The Propriety of Presidental Non-enforcement

[Seth]

No, you misconstrue. If you work for a President who tells you to enforce a particular law, and you refuse to enforce that law, you get fired, because you have both a duty to enforce the law and a duty to obey the just and lawful orders of the President.

If you work for a President who tells you NOT to enforce a law, and you REFUSE to enforce that law (or defend it) anyway, in accordance with your duty to the People, then you SHOULD be fired, and the President should be impeached, because his telling you not to enforce the law is an unlawful and unconstitutional order which you are obliged to ignore. If you enforce the law and the President fires you, (as AG) that would be a matter for Congress to consider for impeachment.

I think this misses the reality of the situation. If you are a lawyer in the Justice Department, and your boss tells you to enforce law X instead of law Y, then that's your job. You don't have an independent obligation to enforce every law you happen to see violated. There are authorities and hierarchies within the Justice Department and other government attorneys' offices which make determinations about which cases to pursue, and which to cut loose.

Correct, but while it is permissible to decline to enforce a law in a particular instance, because the facts of the case lead to, for example, a reasonable conclusion that the case cannot be won, then the attorney has a duty not to pursue it. But determining not to enforce a particular law is something entirely different, and constitutes an illicit arrogation of power. More importantly, the Justice Department, and the AG, work for the People, not the President. The President is their administrative manager, but their duty is to the People and their interests first and foremost.

Under no circumstance may an attorney, any attorney, who works for the People of the United States and in their employ, refuse to enforce or defend a validly-enacted law of Congress, even on the direct orders of the President of the United States. To do so is a violation of the canons of professional ethics for lawyers, nothwithstanding any political considerations, and any such abdication of the duty of obedience a federal government lawyer owes to the People is just cause for disbarment.

You overstate this considerably. Moreover, the President made a determination that the DOMA law is not "validly enacted." As I noted above, if he seeks to enforce an unconstitutional statute, knowingly, then doesn't he violate his oath of office?

I disagree. I think it's accurately stated, and the point is that the President has NO LEGAL AUTHORITY to determine anything about the DOMA except that it's a law duly enacted by Congress. If he thinks it's unconstitutional, he may bring a case to that effect before the Supreme Court, but he may not set himself up as a Supreme Supreme Court and make "determinations" about what the duly elected representatives of the People have determined shall be the law of the land. He simply has no legal or constitutional authority to do so outside of his veto and pardon powers. To say that he may "determine" the DOMA to be "unconstitutional" is to say that he has a "supreme veto" that overrides both the Court and the Congress, and that's something reserved to dictatorial tyrants, not the President of the United States.

He has a lawful course of action, which is to challenge the law in court, but what he's doing is entirely unlawful.

[Coito ergo sum]

[

You bring up a salient point about Marbury v. Madison, at least in the philosophical sense.

Not just in a philosophical sense. In a real sense.

It is problematic because it declares that of necessity and by historic construction, the Court exists to settle cases and controversies, and one of the most fundamental controversies is whether an Act of Congress complies with the Constitution. But what people don't understand about Marbury v. Madison is that nowhere in the ruling does the Court assume plenary and supreme power to determine what is constitutional and what is not. It can only pass judgment on cases brought before it, and it cannot act sua sponte to declare a law unconstitutional.

People don't misunderstand that, as far as I can tell. The court only decides cases, it doesn't act on it's own to declare laws unconstitutional just because it happens to read the text of a law.

Furthermore, the Court acknowledges, and has reiterated several times, including quite recently in the gun control cases, that it is subservient to the will of the people properly expressed.

Unless that popular will is violative of a limitation placed on the government by the Constitution. Then the people would have to amend the constitution, which requires a substantial supermajority.

The ultimate arbiter of constitutionality is the People, and, in order of supremacy, the chain is the People, their elected representatives in Congress, and the Supreme Court. But NOWHERE in this chain of supremacy does the President reside.

This chain is not in the Constitution. Nowhere does the Supreme Court expressly fall in any "chain of arbiters." The Supreme Court assumed the power to be that arbiter, it did not have it granted to it by the Constitution or federal law. There is nothing written anywhere that says the President can't also make a similar determination. And, like I said, if the President enforces a clearly unconstitutional law, he may well be violating his oath of office in doing so. Nothing says he has to rely on the Supreme Court, and wait for them to grant cert on a case, before the President upholds his oath. Example - if the Congress passed a law enacting a cruel and unusual punishment - like having as punishment for a crime the slow torture of a petty thief in the old "Brazen Bull" - the President could order his folks to not move forward with that punishment, even before a person had the wherewithal to file an appeal to the Supreme Court.

Take the governors in the US who suspended the use of capital punishment - even in cases where a man was convicted and sentenced already - because of the work of the DNA projects around the country showing that some folks on death row might have been wrongly convicted.

As I said, his ONLY legislative authority lies in the veto and the pardon.

The court has no legislative authority, yet it can pass on the Constitutionality of laws (because and only because it says it can, and that has been tradition) - what, exactly, prohibits the President from doing the same?

Once he has exercised that constitutional authority, his role in determining the constitutionality of a law is at an end, and he is obliged to defer to superior legislative and judicial authority.

And, this is based on.......what? Your own opinion? Or, do you have a constitutional provision on which you rely?

Legislative and Judicial authorities are not superior to the President. We have three branches of government all of equal dignity.

This is necessarily so because to grant constitutional authority to the President to effectively choose which laws will and will not be enforced is to place him above the Court, the Congress and the People, and that is the very definition of a tyrant.

