Thanks, Shannen. I agree that the distinction with Bush’s signing of McCain-Feingold is more opaque than it is with Obama’s flat-out declaration that he will enforce an unconstitutional law, but I’m fairly certain that Bush crossed the line in his comments about the law he signed. I’ll go back and look for the exact remarks I have in mind when I get a chance.
Meanwhile, I’m getting a lot of (mostly) polite dissent in e-mail and in comments re my (our) position. I’m not buying it. Commenter “Over50″ writes:
Jonah, you are forgetting the entire oath: The first part of the President’s oath is: “…I will faithfully execute the office of President of the United States…”Executing the office of the President includes overseeing the Department of Justice; one of DOJ’s purposes is to enforce the law. Metaphysical arguments aside, if the law is passed by Congress and signed by the President, there is a presumption it is valid unless the Supreme Court holds otherwise. I don’t see how the President can fulfill the oath I quoted without enforcing all laws – whatever his personal opinion of the law may be. Now, I see nothing wrong with the President refusing to sign a bill for any reason; the Constitution gives Congress the power to override that veto. But once it is law, I believe the President is bound to enforce it.
I simply think this is wrong. The highest law of the land is the Constitution. We can all agree on that, right? The president’s first obligation is to defend and uphold it. If he has concluded that a law is unconstitutional, I’m at a loss as to how he can continue to enforce it. At the very least, shouldn’t he request an expedited hearing from the Supreme Court to settle the question as quickly as possible? I’m not as wild-eyed as some think. I don’t think he needs to create a constitutional crisis. But what he’s doing is too cute by three quarters.
But let’s get back to the larger point. Here’s the example I use in the column:
Imagine if Congress passed — hopefully over a presidential veto — a law that brought back slavery. Such a law would be plainly unconstitutional, and no president worthy of the job would wait for the Supreme Court to tell him as much. More to the point, once the president concluded that the law was unconstitutional, he would be bound by his oath to ignore it, and challenge it in every way possible.
Does anybody really disagree with that? Do readers honestly believe the president would have to faithfully execute the re-imposition of slavery? What if Congress passed a law saying that the IRS can seize your first-born child? Would the president be honor-bound to enforce that?
Presidents are bound to enforce laws they think are wrong, dumb, even evil. But they are also bound not to enforce laws they believe are unconstitutional. When Obama and DOJ announced DOMA is unconstitutional they opened a can of worms. Or at least that’s what the reaction should be. The problem, obviously, is that a lot of people — too many people — think that until the Supreme Court says otherwise nothing is unconstitutional. That’s understandable when it comes to some opaque questions. But every citizen understands that some things are unconstitutional and has an obligation to hold their politicians accountable to it.