Abstract Argument (v. 3)

Abstract Argument — By on April 14, 2007 at 3:41 am

This series presents an abstract from a journal article as a proposition for debate. Knowledge of the article itself is not assumed and is not required to participate in the discussion. Any points within the following abstract are open for consideration:

Recent Presidents have asserted a power to ignore statutes that they believe are unconstitutional. Critics have made an array of arguments against these assertions. As a matter of text, the Faithful Execution Clause bars such non-enforcement. As a matter of history, the English specifically prohibited a discretionary power to disregard statutes. And American Presidents did not assume a power to ignore unconstitutional statutes until almost a century after the Constitution’s creation. Taken together, these arguments are said to refute the regal pretensions of modern Presidents. This Article serves as an antidote to such claims while sharpening our understanding of Executive Disregard. The critics are correct in arguing that the President lacks a discretionary power to refuse to enforce unconstitutional statutes. Instead, the President has a duty to disregard such laws that arises from two sources. First, the Constitution never empowers the President to enforce unconstitutional statues. He no more has the power to enforce such statutes than he has power to enforce the statutes of Georgia or Germany. Second, the President’s duty to preserve, protect, and defend the Constitution requires the President to disregard unconstitutional statutes. When the President enforces a statute he regards as unconstitutional, he acts to violate the Constitution no less than he would were he to imprison citizens without hope of trial. Both John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional statutes, with Jefferson being the first President to actually invoke the duty of Executive Disregard. Upon entering office, Jefferson ordered the termination of Sedition Act prosecutions on the grounds that the Sedition Act was unconstitutional. Jefferson justified his non-enforcement decision by arguing that the Sedition Act was no law at all and by noting that he had a duty to preserve, protect, and defend the Constitution, a duty that prevented him from implementing measures that violated it.

From: “The Executive’s Duty to Disregard Unconstitutional Laws”, Saikrishna Prakash, University of San Diego School of Law, San Diego Legal Studies Paper No. 07-95, March 29, 2007.
(HT: Stuart Buck)



  • http://evangelicalperspective.blogspot.com Collin Brendemuehl

    Joe,
    You don’t often post on the weekend. This is different.
    I must add that it’s not just a President who may act with duch disregard for the Constitution’s statements. All those members of Congress who act as ambassadors outside of the mandates of the Constitution do the same. Some practice their disregard through ignorace (ignoring things they don’t want to do) and others out of dynamics (making the Constitution Living allows them to do whatever they wish).
    Thank Derrida! ;-)
    Collin

  • Owen

    What Joe is talking about here is signing statements and I think it’s great that the article he presents clearly shows how signing statements are clearly wrong, unamerican, and against the concept of the rule of law. The American Bar Association put out a good discussion about signing statements as well – http://www.abanet.org/op/signingstatements
    President Bush has over 700 times decided on his own that he will not enforce certain parts of legislation he signs. Some examples are his signing statements added to the McCain amendment barring torture (reserving the right to torture detainees) and Postal Reform Bill(reserving the right to look in people’s mail without a warranty).
    There is no concept of “citizen disregard” of the law, so why would there be a concept of “executive disregard”? If the president thinks the legislation is not constitutional-he can just veto it. The Judicial Branch can decide if a law is unconstitutional.
    Also, the Prakash article points out that a hundred years before our constitution was written the British Bill of Rights specifically took away the King’s power to suspend and dispense with the law. Why should our president have the same power that was taken away from the British monarchy before our constitution was written?
    Here is the relevent language from the 1689 English Bill of Rights noted in the Prakash article:
    “That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal. That the pretended power of dispensing with laws, or the executions of laws, by regal authority, as it hath been assumed and exercised of late, is illegal”
    So, it’s President Bush, and not King Bush, Unitary Executive Bush, his Regal Royal Highness Bush, or Emperor Bush….