The same would be true of the Court. To grant constitutional authority to the Court to effectively choose which laws will and will not be applied is to place the court above the Congress and the President, and that is the very definition of a tyrant. The fact is, the President can make a determination that a law is not constitutional, and there are methods available for impeachment if Congress feels it is a breach of the President's duty in a particular instance.

The key to the Separation of Powers Doctrine is not that the three branches are co-equal in authority or dignity, it is that each has a carefully defined function, and may not go outside those constitutional boundaries.

The Court went outside its constitutionally defined boundaries in Marbury v Madison when it assumed the role of decider of what is constitutional. It did not assume that role EXCLUSIVELY, and there is no reason evident in the Constitution why a President may not do the same. You've still not identified any provision of the Constitution on which you rely. I have shown you the oath of office of the President: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." - This oath is in the Constitution and states that the President swears to preserve, protect and defend the Constitution of the US, to the best of his ability. If he enforces an unconstitutional law, then he is violating that oath - isn't he? And, there is nothing anywhere that says he has to wait for an industrious litigant with a good lawyer to persuasively make that argument before the Supreme Court to do his duty - is there?

The President has absolutely NO lawmaking or judicial powers whatsoever.

The Court has no lawmaking or executive powers whatsoever. So what?

Because all power flows from the People, they are the ultimate judge of what the Constitution contains and means, and it is their plenary right to change that document as they see fit, to best serve their freedom and happiness.

And, it is the duty of the President to preserve, protect and defend the Constitution to the best of his personal ability. That may mean refusing to enforce an unconstitutional law. He has no means of placing a law up to a vote of the people or polling the populace, other than informally, and he does not have to wait for the Supreme Court to finally accept cert on a particular law (which it may NEVER DO, since certiorari is wholly voluntary on the part of the Court) in order to do his duty.

But even this "fourth branch" of government is constrained by its own rules, which means that in order to overrule the Congress and the Court, the People must amend the Constitution itself. Short of that exercise of plenary authority, the Congress makes law, and the Court determines how it fits within the existing constitutional boundaries. The President's role is limited to, again, the veto and the pardon.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 1th Amendment.

Nothing in Article III or any Amendment to the Constitution gives the courts the right to declare a law unconstitutional. That right was taken by the Court is outside the Constitution.

The President's role is not limited to just veto and pardon. He is vested with all executive power. He also must preserve, protect and defend the Constitution to the best of his ability. How does enforcing an unconstitutional law serve that duty?

For the President to enforce a duly-enacted law, even if he believes it to be unconstitutional, is his duty and obligation.

To enforce a law passed by Congress which he believes to be unconstitutional would appear to violate the duty to preserve, protect and defend THE CONSTITUTION to the best of his ability.

Nothing in the Constitution says it is his duty to enforce laws that are unconstitutional, and nothing in the Constitution prohibits him from making that determination.

When it conflicts with his obligation to uphold the Constitution, his course of action is to place the law before the Court for review,

That may be what you would like, but it's not stated in the Constitution. He also does not have the power to place laws before the Court for review. If a dispute arises between litigants or between the government and a person, then one of those parties can appeal to the Supreme Court, but it is completely up to the Supreme Court to grant cert. Nobody can force the issue.

or even before the People, which he is certainly empowered to do,

Isn't. Like anyone else, he has to follow the Congressional laws on having something added to the ballot as a referendum. Moreover, he need not wait three or four years to stop enforcing an unconstitutional law, waiting for a determination of the people or the court that may never come.

for judgment. If the result of the Court's examination displeases the People, they may amend the Constitution to overrule the Court and, for that matter, the Congress, and always the President.

And, the President may due his duty and not enforce a law he believes is unconstitutional. If the Court disagrees when deciding a case, then so be it. We will then have a possible constitutional crisis. One or the other branch would have to bow to the other, at some point. Congress might act to amend the law, or any number of things could happen.

Jackson's words were illuminating, but not determinative, since that particular Court ruling was overruled by Congress and the Cherokee were removed in accord with constitutional authority. The real test came with Andrew Johnson and the Tenure in Office Act, where Johnson was impeached, but escaped removal by a single vote in the Congress. And this impeachment was about Johnson's removal of his Secretary of War during the Reconstruction when radicals in Congress wanted the Congressionally-approved person to remain in office.

The current situation is much worse, because it's an arrogation of illicit authority by the President in declaring a law to be null and void, which is outside his powers. For that, he should be impeached and removed from office.

You've not identified a constitutional provision on which you rely. It seems well within his oath to not enforce an unconstitutional law.

Moreover, the Supreme Court appears to have acknowledged the President's power to do this. See Myers v. United States, 272 U.S. 52 (1926), in which the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. See also Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).

Consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).

[Coito ergo sum]

No, you misconstrue. If you work for a President who tells you to enforce a particular law, and you refuse to enforce that law, you get fired, because you have both a duty to enforce the law and a duty to obey the just and lawful orders of the President.

If you work for a President who tells you NOT to enforce a law, and you REFUSE to enforce that law (or defend it) anyway, in accordance with your duty to the People, then you SHOULD be fired, and the President should be impeached, because his telling you not to enforce the law is an unlawful and unconstitutional order which you are obliged to ignore. If you enforce the law and the President fires you, (as AG) that would be a matter for Congress to consider for impeachment.

I think this misses the reality of the situation. If you are a lawyer in the Justice Department, and your boss tells you to enforce law X instead of law Y, then that's your job. You don't have an independent obligation to enforce every law you happen to see violated. There are authorities and hierarchies within the Justice Department and other government attorneys' offices which make determinations about which cases to pursue, and which to cut loose.

