Presidential Authority to Decline to Execute Unconstitutional Statutes
T his m e m o ra n d u m d is c u s s e s th e P re s id e n t’s c o n stitu tio n a l a u th o rity to d e clin e to e x ec u te u n c o n s titu tio n a l statu tes.
N ovem ber 2, 1994
M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s i d e n t
I have reflected further on the difficult questions surrounding a President’s deci sion to decline to execute statutory provisions that the President believes are un constitutional, 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 circum stances 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 C ourt’s decision in M yers v. U nited States, 272 U.S. 52 (1926). T here the Court sustained the President’s view that the statute at issue was unconstitutional without any member o f the Court suggesting that the President had acted im prop erly in refusing to abide by the statute. M ore recently, in F reytag v. C om m is sioner, 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); se e 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. O pinions dating to at least 1860 assert the President’s authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., M em orial o f Captain M eigs, 9 Op. A tt’y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also attached annotations of Attorney General and Office of Legal Counsel opin ions. Moreover, as we discuss more fully below, numerous Presidents have pro vided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme C ourt 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 provi sions).
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W hile the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable, it does not offer sufficient guid ance as to the appropriate course in specific circumstances. To continue our con versation about these complex issues, I offer the following propositions for your consideration.
1. T he President’s office and authority are created and bounded by the Consti tution; 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 ac cordance with the laws — including the Constitution, which takes precedence over other form s of law. This obligation is reflected in the Take Care Clause and in the President’s oath of office.
2. W hen bills are under consideration by Congress, the executive branch should prom ptly identify unconstitutional provisions and communicate its concerns to C ongress so that the provisions can be corrected. Although this may seem ele mentary, 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 enactm ents are constitutional. There will be som e occasions, however, when a statute appears to conflict with the Constitu tion. In such cases, the President can and should exercise his independent judg ment to determ ine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the stat ute and that Congress believed it w as upholding its obligation to enact constitu tional legislation. W here possible, the President should construe provisions to avoid constitutional problems.
4. T he Suprem e Court plays a special role in resolving disputes about the con stitutionality o f enactm ents. 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, how ever, the President, exercising his independent judgm ent, 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 stat ute.
5. W here the P resident’s independent constitutional judgm ent and his determ i nation o f the C ourt’s probable decision converge on a conclusion o f unconstitu tionality, 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
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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 constitu tional 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 de cision to comply (or decline to com ply) in part on a desire to afford the Supreme Court an opportunity to review the constitutional judgm ent o f the legislative branch.
6. The President has enhanced responsibility to resist unconstitutional provi sions that encroach upon the constitutional powers of the Presidency. W here 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 chal lenge 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 Su preme Court the opportunity to review the limitations and thereby would allow for unconstitutional restrictions on the President’s authority. Some legislative encroachm ents 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 determ ination, he must shoulder the responsibility of protecting the constitutional role of the presi dency. This is usually true, for example, of provisions limiting the President’s authority as Commander in Chief. W here it is not possible to construe such provi sions constitutionally, the President has the authority to act on his understanding of the Constitution. One example o f a Presidential challenge to a statute encroaching upon his pow ers that did result in litigation was M yers v. U nited S tates , 272 U.S. 52 (1926). In that case, President Wilson had defied a statute that prevented him from rem oving postmasters without Senate approval; the Supreme Court ultimately struck down the statute as an unconstitutional limitation on the President’s removal power. M yers is particularly instructive because, at the time President W ilson acted, there was no Supreme Court precedent on point and the statute was not manifestly un constitutional. 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 o f 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 M yers. Yet, despite the unsettled constitution ality of President W ilson’s action, no member of the Court in M yers suggested that Wilson overstepped his constitutional authority — or even acted improperly — by refusing to comply with a statute he believed was unconstitutional. The C ourt in M yers can be seen to have implicitly vindicated the view that the President may
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refuse to com ply with a statute that lim its his constitutional powers if he believes it is unconstitutional. As Attorney General Civiletti stated in a 1980 opinion,
M yers is very nearly decisive of the issue [of Presidential denial of the validity of statutes]. M yers holds that the President’s constitu tional 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 A tto rn ey G e n e ra l’s D uty to D efen d an d Enforce Constitutionally O bjection able L egislation , 4 A 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 o f 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 statem ents in which he stated that he would refuse to execute unconstitu tional provisions. See annotations o f attached signing statements. As we noted in our m em orandum on Presidential signing statements, the President “may properly announce to Congress and to the public that he will not enforce a provision o f an enactm ent he is signing. If so, then a signing statement that challenges what the President determ ines to be an unconstitutional encroachm ent 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.” The L egal S ignificance o f P residen tial Signing Statem ents, 17 Op. O.L.C. 131, 134 (1993). (O f course, the President is not obligated to announce his reservations in a signing statem ent; he can convey his views in the time, manner, and form of his choosing.) Finally, the Supreme C ourt recognized this practice in Chadha, 462 U.S. at 942 n.13: the C ourt stated that “it is not uncommon for Presidents to ap prove legislation containing parts which are objectionable on constitutional grounds” and then cited the example of President Franklin Roosevelt’s memoran dum to Attorney General Jackson, in which he indicated his intention not to im plem ent an unconstitutional provision in a statute that he had just signed. 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 lim ited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the
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authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision. W e recognize that these issues are difficult ones. W hen the President’s obliga tion 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 o f 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.
