The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation
T he A ttorney G eneral has a duty to defend and enforce both the A cts o f C ongress and the Constitution; w hen there is a conflict betw een the requirem ents o f the one and the requirem ents o f the other, it is alm ost alw ays the case that he can best discharge the responsibilities o f his office by defending and enforcing the A ct o f Congress.
While there is no general privilege in the E xecutive to disregard laws that it deem s inconsistent with the Constitution, in rare cases the Executive’s duty to the constitu tional system may require action in defiance o f a statute. In such a case, the E xecutive’s refusal to defend and enforce an unconstitutional statute is authorized and lawful.
July 30, 1980
T he C h a ir m a n of the S enate Subcom m it t e e on L im it a t io n s of
C ontracted and D elegated A u t h o r it y
M y D ear M r . C h a ir m a n : In your letter o f June 25, 1980, you asked that I answer eleven questions posed by you concerning the legal “authority” supporting “the Justice D epartm ent’s assertion that it can deny the validity of A cts o f Congress.” I am pleased to respond. I have taken the liberty o f setting these eleven questions out verbatim so the context in w hich my answers are given will be clear. M y answers follow several prelim inary observations about the form o f the questions asked and the general nature o f the D epartm ent’s “assertion” in this matter.
The Attorney General has a duty to defend and enforce the Acts of Congress. He also has a duty to defend and enforce the Constitution. If he is to perform these duties faithfully, he must exercise conscientious judgment. He must examine the Acts of Congress and the Constitution and determine what they require of him; and if he finds in a given case that there is conflict between the requirements of the one and the requirements of the other, he must acknowledge his dilemma and decide how to deal with it. That task is inescapably his.
I concur fully in the view, expressed by nearly all of my predecessors that when the Attorney General is confronted with such a choice, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress. That view is supported by compelling constitutional considerations. Within their re spective spheres of action the three branches of government can and do exercise judgment with respect to constitutional questions, and the
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Judicial Branch is ordinarily in a position to protect both the govern ment and the citizenry from unconstitutional action, legislative and executive; but only the Executive Branch can execute the statutes of the United States. F or that reason alone, if executive officers w ere to adopt a policy o f ignoring or attacking A cts o f Congress w henever they believed them to be in conflict w ith the provisions of the Constitu tion, their conduct in office could jeopardize the equilibrium established within our constitutional system.
A t the same time, I believe that if C ongress w ere to enact a law requiring, for example, that the A ttorney G eneral arrest and imprison all m embers o f the opposition party w ithout trial, the A ttorney General could lawfully decline to enforce such a law; and he could lawfully decline to defend it in court. Indeed, he w ould be untrue to his office if he w ere to do otherw ise. This is not because he has authority to “deny the validity o f A cts o f C ongress.” It is because everything in our constitutional jurisprudence inescapably establishes that neither he nor any o th er executive officer can be given authority to enforce such a law. T he “assertion” o f the D epartm ent o f Justice is nothing more, nor less, than th is.1 I have one further observation. In your letter you state that your request “does not include those situations w here the A cts themselves touch on constitutional separation o f pow ers between Executive and Legislative Branches . . . .” Since almost all o f the legal authority dealing with this question, from the trial o f A ndrew Johnson to the argum ents o f A ttorney G eneral Levi in B uckley v. Valeo, 424 U.S. 1 (1976), deal w ith separation o f pow ers issues, your limitation is strin gent. I will not discuss all the pertinent authorities if you will permit me to note that in this field the historical predom inance o f separation of pow ers issues is no accident. I have said that the Executive can rarely defy an A ct o f C ongress w ithout upsetting the equilibrium established within our constitutional system; but if that equilibrium has already been placed in jeopardy by the A ct o f C ongress itself, the case is much m ore likely to fall within that narrow class.