Correct, but while it is permissible to decline to enforce a law in a particular instance, because the facts of the case lead to, for example, a reasonable conclusion that the case cannot be won, then the attorney has a duty not to pursue it. But determining not to enforce a particular law is something entirely different, and constitutes an illicit arrogation of power. More importantly, the Justice Department, and the AG, work for the People, not the President. The President is their administrative manager, but their duty is to the People and their interests first and foremost.

The AG's duties are "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments." If a lawyer determines that a statute is unconstitutional, he or she may advise the client accordingly. The client is the President and the US government. The client then determines what will be done in given cases. If the client says, "I accept your legal opinion that the law is unconstitutional and I won't

Under no circumstance may an attorney, any attorney, who works for the People of the United States and in their employ, refuse to enforce or defend a validly-enacted law of Congress, even on the direct orders of the President of the United States. To do so is a violation of the canons of professional ethics for lawyers, nothwithstanding any political considerations, and any such abdication of the duty of obedience a federal government lawyer owes to the People is just cause for disbarment.

You overstate this considerably. Moreover, the President made a determination that the DOMA law is not "validly enacted." As I noted above, if he seeks to enforce an unconstitutional statute, knowingly, then doesn't he violate his oath of office?

I disagree. I think it's accurately stated, and the point is that the President has NO LEGAL AUTHORITY to determine anything about the DOMA except that it's a law duly enacted by Congress.

That's simply not correct, and I've provided a constitutional basis, and case law precedent, as well as historical precedent (above) that clearly demonstrates otherwise. You have presented your own personal opinion.

If he thinks it's unconstitutional, he may bring a case to that effect before the Supreme Court,

Only if there is someone to prosecute, and only if the Supreme Court agrees to hear the case. And, given that he would be representing the US, their position would be that the statute is constitutional, not unconstitutional. If the Government took the position that the statute was unconstitutional, then the defendant would stipulate to that, and the case would be dismissed at the lower level. No dispute. No appeal.

but he may not set himself up as a Supreme Supreme Court and make "determinations" about what the duly elected representatives of the People have determined shall be the law of the land.

Yes, actually, he can. See my legal authority cited above. And, the Supreme Court doesn't have the express constitutional authority to make that determination. The Supreme Court said it's implicit in its power to decide cases and controversies. Well, implicit in the executive power and in the President's obligation to preserve, protect and defend the Constitution is the power to refrain from enforcing unconstitutional laws.

He simply has no legal or constitutional authority to do so outside of his veto and pardon powers. To say that he may "determine" the DOMA to be "unconstitutional" is to say that he has a "supreme veto" that overrides both the Court and the Congress, and that's something reserved to dictatorial tyrants, not the President of the United States.

No, it means that each and every branch of government has the OBLIGATION to behave Constitutionally, and they do not need to enforce unconstitutional provisions while waiting for other branches to get around to it.

He has a lawful course of action, which is to challenge the law in court, but what he's doing is entirely unlawful.

The Government does not have this course of action. One, the courts will only decide cases and controversies and there is no provision for advisory opinions on laws. The President cannot start a case "In re: the Constitutionality of X USC Sec. 1000 et seq." -- there has to be a case. In the case of DOMA it would be The United States vs. John Q. Public. The President - as the chief law enforcement agent of the government - is the one that would bring that case SEEKING TO ENFORCE THE LAW. If the Government starts the case by stating - "we allege this law is unconstittutional," the defendant would stipulate to that, and the court would agree. There would be nothing to submit to the jury, and the case would be dismissed. Nobody would appeal it. It would never make it to the Supreme Court, and if someone did appeal it, then the appeals court would dismiss it because a case where everyone agrees is not a "controversy."

[Coito ergo sum]

Additional authority:

The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980): Attorney General Civiletti, in answer to a congressional inquiry, observed that "Myersv. United States, 272 U.S. 52 (1926). holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts." Id. at 59. He added as a cautionary note that "[t]he President has no `dispensing power,'" meaning that the President and his subordinates "may not lawfully defy an Act of Congress if the Act is constitutional. . . . In those rare instances in which the Executive may lawfully act in contravention of a statute, it is the Constitution that dispenses with the operation of the statute. The Executive cannot." Id. at 59-60.

Thus, my analysis is in line with the Executive Branch's opinion on this topic. The Congress inquired of the Office of Legal Council of the Attorney General (cabinet level lawyer for the President) what the President's lawful power was here. And, they stated that the President CAN refuse to implement unconstitutional legislation. That power comes from the Constitution, and the Prez is not required to execute them provisionally, against the day that they are declared unconstitutional by the courts.

There really is nothing wrong with Obama announcing he will not defend DOMA. It is most certainly in line with the equal dignity of the three branches of government and the independent obligation of EACH BRANCH to act constitutionally and to protect and defend the Constitution of the US.

[Seth]

Additional authority:

The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980): Attorney General Civiletti, in answer to a congressional inquiry, observed that "Myersv. United States, 272 U.S. 52 (1926). holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts." Id. at 59. He added as a cautionary note that "[t]he President has no `dispensing power,'" meaning that the President and his subordinates "may not lawfully defy an Act of Congress if the Act is constitutional. . . . In those rare instances in which the Executive may lawfully act in contravention of a statute, it is the Constitution that dispenses with the operation of the statute. The Executive cannot." Id. at 59-60.

Thus, my analysis is in line with the Executive Branch's opinion on this topic. The Congress inquired of the Office of Legal Council of the Attorney General (cabinet level lawyer for the President) what the President's lawful power was here. And, they stated that the President CAN refuse to implement unconstitutional legislation. That power comes from the Constitution, and the Prez is not required to execute them provisionally, against the day that they are declared unconstitutional by the courts.

