Wednesday, June 17, 2009

The Veto, the Oath, and the Take Care Clause

In my latest FindLaw column, I pile on the Obama Justice Department for its wretched brief in Smelt v. United States, a challenge to the Defense of Marriage Act (DOMA). In the column I question the Administration's claim that in taking the oath of office, the President commits himself to mount a vigorous defense of all duly enacted laws. I argue further that even if there is a duty to defend DOMA, there is freedom to decide how to defend it.

Here I want to further explore the scope of the President's duty to defend acts of Congress against constitutional challenge. Suppose that Congress passes a bill that the President believes is unconstitutional. The President can--and we might well say he must--veto the bill. But suppose that Congress overrides the veto, or that the bill was signed by one of the President's predecessors, or even that the President himself signed a piece of omnibus legislation believing that one of its provisions was constitutionally invalid. (President Clinton did that with a military spending measure that contained a provision requiring the discharge of HIV-positive service members; he claimed that the pay raise also contained in the overall bill was essential to national security.) What are the President's options for non-defense and/or non-enforcement of the law once it is enacted?

Before answering that question, we might distinguish two circumstances:
(1) The President (on the advice of OLC or the White House Counsel) believes that the courts would likely strike down the law in question;
(2) The President either thinks that the courts will uphold the law or he is not confident about what the courts will do, but his own best constitutional judgment is that the law in question is unconstitutional.

In (1), a decision not to enforce or not to defend the law can be understood as purely pragmatic. The President decides that it would be a waste of executive and judicial resources to attempt to enforce a law that will ultimately be held unconstitutional. In (2), the non-enforcement/non-defense decision is based on a more robust view about constitutional interpretation outside the courts, and (2) therefore presents a more interesting case.

Over the last decade and a half, some (generally liberal) scholars have argued for greater latitude for the President (and Congress) to interpret the Constitution in ways that differ from what the courts would likely say. This view--typically called "departmentalism" and traceable at least to Thomas Jefferson--stresses the co-equal nature of the branches of the federal government. However, events during the Bush Administration may scramble ideological allegiances on the question of departmentalism, because Bush's most aggressive assertions of Presidential power--in signing statements and the torture memos--relied on a tendentious understanding of the "unitary Executive" theory. A Presidential power of non-enforcement/non-defense of laws that Congress thought constitutional and that the courts would likely uphold, gives the President enormous power.

To be sure, defenders of an independent power of constitutional interpretation in the executive can say that an unconstitutional law is not among "the Laws" that the President is obligated to execute faithfully; and indeed, executing such a law would itself contravene the President's oath to "preserve, protect and defend the Constitution."

Is that right? The term "the Laws" is used repeatedly in the Constitution to refer to statutes (and possibly common law), sometimes in contradistinction to the Constitution, as in Article III, Section 2 (authorizing federal question jurisdiction for cases "arising under this Constitution, the Laws of the United States, and Treaties") and the Supremacy Clause of Article VI ("This Constitution, and the Laws of the United States . . . and all Treaties . . . shall be the supreme Law of the Land"). It is thus most natural to read the President as obliged to faithfully execute statutes adopted by Congress. On this reading, the President would not violate his own oath to preserve, protect and defend the Constitution by executing (i.e., enforcing or defending) a statute that he thinks is unconstitutional because the Constitution does not regard him as having any independent duty of constitutional interpretation. If a President thinks a law is unconstitutional, in this view, he should either not sign it when it's a bill or work for its repeal, but he has no power simply not to enforce or defend it.

To be clear, the view I've just described is not the prevailing view, and even if we were to move in this direction, we still might want to say that the President is permitted or obliged not to enforce or defend laws that he has good reason to think the courts would strike down. We also might want to distinguish enforcement from defense. Defending a law against a constitutional challenge in court is a way for the President to acknowledge the judiciary's ultimate role in constitutional interpretation; by contrast, non-defense of a law, like non-enforcement of the law, means that the President has the last word (unless someone else is permitted to intervene to defend the law, as sometimes happens). And of course, we would want to distinguish the claimed power of the President not to enforce or defend laws he deems invalid from the more controversial claimed power of the President to enforce laws that the courts have declared unconstitutional (a position championed in some circumstances by AG Meese during the Reagan Administration).

My main point here is simply to note that the constitutional text could plausibly be read to give the President no power to make independent judgments about constitutionality or could be read to give him great power in such matters. How much power of independent authority to engage in constitutional interpretation one thinks the president should have will depend partly on how much relative faith one has in the constitutional interpretations likely to emerge from the President, Congress, and the courts.

Finally, I should add that there is no reason to think that President Obama actually believes DOMA is unconstitutional. He is simply on record as favoring its repeal on policy grounds.

Posted by Mike Dorf


Paul Scott said...

His proposed partial health care to gay and lesbian couples will, I suspect, put more nails in his bucket - or whatever - on this issue. This is one of a few areas that really does bug me. It's not as if he had to pander in any way to the LGB community to win and he must have known that. If he feels, as his policies continue to suggest, that gays and lesbians should be treated differently and worse than others, he should have just said so.

John said...

Mr. Dorf:

I think some people are missing something in this dynamic. See "The Big Chill: Why Obama Must Defend DOMA as He Works For Repeal" at

And see "Obama, DOMA, Treachery, Betrayal and Invidious Gay Jim Crow Laws" at

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