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
Duly passed laws ? A real can of worms ?
President Obama’s refusal to enforce DOMA as being unconstitutional.
Now every convicted person in our jails can claim that in their judgement the law by which they were convicted is unconstitutional and demand revocation of their conviction and demand an immediate release plus resitution.Persons having served their sentences could bring law suits to compensate for their conviction etc.
free healthcare…
[...]Can the President refuse to enforce the law? – The Broadside : Colorado Springs Gazette, CO[...]…
scaffolding reviews…
[...]Can the President refuse to enforce the law? – The Broadside : Colorado Springs Gazette, CO[...]…
This article is wrong. The following link is why: http://www.justice.gov/olc/nonexcut.htm
The Supreme Court (you know, those people you keep saying have the final say on this) has upheld, time and again, that the President may refuse to enforce a law if the President can 1) argue that the law is unconstitutional and 2) expect that the Supreme Court will rule in his favor. In other words, if the President can make a sound, legal argument that a law is unconstitutional, he has the *right* to defy that law.
The reason for this is simple: it keeps Congress from infringing on the President’s powers. The President is not a Congressional puppet. Remember, separation of powers? Checks and balances? If the President had to enforce *any* law Congress passed, then Congress could pass laws that restricted the President’s abilities to complete impotency.
So, sorry, you’re wrong, Seth.
You can make all the horribly flawed historical arguments you want, but the highest court of the land agrees with Obama. And if DOMA is overturned, which it will be within the next year, Obama will have been entirely in the right.
DOMA is unconstitutional on three grounds. First, it denies equal rights and opportunities to gays. Two, the federal government has failed to justify why this law is necessary; the only arguments made from DOMA’s supporters are that it maintains “tradition.” Judges have ruled that tradition alone cannot justify the oppression of a minority group.
Third, DOMA is a religious law. It fails all three portions of the Lemon Test (devised by the Supreme Court, the ultimate arbiters of constitutionality). The First Amendment bars Congress from passing any laws that favor a religion or all religions. DOMA was drafted by evangelical Christians to push a particular belief from a particular segment of Christianity on the entire nation. That is unconstitutional, it’s illegal, and as noted — it’s not a real law.
Also, you cited the impeachment of Andrew Johnson. You completely misrepresented that piece of history. Had you done more homework, you would’ve known that the Supreme Court, years later, supported Johnson’s decision. You would’ve also known that although Johnson was impeached, he was *acquitted*. Impeachment is not a guilty verdict; it just means that charges were brought against the President.
US News Gateway…
[...]Can the President refuse to enforce the law? – The Broadside : Colorado Springs Gazette, CO[...]…
“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.””
Actually, President Jackson never said this. It’s a fictitious quote.
http://en.wikipedia.org/wiki/Worcester_v._Georgia
Something a Google search would have elucidated.
A lof of china alphabet photo…
[...]Can the President refuse to enforce the law? – The Broadside : Colorado Springs Gazette, CO[...]…
[...] Executive Order 103 included Section 7 – The Chinese Menu Clause. The Governor picked one law from Column A and one law from Column B and essentially said she would selectively enforce the laws she liked and ignore the laws she did not like. The best ObamaNation intellectualism replicated in North Carolina! CLICK LINK HERE or HERE [...]
Wow want a waste of digital ink.
Obama is not refusing to ENFORCE the law, he’s refusing to pay to defend it in court. there’s a big difference there…and whether you like the decision or not, stop blurring the lines.
It’s not a “de facto” veto of any sort…the law is the law and it didn’t change or become unenforceable.. He couldn’t violate it if he wanted to (and he hasn’t), he’s simply saying the Justice Department won’t pay to defend it b/c they (and he) think its unconstitutional.
If you’re like to hire a lawyer to defend it, you can. As a libertarian, I’m glad my tax dollars aren’t going towards wasted efforts for an attorney for this matter…you should be too.
And by what constitutional authority does the President, or the AG, presume to determine the constitutionality of any law?
The President has a duty under Article II, Section 3 of the Constitution to see that the laws are “faithfully enforced,” and the AG has a duty under his oath of office and the canons of the legal profession to vigorously defend the laws of this nation, whether he agrees with them or not.
It is for the courts to decide upon the constitutionality of a law, not the President or the AG.
They are in breach of their oaths of office and their duties as public officials, and should be impeached and removed from office, both of them.
Faithfully enforcing the laws is not quite so clear cut as some think it is. What Congress passes as a law is not a law if it is repugnant to the U.S. Constitution. Article VI, Section 2 is the “Supremacy Clause” and makes clear that the U.S. Constitution, federal laws that shall be enacted in pursuance thereof, and treaties entered into under the authority of the United States comprise the “supreme Law of the Land.” In Marbury v. Madison, and other cases, the U.S. Supreme Court made clear that a Congressional Act or any governmental act contrary to the U.S. Constitution is not a law.