There really is nothing wrong with Obama announcing he will not defend DOMA. It is most certainly in line with the equal dignity of the three branches of government and the independent obligation of EACH BRANCH to act constitutionally and to protect and defend the Constitution of the US.

An Attorney General's opinion carries no legal force whatsoever. It's just an attorney's opinion. In reading the Myers case, I do not find that it stands for the proposition cited. The case is regarding the Tenure in Office Act and whether the President must obtain the consent of Congress, as stated in the Act, in order to dismiss a Postmaster of the First Class. Directly, it was a claim by a Postmaster of the First Class against the federal government for his full salary for a four-year term because he was unlawfully dismissed in violation of the Act by the President without the consent of Congress. The Court of Claims denied him his salary, and the Supreme Court affirmed the Court of Claims.

In doing so, the Court made a long exegesis on the history of the Constitutional Convention as it relates to the powers of the Executive Branch and specifically the President. In doing so, the Court ruled that in spite of the fact that Congress has, on several occasions, trenched upon Presidential executive authority as regards the hiring of employees, including Cabinet and high-level officers, that the Founders did not authorize Congress to interfere with the FIRING of any such officers, and that the Tenure in Office Act, insofar as it interferes with the President's authority to fire Congress-approved Cabinet or other high government officials, is invalid.

Civiletti's opinion, which you cite, is an example of over-reading and cherry-picking a case to make a specific argument. His reference to Freytag v. Commissioner is a reference to a dissenting opinion by Justice Scalia in which Scalia says, in obiter dictum, "The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws, see Art. I, § 7, or even to disregard them when they are unconstitutional. See Easterbrook, Presidential Review, 40 Case W.Res.L.Rev. 905, 920-924 (1990)." (emphasis added)

He then refers to other opinions of LAWYERS (not the Supreme Court) and points to an alleged acquiescence by the courts to Presidential "signing statements" without acknowledging that the Court cannot act sua sponte to resolve such matters, but must await the presentation of the question to them in the proper form.

Civiletti says,

"The President should presume that enactments are constitutional. There will be some occasions, however, when a statute appears to conflict with the Constitution. In such cases, the President can and should exercise his independent judgment to determine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation. Where possible, the President should construe provisions to avoid constitutional problems."

The problem with this is that he is basing his recommendation on the opinions of lawyers, not upon the requirements of the Constitution or the rulings of the Supreme Court, which has never squarely addressed the issue.

The President should not merely "presume" that enactments are constitutional, he is REQUIRED to see that the laws enacted by Congress are "faithfully enforce" unless and until they are declared unconstitutional by a competent authority, which means the courts. Even the Supreme Court is required by the canons of legislative interpretation to make the strong presumption that a duly-enacted statute is constitutional, and the bar for finding a statute unconstitutional is quite high, and the courts are required to defer to legislative judgment unless the act is manifestly a violation of some superior constitutional provision, in order to avoid usurping the role of the legislature.

To say that the President has greater powers than the Supreme Court, and may, in his sovereign judgment, and without recourse to the tribunal appointed to resolve such issues, declare sua sponte that a law duly enacted by Congress is unconstitutional is to vest supreme judicial authority in the President, and nowhere in the Constitution is such authority even suggested.

Civiletti was an appointment by Carter, after the big shakeup in Carter's administration where several cabinet members resigned over Carter's policy decisions. It's not at all unusual for a Progressive President to appoint a Progressive lawyer as AG, and it's not unusual for a Progressive lawyer (Civilettti is one of three members of the Independent Review Board for the Teamster's Union) to attempt to argue for expansive Executive Branch powers, since a Supreme Executive is the entire intent and purpose of Progressivism.

But his opinion is just that, and is not a particularly strong one either.

[Coito ergo sum]

Additional authority:

The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980): Attorney General Civiletti, in answer to a congressional inquiry, observed that "Myersv. United States, 272 U.S. 52 (1926). holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts." Id. at 59. He added as a cautionary note that "[t]he President has no `dispensing power,'" meaning that the President and his subordinates "may not lawfully defy an Act of Congress if the Act is constitutional. . . . In those rare instances in which the Executive may lawfully act in contravention of a statute, it is the Constitution that dispenses with the operation of the statute. The Executive cannot." Id. at 59-60.

Thus, my analysis is in line with the Executive Branch's opinion on this topic. The Congress inquired of the Office of Legal Council of the Attorney General (cabinet level lawyer for the President) what the President's lawful power was here. And, they stated that the President CAN refuse to implement unconstitutional legislation. That power comes from the Constitution, and the Prez is not required to execute them provisionally, against the day that they are declared unconstitutional by the courts.

There really is nothing wrong with Obama announcing he will not defend DOMA. It is most certainly in line with the equal dignity of the three branches of government and the independent obligation of EACH BRANCH to act constitutionally and to protect and defend the Constitution of the US.

An Attorney General's opinion carries no legal force whatsoever. It's just an attorney's opinion.

That's absolutely false. It carries no precedential force in court, as in common law precedent. But, it is the opinion of the executive branch which carries as much weight as an opinion of the judicial branch on this kind of an issue. That's why Congress sent an inquiry to the AG to get this opinion.

In reading the Myers case, I do not find that it stands for the proposition cited. The case is regarding the Tenure in Office Act and whether the President must obtain the consent of Congress, as stated in the Act, in order to dismiss a Postmaster of the First Class. Directly, it was a claim by a Postmaster of the First Class against the federal government for his full salary for a four-year term because he was unlawfully dismissed in violation of the Act by the President without the consent of Congress. The Court of Claims denied him his salary, and the Supreme Court affirmed the Court of Claims.