  • Claude

    That would tend to undo the whole idea of judicial review that we’ve had since Marbury v. Madison, wouldn’t it? Maybe that’s what the author wants, since he approvingly cites the example of Jefferson. Jefferson was President when Marbury was handed down. He opposed the decision then, and continued to oppose it for the remaining 22 years of his life. He thought that the other two branches of government had just as much right to determine constitutionality as the Judicial branch.
    I’m not ready to dispense with judicial review, although, like most evangelicals, I think the courts have made a lot of appalling decisions. The idea of having a learned group, free from the pressures of elections, resolve the Constitutional claims of disputing parties seems better than the alternative. The alternative being that a President or Congress would make Constitutional declarations that are likely to coincide with whatever is politically popular. Democracy with clear protections for minorities could give way to simple majoritarianism.

  • ucfengr

    What Joe is talking about here is signing statements and I think it’s great that the article he presents clearly shows how signing statements are clearly wrong, unamerican, and against the concept of the rule of law.
    Presidential signing statements have their origins with James Monroe, the 5th President of the US. Since many of the early founders were still alive during Monroe’s Presidency, it seems unusual that it has only now been determined to be “clearly wrong, un-American, and against the concept of the rule of law”. One would think Jefferson or Madison might have said something.
    There is no concept of “citizen disregard” of the law, so why would there be a concept of “executive disregard”? If the president thinks the legislation is not constitutional-he can just veto it. The Judicial Branch can decide if a law is unconstitutional.
    There is nothing in the Constitution that specifically grants the judiciary sole authority to determine the constitutionality of laws. The Judicial branch essentially gave itself that authority in “Marbury v. Madison” and subsequent cases.

  • Owen

    Ucfengr,
    Article I, Section 7 of the Constitution empowers the president to veto a law in its entirety, or to sign it and Article II, Section 3 requires that the executive “take care that the laws be faithfully executed”. The Marbury v Madison case is still good law and the concept of judicial review is still valid. While you might not agree, the vast majority of state and federal judges agree-and that’s what matters in a country governed by laws.
    So, I’m going to have to agree with the ABA taskforce, signing statements are “contrary to the rule of law and our constitutional system of separation of powers”.

  • ucfengr

    Article I, Section 7 of the Constitution empowers the president to veto a law in its entirety, or to sign it and Article II, Section 3 requires that the executive “take care that the laws be faithfully executed”.
    So, a President is obliged to enforce laws that he believes unconstitutional? I don’t see how that mates up with his obligation to “preserve, protect, and defend the Constitution”.
    So, I’m going to have to agree with the ABA taskforce, signing statements are “contrary to the rule of law and our constitutional system of separation of powers”.
    You can agree with the Easter Bunny for all I care. That doesn’t change the fact that you have no evidence that the fellows who actually wrote the Constitution disagreed with signing statements. Let’s be honest, the ABA is not an impartial organization, even setting aside their political biases, they are a trade organization for lawyers. It is not surprising that they would side with the judicial branch over the executive.

  • Owen

    ucfengr,
    If a president believes a law is unconstitutional he should veto it. The constitution clearly states this in Article I, Section 7 which empowers the president to veto a law in its entirety, or to sign it. If you don’t like what the constitution says in this regard perhaps you should push for a constitutional amendment giving the president legislative powers.

  • ucfengr

    If a president believes a law is unconstitutional he should veto it.
    A president can’t veto a law signed by a predecessor, so that prescription doesn’t always work. Also, because of the nature of lawmaking (very few pieces of legislation only address one matter), a president may feel compelled to sign a piece of legislation that has some components that he feels unconstitutional; this is where a signing statement can be important.
    If you don’t like what the constitution says in this regard perhaps you should push for a constitutional amendment giving the president legislative powers.
    The problem is that in many cases, the courts have given themselves a kind of quasi-legislative power. We see this in the Hamden decision where the Supreme Court gave itself the power to rewrite treaties, a power the Constitution delegates to the executive branch, with the legislative having consent authority. This is something folks of all political stripes should be concerned. Bad court decisions, especially Supreme Court decisions are extremely difficult to change. The Plesy and Dred Scott decisions make this very clear. It is relatively easy to remedy bad decisions by the executive (President is limited to 2 full terms) and legislative (House stands for re-election every 2 years as does a third of the Senate). The Judicial branch, in contrast have lifetime appointments, making it extraordinarily difficult to hold them accountable for bad decisions. This should make us very wary of allowing them to unilaterally increase their powers beyond what the Constitution grants them.