T he traditional debate over the nature and extent o f the President’s supervisory authority as chief executive provides a good illustration of the phenom enon to w hich I have just referred. From time to time C ongress has attem pted to limit the President’s pow er to remove, and thereby control, the officers o f the United States. Some o f these at tem pts have been consistent w ith the Constitution; others have not. In
11 note that an analogous situation is presented w here an individual subject to a court injunction believes that injunction to be unconstitutional o r legally invalid. T h e well-established rule is that such an injunction must be obeyed until it is dissolved o r modified on appeal in o rd e r to preserve the integrity o f the judicial process. Walker v. C ity o f Birmingham, 388 U.S. 307 (1967). T h e C ourt in Walker, how ever, was careful to em phasize that it did not have before it a case in w hich "the injunction w as transparently invalid." Id. at 315. If an A ct o f C ongress directs or authorizes the E xecutive to take action w hich is "tran sp aren tly invalid" w hen view ed in light o f established constitu tional law, I believe it is the Executive’s constitutional duty to decline to execute that pow er.
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every one o f these instances, how ever, it was the A ct o f Congress itself that altered the balance o f forces between the Executive and Legisla tive Branches; and if the Executive had invariably honored the A ct, our constitutional system w ould have been changed by fa it accompli. A c cordingly, in some o f the cases in which the constitutionality o f the A ct was in doubt, the Executive determ ined that it could best preserve our constitutional system by refusing to honor the limitation imposed by the A ct, thereby creating, through opposition, an opportunity for change and correction that would not have existed had the Executive acqui esced. See Myers v. United States, 272 U.S. 52 (1926). Inter-branch disputes over other separation-of-powers issues can follow a similar course.
I now turn to your specific questions. Question 1: W hat is the specific authority (if any) deriving from E ng lish constitutional history which supports the Justice D e partm ent’s assertion that it can deny the validity o f Acts of Congress?
As I have suggested, the D epartm ent’s “assertion” depends entirely upon the proposition that there are fundamental limitations on the authority o f the Legislative and Executive Branches o f our govern ment. This, in fact, is the central legal principle in our constitutional system—our system o f “lim ited” governm ent—and it is a principle that the English have rejected. A ccordingly, English constitutional history is im portant for our purposes, not because it supports my view that in a system o f “limited” governm ent there are pow ers and duties that cannot be imposed upon executive officers, but because it illustrates how constitutional governm ent can develop tow ards a radically differ ent model—a model in w hich there is no fundamental limitation upon legislative power. It is true that there are early English cases that I could cite in my behalf. I am reminded in particular o f C oke’s ju d g ment in Calvin's Case, 1 Co. Rep. 1 (immutable natural law prevents Parliam ent from separating a subject from the protection o f his king). But even though these early precedents enjoyed some vitality on this side o f the Atlantic as late as the time o f the Am erican Revolution (consider, for example, James Otis’ classic attack on the writs o f assist ance, February 24, 1761, printed in Commager, D ocum ents o f A m eri can History 45 (5th ed. 1949)), they did not carry the day in their ow n country.
I should add that I consider the 17th century dispute between Parlia ment and the Stuart kings over the so-called “dispensing pow er” to be directly relevant to the questions you have raised. T he history o f that dispute was well-known to the Fram ers o f the Constitution, and it is clear that they intended to deny our President any discretionary pow er o f the sort that the Stuarts claimed. W e must remember, how ever, that
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it was largely as a result o f Parliam ent’s victory in that m atter that the English came to abandon any notion that “ fundamental law ” limited the pow ers o f the legislative sovereign. This is the very notion upon w hich o ur Constitution, and the D epartm ent’s view o f this question, depends. In our system o f limited governm ent, unlike the English system, there are some things that the legislature and the officers o f the governm ent cannot lawfully do. Question 2: W hat is the specific authority (if any) deriving from the Constitutional C onvention and other expressions of the Fram ers w hich supports the Justice D epartm ent’s asser tion that it can deny the validity o f A cts of Congress?