In doing so, the Court made a long exegesis on the history of the Constitutional Convention as it relates to the powers of the Executive Branch and specifically the President. In doing so, the Court ruled that in spite of the fact that Congress has, on several occasions, trenched upon Presidential executive authority as regards the hiring of employees, including Cabinet and high-level officers, that the Founders did not authorize Congress to interfere with the FIRING of any such officers, and that the Tenure in Office Act, insofar as it interferes with the President's authority to fire Congress-approved Cabinet or other high government officials, is invalid.

It held that the president is not obliged to enforce an unconstitutional statute.

Civiletti's opinion, which you cite, is an example of over-reading and cherry-picking a case to make a specific argument.

I disagree. Moreover, your argument is based on nothing at all, besides your own opinion. You haven't cited anything at all for the proposition that the Court has the power to declare laws unconstitutional, but the President does not. So, if overreaching is objectionable to you, then you ought to start with your own argument, which is based on nothing.

His reference to Freytag v. Commissioner is a reference to a dissenting opinion by Justice Scalia in which Scalia says, in obiter dictum, "The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws, see Art. I, § 7, or even to disregard them when they are unconstitutional. See Easterbrook, Presidential Review, 40 Case W.Res.L.Rev. 905, 920-924 (1990)." (emphasis added)

He then refers to other opinions of LAWYERS (not the Supreme Court) and points to an alleged acquiescence by the courts to Presidential "signing statements" without acknowledging that the Court cannot act sua sponte to resolve such matters, but must await the presentation of the question to them in the proper form.

That's because the Supreme Court hasn't passed on the issue that Scalia was referring to directly. However, the opinion of 4 supreme court justices (none of the other 5 addressed the issue at all), is persuasive evidence of what the law is, when the opposite opinion is advanced without support.

And, yes, the question has to be presented to the SCOTUS in proper form. That is, someone has to be arrested or charged or sued, and there has to be an actual case and actual controversy over the issue, and it has to reach the SCOTUS and the SCOTUS has to accept cert. That may never happen. The President need not wait for that to happen.

Civiletti says,

"The President should presume that enactments are constitutional. There will be some occasions, however, when a statute appears to conflict with the Constitution. In such cases, the President can and should exercise his independent judgment to determine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation. Where possible, the President should construe provisions to avoid constitutional problems."

The problem with this is that he is basing his recommendation on the opinions of lawyers, not upon the requirements of the Constitution or the rulings of the Supreme Court, which has never squarely addressed the issue.

The fact that the SCOTUS hasn't addressed the issue doesn't preclude the President from finding that it is unconstitutional. His hands aren't tied, waiting for some industrious litigant to spend the $200,000 needed to get from a trial court to the US Supreme Court, on the if-come that the SCOTUS will accept Certiorari, which it need not do.

The President should not merely "presume" that enactments are constitutional, he is REQUIRED to see that the laws enacted by Congress are "faithfully enforce" unless and until they are declared unconstitutional by a competent authority, which means the courts.

Here is where you are just dead wrong. You cite no Constitutional authority for this. You complain that my authority is insufficient, but you make an argument with zero authority behind it. The SCOTUS never ruled thusly. The Executive Branch takes the opposite position you take. And, the Congress inquired of the AG as to what the requirement was and the Office of Legal Council said that the President could make his own determination whether a statute was constitutional or not.

The President has an obligation to protect and defend the Constitution. Enforcing unconstitutional laws does not do that. Does it?

Under your theory the POTUS must continue to enforce a law he thinks is unconstitutional, on the if-come that the SCOTUS is ever going to decide it, which might be one year, or 5 years, or 10 years down the road, or never.

Even the Supreme Court is required by the canons of legislative interpretation to make the strong presumption that a duly-enacted statute is constitutional, and the bar for finding a statute unconstitutional is quite high, and the courts are required to defer to legislative judgment unless the act is manifestly a violation of some superior constitutional provision, in order to avoid usurping the role of the legislature.

That's a rule of construction created by the SCOTUS. It's not some immutable constitutional concept. They don't presume all laws to be constitutional. Laws that make distinctions based on certain classifications - like race - are strictly scrutinized and not at all presumed to be valid. These are not "canons" - they are rules of construction.

To say that the President has greater powers than the Supreme Court, and may, in his sovereign judgment, and without recourse to the tribunal appointed to resolve such issues,

The SCOTUS is not appointed to resolve such issues. Nothing in the Constitution gives the SCOTUS that power. The SCOTUS gave itself that power in Marbury v Madison and the court opined that it was an "implied" power. The President is not "above" the SCOTUS - the President is equal to the SCOTUS and within its purview may determine a statute unconstitutional and not enforce it.

declare sua sponte that a law duly enacted by Congress is unconstitutional is to vest supreme judicial authority in the President, and nowhere in the Constitution is such authority even suggested.

The Constitution vests executive power in the President and that executive power must be undertaken in accordance with the constitution. Enforcing unconstitutional laws is an improper execution of executive power. It is not only the President's power, but his DUTY to preserve and protect and defend the Cosntitution, and if he sees that a law is unconstitutional it would exceed his executive authority and violate the constitution to enforce it.

Or, are you claiming that enforcing unconstitutional laws is part of the President's duty to preserve, protect and defend the Constitution? That does appear to be what you are claiming. You state that the President has to be "see no evil, hear no evil, speak no evil" and simply bow to the Congress - if Congress enacts a law, the President (a coequal political branch) in your opinion must accept the Congress' determination. If the POTUS thinks the law is unconstitutional, he has no choice but to wait for SCOTUS to get a writ of certiorari from a litigant, and then SCOTUS has to accept cert and make a decision, and if SCOTUS doesn't accept cert then POTUS is fucked on that issue. Yes?

