The Duty to Defend the Constitution

Our guest columnist this morning is Walter Dellinger, writing in 1994 in his capacity as assistant attorney general of the United States and head of the Office of Legal Counsel. We’ve taken the liberty of highlighting passages for speed-skimmers.

Speaking about the DOMA appeal Tuesday, DOJ spokeswoman Tracy Schmaler said “The Department of Justice has a long-standing practice of defending federal statutes when they are challenged in court, including by appealing adverse decisions of lower courts.”

Presidential Authority to Decline to Execute Unconstitutional Statutes

I have reflected further on the difficult questions surrounding a President’s decision to decline to execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts to share with you. Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

First, there is significant judicial approval of this proposition. Most notable is the Court’s decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President’s view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has “the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional.” Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President’s authority to act contrary to a statutory command).

Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President’s authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att’y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).

While the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable, it does not offer sufficient guidance as to the appropriate course in specific circumstances. To continue our conversation about these complex issues, I offer the following propositions for your consideration.

1. The President’s office and authority are created and bounded by the Constitution; he is required to act within its terms. Put somewhat differently, in serving as the executive created by the Constitution, the President is required to act in accordance with the laws — including the Constitution, which takes precedence over other forms of law. This obligation is reflected in the Take Care Clause and in the President’s oath of office.

2. When bills are under consideration by Congress, the executive branch should promptly identify unconstitutional provisions and communicate its concerns to Congress so that the provisions can be corrected. Although this may seem elementary, in practice there have been occasions in which the President has been presented with enrolled bills containing constitutional flaws that should have been corrected in the legislative process.

3. The President should presume that enactments are constitutional. There will be some occasions, however, when a statute appears to conflict with the Constitution. In such cases, the President can and should exercise his independent judgment to determine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation. Where possible, the President should construe provisions to avoid constitutional problems.

4. The Supreme Court plays a special role in resolving disputes about the constitutionality of enactments. As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.

5. Where the President’s independent constitutional judgment and his determination of the Court’s probable decision converge on a conclusion of unconstitutionality, the President must make a decision about whether or not to comply with the provision. That decision is necessarily specific to context, and it should be reached after careful weighing of the effect of compliance with the provision on the constitutional rights of affected individuals and on the executive branch’s constitutional authority. Also relevant is the likelihood that compliance or non-compliance will permit judicial resolution of the issue. That is, the President may base his decision to comply (or decline to comply) in part on a desire to afford the Supreme Court an opportunity to review the constitutional judgment of the legislative branch.

6. The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency. Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment. If the President does not challenge such provisions (i.e., by refusing to execute them), there often will be no occasion for judicial consideration of their constitutionality; a policy of consistent Presidential enforcement of statutes limiting his power thus would deny the Supreme Court the opportunity to review the limitations and thereby would allow for unconstitutional restrictions on the President’s authority.

Some legislative encroachments on executive authority, however, will not be justiciable or are for other reasons unlikely to be resolved in court. If resolution in the courts is unlikely and the President cannot look to a judicial determination, he must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President’s authority as Commander in Chief. Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.

One example of a Presidential challenge to a statute encroaching upon his powers that did result in litigation was Myers v. United States, 272 U.S. 52 (1926). In that case, President Wilson had defied a statute that prevented him from removing postmasters without Senate approval; the Supreme Court ultimately struck down the statute as an unconstitutional limitation on the President’s removal power. Myers is particularly instructive because, at the time President Wilson acted, there was no Supreme Court precedent on point and the statute was not manifestly unconstitutional. In fact, the constitutionality of restrictions on the President’s authority to remove executive branch officials had been debated since the passage of the Tenure of Office Act in 1867 over President Johnson’s veto. The closeness of the question was underscored by the fact that three Justices, including Justices Holmes and Brandeis, dissented in Myers. Yet, despite the unsettled constitutionality of President Wilson’s action, no member of the Court in Myers suggested that Wilson overstepped his constitutional authority — or even acted improperly — by refusing to comply with a statute he believed was unconstitutional. The Court in Myers can be seen to have implicitly vindicated the view that the President may refuse to comply with a statute that limits his constitutional powers if he believes it is unconstitutional. As Attorney General Civiletti stated in a 1980 opinion,

