Only the Congress makes our laws, and only the Court gets to determine their constitutionality
By Seth Richardson
U.S. Attorney General Eric Holder recently announced that, at the direction of President Obama, the United States Department of Justice will no longer perform it’s sworn duty to the Constitution of the United States, the duly-enacted laws of Congress, and the People.
President Obama has decided, all on his own, that the Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing gay marriages, is “unconstitutional,” and Attorney General Holder “concurs” in this “determination.”
In his statement, Holder trots out excuses for his dereliction of duty, the primary argument being that:
“…the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.”
Holder goes on to state that he is directing the Justice Department not to defend the DOMA in court, which torpedoes several ongoing cases.
The problem is that Holder doesn’t work for or at the bidding of the President. According to the Attorney General’s own website, “The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested.”
In other words, Holder does not work for the President, as his personal attorney, he works for the People of the United States, and his duty is to represent the nation in legal matters, not pander to popular public opinion or kowtow to the demands of the President. President Obama is his manager, not his employer. We are, and Holder owes his allegiance and his duty to us.
Holder has a higher duty, as an officer of the Court, to vigorously and zealously defend the laws that Congress enacts, whether he likes them or not, and whether or not the President likes them. Likewise, the President is obliged to see that the laws duly enacted by Congress are faithfully executed.
The issue of a President refusing to enforce or defend laws duly enacted by Congress goes far back into our history. Although it never came to a direct confrontation over presidential non-enforcement, in objecting to a Supreme Court ruling by Chief Justice John Marshall in 1832 that invalidated the Indian Removal Act intended to eject the Cherokees from Georgia, President Andrew Jackson famously said, “John Marshall has made his decision; let him enforce it now if he can.”
The issue of a President flatly refusing to obey or enforce a law of Congress was squarely faced in the impeachment of Andrew Johnson in 1868 for refusing to obey the Tenure in Office Act, which was passed over his veto as a part of the Reconstruction after the Civil War.
The Act prohibited the President from removing from office anyone who had been confirmed by the Senate. Johnson, over the objection of many in Congress, removed Edwin M. Stanton from his position as Secretary of War, replacing him with General Lorenzo Thomas. The House of Representatives promptly, within days, impeached Johnson. He survived removal from office by a single vote in the Senate. Stanton retired, and Thomas continued to serve for another year, retiring 10 days before Johnson left office.
This seminal event demonstrates the importance of the President’s obedience to his oath and his constitutional obligations and limitations. Since then, the academic debate has raged over the President’s duty to enforce laws that he feels are unconstitutional. But this aspect of executive authority did not gain much traction until the Progressive era began in about 1912, when Progressive Presidents began picking and choosing which laws they would obey and enforce in order to advance the Executive State vision of Woodrow Wilson.
The Progressive agenda set forth by Teddy Roosevelt, Woodrow Wilson and FDR marked the advance of both presidential intransigence to the acts of Congress, and liberal scholarly arguments attempting to justify presidential violations of Article II, Section 3, Clause 4 of the Constitution, which explicitly requires that “[The President] shall take Care that the Laws be faithfully executed.” This is not a discretionary matter, it is a mandatory directive and duty of the President.
The arguments over presidential non-enforcement of the law are arcane, highly academic, and convoluted, but they fall into two main camps.
The Progressive version includes those who take a “unitary executive” vision of the Separation of Powers Doctrine and hold that the President is “co-equal” to both the Congress and the Supreme Court in his authority to “interpret” the Constitution according to his best judgment.
There is, however, no express authority for the President to interpret the Constitution at all and decide what he will and will not enforce to be found in the document. The Progressive argument relies on inferences they draw about the tension between the Constitution and laws duly enacted by Congress, which have admittedly not infrequently been ruled to be unconstitutional. However, to make these arguments, a large amount of pettifoggery and obfuscation is required to weasel around the clear pronunciation of the Constitution on Presidential authority and the separation of powers.
Progressives argue that it is the President’s duty to “preserve, protect and defend” the Constitution, or to defend his executive power, which authorizes him to ignore any law he deems is either unconstitutional or an encroachment on his legitimate executive authority merely because he believes it to be so. Thus, the Progressives argue, a President’s duty to uphold the Constitution outweighs his constitutionally-mandated duty that the laws be “faithfully executed.”
The core error in this argument is the presumption that the President has the authority to determine what laws are constitutional and what laws are not, based on his own judgment. While it is true that Presidents have refused to enforce laws that are manifestly unconstitutional in the past, such refusals still constitute a usurpation of legislative or judicial power, no matter how honorable the intent.
The strict constructionist version holds that the President’s authority to participate in legislation is expressly limited by the Constitution only to the power of the veto, and the power of the pardon, and that the President has a mandatory duty to uphold all duly-enacted laws of Congress, even if he believes them to be unconstitutional.
It is the strict construction version that holds the most legal weight, because Article 1, Section 1 says, “All legislative Powers herein granted shall be vested in a Congress of the United States.” This is an exceedingly clear explication of the situation. The President’s participation in the making of law is limited to his persuasive powers during congressional debates and his veto power, which may be overridden in turn by Congress. The Congressional override of a presidential veto is proof absolute that it is the Congress who is ultimately responsible for making the law, and that the President has no authority to effectively veto a law by refusing to enforce it.
The Progressive notion that the President can exercise a defacto veto by refusing to enforce the law turns the whole structure of the Separation of Powers Doctrine on its head. It’s a usurpation of legislative authority and an act of despotism.
The proper course of action for a President presented with a law he believes to be unconstitutional or a usurpation of his executive authority is for him to either challenge the law before the Court, or enforce the law and allow those who are wrongfully impacted by the law to do so as such violations occur.
Indeed, the latter is the customary way in which cases and controversies are resolved by the courts. Those with standing to sue because they have been, or will be harmed by the law, do so, and the case winds its way through the system until the Supreme Court rules on the matter with finality.
For the President to simply declare that a law is unconstitutional and then refuse to enforce it usurps not only the legislative authority of Congress, but also the judicial authority of the Court to make such determinations, and in some cases, actually makes it impossible for people who might be impacted by the law to challenge it in court.
Such usurpation of authority is a violation of the Constitution, and therefore is a “high crime or misdemeanor” for which President Obama, like President Johnson, can and should be impeached and removed from office. And it’s not just the sitting President who has committed this violation, former Presidents including Bill Clinton and George Bush Jr. have done the same thing, and should have likewise been impeached.
As for Holder, and the defense of duly-enacted laws in court, he represents the United States, not the President, and his duty as an officer of the court require him to mount a vigorous defense of his client’s and his employer’s interests, who are the People, not the President, regardless of his personal opinions on the propriety or constitutionality of the law. For him to do otherwise is for him to violate the canons of professional ethics for lawyers, for which he should be disbarred.
The President is not the arbiter of law, that authority lies with the Supreme Court, nor is he a legislator, that authority lies with the Congress. He is the enforcer of all of the laws that we, the People direct and authorize our elected representatives to enact, for better or for worse.
His duty is to “take Care that the Laws be faithfully executed” and remain obedient to the Constitution that he swore to “preserve, protect and defend.”
© 2011 Altnews