But his opinion is just that, and is not a particularly strong one either.

Stronger than yours. Yours makes no sense, and places places POTUS in the position of having to sit there and enforce laws POTUS has found are unconstitutional, and simply hope the SCOTUS some day gets a case or controversy to decide. That's not the law, never has been the law, and you have not even advanced one shred of legal support whether from the Constitution, a federal law, or a SCOTUS opinion, or even the opinion of a lawyer, counsel, judge, or anyone else, to support your personal supposition. If any opinion is "not particularly strong" it's the one you are advancing.

[Coito ergo sum]

And, you didn't address the points here: http://www.rationalia.com/forum/viewtop ... 58#p786067

[Warren Dew]

What provision of the Constitution gives the Court its power to decide that a law is not constitutional? Answer: there isn't one. The Court asserted that power in the case of Marbury v Madison in 1803, and held that it was an "implied" power of the Court as part of its judicial function.

What gave the Court the power to declare for itself that implied power? Nothing except an argument extending to itself the power to decide if a law does or does not violate the Constitution.

What gives the court the power to interpret the law? Why doesn't each individual subject to the law interpret the law for himself, instead?

The constitution doesn't give the courts the power to interpret the law - not explicitly. Rather, it's a matter of tradition. The English legal tradition is that the law means what the courts say it means. The same traditions say that constitutional issues are likewise interpreted by the courts.

[JimC]

It's like watching one of those record breaking tennis matches that have reached 68-69 in the final set...

And one is nearly out of gin...

[Coito ergo sum]

What provision of the Constitution gives the Court its power to decide that a law is not constitutional? Answer: there isn't one. The Court asserted that power in the case of Marbury v Madison in 1803, and held that it was an "implied" power of the Court as part of its judicial function.

What gave the Court the power to declare for itself that implied power? Nothing except an argument extending to itself the power to decide if a law does or does not violate the Constitution.

What gives the court the power to interpret the law? Why doesn't each individual subject to the law interpret the law for himself, instead?

Each individual does interpret the law for himself. The courts decide who wins cases.

The SCOTUS is created under Article 3 of the constitution and is vested with the "judicial power." The judicial power is also vested in such inferior courts as the Congress may from time to time ordain and establish. I.e. congress could eliminate the entire federal judiciary, except for the SCOTUS.

The constitution doesn't give the courts the power to interpret the law - not explicitly. Rather, it's a matter of tradition. The English legal tradition is that the law means what the courts say it means. The same traditions say that constitutional issues are likewise interpreted by the courts.

The English system is not the same. English doctrine of parliamentary supremacy means that the law does not know judicial review of primary legislation (laws passed by the Parliament of the United Kingdom), except in a few cases where primary legislation is contrary to the law of the European Union or the European Convention on Human Rights.

The fact is, though, that in the US the idea of the SCOTUS striking down laws as unconstitutional is not found in the Constitution. It was implied by the Supreme Court itself. What I've been suggesting is that the POTUS, being a coequal branch of the government, need not wait until a litigant has sought to vindicate his or her rights, and successfully persuaded the SCOTUS to accept certiorari before POTUS acts to stop enforcing an unconstitutional law.

Let's say that Congress went hog-wild and passed a bill of attainder and ex post facto law stating that it shall henceforth be a felony for one Warren Dew to post on on www.Rationalia.com any expressions of political opinion, and that all previous posts are retroactively illegal. Is the Executive Branch - through the FBI - required to prosecute you for that? Or, could POTUS make the independent determination that this law is an unconstitutional and they will not pursue it?

I put it to you that taking that extreme example to make the point - the POTUS could make the statement that ex post facto laws, bills of attainder, and laws that create prior restraints on political speech are clearly unconstitutional, and the law should be invalidated. I submit that POTUS need not wait for Warren Dew to get arrested, and raise the defenses in court, and take the matter to the Supreme Court.

By the same token - the DOMA law can be said by POTUS to violate equal protection of the laws and the Full Faith and Credit Clause, and is therefore invalid. The POTUS can move its resources elsewhere, and then the SCOTUS can issue whatever opinions it wants in any cases it decides to hear. This may cause a constitutional crisis, but nevertheless it is not "treason" on the part of the President to do this.

And, I reiterate something that Seth never addressed. The President takes a constitutionally required oath to preserve, protect and defend the CONSTITUTION of the U.S. If a law violates the Constitution, what action taken by the President fulfills that oath? Upholding the Constitution by refraining from enforcing it, or upholding an unconstitutional law on the if-come that the SCOTUS might actually decide the case on the merits?

[Warren Dew]

Let's say that Congress went hog-wild and passed a bill of attainder and ex post facto law stating that it shall henceforth be a felony for one Warren Dew to post on on http://www.Rationalia.com any expressions of political opinion, and that all previous posts are retroactively illegal. Is the Executive Branch - through the FBI - required to prosecute you for that? Or, could POTUS make the independent determination that this law is an unconstitutional and they will not pursue it?

The administration should enforce that law, providing an opportunity for the judiciary to rule it unconstitutional, thus establishing a precedent. If the president can't bring himself Otherwise Congress could continue passing such bills, and the administration - possibly even local administration officials - could pick and choose which people they wanted to detain.