Myers is very nearly decisive of the issue [of Presidential denial of the validity of statutes]. Myers holds that the President’s constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts. He cannot be required by statute to retain postmasters against his will unless and until a court says that he may lawfully let them go. If the statute is unconstitutional, it is unconstitutional from the start.

The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980).

7. The fact that a sitting President signed the statute in question does not change this analysis. The text of the Constitution offers no basis for distinguishing bills based on who signed them; there is no constitutional analogue to the principles of waiver and estoppel. Moreover, every President since Eisenhower has issued signing statements in which he stated that he would refuse to execute unconstitutional provisions. See annotations of attached signing statements. As we noted in our memorandum on Presidential signing statements, the President “may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President’s unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.” Memorandum for Bernard N. Nussbaum, Counsel to the President, from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel at 4 (Nov. 3, 1993). (Of course, the President is not obligated to announce his reservations in a signing statement; he can convey his views in the time, manner, and form of his choosing.) Finally, the Supreme Court recognized this practice in INS v. Chadha, 462 U.S. 919 (1983): the Court stated that “it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds” and then cited the example of President Franklin Roosevelt’s memorandum to Attorney General Jackson, in which he indicated his intention not to implement an unconstitutional provision in a statute that he had just signed. Id. at 942 n.13. These sources suggest that the President’s signing of a bill does not affect his authority to decline to enforce constitutionally objectionable provisions thereof.

In accordance with these propositions, we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision.

We recognize that these issues are difficult ones. When the President’s obligation to act in accord with the Constitution appears to be in tension with his duty to execute laws enacted by Congress, questions are raised that go to the heart of our constitutional structure. In these circumstances, a President should proceed with caution and with respect for the obligation that each of the branches shares for the maintenance of constitutional government.

Presidential Authority to Decline to Execute Unconstitutional Statutes [Office of Legal Counsel, U.S. Department of Justice]

Administration expected to appeal ‘don’t ask’ ruling [WaPo]

Justice Department to appeal same-sex marriage ruling [CNN]


I am starting to get the distinct impression that President Obama does not want me to vote on November 2.

I guess I really do not understand eleventy-dimensional chess.

So, is the administration full of lousy lawyers who haven’t done their research, or cowards who just want to hand this hot potato off to the courts? Not reassuring either way.

ADD: Is the photo by any chance from Monticello or UVA? The design looks very Jefffersonian.

@Mistress Cynica: Are they incompetent idiots or are they craven assholes waiting for the midterms to go by? The later; cowards. The man taught Con Law at a top ten law school for more than a decade, he knows the 14th and 1st Amendment jurisprudence.

“All and all you’re just a,
Another brick in the wall”
-Pink Floyd, The Wall, 1979

@Mistress Cynica: Cowards.

There’s a law review article out there by Clinton’s Solicitor General, which on the surface sounds a lot more like Obama’s excuses: The SG takes the obligation to defend acts of Congress very seriously.

Unless — the Prez determines otherwise.

Dellinger’s memo isn’t binding, but I found it on the OLC website, and it lays out a clear process for a President to decide a given matter. Obama has the authority to make the call, and he can decide not to enforce or defend a law if he thinks the Supremes will agree with him — or if he wants to force the issue.

Barry’s excuse that his hands are tied is pure bullshit.

There’s also an interesting discussion of “signing statements” in a non-highlighted stretch. Dellinger’s cool with them as such — but of course he was writing before Dubya. Dellinger would later write that criticism of Dubya’s practice was misplaced: the problem wasn’t the statements as such, but the particulars of a given case.