W ALTER DELLINGER A ssistan t A ttorn ey G eneral Office o f L egal Counsel
Brief Description of Materials
Attorney General Opinions
1) M em orial o f Captain Meigs, 9 Op. A tt’y Gen. 462 (I860): In this opinion the Attorney General concluded that the President is permitted to disregard an uncon stitutional statute. Specifically, Attorney General Black concluded that a statute purporting to appoint an officer should not be enforced: “Every law is to be car ried out so far forth as is consistent with the Constitution, and no further. The sound part of it must be executed, and the vicious portion o f it suffered to drop.” Id. at 469.
2) C onstitutionality o f C on g ress’ D isapproval o f A gency R egulations b y R esolu tions N ot P resen ted to the President, 4A Op. O.L.C. 21 (1980)'. In this opinion Attorney General Civiletti instructed Secretary of Education Hufstedler that she was authorized to implement regulations that had been disapproved by concurrent congressional resolutions, pursuant to a statutory legislative veto. The Attorney General noted that “the Attorney General m ust scrutinize with caution any claim that he or any other executive officer may decline to defend or enforce a statute whose constitutionality is merely in doubt.” Id. at 29. He concluded, however, that “ [t]o regard these concurrent resolutions as legally binding would im pair the Executive’s constitutional role and might well foreclose effective judicial challenge to their constitutionality. More important, I believe that your recognition o f these concurrent resolutions as legally binding would constitute an abdication o f the re sponsibility of the executive branch, as an equal and coordinate branch of govern ment with the legislative branch, to preserve the integrity o f its functions against constitutional encroachm ent.” Id.
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3) The A ttorn ey G e n e ra l’s Duty to D efend a n d Enforce C onstitutionally O b jec tion able L egislation, 4A Op. O.L.C. 5 5 (1980): Attorney General Civiletti, in an swer to a congressional inquiry, observed that “ M yers 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 de clared unconstitutional by the courts.” Id. at 59. He added as a cautionary note that “ [t]he President has no ‘dispensing pow er,’” meaning that the President and his subordinates “may not lawfully defy an Act o f Congress if the Act is constitu tional. . . . In those rare instances in which the Executive may lawfully act in con travention o f a statute, it is the Constitution that dispenses with the operation o f the statute. The Executive cannot.” Id. at 59-60.
4) L e tte r f o r P e te r W. Rodino, Jr., Chairman, H ouse Ju diciary Com m ittee from W illiam French Smith, A ttorney G en eral (Feb. 22, 1985): This letter discussed the legal precedent and authority for the President’s refusal to execute a provision of the Com petition in Contracting Act. The Attorney General noted that the decision “not to im plem ent the disputed provisions has the beneficial byproduct of increas ing the likelihood o f a prom pt judicial resolution. Thus, far from unilaterally nulli fying an A ct o f Congress, the Departm ent’s actions are fully consistent with the allocation o f judicial pow er by the C onstitution to the courts.” Id. at 8. The letter also stated that “the President’s failure to veto a measure does not prevent him sub sequently from challenging the Act in court, nor does presidential approval of an enactm ent cure constitutional defects.” Id. at 3.
