The Presidential Non-Enforcement Power (and its Regularity)

Following President Obama’s determination that the executive branch would no longer enforce the Defense of Marriage Act, a surprising amount of insightful and well-reasoned commentary suggests some danger in this act (e.g.), for continuing to consolidate lawmaking power in the executive branch. But this is a power that’s regularly exercised, doesn’t upset the balance of power between the branches and, clearly, does not disturb any understanding of the separation of powers.

First, any concern here rests on an unreasonably slim understanding of executive power (and one belied, elsewhere, by conservative “unitary executive” theories). We tend to think of the President as the head of state, with largely ceremonial, “big picture,” and international responsibilities, but he’s also the head of government. Early stylings of the President as the “chief magistrate” are not stylistic; they represent the understanding, set out in the Vesting (“the executive Power shall be vested…”) and Take-Care clauses, that the President chooses the direction of the Executive Branch. This understanding is in line with traditional separation of powers theory. Under Montesquieu and Locke’s construction, faithful discharge of the executive power does not require a mindless automaton, carrying the legislature’s laws into effect: rather, it permits and indeed requires discretion and wisdom, as both a check on the legislature, and a recognition of the limitations of human ability. The President was expected, in the early Republic, to have an independent constitutional vision, and articulate it clearly, both with the veto power, and by exercising separate constitutional judgment in the discharge of his duties.

Recent days have seen the high-profile expansion of this power. But while some of this has been improper, not all of it is. Bush’s policy of neutering direct congressional rebukes (e.g., the Detainee Treatment Act) by signing statement was infuriating, and upset the separation of powers, both because the President’s reliance on executive power directly countermanded the legislature, but also because it continued separately illegal conduct on an almost unchallengeable basis. Separately, Bush also de-prioritized the Department of Justice’s enforcement of race-based civil rights claims. That’s terrible, and even shocking, but within the President’s power, and part of his job when directing the Department of Justice. Our remedy was the ballot box.

Directing the Department of Justice to stop defending the Defense of Marriage Act is like the latter example; not the former. The President isn’t, on his own authority, terminating an act of Congress. He’s recognizing a meritorious challenge based on good-faith (and soon-to-be) expansion of civil rights laws, and declining to offer a defense that’s both dissonant with his personal beliefs, and unsupported by any circuit-level authority.

The high-profile nature of the case makes this look like an unprecedented act, but it isn’t, as General Holder’s letter explains. Nevertheless, it’s perhaps reasonable to start speculating on slippery slopes, but when doing so, let’s confine it to the facts. Justice isn’t regularly a defendant in school prayer and abortion cases; their decision to opt out of litigation in which they’re not properly a party in the first place is, well, something less than shocking.

It’s entirely possible, though, that a Republican White House would direct the non-defense of the Affordable Care Act. In fact, I’d expect it. But Justice’s decision doesn’t terminate the litigation. They haven’t settled the case or consented to default judgment (and they probably couldn’t), because the executive branch isn’t the only only proper defendant. As set out in General Holder’s letter, and page 2 of the Politico article (but who reads two whole pages of a Politico article? Yeesh), Congress can step in and offer defense when the executive bows out. This poses the complex question of “legislator standing,” but it’s one courts resolve to permit the defense.

Directing non-defense is clearly a powerful tool, true, and yes, one that could be abused. But as of yet, we’ve seen no evidence of abuse from this administration, and we needn’t yet consider the future. Think of it like the filibuster: exceedingly important in the right hands, but dangerous in the wrong ones. Just another reason to keep electing Democrats.



  1. “But Justice’s decision doesn’t terminate the litigation. …Congress can step in and offer defense when the executive bows out.”

    But if DOJ goes with the executive, is Congress equally equipped to mount that defense?

  2. That’s a good question, to which the answer probably has to be, no. Congresspersons aren’t really equipped for litigation, with DOJ’s talented staff and expansive resources, and this is sort of an irregular thing (although not without precedent), so there’s no telling how they’ll make up the deficit.

