EXECUTIVE DEFIANCE OF "UNCONSTITUTIONAL" LAWS

Presidents in recent years have asserted that they may refuse to comply with any provision of law that they believe is unconstitutional. This weapon is far more versatile and more potent than the veto power, for it may be applied surgically to selected portions of a law and cannot be overridden by Congress. Defenders of this claimed executive authority urge that since each branch takes an oath to support the Constitution, each therefore has an equal right to interpret that document for itself. Just as judicial review permits judges to reject unconstitutional laws, "presidential review" gives the President the same option. Yet even accepting the "departmentalist" view that each branch enjoys autonomy in construing the Constitution, it does not follow that the President may refuse to execute an allegedly unconstitutional law. Despite its appeal in terms of symmetry and logic, "presidential review" is contrary to the original intent. Unlike judicial review, which was frequently endorsed at the Federal Convention and in the state ratification debates, the Founders rejected the notion that the executive may refuse to execute laws that it deems to be unconstitutional.

The President's failure to honor a statute because of its alleged unconstitutionality is equivalent to the "suspending power" that English kings employed for 400 years before it was abolished by the bill of rights (english) of 1689. Through this royal prerogative, the Crown was able to nullify all or portions of a law—sometimes on the ground that it was unconstitutional.

The Founders were careful not to confer this prerogative on the American President. Article II thus enjoins the President to "take Care that the Laws be faithfully executed." In marked contrast to the duty placed on judges by the supremacy clause, the President's obligation extends to all laws, not just those "made in pursuance" of the Constitution. The Framers also insisted on giving the President only a qualified rather than an absolute veto, even though the primary purpose of the veto was to shield the executive against unconstitutional laws. By rejecting an absolute veto, the Convention necessarily anticipated that laws might be enacted over a President's constitutional objection. Should this occur it would be up to the judiciary—not the executive—to check the statute's enforcement. Had the Founders envisioned that Presidents could refuse to execute "unconstitutional" laws, the veto would have been superfluous in the very setting for which it was principally designed. Finally, if there had been any hint that the President would have authority to suspend allegedly unconstitutional laws, the antifederalists would have been quick to object, for one of their chief objections to the Constitution was that the President would be "as much a King as the King of Great-Britain." Yet nowhere in the Antifederalist literature is there any mention of a presidential suspending power.

Throughout most of our history, the executive has honored this original understanding by implementing even those statutes to which the President has constitutional objections. The first known instance of presidential defiance of an "unconstitutional" law occurred in 1860, almost three-quarters of a century after the Constitution was ratified. Between 1789 and 1973 there were only ten occasions when a President refused to comply with an allegedly unconstitutional law. Since the mid-1970s, however, such defiance has become more common. Rather than using the veto against laws it believes to be unconstitutional, the White House now often issues a "signing statement" charging that parts of a bill the President has just signed into law are invalid. Though the executive does not always follow through on these objections, refusals to comply with allegedly unconstitutional laws are no longer a rarity. From 1974 through 1980, there were as many instances of presidential defiance as had occurred during the previous 185 years. The Supreme Court has not yet been presented with a case challenging this growing presidential practice. If the Court respects the intent of the Founders it will declare the practice to be unconstitutional.

Christopher N. May
(2000)

(see also: Impoundment of Funds; Judicial Supremacy; Line-Item Veto; Nonjudicial Interpretation of the Constitution.)

Bibliography

Calabresi, Steven G. and Prakash, Saikrishna B. 1994 The President's Power to Execute the Laws. Yale Law Journal 104: 541–665.

Easterbrook, Frank H. 1989–1990 Presidential Review. Case Western Reserve Law Review 40:905–929.

May, Christopher N. 1998 Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative. Westport, Conn.: Greenwood Press.

Paulsen, Michael S. 1994 The Most Dangerous Branch: Executive Power to Say What the Law Is. Georgetown Law Journal 83:217–345.

Recent Legal Opinions Concerning Presidential Powers 1994 Arkansas Law Review 48:311–346.

Scigliano, Robert 1989 The President's "Prerogative Power." Pages 236–256 in Thomas E. Cronin, ed., Inventing the American Presidency. Lawrence: University Press of Kansas.