Executive Power to Disregard the Law

A potentially interesting paper:

The Executive's Duty to Disregard Unconstitutional Laws

SAIKRISHNA PRAKASH
University of San Diego School of Law
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March 29, 2007

San Diego Legal Studies Paper No. 07-95


Abstract:
Recent Presidents have asserted a power to ignore statutes that they believe are unconstitutional. Critics have made an array of arguments against these assertions. As a matter of text, the Faithful Execution Clause bars such non-enforcement. As a matter of history, the English specifically prohibited a discretionary power to disregard statutes. And American Presidents did not assume a power to ignore unconstitutional statutes until almost a century after the Constitution's creation. Taken together, these arguments are said to refute the regal pretensions of modern Presidents. This Article serves as an antidote to such claims while sharpening our understanding of Executive Disregard. The critics are correct in arguing that the President lacks a discretionary power to refuse to enforce unconstitutional statutes. Instead, the President has a duty to disregard such laws that arises from two sources. First, the Constitution never empowers the President to enforce unconstitutional statues. He no more has the power to enforce such statutes than he has power to enforce the statutes of Georgia or Germany. Second, the President's duty to preserve, protect, and defend the Constitution requires the President to disregard unconstitutional statutes. When the President enforces a statute he regards as unconstitutional, he acts to violate the Constitution no less than he would were he to imprison citizens without hope of trial. Both John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional statutes, with Jefferson being the first President to actually invoke the duty of Executive Disregard. Upon entering office, Jefferson ordered the termination of Sedition Act prosecutions on the grounds that the Sedition Act was unconstitutional. Jefferson justified his non-enforcement decision by arguing that the Sedition Act was no law at all and by noting that he had a duty to preserve, protect, and defend the Constitution, a duty that prevented him from implementing measures that violated it.