Office of Legal Counsel Opinions
1) M em oran dum f o r the H onorable R obert J. Lipshutz, Counsel to the President, fro m John M. Harm on, Assistant A ttorn ey G eneral, Office o f L egal Counsel (Sept. 27, 1977): This opinion concluded that the President may lawfully disregard a statute that he interprets to be unconstitutional. W e asserted that “cases may arise in which the unconstitutionality of th e relevant statute will be certain, and in such a case the Executive could decline to enforce the statute for that reason alone.” Id. at 13. W e continued, stating that “[u]nless the unconstitutionality of a statute is clear, the President should attem pt to resolve his doubts in a way that favors the statute, and he should not decline to enforce it unless he concludes that he is compelled to do so under the circum stances.” Id. We declined to catalogue all the considera tions that would weigh in favor of non-enforcement, but we identified two: first the extent o f the harm to individuals or the governm ent resulting from enforce ment; and, second, the creation of an opportunity for a court challenge through non-enforcem ent (e.g., M yers).
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2) A ppropriation s Lim itation f o r Rules V etoed by Congress, 4B Op. O .L.C. 731 (1980): In this opinion we rejected the constitutionality of a proposed legislative veto, prior to the C ourt’s decision in Chadha. We opined that “[t]o regard this provision as legally binding would impair the Executive’s constitutional role and would constitute an abdication of the responsibility of the Executive Branch.” Id. at 734. It should be noted that the legislation in question was pending in Congress, and the possibility that President Carter would sign the legislation did not affect our analysis of the constitutional issue. W e simply stated that, “if enacted, the [legislative veto provision] will not have any legal effect.” Id.
3) Issues R aised by Foreign R elations Authorization Bill, 14 Op. O .L.C. 37 (1990): This opinion also addressed then-pending legislation, in this case the for eign relations authorization bill for fiscal years 1990 and 1991. The opinion found that a provision o f the bill was unconstitutional and severable. Regarding non execution, the opinion stated that “at least in the context of legislation that in fringes the separation of powers, the President has the constitutional authority to refuse to enforce unconstitutional laws.” Id. at 50. The opinion concluded that “if the President chooses to sign H.R. 3792, he would be constitutionally authorized to decline to enforce” the constitutionally objectionable section. Id. at 37.
4) Issues R aised by P rovisions D irecting Issuance o f Official o r D iplom atic P a ss ports, 16 Op. O.L.C. 18 (1992): This opinion concluded that tw o statutory provi sions that limited the issuance of official and diplomatic passports were unconstitutional and were severable from the remainder of the two statutes. On the question of non-execution, the opinion rejected “the argument that the President may not treat a statute as invalid prior to a judicial determination.” Id. at 36. The opinion concluded that the Constitution authorizes the President to refuse to en force a law that he believes is unconstitutional.
5) The L egal Significance o f P residen tial Signing Statem ents, 1 7 Op. O.L.C. 131 (1993): This opinion discusses different categories of signing statements, includ ing those construing bills to avoid constitutional problems and those in which the President declares “that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it.” Id. at 133. The opinion concludes that such “uses of Presidential signing statements generally serve legitimate and defensible purposes.” Id. at 137.
Presidential Signing Statements
1) Statem ent by the State D epartm ent (Announcing P residen t W ilso n ’s Refusal to Carry Out the Section o f the Jones M erchant M arine A c t o f June 5, 1920, d ire c t ing him to term inate treaty provision s restricting the G overn m en t’s right to im pose
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discrim in atory tonnage du es and ta riff du ties), 17 A Com pilation o f the M essages a n d P a p ers o f the P resid en ts 8871 (Sept. 24, J920) (Pres. Wilson): The State De partm ent announced that it “has been informed by the President that he does not deem the direction contained in Section 34 o f the so-called Merchant M arine Act an exercise of any constitutional pow er possessed by the Congress.” Id. The statem ent also defended President W ilson’s decision to sign the bill and noted that “the fact that one section o f the law involves elem ents o f illegality rendering the section inoperative need not affect the validity and operation o f the Act as a w hole.” 5 Green H ayw ood Hackworth, D igest o f International Law 324 (1943).