T he available evidence concerning the intentions o f the Fram ers lends no specific support to the proposition that the Executive has a constitutional privilege to disregard statutes that are deemed by it to be inconsistent with the Constitution. T he Fram ers gave the President a veto for the purpose, among others, o f enabling him to defend his constitutional position. T hey also provided that his veto could be over ridden by extraordinary m ajority in both Houses. T hat being so, an argum ent can be made that the Fram ers assumed that the President would not be free to ignore, on constitutional grounds or otherwise, an A ct o f Congress that he had been unwilling to veto 2 or had been enacted over his veto.
A t the same time, I believe that there is relatively little direct evi dence o f w hat the Fram ers thought, o r m ight have thought, about the E xecutive’s obligations w ith regard to A cts o f Congress that w ere transparently inconsistent w ith the Constitution; and, indeed, the ques tion remained open for some time after the Constitution was adopted. President Jefferson, for example, w riting o f the Alien and Sedition Acts in 1804, concluded that each branch had pow er to exercise independent judgm ent on constitutional questions and that this was an im portant elem ent in the system o f checks and balances:
T h e judges believing the [Sedition law] constitutional, had a right to pass a sentence o f fine and imprisonment; be cause that pow er was placed in their hands by the Consti tution. But the executive, believing the law to be uncon stitutional, was bound to remit the execution o f it; because that pow er has been confided to him by the Constitution. T he instrum ent meant that its coordinate branches should be checks on each other.
8 W ritings o f Thom as Jefferson 310 (1897).
2T h e P resident’s failure to veto an unconstitutional A ct o f C ongress does not in itself estop the E xecutive from challenging the A ct in co u rt at a future date, n o r does it cure the constitutional defect w here the question is one o f separation o f pow ers. See M yers v. United States, 272 U.S. 52 (1926); N ational League o f Cities v. Usery, 426 U.S. 833, 841 n.12 (1976).
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President Jefferson’s view was not to prevail, although other early Presidents, including A ndrew Jackson, w ere to express similar senti ments from time to time.
As I have said, I do not believe that the prerogative of the Executive is to exercise free and independent judgm ent on constitutional questions presented by A cts o f Congress. At the same time, I think that in rare cases the Executive’s duty to the constitutional system may require that a statute be challenged; and if that happens, executive action in defiance o f the statute is authorized and lawful if the statute is unconstitutional. T hat brings me to your next question. Question 3: W hat is the specific authority (if any) deriving from Su prem e C ourt or other judicial opinions w hich supports the Justice D epartm ent’s assertion that it can deny the validi ty o f A cts o f Congress?
In M yers v. United States, 272 U.S. 52 (1926), the Supreme C ourt was asked to decide w hether the President had acted lawfully in rem oving a postm aster from office in contravention o f an A ct o f Congress. T he A ct provided that postmasters w ere not to be rem oved by the President w ithout the advice and consent o f the Senate. T he case involved a claim for back salary filed by the heirs o f the postm aster w ho had been removed. T he action was brought in the C ourt o f Claims under statute that gives that court jurisdiction to hear cases not sounding in tort arising out o f conduct by executive officers alleged to be unlawful under the C onstitution or A cts o f Congress.
W hen the case came before the Supreme C ourt, the Solicitor G en eral, appearing for the United States, assailed the attem pt to limit the removal power. He argued that the statute imposed an unconstitutional burden upon the President’s supervisory authority over subordinate officers in the Executive Branch. Senator Pepper made an amicus curiae appearance and argued that the statute was constitutional. T he C ourt ruled that the statute was unconstitutional. M ore to the point, the C ourt ruled that the President’s action in defiance o f the statute had been lawful. It gave rise to no actionable claim for damages under the Constitution or an A ct o f Congress in the C ourt o f Claims.
In my view, M yers is very nearly decisive o f the issue you have raised. 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 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 uncon stitutional from the start.