  • Owen

    According to our constitution we have three co-equal branches of government and checks and balances. The constitution says the president can either sign or veto legislation presented to him. The constitution is the basis of our government. Sorry you don’t think our constitution is right.

  • smmtheory

    According to our constitution we have three co-equal branches of government and checks and balances. The constitution says the president can either sign or veto legislation presented to him. The constitution is the basis of our government. Sorry you don’t think our constitution is right.

    That is a rather tiring and baseless interpretation of the Constitution. Nowhere in the Constitution does it set out that the three branches of government are co-equal. Instead, the Constitution sets the three branches with separate powers at odds with each other in an effort to prevent any or all of them from becoming bases of tyrannical abuse of power.

  • ucfengr

    Sorry you don’t think our constitution is right.
    The Constitution as written is great; what we live under now has very little to do with the written Constitution.

  • Owen

    The idea of separation of powers, co-equal branches of government, and checks & balances are all kind of related to each other. They all go hand in hand and are the fundamental basis of our democracy.
    You see, we didn’t want to have a king ruling over us-that’s why our constitution is set up the way it is. The congress is not a rubberstamp for the executive branch. The president is a member of the executive and not a member of the Judicial branch. The constitution is very clear on this.

  • smmtheory

    I’m sorry Owen, but to me co-equal means duplication of powers. And you forgot some other very salient differentiations between the branches. The judicial branch should not legislate from the bench (Roe v. Wade among others), Congress should not be dictating foreign policy or commanding the military, and the President should not be held to being a rubberstamp for the Congress or the Judicial branch.

  • Owen

    Smmtheory,
    Where are you coming up with these ideas that we don’t have co-equal branches of government, separation of powers, and checks & balances? The actual words from the constitution are pretty clear.
    And consider this, the president with his signing statements is assuming the role of both the legislative and judicial branch. The constitution clearly states he should either sign or veto legislation and send it back to congress noting any concerns he may have about the legislation.
    Also, the text of the constitution clearly indicates the legislative branch has quite a large role to play with declaring war and managing the military.
    Excerpts from Article I, Section 8 (Powers of the Congress):
    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
    To provide and maintain a Navy;
    To make Rules for the Government and Regulation of the land and naval Forces;
    To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

  • http://TheEverwiseBoonton.blogspot.com Boonton

    There is nothing in the Constitution that specifically grants the judiciary sole authority to determine the constitutionality of laws. The Judicial branch essentially gave itself that authority in “Marbury v. Madison” and subsequent cases.
    True but the tradition appears to stand and the logic of the decision seems to make sense. The idea of the Executive taking upon itself the power to determine the Constitutionality of laws seems pretty dangerous to me.
    So, a President is obliged to enforce laws that he believes unconstitutional? I don’t see how that mates up with his obligation to “preserve, protect, and defend the Constitution”.
    He is free to direct his AG to file suit and argue that the law be struck down as unconstitutional. What you seem to be hinting at is that the Executive should be given some type of ‘super-veto’ where they can single-handedly veto any law (pre-existing or passed during their term) by simply declaring they ‘feel’ it is unconstititional. It would seem the only way to override this ‘super-veto’ would be impeachment.
    The Constitution as written is great; what we live under now has very little to do with the written Constitution.
    It seems funny you would write such a line since you are advocating a power that you’ve basically just made up. Not only that, such a power was quite familiar to the Founders (see previous references to Kings deciding not to enforce certain laws) and found undesirable.
    Structurely this makes little sense as well. All members of the gov’t are expected to respect and defend the Constitution. Taken to this extreme you would expect even police and the military to ignore or fight laws they ‘feel’ are unconstitutional.

