Was I As Sloppy As Jeff Toobin?

By Mike Dorf


Last week, The New Yorker published my letter to the editor criticizing Jeff Toobin for an earlier article in which Toobin in turn had criticized Judge Brett Kavanaugh for the latter's suggestion (in his dissent in the DC Circuit version of the health care litigation) that a President could, if he thought the minimum care provision of the Affordable Care Act was unconstitutional, simply choose not to enforce the Act--even if the courts were prepared to uphold it.  I wrote:

Jeffrey Toobin takes Judge Brett M. Kavanaugh to task for attributing to the President the power not to enforce a federal statute, even if the courts have upheld it (Comment, March 26th). Citing the 1803 landmark case of Marbury v. Madison, Toobin asserts categorically that this “is not how it works.” He thus overlooks a longstanding debate about the scope of judicial precedent. Thomas Jefferson declined to enforce the Sedition Act, on the ground that it violated the First Amendment, even though the courts were prepared to uphold the Act. Abraham Lincoln, in his first Inaugural Address, suggested that the Supreme Court’s infamous Dred Scott decision might not be binding beyond the parties to the case. And President Obama has declined to defend the Defense of Marriage Act, on the ground that it is discriminatory. Whatever one thinks of these and other assertions of Presidential non-enforcement power, Judge Kavanaugh did not invent the idea. I share Toobin’s view that the health-care law is valid, but I see no need to accuse a federal appeals-court judge of misunderstanding lessons that he learned in his first week of law school.

I have since received a number of emails questioning my historical examples, especially my reference to Jefferson.  Because the Sedition Act expired (just) before Jefferson took office, the emailers say, Jefferson had no occasion to "decline[] to enforce" it.  But he did.  Although the Sedition Act could not be used as the basis for prosecutions for conduct occurring once Jefferson took office, it expressly permitted the continuation of prosecutions for conduct taking place during the time when it was in force.  Jefferson found such a prosecution and ordered it dropped.  He also issued pardons to those people who had been convicted under the Sedition Act and were still serving sentences.

A couple of my email interlocutors persisted in the contention that granting pardons and dropping a pre-existing prosecution do not amount to declining to enforce.  Only the refusal to initiate new prosecutions, these emailers contended, would qualify as non-enforcement, and because the statute would not allow Jefferson to initiate any such new prosecutions for alleged sedition while he was in office, he really did have no occasion not to enforce the law.  With due respect, the emailers are using "enforce" in a highly idiosyncratic way.  Jefferson himself characterized his own actions in just the way that I did.  For example, in a July 1804 letter to Abigail Adams, Jefferson wrote:

I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest its execution in every stage, as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship the image.

So it is clear that Jefferson regarded the pardons and the nolle prosequi as an exercise of his power not to execute, i.e., not to enforce, a law he deemed unconstitutional.  In short, I think I'm right and my email interlocutors are using the word "enforce" in an idiosyncratic way (to say the least).

One might also quibble with my other examples: Neither Lincoln nor Obama asserted a "non-enforcement" power in the examples I give.  But then, I offered them as instances of a "debate about the scope of judicial precedent."  Lincoln's statement clearly fits that description.  Meanwhile, the whole point of the Obama enforce-but-don't-defend strategy is to tee the issue up for the courts, even while the Administration takes the view that it need not argue every position that existing judicial precedent leaves open.  So that too, it seems to me, fits within my invocation of a debate about the scope of judicial precedent.  The only words I would change if I could are "these and other," since they suggest that all three examples were "assertions of Presidential non-enforcement power."  As the introductory information and description of the examples themselves make clear, I didn't intend them exactly that way.  I think the letter would have been better had it substituted "any particular" for "these and other."  But between the combination of my dashing the letter off so it would be timely and then having to approve edits for length, I didn't notice the implication.  So the critics--none of whom actually parsed the letter as closely as I just have--make a fair point about the wording on this point. 

Meanwhile, I think the underlying substantive issue is quite difficult, which is why my New Yorker letter merely says that Judge Kavanaugh did not invent the notion of executive non-enforcement.  I did not say what I thought the proper scope of the power should be.  The question is this: When may a President decline to enforce a law on grounds of unconstitutionality even though the courts would uphold, or have already upheld, the law?

It seems to me there are three possibilities, none of them entirely satisfactory: 1) Always; 2) Never; 3) Sometimes.