2) S p ecia l M essage to the C ongress Upon Signing the D epartm ent o f Defense A p p ro priation Act, Pub. P apers o f D w igh t D. E isen how er 688 (July 13, 1955): President Eisenhow er, in signing a bill (H.R. 6042) that contained a legislative veto, stated that the legislative veto “ will be regarded as invalid by the executive branch of the G overnm ent in the adm inistration of H.R. 6042, unless otherwise determ ined by a court of competent jurisdiction.” Id. at 689.
3) M em orandum on Inform ing C on gression al C om m ittees o f Changes Involving F oreign E conom ic A ssista n ce Funds, Pub. P a p ers o f John F. K ennedy 6 (Jan. 9, 1963): President Kennedy stated that a provision in the bill he was signing con tained an unconstitutional legislative veto. He announced that “[i]t is therefore my intention . . . to treat this provision as a request for information.” Id.
4) Statem en t by the P resid en t Upon A pprovin g the Public Works A ppropriation s Act, Pub. P a p ers o f L yndon B. Johnson 104 (D ec. 31, 1963): President Johnson also found that a legislative veto provision was unconstitutional and stated that he would treat it as a request for information.
5) S ta tem en t A bou t Signing the P u b lic B uildings Am endm ents o f 1972, Pub. P a p e rs o f R ich ard Nixon 6 8 6 (June 17, 1972): President Nixon stated that a clause conditioning the use o f authority by the executive branch on the approval of a con gressional com m ittee was unconstitutional. He ordered the agency involved to comply with “the acceptable procedures” in the bill “without regard to the uncon stitutional provisions I have previously referred to.” Id. at 687.
6) Statem en t on Signing the D epartm ent o f D efense A ppropriation A ct o f 1976, Pub. P a p ers o f G era ld R. Ford 241 (Feb. 10, 1976): President Ford stated that a com m ittee approval m echanism was unconstitutional and announced that he would “treat the unconstitutional provision . . . to the extent it requires further Congres sional com m ittee approval, as a com plete nullity.” Id. at 242.
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7) S tatem ent on Signing C oastal Zone M anagem ent Im provem ent A ct o f 1980, Pub. P a p ers o f Jimm y C arter 2335 (Oct. 18, 1980): President Carter stated that a legislative veto provision was unconstitutional and that any attempt at a legislative veto would “not [be] regarded as legally binding.” Id.
8) S tatem en t on Signing the Union Station R edevelopm en t A ct o f 1981, Pub. P a p ers o f R on ald Reagan 1207 (Dec. 29, 1981): President Reagan stated that a leg islative veto was unconstitutional and announced that “[t]he Secretary of Transportation will not . . . regard himself as legally bound by any such resolu tion.” Id.
9) Statem en t On Signing the N ational an d Com m unity S ervice A ct o f 1990, Pub. P apers o f G eorge Bush 1613 (Nov. 16, 1990): President Bush rejected the consti tutionality of provisions that required a Presidentially appointed board exercising executive authority to include, among its 21 members, “seven members nominated by the Speaker of the House of Representatives . . . [and] seven members nom i nated by the M ajority Leader of the Senate.” Id. at 1614. He announced that the restrictions on his choice of nominees to the board “are without legal force or ef fect.” Id.
10) 7 A C om pilation o f the M essages an d P apers o f the P resid en ts 3 7 7 (Aug. 14, 1876) (Pres. Grant): This is one of the earliest of many instances of a President “construing” a provision (to avoid constitutional problems) in a way that seems to amount to a refusal to enforce a provision of it. An 1876 statute directed that no tices be sent to certain diplomatic and consular officers “to close their offices.” President Grant, in signing the bill, stated that, “ [i]n the literal sense of this direc tion it would be an invasion of the constitutional prerogatives and duty of the Ex ecutive.” Id. In order to avoid this problem, President Grant “constru[ed]” this provision “only to exercise the constitutional prerogative of Congress over the ex penditures of the Government,” not to “imply[] a right in the legislative branch to direct the closing or discontinuing of any of the diplomatic or consular offices of the G overnm ent.” Id. at 378.