Near as I can tell, Dellinger’s still around — more recently he defended the Gitmo lawyers.

@nojo: Dellinger is a prof at Duke Law, he writes quite a bit on Slate, he’s of counsel at O’Melveney & Myers’ appellate/Supreme Court practice. He’s smart as a whip and an engaging speaker.

Yes, I’m kind of a Con Law groupie/nerd. Not as bad as a couple of law school classmates who aspired to academia and knew minutiae about all the profs. Dellinger is definitely in the top of the pack of the progressive Con Law scholars, up there with Erwin Chemerinsky, Pam Karlan, and Kathleen Sullivan.

So the Attorney General isn’t the president’s personal lawyer? This will be huge nooz to most people. At least for the ones who know that an Attorney General is a person and not a car on The Dukes of Hazzard. That said, Daddy O and AG (place)Holder can suck my sweaty balls.

I can sort of understand the administration’s reasoning on this – that an exercise of discretion in the case would be painted as “OMG OBAMA LURVES TEH GHEY AGENDA!” even if it was constitutionally correct.

On the other hand, *anything* (outside of orchestrating the “First Annual WH Fag Drag”) done by the President on the issue will wind up in the same situation, so why bother even trying to keep the screaming teabagging pigfuckers happy?

Speaking of the gheyz and the Obama Administration, Valerie Jarrett walks back her comment that dead 13 year old boys made “a lifestyle choice.”

Shuddering. Can they get more stuff wrong? It began with Rick Warren and has become steadily worse. Now, I understand their longing for us gays to shut up and sit down – I’m heartily sick of us myself – but since this is an Election Year that is obviously not going to happen. How is it they don’t know any better? These are not stupid people. Why do they act so dumb? Is Chicago really that provincial (yes!)? Did they learn nothing before the Marxist coup? Do they want to keep every gay man in the land home doing the laundry come Nov? And all the women in Home Depot pricing snow blowers? What is wrong with them? Why are they such fucking dolts? They make Megan McCain look hip. They make O’Reilly seem smooth. And if Beck still looks like a clown at least now I understand why he’s crying.


Which is more likely, that AmeriKKKa’s most powerful people are brainless, incompetent morans, or that some random nobody like me has better solutions to the nation’s problems? Trust me, they know exactly what they’re doing–they’re moving the country further and further to the far-right.

(adjusts tinfoil hat)

Our nation’s repulsive political and corporate E-leets know full well that the Depression is gonna get a lot worse–the middle class, state and local governments are continuing to implode with no end in sight, while the rich return to Robber Baron levels of obscene wealth–eventually leading to severe civil and political unrest, which is why both parties are pushing blatantly unconstitutional and illegal policies like torture, warrantless domestic spying and assassinating US citizens without charges or trials. At some point in the not too distant future, the US military will be turned on us here at home after the final collapse of our economy and failed foreign wars. GLBT peeps are gonna need all the legal protections we can get, since we’ll be blamed for all of it.


“And now, here’s Tiffany with the weather. Tiffany?”

-True Blood

@SanFranLefty: Surprise! Dellinger’s on Rachel tonight. I swear, all I did was Google the memo.

@nojo: Damn, I think I missed it, I’m only catching the last 20 minutes.

@SanFranLefty: He basically cribbed from my Friday doorstop, which I wrote this afternoon… Lucky for me, I don’t have to scrap it and start from scratch.

@Benedick: Stinque dominates the news again?
@Benedick: The Obama Admin wants the gays to do what they claim the oil in the Gulf did: go away. But, sadly for them, dispersants have not made gay men or lesbians disappear.

Can they get more stuff wrong? It began with Rick Warren and has become steadily worse. Now, I understand their longing for us gays to shut up and sit down – I’m heartily sick of us myself – but since this is an Election Year that is obviously not going to happen.
Find Attorney

Add a Comment
Please log in to post a comment