A couple of follow-up comments on my post yesterday:
1. Eugene Volokh has weighed in with an excellent post that develops the point that the observation by Judge Kavanaugh that Jeffrey Toobin confusedly objects to—that “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional”— is “certainly well within the mainstream of constitutional thought, and … might even be the dominant view among constitutional scholars.”
2. To state, as Kavanaugh did, that the president possesses the authority to decline to enforce a statute that he deems unconstitutional is not to take any position on whether and when (if ever) the president should exercise such authority. As I have spelled out in my House and Senate testimony criticizing the Obama administration’s refusal to enforce in court the Defense of Marriage Act, over the last several decades presidential administrations of both parties have embraced the general proposition that, with the exception of laws that intrude on the executive branch’s constitutional prerogatives, the Department of Justice should vigorously defend the constitutionality of any law for which a reasonable defense may be made in the courts.
In his opinion (again, as I explain in point 3 of my original post, as part of his explanation that “waiting to decide [the challenge to the Obamacare individual mandate] might mean never having to decide”), Kavanaugh merely takes note of the theoretical possibility that a president “might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional.” As the context makes clear, Kavanaugh, who was writing before the Supreme Court granted review of the Obamacare cases, was contemplating a future scenario in which the Supreme Court hadn’t ruled on the mandate. (It would obviously make no sense to speak of the courts “never having to decide” an issue that the Court had already decided.) In that scenario, a president following the consensus practice would enforce the individual mandate, notwithstanding his constitutional authority not to do so. But, ironically, the Obama administration’s departure from that practice in failing to defend DOMA would make it somewhat more likely that the president in that hypothetical scenario wouldn’t do so.