I wish to add a cautionary note. T he President has no “dispensing pow er.” If he or his subordinates, acting at his direction, defy an A ct of Congress, their action will be condem ned if the A ct is ultim ately
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upheld. T heir ow n views regarding the legality or desirability o f the statute do not suspend its operation and do not immunize their conduct from judicial control. T hey may not lawfully defy an A ct o f Congress if the A ct is constitutional. This was the teaching o f a near sequel o f Myers, H um phrey’s Executor v. United States, 295 U.S. 602 (1935); and it is a proposition that was implicit in many prior holdings. In those rare instances in w hich the Executive may lawfully act in contravention o f a statute, it is the Constitution that dispenses with the operation o f the statute. T he E xecutive cannot. Question 4: W hat is the specific authority (if any) deriving from opin ions o f the A ttorneys G eneral w hich supports the Justice D epartm ent’s assertion that it can deny the validity of A cts o f Congress?
T he formal opinions o f my predecessors in this Office establish with clarity the general principles upon w hich this D epartm ent continues to rely in dealing with real or apparent conflicts between A cts o f C on gress and the Constitution. See, e.g., 40 Op. A tt’y Gen. 158, 160, and opinions cited therein. As I have already said, I support those opinions fully. All o f them emphasize our param ount obligation to the A cts o f Congress. None o f them concludes that the Executive must enforce and defend every A ct o f C ongress in every conceivable case, the require ments o f the Constitution notw ithstanding. Question 5: W hat is the specific authority (if any) deriving from ex press language in statutes o r their legislative history w hich supports the Justice D epartm ent’s assertion that it can deny the validity o f A cts o f Congress?
T he statutes that define the Office o f the A ttorney G eneral require him to render opinions upon questions o f law, and they require him to conduct litigation in w hich the U nited States is interested. None o f the statutes either requires or forbids him to inquire into the constitutional ity o f statutes.3 As I have said, the traditional opinion has been that the A ttorney G eneral, in the due perform ance o f his constitutional function as an officer o f the United States, must ordinarily defend the A cts o f Congress. As I have said, I subscribe fully to that position. Question 6: W hat is the specific authority (if any) deriving from his toric practice prior to the current Adm inistration which supports the Justice D epartm ent’s assertion that it can deny the validity o f A cts o f Congress?
M arbury v. Madison, 1 C ranch 137 (1803), was probably the first case in w hich the E xecutive made no effort to defend an A ct o f Congress
3Q uite apart from the provisions o f any statute prescribing the duties o r the authority o f the A ttorn ey G eneral, the C onstitution itself provides that the President ' ‘may require the O pinion in W riting, o f the principal O fficer in each o f the executive D epartm ents upon any subject relating to the D uties o f their respective O ffices." U.S. C onst. A rt. II, § 2, cl. I.
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on a constitutional point. President Jefferson was strongly o f the view that Congress had no pow er to give the Suprem e C ourt (or any other court) authority to control executive officers through the issuance of writs o f mandamus. See 1 W arren, T he Suprem e C ourt in United States History 232, 242-43 (1922). W hen Mr. M arbury and the other “mid night judges” initiated an original action in the Supreme C ourt to com pel delivery o f their commissions, President Jefferson’s A ttorney General, Levi Lincoln, made no appearance in the case except as a reluctant witness. See 1 C ranch 143-44. No attorney appeared on behalf o f Secretary Madison. T he C ourt ultimately resolved the case by agree ing and disagreeing with President Jefferson. T he C ourt held that the relevant statute was unconstitutional to the extent that it attem pted to give the Supreme C ourt pow er to issue writs o f mandamus against executive officers, but that there was no general principle o f law that would prevent Congress from giving that pow er to the low er courts.