While I agree that Presidents and all other governmental officials are required to support the U.S. Constitution (see Article VI, Section 3), they are not required by oath to support any statute, court rulings, executive orders, or other “laws”, especially if such “law” in contrary to the U.S. Constitution.
What we need are honest governmental officials who support the U.S. Constitution, not a political party, campaign contributors, others in their political party, or their own agendas. We the People need to make every member of the legislative branch, whether federal, state, county, or city read every word of each piece of proposed legislation before voting to enact it. The President and governors needs to personally read each piece of legislation before signing or vetoing it. Each Judge needs to personally read every word on every page of every document of every litigant before rendering a decision in court. Of course this is not happening. Quit re-electing the dishonest officials who are ignoring the U.S. Constitution. Elect honest people into office, and have those honest people impeach and criminally prosecute the dishonest ones still in office.
I have some experience in these matters. I have been fighting the corruption in the government since March of 1984. My next court battle will be naming over 100 Defendants, including Justices of the U.S. Supreme Court for the crimes they have committed against me and others. Remind our officials that they are public servants and we are the public, so they work for us; we do not work for them.
I agree, David, that an unconstitutional law is “no law at all,” but the question presented is who, exactly, gets to decide whether a law is unconstitutional. I’m just saying it’s not the President.
If he believes a law is unconstitutional, then he has standing to sue in federal court to suspend enforcement of the law pending a ruling from the Supreme Court, and that’s exactly what he should do.
But for the President to set himself up as a Supreme Court above the actual Supreme Court by simply refusing to enforce any law he deems unconstitutional is to grant him power that the Constitution does not give to him.
Nothing new for a few weeks Seth, how come?
Franco lies
http://en.wikipedia.org/wiki/Oath_of_office_of_the_President_of_the_United_States
Scroll down to the heading “Oath Mishaps.” It’s interesting that getting the words precise is so important that the oath must be re-administered if not spoken correctly. Yet a sitting president can flout the oath without consequence.
Nice essay, Seth.
You don’t seriously think the US Congress will impeach Obama over this do you?
Is it the duty of Congress to do so? If Congress does not, is it not our duty to force Congress to begin the impeachment process?
If the President won’t obey the law and Congress won’t force the president to obey the law, who’s responsibility is it to deal with the despot?
I propose that you are absolutely correct in everything that you have written here except where you called a Supreme Court ruling “Final”. I propose that the decision to accept or deny tyranny, anarchy and despotism, was made by our forefathers at great expense. The duty to defend that decision was entrusted ‘finally’ to us.
As you pointed out, we have failed to do so in the past. I propose that we have failed to do so in the past so often that our complacency has set a precedent. In doing so, we have lost the rule of law and are faced with dire choices and eminent destruction if we do not recover it.
Every time we allow the law to be violated, the costs of liberty and justice escalate.
Your article is factual and well composed, but is lacking a critical component. You suggest no resolution. Do you not inherit a duty of your own to seek a resolution when you discover the deriliction of duty of your servant? Holder is our voluntary, paid servant, is he not?
If you know duty and honor, and I suspect that you do, the link below is all the reminder you need to see how justice must be served.
http://www.history.army.mil/html/faq/oaths.html
By not fighting this discrimination President Obama IS Upholding The US Constitution!
Is he? Has the Supreme Court ruled the law to be unconstitutional? Nope.
Obama has a duty to enforce ALL duly enacted laws, whether he likes them or not. He has NO constitutional authority to “deem” any law to be unconstitutional, as that is the province of the Court.
The Equal Protection Under the Law clause.
And he is not not enforcing the Law – He is not defending a challange to the Law – which many legal scholers feel is Un-Constitutional.
He would be in vioklation of his oath to uphold the Constitution he he defended a law that goes against our Constitutional freedoms. He is not George Bush after all.
Let’s assume the Congress, via presidential veto override, enacted a law requiring Federal registration of all guns, upon pain of confiscation. The President refuses to enforce such a law, stating it is blatantly unconstitutional. Would you be so quick to call for the President’s removal in such a case?
Lets get impeachment process going. No real minded voter believed Obama “The Messiah” had any intention of upholding and protecting the U.S. Constitution.
Your definition of “real minded” is different than mine then.
And there are NO grounds for Impeachment!
Posted 10 days ago – I guess someone is having a diffacult time comming up with an Impeachable offence.
Wait for it….