That example is particularly easy, since the cost to society of having a single person detained for the very limited period until a court orders a release, is minimal, and of far less cost than the value establishing the important precedent that such bills are not permitted. Unilateral action on the part of the president, in contrast, has no precedential value; he might decline to enforce such a law against me, but then turn around and enforce the next one against you.

Ignoring the supreme court's judicial power to interpret the law, including the constitution, would result in multiple branches of government doing the constitutional interpretation, and disagreements would be bound to arise. Then you would have different branches of government acting at cross purposes - with, say, the attorney general held in contempt of court or contempt of congress and imprisoned by the court or congressional bailiff. Then the president sends the military to try to free him, and you have a civil war between the branches of government.

Again, the reason for deference to the judiciary on interpretation of the law here is that the fundamental purpose of the constitution is to protect individuals against democratic majorities. To prevent a unjust dictatorship of the majority, it's important that constitutional interpretation be reserved to a stable, unelected branch of government not beholden to the short term whims of the electorate.

By the same token - the DOMA law can be said by POTUS to violate equal protection of the laws and the Full Faith and Credit Clause, and is therefore invalid. The POTUS can move its resources elsewhere, and then the SCOTUS can issue whatever opinions it wants in any cases it decides to hear. This may cause a constitutional crisis, but nevertheless it is not "treason" on the part of the President to do this.

And, I reiterate something that Seth never addressed. The President takes a constitutionally required oath to preserve, protect and defend the CONSTITUTION of the U.S. If a law violates the Constitution, what action taken by the President fulfills that oath? Upholding the Constitution by refraining from enforcing it, or upholding an unconstitutional law on the if-come that the SCOTUS might actually decide the case on the merits?

If the president is in doubt about the the constitutionality of a law, he may request an advisory opinion from the supreme court. The only reason not to do so is if he thinks the supreme court will disagree with his personal opinion. In that case, going with his personal opinion is inviting a constitutional crisis, which is the exact opposite of his sworn duty to defend the constitution.

[Seth]

Additional authority:

The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980): Attorney General Civiletti, in answer to a congressional inquiry, observed that "Myersv. United States, 272 U.S. 52 (1926). holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts." Id. at 59. He added as a cautionary note that "[t]he President has no `dispensing power,'" meaning that the President and his subordinates "may not lawfully defy an Act of Congress if the Act is constitutional. . . . In those rare instances in which the Executive may lawfully act in contravention of a statute, it is the Constitution that dispenses with the operation of the statute. The Executive cannot." Id. at 59-60.

Thus, my analysis is in line with the Executive Branch's opinion on this topic. The Congress inquired of the Office of Legal Council of the Attorney General (cabinet level lawyer for the President) what the President's lawful power was here. And, they stated that the President CAN refuse to implement unconstitutional legislation. That power comes from the Constitution, and the Prez is not required to execute them provisionally, against the day that they are declared unconstitutional by the courts.

There really is nothing wrong with Obama announcing he will not defend DOMA. It is most certainly in line with the equal dignity of the three branches of government and the independent obligation of EACH BRANCH to act constitutionally and to protect and defend the Constitution of the US.

An Attorney General's opinion carries no legal force whatsoever. It's just an attorney's opinion.

That's absolutely false. It carries no precedential force in court, as in common law precedent. But, it is the opinion of the executive branch which carries as much weight as an opinion of the judicial branch on this kind of an issue. That's why Congress sent an inquiry to the AG to get this opinion.

An Attorney General's opinion, whether it be at the state or federal level, is "to be given great weight" by a court, but does not in any way constitute a legal precedent that is binding upon a court. It's an attorney's opinion, that's all. It is most certainly does NOT "carry as much weight as an opinion of the judicial branch." No way, no how. The AG is the attorney for Congress, and asking an opinion of the AG is merely one branch of government asking its lawyer for an opinion letter, which is no different from a corporation asking its corporate attorneys for an opinion on a legal matter. While a court might grant more deference to the U.S. Attorney General when considering a case, it is absolutely untrue that the court is under any requirement whatsoever to defer to the AG. An "opinion" of the judicial branch, which is to say a ruling by a court, has binding legal authority upon even the AG, the obverse is not true.

In reading the Myers case, I do not find that it stands for the proposition cited. The case is regarding the Tenure in Office Act and whether the President must obtain the consent of Congress, as stated in the Act, in order to dismiss a Postmaster of the First Class. Directly, it was a claim by a Postmaster of the First Class against the federal government for his full salary for a four-year term because he was unlawfully dismissed in violation of the Act by the President without the consent of Congress. The Court of Claims denied him his salary, and the Supreme Court affirmed the Court of Claims.

In doing so, the Court made a long exegesis on the history of the Constitutional Convention as it relates to the powers of the Executive Branch and specifically the President. In doing so, the Court ruled that in spite of the fact that Congress has, on several occasions, trenched upon Presidential executive authority as regards the hiring of employees, including Cabinet and high-level officers, that the Founders did not authorize Congress to interfere with the FIRING of any such officers, and that the Tenure in Office Act, insofar as it interferes with the President's authority to fire Congress-approved Cabinet or other high government officials, is invalid.

It held that the president is not obliged to enforce an unconstitutional statute.

