Looking at the comments to Jonah’s post, I can see that there are some serious objections raised to the notion that a president should set aside congressional action that he finds unconstitutional. Of course, that is a very serious position and should be taken as such. I don’t mean to suggest that a president should act arbitrarily or simply view himself as the final arbiter of the Constitution. But this is a chronic problem that the president faces.
During the Bush administration, Congress constantly sent up legislation that included provisions calling for a single house of Congress or even a single committee of Congress to approve legislation before a law may be executed by the executive branch. These provisions are often buried in hundreds of pages of “must pass” legislation, so end up becoming law. But they are plainly unconstitutional under the Supreme Court’s decision in INS v. Chadha, which ended the practice of legislative vetos. So a president cannot fully execute such a law without violating the Constitution’s bicameralism and presentment requirements. In the nearly 60 cases where Congress passed such a law, President Bush would issue a signing statement concluding that the provision cannot possibly mean what it says, but that he would notify the particular committee before executive action were taken. So, while he tried to comply with spirit of Congress’s wishes, he could not, consistent with not only the letter of the Constitution but Supreme Court decisions interpreting that letter, do so.
Another example is the War Powers Act. No president since its enactment has embraced the constitutionality of the act, which raises serious questions about the balance of power between the president and Congress. Yet presidents have sought to comply with the spirit and letter of the law voluntarily, so as not to create unnecessary constitutional questions. When presidents report to Congress on the use of force, however, they report “consistent with” the provisions of act, but decidedly not “pursuant to” (that is, by compulsion of) the act.
While some argue that the president’s duty to faithfully execute the law means that he must fully implement all duly enacted statutes, that overlooks the obvious point that the supreme “law” is the Constitution. The President often must choose between a validly enacted statute and the plain letter of the Constitution, a higher law. He is not, and should not be, a drone to statutes.
This is by no means an easy issue, and President Bush took enormous heat from the ABA and other critics regarding his signing statements. I do not suggest that President Obama should be refusing to execute the statute here. Just that there is inconsistency in his determination that the act is plainly unconstitutional and his commitment to enforcement. I think that inconsistency is born of uncertainty. The president is taking an aggressive constitutional position on the legality of DOMA under the Equal Protection component of the Fifth Amendment’s Due Process Clause, but he’s not willing to back up that aggressive position with the decision not to enforce the statute because he would be left with egg on his face if the statute is upheld in court.