1) A very strong "departmentalist" view along the lines championed in recent years by Larry Kramer would emphasize that the President heads a co-equal branch of government.  In this view, the power to say what the law is that the Supreme Court asserted in Marbury is only a power to say what the law is in the context of contested cases, but does not bind other actors.  Congress and the President have prudential grounds for not enacting or enforcing laws that they know the courts will strike down, in the departmentalist view, but they do not have any principled or prudential grounds to subordinate their views about what the Constitution requires when those views are stricter than the views of the courts.

The chief problem with strong departmentalism is that in the name of asserting the President's co-equality with the courts, it arguably makes the President superior to Congress.  A President who happens to think a duly enacted law is invalid can choose to thwart the will of the majority that enacted the law--which may have been signed by a predecessor or enacted by a congressional super-majority over his own veto or perhaps even signed by this very President because of other provisions he liked, in which case his non-enforcement of a select provision is tantamount to an impermissible line-item veto.  Accordingly, the President's say-so alone is a problematic basis for the exercise of a non-enforcement power.

2) It may therefore be tempting to go all the way in the opposite direction and reject departmentalism entirely.  In this view, a President would have no power to non-enforce, except perhaps in circumstances in which he was anticipating that the courts would deem a law invalid.  Even then, the better course might be thought to adopt the Obama Administration's position on DOMA: Enforce but don't defend, so as to facilitate a justiciable case or controversy, and then if the courts definitively uphold the law, simply enforce it.    Perhaps even non-defense should be ruled out.  The most vigorous academic defense of the strongly judicial supremacist view was offered some years ago by Larry Alexander and Fred Schauer, who defend it principally on coordination grounds: The point of law, including the Constitution and constitutional law, they say, is to settle things, and treating the Supreme Court's interpretation of the law as definitive does a very good job of settling things.

The chief problem with the strongly judicial supremacist view is that the law is not only about settlement.  Constitutional law in particular is also about protecting certain substantive ideals and we can imagine circumstances in which the courts have abdicated their role in protecting those ideals.  Jefferson thought -- and history has judged that he was correct in thinking -- that the Federalist-packed judiciary was not doing its job by upholding the Sedition Act, which was a betrayal of a core ideal of constitutional liberty.  (For Jefferson himself, perhaps the underlying ideal was federalism rather than liberty, because, as his letter to Abigail Adams shows, he was comfortable with state sedition laws.  But put that aside.  History has vindicated Jefferson's free speech views on libertarian rather than federalism grounds.)  Should Jefferson have subordinated his view of the First Amendment to the views of the courts?  Suppose that World War II had dragged on for several more years and that Congress had enacted a law specifically authorizing mandatory evacuation of Japanese Americans from the West Coast.  Would it have been illegitimate for a President to choose not to enforce such a law on the ground that he thought it unconstitutional, notwithstanding the Supreme Court's contrary view in Korematsu?  The tendency of the Supreme Court from time to time to produce not just wrong, but disastrously wrong decisions, leads one to wonder whether some power of Presidential non-enforcement might not be vital as a safety valve.

3) Thus, it is tempting to reject both strong departmentalism and strong judicial supremacy in favor of some middle path in which the President can non-enforce a law that is blatantly or grossly unconstitutional, even though the courts disagree, but which rejects a power of non-enforcement whenever the President happens to disagree with the courts.

The chief problem with this intermediate view is its mushiness.  In what sense is a law blatantly or grossly unconstitutional if the courts, including perhaps the Supreme Court, have said or would say that it is in fact constitutional?  Any criteria a President uses to distinguish extreme cases from routine cases will likely be controversial, precisely because there will almost always be controversy around just those cases in which the President is tempted to use a non-enforcement power.  If we look to Presidents' assertions of a non-enforcement power, we typically find that they arise amidst very heated political contests.  The judgment of history rejects the Sedition Act and Korematsu, but the judgment of history does not come until long after the President faces the decision whether to non-enforce.

If I were writing a law review article or the like, I would now attempt to say which of the foregoing options I find best, all things considered, or perhaps I would offer some clever way out of the puzzle.  But I'm not writing a law review article on this subject, so I won't.  There is a substantial and growing body of academic literature that addresses the matter in substantially greater detail.  Interested readers can go look that up.