    But, this is sort of a common problem in law. I’d expect them to retain either private counsel, paid or pro bono, or coordinate with issue advocacy groups. The Thomas More Law Center (ick) regularly takes cases like this for clients like this. And, major law firms will file or assist with amicus briefs on both sides, and those things do matter. Ours are regularly cited by the Supreme Court (no big deal) :).

    1. But isn’t using the DOJ a more non-partisan, less prone to corruption approach? I don’t like the idea of all of these private firms, etc getting involved.

  3. Well defending partisan statutes is already a partisan act, isn’t it? As are all of these lawsuits. Politics isn’t always bad in law, and the quality of private briefing on big-name cases is actually quite good. The Supreme Court’s decision in Morrison v. NAB, for example, was directed largely by a point that Justice picked up at the cert phase, and amici drilled thereafter.

    1. But that’s just it – it’s NOT partisan when you have the DOJ under a Democratic president defending a Republicn poliy and vice-versa.

  4. Hmm then I’m not sure I get your point. Is it that bipartisan enforcement of all laws is preferable? Sure, yeah. But the exception for acts supported by neither circuit law, nor the mainstream of the majority’s party…

    1. I think the President takes an oath to defend federal law regardless of the partisan leanings of that law. He seems to be punting on that responsibility.

      1. Leaving aside thed Oath to the Constitution (which I think this President and his predecessor abrogated regularly), the DoJ can’t actually defend every lawsuit brought against every part of government, and against every congressional act. They aren’t staffed for. While this is an important national issue, if you look at it against all the other important issues DoJ is just doing triage because this case and its appeals will take an enormous amount of time and resources.

        1. Fair enough – but if they punt will the defense be better or worse?

  5. The oath is to the Constitution, and any oath to the laws of Congress would, by virtue of the Supremacy Clause, be subservient to that oath.

  6. Interesting additional analysis from Professor Kerr which addresses some of the same points you have made:

    “In particular, it seems that everyone seems to think that, somehow, someone will be available to defend a law when the Administration declines to to do. It’s not entirely clear to me how this happens when an Administration declines to defend a law in the District Court, as opposed to the Supreme Court: The key problem is how to get the case up to the Supreme Court, which isn’t presented when the Administration defends the law in the lower courts. But if everyone agrees that this will happen somehow, then the Administration’s decision is a lot less significant, and therefore less worrisome from a standpoint of long-term impact, than I had thought.

    As to how this might happen, some have pointed out that in INS v. Chadha, the Executive declined to defend the law in the circuit court, and the circuit court then appointed amici to represent the interests of both the House and the Senate to defend the law. This is a fair point. At the same time, the law in Chadha was an extremely unusual law: It was a power grab by Congress to take power from the Executive by giving both the House and the Senate unilateral veto power over Executive action. The House and Senate wanted the power; the Executive branch didn’t want them to have it. In that rather unique setting, it makes some sense that the House and Senate, rather than the Executive branch, would defend the law. In the case of DOMA, though, the law is no more Congress’s than it is the President’s. I suppose that you can look to the politics of the majority in each house of Congress and make a practical assessment of whether both or either institution would defend the law; because the House is now in Republican hands, presumably the House would do so if it can. But that strikes me as tricky because it depends on the timing; while it might be true today, presumably it wasn’t true last year.”

  7. This is tricky but I don’t think his argument is that the uniqueness of Chadha would defeat some claim to legislative standing. Standing doesn’t require that the substitute litigant have some special, unique, overriding, or partisan interest in case to make it a justiciable controversy. His interest must simply be so particularized as to prevent it from falling into the dungeon reserved for nonparticularized, general grievances, like taxpayer claims. It’s not clear to me why this would be closer to, say, Hein v. Freedom from Religion than the Chadha case.

    Very interesting stuff, though, this.

  8. I found this part most interesting:

    “I suppose that you can look to the politics of the majority in each house of Congress and make a practical assessment of whether both or either institution would defend the law; because the House is now in Republican hands, presumably the House would do so if it can. But that strikes me as tricky because it depends on the timing; while it might be true today, presumably it wasn’t true last year.”

    Basically if the legislative and executive branches don’t like the law they can punt using constitutional theory and no one can really prove them wrong. It almost seems like they would automatically be ceding power to the judicial since they sort of have to take a position on it if it makes it to them.

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