Other Presidential Documents
1) A P resid en tia l L egal Opinion, 66 Harv. L. Rev. 1353 (1953): This was a legal opinion from President Franklin Roosevelt to Attorney General Jackson. President Roosevelt stated that he was signing the Lend-Lease Act despite a provision pro viding for a legislative veto, “a provision which, in my opinion, is clearly uncon stitutional.” Id. at 1357. The President stated that, “[i]n order that I may be on record as indicating my opinion that the foregoing provision of the so-called Lend- Lease Act is unconstitutional, and in order that my approval of the bill, due to the
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existing exigencies o f the world situation, may not be construed as a tacit acquies cence in any contrary view, I am requesting you to place this memorandum in the official files o f the Department of Justice. I am desirous o f having this done for the further reason that I should not wish my action in approving the bill which includes this invalid clause, to be used as a precedent for any future legislation comprising provisions o f a sim ilar nature.” Id. at 1358.
2) M essa g e to the C on gress on L egisla tive Vetoes, Pub. P apers o f Jim m y C arter 1 1 4 6 (Jun. 21, 1978): In this memorandum President Carter expressed his strong opposition to legislative vetoes and stated that “[t]he inclusion of [a legislative veto] in a bill will be an important factor in my decision to sign or to veto it.” Id. at 1148. He further stated that, “[a]s for legislative vetoes over the execution of program s already prescribed in legislation and in bills I must sign for other rea sons, the Executive Branch will generally treat them as ‘report-and-wait’ provi sions. In such a case, if Congress subsequently adopts a resolution to veto an Executive action, we will give it serious consideration, but we will not, under our reading o f the C onstitution, consider it legally binding.” Id. at 1149.
Historical Materials
1) S tatem en t o f Jam es Wilson on D ec em b e r 1, 1 7 8 7 on the A doption o f the Fed eral Constitution, reprin ted in 2 Jonathan Elliot, D eb a tes on the F ederal C on sti tution 4 1 8 (1836): W ilson argued that the Constitution imposed significant — and sufficient — restraints on the power o f the legislature, and that the President would not be dependent upon the legislature. In this context, he stated that “the pow er of the C onstitution was paramount to the power o f the legislature acting under that Constitution; for it is possible that the legislature . . . may transgress the bounds assigned to it, and an act may pass, in the usual m ode, notwithstanding that trans gression; but when it com es to be discussed before the ju d g es, — when they con sider its principles, and find it to be incompatible with the superior power o f the Constitution,— it is their duty to pronounce it vo id . . . . In the same manner, the President o f the United States could shield himself, and refuse to carry into effect an act that vio la te s the Constitution.” Id. at 445-46.
2) L etter fro m C h ief Justice Chase to G errit Smith (Apr. 19, 1868), q u o ted in J. Schuckers, The Life an d Public S ervices o f Salm on P ortlan d Chase 5 7 7 (1874): Chase stated that President Johnson took the proper action in removing Secretary of W ar Stanton w ithout Senate approval, in light of Johnson’s belief that the statu tory restriction on his removal authority was unconstitutional. In this regard, Chase com m ented that “the President had a perfect right, and indeed was under the high est obligation, to rem ove Mr. Stanton, if he m ade the removal not in wanton disre gard o f a constitutional law, but with a sincere belief that the Tenure-of-Office Act
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was unconstitutional and for the purpose of bringing the question before the Su preme Court.” Id. at 578.
Congressional Materials
1) The P resid en t’s Suspension o f the Com petition in C ontracting A c t is U ncon stitutional, H.R. Rep. No. 99-138, 1st Sess. (1985): The House Committee on Government Operations concluded that the President lacked the authority to refuse to implement any provision of the Competition in Contracting Act. The Com m it tee stated that, “[t]o adopt the view that one’s oath to support and defend the Con stitution is a license to exercise any available power in furtherance of one’s own constitutional interpretation would quickly destroy the entire constitutional scheme. Such a view, whereby the President pledges allegiance to the Constitution but then determines what the Constitution means, inexorably leads to the usurpation by the Executive of the others’ roles.” Id. at 11. The Committee also stated that “[t]he Executive’s suspension of the law circumvents the constitutionally specified means for expressing Executive objections to law and is a constitutionally impermissible absolute veto power.” Id. at 13.
