Monday, January 09, 2006

Presidential Power

Here's an interesting law review article by professor Dawn Johnsen, who analyzes the ways in which Presidents can enforce their own constitutional views. Notice that she argues that Presidents may sometimes be obligated to refuse to be bound by congressional restrictions on presidential authority:
3. Statutes that Encroach on Executive Authority. The Dellinger Memorandum describes the President's non-enforcement authority as greatly enhanced when the law encroaches on the constitutional powers of the presidency: "Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment."168 The Dellinger position is consistent with past executive branch policy and practice.169

The executive branch typically has justified enhanced non-enforcement authority when the President's powers are threatened as necessary to self-defense, and, in turn, preservation of the constitutional balance of powers. The 1980 Civiletti Memorandum describes this rationale well: "[T]he Executive can rarely defy an Act of Congress without upsetting the equilibrium established within our constitutional system; but if that equilibrium has already been placed [*pg 51] in jeopardy by the Act of Congress itself, the case is much more likely to fall within that narrow class."170

Some commentators have countered that it is precisely when Presidents are protecting their own powers that we should be most suspicious of their constitutional analysis, and that Presidents perhaps should be less free to disregard laws they believe threaten presidential power than laws they believe violate individual rights.171 Allowing the President to resolve disputes with Congress over their respective constitutional powers by refusing to enforce laws does create the opportunity for self-interest inappropriately to taint constitutional analysis. The alternative, though, of requiring Presidents invariably to comply with laws that aggrandize Congress's power at the expense of presidential power would pose too great a threat to our constitutional equilibrium. Given the nature of legislative encroachments on executive power, if Presidents consistently were to comply with such laws, the courts would not provide a sufficient check to protect the constitutional balance of powers. Steady compliance likely would produce a steady erosion of presidential power.

While this final non-enforcement factor endorsed by the executive branch is the most controversial, the fact that a provision encroaches on presidential power rarely, if ever, should be determinative. On closer scrutiny, what appear to be reasons for giving the President greater authority to refuse to enforce laws that threaten presidential powers may be better viewed as applications of other relevant and less controversial considerations -- namely, justiciability, presidential expertise, the magnitude of the constitutional harm, and the degree of congressional attention to the constitutional issue.

A principal reason courts may inadequately protect against congressional encroachments on presidential authority is that presidential compliance with such statutes is particularly likely to deprive the courts of any opportunity for review. Presidential compliance with the Tenure of Office Act and its successors, for example, would have allowed the Senate unconstitutional control over the President's ability to remove officers, with no possibility of judicial review. By contrast, where presidential non-enforcement would render the issue nonjusticiable, compliance may be the constitutionally preferred course, even when the subject matter is one of presidential power. For example, it was only by complying with the legislative veto at issue in Chadha172 that the President created the opportunity for the Supreme Court to consider its constitutionality.

In addition, many types of legislative encroachments are unlikely ever to present a justiciable case or controversy that would allow for judicial review, or will be subject only to an extremely deferential review. A greater need for a [*pg 52] presidential check exists, for example, when Congress seeks to encroach on the President's authority as commander in chief or other foreign affairs powers. The Dellinger Memorandum recognizes that provisions that diminish presidential power often are not justiciable or only will be justiciable if the President declines to enforce them.173 The President also typically has special expertise relevant to assessing the constitutionality of legislative encroachments on presidential power. Non-enforcement therefore more often will be the constitutionally preferred course for laws that interfere with the President's foreign affairs powers, than, for example, for laws that the President believes violate individual rights, other factors being equal.

Finally, in considering the harm imposed by a law that diminishes presidential power, Presidents should consider not their interests narrowly defined, but the long-term effects on the institution of the presidency. Overly zealous non-enforcement is not the only danger. In some instances, Presidents may be reluctant to provoke a confrontation with Congress to prevent what, viewed narrowly, seems a relatively minor encroachment. Presidents confronted with laws they believe unconstitutionally impair presidential power should consider their obligation to preserve the constitutional powers of the presidency and pass the office on to their successors unimpaired.


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