A second significant historical incident involving a refusal by the Executive to execute or defend the A cts o f Congress on constitutional grounds arose during the adm inistration o f A ndrew Johnson. In defi ance o f the T enure in Office A ct, w hich he deemed to be unconstitu tional, President Johnson rem oved his Secretary o f War. This action provided the legal basis for one of the charges that was lodged against him by his opponents in the House; and during his subsequent trial in the Senate, the arguments offered by counsel on both sides provided an illuminating discussion o f the responsibilities o f the Executive in our constitutional system. See 2 Trial o f A ndrew Johnson 200 (W ashington 1868). President Johnson was acquitted by one vote.
I will mention a third incident that illustrates an interesting variation on the historical practice. In the midst o f W orld W ar II, as a result o f the w ork o f the House Com mittee on Un-Am erican Activities, C on gress provided, in a deficiency appropriations act, that no salary or com pensation could be paid to certain named governm ent employees. These individuals had been branded in the House as “ irresponsible, unrepresentative, crackpot, radical bureaucrats.” T he Executive re sponded to the statute by taking tw o courses at once. T he Executive enforced the letter o f the statute (by not paying the salary o f the employees in question), but joined with the employees in a legal attack upon the constitutionality o f the relevant provision. W hen the case came before the Suprem e C ourt, an attorney was perm itted to appear on behalf o f Congress, as amicus curiae, to defend the statute against the com bined assault. T he C ourt struck the relevant provision, holding that it was a bill o f attainder, and allowed the employees to recover. United States v. Lovett, 328 U.S. 303 (1946).
A ltogether, there have been very few occasions in our history when Presidents or A ttorneys G eneral have undertaken to defy, o r to refuse to defend, an A ct o f Congress. M ost o f the relevant cases are cited
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either in the foregoing discussion o r in the answers that the Senate Legal Counsel has provided to you in response to these same questions. Question 7: W hat is the specific support (if any) expressed in any scholarly article o r book for the Justice D epartm ent’s assertion that it can deny the validity o f A cts o f C on gress?
A helpful scholarly discussion o f this problem , together with citations to o ther works, may be found in E dw ard C orw in’s book on the Presi dency. Taking full advantage o f his scholarly prerogative, Corw in ignores the teaching and, indeed, the holding o f M yers and concludes that the President, even though he may doubt the constitutionality of a statute, “must prom ote its enforcem ent by all the pow ers constitution ally at his disposal unless and until enforcem ent is prevented by regular judicial process.” 2 E. C orw in, T he President, Office and Powers, 1887-1957, 66 (4th rev. ed. 1957). Question 8: W hat is the specific authority (if any) deriving from ethi cal pronouncem ents w hich supports the Justice D epart m ent’s assertion that it can deny the validity o f A cts o f Congress?
T he “ethical” obligations that devolve upon the A ttorney G eneral as a mem ber o f the legal profession cannot enlarge or contract his duties as an officer o f the U nited States. T here is nothing in my obligation to my profession or to the courts that prevents me from discharging my duty either to defend the A cts o f C ongress o r to question them in the rare cases in w hich that is appropriate. Question 9: W hat specific instances are there in w hich a court o r bar association has expressly asserted an ethical duty for gov ernm ent litigators to inquire into the validity o f A cts of Congress?
I know o f no decision by a court or a bar association that expressly asserts that governm ent litigators have an ethical duty either to inquire into the validity o f A cts o f C ongress or to defend them. Question 10: Has the Justice D epartm ent ever sought from Congress legislation to deal with any asserted ethical problem in litigation concerning the validity o f A cts o f Congress?
No. Question 11: Has there been any relevant change in the ethical rules in the past few years, since the Justice D epartm ent has first begun denying the validity o f A cts o f Congress?
I know o f no recent change in any ethical rule that relates to this problem . Y our question assumes that the Justice D epartm ent has some new policy in this field. F rom w hat I have said in response to your
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questions, and from the historical examples I have given, I hope it is clear that we have no new policy. O ur policy is an old one.
Sincerely, B e n ja m in R. C iv il e t t i