2) M emorandum from the C ongressional Research S ervice to the C om m ittee on G overnm ent O perations concerning “The E xecu tive’s D uty to Enforce the L a w s ” (Feb. 6, 1985), reprinted in C onstitutionality o f G A O ’s B id P ro test Function: H earings Before a Subcomm. o f the H ouse Comm, on G overnm ent O perations, 99th Cong. 544 (1985): This memorandum stated that the President lacks the authority to decline to enforce statutes. The CRS argued that “[t]he refusal of the President to execute the law is indistinguishable from the power to suspend the laws. That power, as is true o f the power to amend or to revive an expired law, is a legislative power.” Id. at 554.
Cases
1) M yers v. U nited States, 272 U.S. 52 (1926): The President refused to comply with — that is, enforce — a limitation on his power o f removal that he regarded as unconstitutional, even though the question had not been addressed by the Supreme Court. A member of Congress, Senator Pepper, urged the Supreme Court to up hold the validity of the provision. The Supreme Court vindicated the President’s interpretation without any member of the Court indicating that the President had acted unlawfully or inappropriately in refusing to enforce the removal restriction based on his belief that it was unconstitutional.
2) U nited States v. Lovett, 3 28 U.S. 303 (1946): The President enforced a statute that directed him to withhold compensation from three named employees, even
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though the President believed the law to be unconstitutional. The Justice D epart ment argued against the constitutionality o f the statute in the ensuing litigation. (The Court permitted an attorney to appear on behalf of Congress, am icus curiae, to defend the statute.)
3) IN S v. Chadha, 4 62 U.S. 919 (1983): This case involved the withholding of citizenship from an applicant pursuant to a legislative veto of an Attorney General decision to grant citizenship. Despite a Carter Administration policy against com plying with legislative vetoes (see Carter Presidential memorandum, supra), the executive branch enforced the legislative veto, and, in so doing, allowed for judi cial review o f the statute. As with L ovett, the Justice Department argued against the constitutionality of the statute.
4) M o rrison v. Olson, 4 8 7 U.S. 6 5 4 (1988): The President viewed the independ ent counsel statute as unconstitutional. The Attorney General enforced it, making findings and forwarding them to the Special Division. In litigation, however, the Justice D epartm ent attacked the constitutionality of the statute and left its defense to the Senate Counsel, as am icus cu riae, and the independent counsel herself.
5) F reytag v. Com m issioner, 501 U.S. 868 (1991): A unanimous Court ruled that the appointm ent of special trial judges by the C hief Judge of the United States Tax Court did not violate the Appointments Clause. Five Justices concluded that the Tax C ourt was a “Court of Law” for Appointments Clause purposes, despite the fact that it was an Article I court, so that the Tax Court could constitutionally ap point inferior officers. Four Justices, in a concurrence by Justice Scalia, contended that the Tax Court was a “D epartm ent” under the Appointments Clause. The con currence stated that “Court of Law” did not include Article I courts and that the Fram ers intended to prevent Congress from having the power both to create offices and to appoint officers. In this regard, the concurrence stated that “it was not enough sim ply to repose the power to execute the laws (or to appoint) in the Presi dent; it was also necessary to provide him with the means to resist legislative en croachm ent upon that power. T he means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws, see Art. I, § 7, or even to disregard them when they are unconstitutional.” Id. at 906 (Scalia, J., concurring).
6) L ea r Siegler, Inc., Energy P rods. Div. v. Lehman, 842 F .2d 1102 (9th Cir. 1988), w ithdraw n in p a r t 893 F.2d 2 0 5 (9th Cir. 1990) (en banc): The President refused to comply with provisions o f the Competition in Contracting Act that he viewed as unconstitutional and thereby allowed for judicial resolution of the issue. The Ninth Circuit rejected the President’s argum ents about the constitutionality of the provisions. The court further determ ined that Lear Siegler was a prevailing
210 P resid en tia l Authority’ to D ecline to E xecute U nconstitutional Statutes
party and was entitled to attorneys’ fees, because the executive branch acted in bad faith in refusing to execute the contested provisions. In this regard, the court stated that the President’s action was “utterly at odds with the texture and plain language of the Constitution,” because a statute is part of the law of the land that the Presi dent is obligated to execute. Id. at 1121, 1124. On rehearing en banc, the court ruled that Lear Siegler was not a prevailing party and withdrew the sections of the opinion quoted above.