laws he "deems" unconstitutional he is permitted to not enforce or not defend?

His duty under Article II, Section 3 is to see that the laws are "faithfully executed." How is making an individual decision not to enforce or defend laws duly enacted by the Congress "faithfully executing" the law?

Is this not a dangerous usurpation of both legislative and judicial authority? If he can decide not to enforce this law, why cannot another President decide not to enforce other anti-discrimination laws, or the laws which prevent the IRS from harassing and abusing people, or any other law he "deems" unconstitutional? If he is free to pick and choose, then what constraints are there upon this Presidential discretion in law enforcement, and how are those constraints constitutionally enforced? Does such action not give the President an entirely unconstitutional veto power over legislation that has been passed over his constitutionally-authorized veto?

"Well, Congress passed the law, I vetoed it, and Congress re-passed it over my veto, I challenged it before the Supreme Court and lost, so I'm going to exercise my Imperial Veto by refusing to enforce it because I happen to disagree with both Congress and the Supreme Court about its constitutionality!"

Would that not be cause for impeachment?

I think you are over-reading it. He is saying, in effect, that the law cannot be enforced. In other words when the US Attorney gets before the judge and makes his argument that the law should be enforced there is no argument any longer because of recent decisions, including court rulings that the law is unconstitutional. In other words there is plenty of legal basis for not bothering to try and enforce it. In this case it is basically a matter of trying to disallow state laws allowing marriages between any two consenting adults. The courts have already ruled against the federal law a few times and found it unconstitutional. So why bother to expend the resources trying to enforce something that can't be enforced. The administration is saying, "The courts have spoken. Congress goofed. Not my problem."

Well, the point is that the Attorney General is not the personal attorney of the President. He works for the People, and his job is to defend federal laws in court. All federal laws. Vigorously. The federal district courts involved are not the final arbiter, the Supreme Court is. The AG has a duty to defend the law right to the very end, as part of his duty as an attorney to attend to the interests of his clients, who are the People, not the President. For the President to influence the AG into not defending a duly-enacted law is wrong, and for the AG to "concur" is a breach of the AG's duty to his true clients.

And the law IS being enforced, as the AG's statement makes clear. He has simply decided not to further defend the law in the courts, at the direction of the President, who has no legal authority to direct the AG to violate the canons of professional ethics and interfere with the AG's duty to defend all of our laws to the best of his ability.

[Warren Dew]

In this case it is basically a matter of trying to disallow state laws allowing marriages between any two consenting adults. The courts have already ruled against the federal law a few times and found it unconstitutional. So why bother to expend the resources trying to enforce something that can't be enforced. The administration is saying, "The courts have spoken. Congress goofed. Not my problem."

Actually the part Obama and Holder are refusing to enforce doesn't have to do with state law; it has to do with the definition of "marriage" for the purposes of Federal law. The court decisions have also been mixed, with some district courts ruling for the law and some against it. The law has never gotten to the Supreme Court, nor, I believe, even to any appelate court.

It's quite clear that "the courts" have not spoken on this one, since the Supreme Court has not even had a chance to address it. Letting local district courts in cherry picked districts determine constitutionality for the entire nation is far from a legitimate tactic. Obama is quite clearly usurping the judiciary's prerogative to determine constitutionality here.

[Elegant Mule]

What if the duly-enacted law isn't so duly?

Wouldn't that be a matter for the Court to decide, not the President?

Well, judicial review isn't a Constitutionally sanctioned power either, and if it comes down do having a single elected official or a body of appointed ones decide law I'll take the former. Granted, ideally laws should be made in the Congress, and made with an eye towards the constitution, and towards common sense, but Congress has been passing mind numbingly stupid laws for more than 200 years, and if anything seems to be accelerating the pace recently, so some system needs to be able to correct mistakes. But surrendering so much power into the hands of so few with no democratic means of pressure or sanction doesn't strike me as the best method.

Anyway, about DOMA, the important distinction is enforcement verses defense. Not enforcing the law would violate the Constitution, but to my knowledge a vigorous defense of congressional acts is not required (why would it be without the concept of judicial review?) And as to the AG, I don't think Holder is legally required to carry out the President's desires, but that he serves at the pleasure of the President, so if he won't do it, someone else will.