Bench Memos

Model Answer, Part 4: May the President Decline to Execute Judicial Decrees on Constitutional Grounds?

Concluding – finally! – the “model answer” to the judicial supremacy exam question I first presented here.  (The previous chunks of my discussion are here, here, and here.)  

(d) Is President Goodman, by virtue of the Court’s decision in United States v. Paulsen, obligated to execute Mr. Paulsen for violating the Sedition Act? 

Remember, under the terms of the hypothetical, the statute – which the Supreme Court upheld in its entirety – abrogated the President’s pardon power.  Moreover, the Court has issued an order to the President that she execute the statute and (literally) execute the final judgment of the Court – by chopping off defendant Paulsen’s head that afternoon.  Is President Goodman constitutionally required to obey an unconstitutional order from the Supreme Court?  

This variation of the “judicial supremacy” problem demonstrates, I think, the problem with the “Each-Branch-Has-a-Constitutional-Veto-And-Therefore-the-Political-Branches-Must-Abide-by-Judicial-Decrees-So-That-The-Judiciary-Has-a-Coequal-Constitutional-Veto” position.  That position has a superficial attractiveness to it.  But it breaks down if the ostensibly co-equal veto comes in the form of a judicial order that other branches or officials must obey and execute. That’s not just each branch having its say, and having its chance to decide on the constitutionality of some law or action of government.  That’s the judicial branch having its say and saying that everybody else must act in accordance with its views.  What if the judiciary’s judgment is less a veto than a coercive command – and an unconstitutional one to boot?  Is the judgment nonetheless binding on the political branches?  Is the President obliged to execute a final judicial decree, no matter how wrong it is? 

This is the supposedly “hardest” or “most extreme” case of coordinate constitutional review.  The question is often presented as if this were a truly outrageous, sky-is-falling absurd proposition: Could the President really defy the Supreme Court’s ruling in a specific case?!  Could President Hillary Clinton really refuse to be governed by Citizens’ United?!  Could Nixon have refused to cough up the tapes?!

In principle, however, I think the question is almost the easiest of all of them, and follows naturally from the answer to part (a).  The President must not execute an unconstitutional statute, as I argued in Part 1 of this model answer.  I submit that the President likewise must not execute an unconstitutional judicial decree.  For the President to execute, as a requirement of law, that which is unconstitutional, is to act in violation of his oath of office to preserve, protect and defend the Constitution.  It does not matter with the ostensible requirement of law comes in the form of an enactment of Congress or a decision of the Court.  If one assumes that the Supreme Court decision is objectively, incontrovertibly wrong – the premise of the discussion – then this becomes easy to see. 

This is why I frame the question in terms of the hypothetical Sedition Act of 2015.  It avoids confusing the issue of judicial supremacy with the merits of the President’s (versus the Court’s) legal position – or the merits of the President. Perhaps we wouldn’t want a second President Clinton to defy Citizens United.  If so, that’s probably because we think Citizens United was right and Clinton is wrong.  Perhaps we wouldn’t want Nixon to defy Nixon.  If so, that’s probably because we think either that Nixon was right or that Nixon was a crook. This is not a defense of judicial supremacy.  It is a concern that some presidents might be bad constitutional interpreters, or willful, or act in bad faith.

To be sure, the power of independent constitutional interpretation is capable of abuse, and an abusive President might abuse such power.  (But isn’t the same observation true with respect to the power of independent constitutional interpretation in the hands of the courts?)  Such concerns do not go to the legitimacy of the existence of such power as a matter of constitutional text and structure. They go to the propriety of its use in any particular instance.

Such concerns also tend to ignore the very real, quite potent checks that other constitutional actors have on the president’s constitutional misinterpretations.  The power of independent judicial judgment has real moral force, even if the courts command no troops.  To be sure, they possess neither force nor will, but merely judgment, but such judgment matters.  Congress’s impeachment power – including the power to impeach officers for what Congress judges to be violations of the Constitution and an officer’s oath to uphold it – is a serious constitutional check. 

I therefore think that the right answer must be that the President, in his or her conduct as president, is constitutionally required to adhere to the correct interpretation of the Constitution, as best he or she faithfully can ascertain the document’s meaning and application in a given instance.  If a statute, or a court decision, is in conflict with the Constitution, faithfully understood, the President must refuse to “execute” it.  A president might be wrong in his or her constitutional interpretation, and a president might not act in good faith.  (The same might be said of courts, Congress, and other actors, too.)  But the fact that a power might be abused does not disprove its existence.  It means that a legitimate constitutional power might be misused or abused by a bad officeholder.  Surprise.  As Joseph Story famously put it:  “All powers may be abused.”

And isn’t that the reason the framers constructed a system of separation of powers among independent branches, each armed with the constitutional means and necessary independence with which to check the faithless acts of the others?  Fear that officeholders might abuse power led the framers to avoid concentration of power generally, and to deny that final-final-final power rested anywhere.  Judicial supremacy – even supremacy as to judgments – contradicts this fundamental premise, if it means the courts have the unchecked last-word power to issue decisions that everybody else is bound to obey and enforce, no matter what.  As Gregory Weiner recently put it in a brilliant post on this topic, there is quite an irony in the judicial supremacy position. “[T]he argument for judicial supremacy – giving the judiciary the last word in sequence in constitutional interpretation – distills to this:  Because no one can be trusted with unchecked power, the judiciary must be trusted with unchecked power.”   

A concluding observation about my exam question:  Many students – and probably a few readers – want to “fight the hypothetical.”  The Supreme Court would never do such a thing.  Yeah, maybe in a truly outrageous, ridiculous such situation the President, and lower courts, and juries, would be justified in defying the Supreme Court’s interpretations of the Constitution.  But get real: that isn’t ever going to happen.    


Was not Dred Scott such a case?  Was not Plessy such a case?  (And really, isn’t Roe such a case?)  Is it really so hard to imagine the Supreme Court getting something very badly wrong, working a great injustice, and producing real human harm?  Do we really need to make a list?  And if the concession is that, in a suitably extreme or outrageous case, the president really could refuse to execute a judgment resting on egregious constitutional error by the Supreme Court, then all we’re really arguing about is when that prerogative rightfully can be exercised – under what circumstances it is appropriate for the president to exercise “executive review” over the validity of judicial decrees. 

* * * * *

So, in sum: United States v. Paulsen was, objectively, wrongly decided.  It was contrary to the Constitution.  The President is not bound to follow it and prosecute Whelan – no matter what the Supreme Court says.  A lower court judge is not bound to follow it and apply it in subsequent cases – no matter what the Supreme Court says.  A jury is not bound to apply it to convict an accused – no matter what the instructing judge says.  And the President is not bound to execute Paulsen under an unconstitutional statute and unconstitutional judicial decision – no matter what the Supreme Court says and no matter that it is a final judgment and order in a particular case. 

In fact, in each instance, it is the constitutional duty – the affirmative obligation – of the respective actors not to abet the serious constitutional violation of Congress and the Supreme Court.  There are dangers to this view, but most of them can be answered by the checks that every other actor has on the errant interpretations of any particular faithless constitutional interpreter.  Wouldn’t that lead to conflict, disagreement, disequilibrium, and discomfort?  Yes, but that too is a function of the division and separation of government power under the Constitution.  It is a feature, not a bug. 

Did anybody else produce these “right” answers to my final exam question?    

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.


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