On Presidents and Constitutionality

by Jonah Goldberg

I think this reader voices the objection to my position well:

I just read your comments on the corner regarding the President’s prerogative to decline to enforce a law that he believes is unconstitutional.  I think that a factor you are failing to appreciate is effect that his ability to do so would have on our system of government.  If the executive is free to decline enforcement because he or she determines it to be unconstitutional, is that decision binding on the next executive?  At least with the Supreme Court, there is the doctrine of stare decisis which in theory binds the Court to apply past precedent.  Not so with the executive.  Under your theory (which I understand has been DOJ policy for some time), the Constitutionality of a statute fluctuates depending on the personal legal views of whatever executive happens to be occupying the office at the time.  Under your example of slavery being reinstituted, the President would have had to have signed the law (or have been overridden by Congress).  In such a situation, there are strong arguments that the President should enforce such a law until a Court hears the case, regardless of the particular issue involved.  The time for the President to assert that a law is unconstitutional is when he exercises or declines his right to veto the law.  Any other option appears to be unsupported by the text of the Constitution and subjects the Constitution to political whims of the day. 

But I do agree completely that Congress has a duty to consider Constitutionality when enacting law and the President has a duty to do so in deciding whether to veto the legislation.

I actually think this is mostly quite good and fair. I do not think that presidents should start declaring any laws they don’t like unconstitutional just so they don’t have to enforce them. But I also think that if you are going to suddenly declare a law your administration has been defending for two years unconstitutional and completely unreasonable there should be grave institutional and political consequences. Has the White House announced that it is requesting an expedited hearing on this with the Supreme Court? I mean, shouldn’t that be automatic whenever a White House suddenly announces it is caught in such a constitutional bind?

As I understand it, the finding that there are no reasonable [constitutional] arguments to support DOMA is the escape hatch for Eric Holder, because otherwise he would be bound to still defend the law in court for precisely the sorts of reasons and concerns the reader alludes to. We would have anarchy if every new administration unilaterally declared laws it didn’t like as unconstitutional. So the guideline holds that if there are any reasonable arguments in favor of the existing law, the Justice Department must continue to defend it (I may have that wrong, so I invite correction). They had to declare it entirely unreasonable as well as unconstitutional to rationalize this blatantly political decision. 

The reader says, “The time for the President to assert that a law is unconstitutional is when he exercises or declines his right to veto the law. Any other option appears to be unsupported by the text of the Constitution and subjects the Constitution to political whims of the day.” I certainly agree that the best time for a president to assert the unconstitutionality of a law is when it actually comes up for his signature or veto. But as we can see, that may not always work out that way.

Look, this is a mess of Obama’s making, not mine. For what appear to be entirely political or capricious reasons he has announced that he will be enforcing a law he thinks is unconstitutional and without any reasonable arguments on its side. I am certainly open to the idea that this is a problem that should be adjudicated and rectified through the political process (which would ultimately drive it to the Supreme Court). My problem with the folks who say that Obama must continue to enforce DOMA is that they want to in effect let him off the hook for this decision. I think Obama — and any other president who does this — should own the full political and legal consequences of their decision rather than try this indefensible enforce-but-don’t-defend straddle.

Update: From a reader:

I may be reading your post incorrectly, and I haven’t reread Holder’s letter, but I think the issue is not whether the law is constitutional and reasonable, but whether there are reasonable arguments that can be made that the law is constitutional.  I read Holder’s letter as saying that there are no such reasonable arguments.  I would disagree, but I don’t think there is a separate analysis of whether the law is reasonable (or not). 

I think this reader is right [though I'm still open to correction] and this is actually what I meant to say. I’ve inserted in brackets the word “constitutional” above to make that clear.

Also: See David French above.

Update II: This reader thinks I gave away the store here.


I think you ceded too much ground in response to a reader’s objection to your position on judicial supremacy (or the lack thereof).  You ought to revert to your original view.  As I understood it, your point was that no branch has monopoly power to interpret the Constitution.  That is plainly true.  Each branch operates within its own sphere, and within that sphere, its interpretation of the Constitution controls. 

For instance, Congress wields all legislative power.  If it thinks a meritorious proposed bill is constitutional, it can enact that bill into law.  That the President or Justices of the Supreme Court take a different view of the bill’s constitutionality is irrelevant.  Congress, not the President or the Supreme Court, is charged with enacting legislation, and no reasonable reading of the Constitution inhibits a bill from becoming law just because the President or Supreme Court have constitutional reservations about it.  Similarly, the President is vested with “executive Power,” charged with taking “Care that the Laws be faithfully executed,” and bound by oath to “protect and defend the Constitution of the United States.”  Nothing limits him to defending the Constitution only when he still has the option of wielding a veto.  If the President thinks a law that Congress enacted is unconstitutional, he ought not execute the law.  That Congress or a court might take a different view of the law’s constitutionality is irrelevant, as the President, not Congress, is exclusively charged with executing the law.  Same goes for the Supreme Court (and the inferior ones), which are entrusted with judicial power.  If the Court thinks that a law enacted by Congress and prosecuted by the President is unconstitutional, it ought not issue a judgment in a case or controversy upholding the law.

You backtrack from this position by noting that we would court anarchy “if every new administration unilaterally declared laws it didn’t like as unconstitutional.”  True but irrelevant.  Sure, a President shouldn’t just declare laws he doesn’t like unconstitutional.  But that’s hardly the same thing as a bona fide belief that a law, whether liked or not, is unconstitutional.  We can all agree that Presidents shouldn’t be scofflaws, using the Constitution as an excuse to pursue a policy agenda (and I think that is precisely what Obama has done here).  But there is nothing anarchist about saying one President may have a good faith constitutional position that differs from another President’s good faith constitutional position, and these differences will translate into different enforcement regimes depending on the administration.  Indeed, I’d argue these different enforcement regimes are impelled, because a President cannot stay true to his oath by enforcing a law he thinks unconstitutional just because his predecessor held a different view (even if that prior view was in good faith).  None of this means, as your reader suggests, that the “Constitutionality of a statute fluctuates depending on the personal legal views” of the executive.  The Constitution means what it means, always. But if a President honestly and sincerely holds an incorrect view of the Constitution, he is duty bound to act on that belief.

The irony is that the DOJ’s longstanding policy of defending all laws of the U.S. unless there is no reasonable argument the laws are constitutional is a byproduct of the belief in judicial supremacy that your article so nicely disavowed.  Once you accept that courts more or less have the first, last, and only word on a statute’s constitutionality, it makes sense for a President to enforce and defend all laws (save the most obviously unconstitutional) until a court tells him not to.  That is flat out wrong, and nothing in the Constitution supports that view (or French’s repackaging of it, which is that the President lacks authority to defend substantive constitutional provisions out of respect for some procedure that makes the courts the dispositive word on constitutional meaning). 

If Obama truly thought DOMA unconstitutional, I’d vigorously disagree, but would respect his right as President not to enforce a law he thought unconstitutional.  But Obama’s actions (i.e. his previous defense of DOMA and his recent 180 even though nothing has changed) evidence a President who is proceeding in bad faith.  That’s a dereliction of duty of the first order, and you are right that in a different era would be a scandal of significant proportions.

The Corner

The one and only.