I wanted to make a few short comments in response to Feddie’s most recent comments and the tidbit from Robert Alt.

Feddie: The comparison between executive officials and judges on inferior courts doesn’t work because inferior courts are, well, inferior. Therefore they must follow higher courts, just as an inferior executive department official must follow the Constitutional determinations of his superiors. A co-equal branch of government, on the other hand, does not have the same obligation to follow the determination of another branch (though such determinations are worthy of some measure of deference and respect).

Alt: Of course there are examples of administration’s refusing to defend laws on constitutional grounds. (Ted Olson, as SG, refused to defend one federal statute against a sovereign immunity challenge.) But I am not sure that this is quite the same thing as refusing to enforce a validly enacted law. I am not wholly compfortable with either, but I think I prefer the latter to the former. A statute’s unconstitutionality would seem to be a legitimate basis for the exercise of prosecutorial discretion. On the other hand, the federal government, as a whole, is the SG’s client, so I believe the SG has an obligation to make any reasonable argument in defense of a statute’s constitutionality if the statute is challenged in Court.

One final thought: Insofar as the legislative and executive branches abdicate their obligations to consider the constitutionality of federal statutes independently of the courts, they reinforce the culture of judicial supremacy. Mroeover, they serve to ratify the soundness of the Court’s judgments. (Think of how Madison, Jefferson, et al., acquiesced to the constitutionality of the National Bank due to the actions of Congress and the Court.) Thus, in my view, taking advantage of erroneous Supreme Court precedent to advance narrow ideological goals is the true position of “unilateral surrender.”

For a full recap of the discussion thus far, including additional commentary from Will Baude, see Feddie’s post on SA.