  • http://TheEverwiseBoonton.blogspot.com Boonton

    This is something folks of all political stripes should be concerned. Bad court decisions, especially Supreme Court decisions are extremely difficult to change. The Plesy and Dred Scott decisions make this very clear. It is relatively easy to remedy bad decisions by the executive (President is limited to 2 full terms) and legislative (House stands for re-election every 2 years as does a third of the Senate). The Judicial branch, in contrast have lifetime appointments, making it extraordinarily difficult to hold them accountable for bad decisions.
    The first thing to do is ask why the Constitution just doesn’t give the judicial power to the President or Congress? Because they are quite unsuited to exercise judicial power because they lack what ucfengr sees as the ‘disadvantages’ of the judicial branch.
    Because they are guided by short term election the other two branches are less inclined for long term stability in the law. One of the most important things the law should do is be stable. Quite often even a bad decision is ok if it remains stable for a long time. People should be able to depend on the law. If you look at US history there were many times when the President or Congress wanted to do things like mass forgiveness of debts because of an economic crises. Imagine trying to do business if you wrote a mortgage but then couldn’t foreclose on the guy ten years later when he stopped paying you because the Executive suddenly decided it was ‘unconstitutional’ to enforce contract law during a bad growing season?
    You cite Plesy & Dred Scott as bad decisions but what evidence do you have the President or Congress would have done any better? It took nearly 100 years for your vaulted Executive to desegregate the military….something Plesy never addressed. Dred Scott was only ‘bad’ in the sense you didn’t like the outcome but the fact remains at that time slavery was part of the Constitution & once you face that fact it becomes pretty hard to see how you could square the fact that slavery was constitutional with the ability of ‘free states’ to prohibit private property. Of course, where was your vaulted Legislative branch then? They were hardly on the forefront of banning slavery. Instead Dred was a ‘bad decision’ to them because it stopped them from making more compromises with slavery supporters.

  • http://TheEverwiseBoonton.blogspot.com Boonton

    A final nail in this coffin; if you want to read the President’s obligation to ‘defend’ the Constitution this way then what about the states? The President would not only have the ability to ignore laws he thinks are unconstitutional but also the ability to march into states and stop them from enforcing laws he thinks are unconstitutional.
    I can easily imagine a host of potential horror stories from the left & right POV. Imagine Bush deciding that state decisions to recognize gay marriage violate the Constitution. He can order troops into such states and prohibit their registrars from recording such marriages. Likewise imagine a President who thinks the Constitution grants a right to late term abortions. He can likewise march troops into a pro-life state to ‘protect the Constitution’ and prevent them from enforcing their prohibition.
    Sorry, this cannot be what the Founders had in mind. Consider especially that while they did fear tyranny from any branch they especially feared it from the Executive. Their fears of the Legislative were more along the lines of effectiveness & perhaps the danger of ‘mob rule’. I don’t think they had even one historical reference for ‘judicial tyranny’ but there was plenty of examples of Executive tyranny for them to cite and be on guard against.

  • smmtheory

    Where are you coming up with these ideas that we don’t have co-equal branches of government, separation of powers, and checks & balances? The actual words from the constitution are pretty clear.

    First of all Owen, sweeping generalizations are only good for inspiring questions of reading comprehension. Let me spell it out for you. Separation of powers, yes, it’s there in the Constitution. Checks and balances, yes, they are there in the Constitution. Coequal, no, not there in the Constitution. Aside from the fact that it is an agonizingly redundant word, it seems tailor-made to obfuscate a power-grab by one of the branches intent upon usurpation of powers only granted to one of the other branches. The only way for all branches to be equal is for all branches to have the same powers as the other branches, and if that should become the case, then we might as well chuck the whole thing out and start over again because that eliminates the checks and balances and separations of power.

  • Owen

    Smmtheory,
    When the exeucutive, legislative, and judicial branches are called co-equal branches of government, this does not mean that they have the same roles. Clearly, the don’t and the constitution tells us what their respective roles are. Co-equal means they have equal importance-admittedly, in practice this hasn’t been the case during the last few years, but nevertheless, it is what the constitution describes.
    In the current state of affairs, it is the executive branch that is doing the power grabbing. When the president issues signing statements, instead of either signing or vetoing legislation, he is not acting within the parameters of his powers listed in the constitution.

  • http://TheEverwiseBoonton.blogspot.com Boonton

    smmtheory seems to be saying that the branches have different powers so they are not equal. It’s kind of hard to compare different powers. Is the power to approve new Justices, for example, the same as the power to nominate them? Hard to say, I suppose it depends on the beholder.

  • smmtheory

    smmtheory seems to be saying that the branches have different powers so they are not equal. It’s kind of hard to compare different powers.

    {Rubber-stamp of approval.}

  • http://TheEverwiseBoonton.blogspot.com Boonton

    On the other hand, the branches are equal in the sense that no branch is superior to the other. Each has its domain and power & checks on the other branches.
    The President’s check on the judicial branch is his power to appoint judges. The Congresses check is their ability to confirm them. Both the President & Congress ‘make law’ through Congresses power to write it and the President’s power to veto or sign it.
    So-called ‘signing statements’ are either meaningless at best or a power grab at worst. If a President feels a law is unconstitutional his duty is to veto it (or sue for it to be found unconstitutional). By presuming he has a right to not enforce the laws he has signed he is setting himself above the Judicial branch.

  • James

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  • Jennifer

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  • http://conservarant.townhall.com That darn Republican

    Owen,
    “Article I, Section 7 of the Constitution empowers the president to veto a law in its entirety, or to sign it and Article II, Section 3 requires that the executive “take care that the laws be faithfully executed…”
    I am reading Article II right this very minute and I feel you are using a broad sweeping interpretation rather that looking at the traditions that created the legal mandate – not alternative legal suppositions most social engineers use to attend to railroad their agenda’s into the social strata.
    It is in fact a concern of both Jefferson and Madison that only the legislature should be endowed with checks and and balances [even though the actual language isn’t really there that says “check and balances” – with the exception of The Federalist [p] 9 you see a brief mention of it, but not in context to what liberal law hacks want to drag its meaning. As of present we have no legal co-equal, tripartite government, it is being hijacked by judicial traitors more bent on their agenda then they ever have any intent of actually fulfilling their duties, Marbury vs. Madison is irrelevant, humans behavior insulated creates wanton demagogy and that is what is happening to our courts.
    If what the left feels is so important – why haven’t they mad as many broad-based attempts through the only Constitution vein allowed to introduce legislation…. it’s called referendum, well apparently they aren’t that insane. If their nutty ideals cannot survive in the arena of free through and market-place of free ideas [not ideals] – then they ought not pursue such paths out basic humility and intellectual honesty, but [alas] we are not dealing with sane people.
    They know laws with even a semblance to what it is they want over all will do down like California’s Prop 22 back in 2000. It was a landslide bi-partisan fog-clearing No! to the far left as it pertains to same-sex marriage. Yet the courts have taken it upon themselves to play moral instigator and make the choice our of their constitutional privy to assume the mantle not one voted them into office to consider – thinking themselves nothing more than the arbiters of the last [so-called] bastion of civil freedom – vanguarding sexual depravity and ignoring their sworn duty to uphold the values and morays installed in the US Constitution and to protect its citizens from the ideological tyranny projected by themselves.
    They have abated their moral authority and constitutional mandate when they project their twisted ideals on people who are clearly thinking about the long term effects of such culturally destructive legislation, such to which [at this point] may destroy the county we and cherish.