No, it didn't. It held that the plaintiff was not entitled to recovery of his lost wages as a result of being discharged by the President, and in that ruling, the court overruled that part of the Tenure in Office Act that prevents the President from discharging an Executive Branch employee at will. It says NOTHING about the President being permitted to ignore a statute he believes to be unconstitutional. In fact, the Act endured, and was enforced, from it's passage in 1867 until 1926, when the Court ruled in Myers. While several Presidents, most notably the Progressive Presidents beginning with Woodrow Wilson, complained bitterly about Congress interfering in what they viewed as their Executive privilege to discharge federal officers without the consent of Congress, the statue remained on the books and was presumptively valid for more than 50 years. And it's worth noting that the Court, when it ruled in Myers, was liberal in it's interpretations and, in the body of the ruling found it necessary to weasel its way around the long-standing acquiescence to the Tenure in Office Act by the Executive Branch in order to justify its ruling. Ordinarily, a statute that addresses ambiguities in the Constitution, such as the unstated but implied authority of a President to discharge Congress-approved officers without the consent of Congress, is presumed to be constitutional, and when it is observed and not challenged for a long period of time, the court is to give deference to historic practice in judging the validity of the law.

Because the Constitution only expressly discusses the constraints upon a President in the APPOINTMENT of certain officers that require Congressional consent, but makes NO MENTION of the process of DISCHARGING such officers, the Congress justifiably made law on the matter, and the Myers Court had to go far back into the debates on the Constitution to try to bolster its argument that the Founders never intended that the Congress have control over the discharge of certain Executive Branch officers.

Rightly or wrongly, the Myers ruling overturns the Tenure in Office act and grants the President plenary authority to discharge federal officers without Congressional consent.

But that's ALL IT DOES. It does NOT stand for the proposition that the President may ignore the law. Nowhere in the ruling does the Court even suggest this. In fact, it's careful analysis of the various cases and controversies that came before it, and other courts, over time, demonstrates that the proper recourse for a dispute about the constitutionality of a law, even one which trenches upon Presidential executive authority, is recourse to the courts, not independent judicial decision-making sua sponte by the President.

Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President [p164] the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers -- a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that Article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive are limitations to be strictly construed, and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not, by implication, extend to removals the Senate's power of checking appointments, and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed.
...
When, on the merits, we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct, and it therefore follows that the Tenure of Office Act of 1867, insofar as it attempted to prevent the President from removing executive officer who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so. Source: Myers v. United States, 272 U.S. 52 (1926)

Civiletti's opinion, which you cite, is an example of over-reading and cherry-picking a case to make a specific argument.

I disagree. Moreover, your argument is based on nothing at all, besides your own opinion. You haven't cited anything at all for the proposition that the Court has the power to declare laws unconstitutional, but the President does not. So, if overreaching is objectionable to you, then you ought to start with your own argument, which is based on nothing.

Well, since declaring laws unconstitutional is inherently a judicial act, and the President is not a part of the Judicial Branch, I would think it would be pretty obvious why the Supreme Court, which IS a part of the Judicial Branch, is empowered to render judicial judgments.

Further, nowhere in the concept of "executive" is judicial authority found. The Executive Branch is tasked with the day-to-day operations of the federal government and its employees, and it is bound to "faithful enforcement" of the laws passed by the Legislative Branch.

The whole Separation of Powers Doctrine is based on a sharp and distinct division of authority between the three branches of government, and that they may not trench upon the authority of the other branches without constitutional authority to do so.

That being the case, you will now need to point to what explicit or implied authority in the Executive Branch gives the President authority to either make law (a Legislative Branch prerogative) or judge the validity of a law (a Judicial Branch prerogative).

I'll be fascinated to see your authorities on this subject.

His reference to Freytag v. Commissioner is a reference to a dissenting opinion by Justice Scalia in which Scalia says, in obiter dictum, "The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws, see Art. I, § 7, or even to disregard them when they are unconstitutional. See Easterbrook, Presidential Review, 40 Case W.Res.L.Rev. 905, 920-924 (1990)." (emphasis added)

He then refers to other opinions of LAWYERS (not the Supreme Court) and points to an alleged acquiescence by the courts to Presidential "signing statements" without acknowledging that the Court cannot act sua sponte to resolve such matters, but must await the presentation of the question to them in the proper form.

That's because the Supreme Court hasn't passed on the issue that Scalia was referring to directly. However, the opinion of 4 supreme court justices (none of the other 5 addressed the issue at all), is persuasive evidence of what the law is, when the opposite opinion is advanced without support.

Wrong. Such statements are called "obiter dicta" and they are interesting insights into the thinking of the Justices, but they have no LEGAL PRECEDENT. Only the ruling itself has binding legal precedent. Dicta statements are useful to lawyers who might be preparing a case in an attempt to persuade a judge (including a Supreme Court Justice) of the validity of their legal reasoning, but they are NOT part of the ruling and they are NOT precedent.

And, yes, the question has to be presented to the SCOTUS in proper form. That is, someone has to be arrested or charged or sued, and there has to be an actual case and actual controversy over the issue, and it has to reach the SCOTUS and the SCOTUS has to accept cert. That may never happen. The President need not wait for that to happen.

Show me the constitutional authority of the President to make judicial determinations regarding the constitutionality of a law. If you cannot, which you cannot, then the President is bound to exercise the judicial process just as any other plaintiff would be. If he believes that a law of Congress, like the Tenure in Office Act unconstitutionally trenches upon his executive authority to fire federal officials, he can file a case in court like anybody else who has a constitutional claim. Nowhere in his executive authority is he granted power to ignore the law, and in fact he is constitutionally REQUIRED by Article II, Section 3, to "faithfully enforce" the law. If the Founders had intended the President to have the power to render an "Executive Veto" over a law passed by Congress over his veto, and if they had intended to grant to the President the power to engage in "Executive Judicial Determination" of the constitutionality of the Acts of Congress, they would have done so. They did not. In fact, they expressly commanded the President to "faithfully enforce" ALL of the laws of Congress, and the Separation of Powers Doctrine requires him to defer to the Supreme Court when it comes to interpreting or throwing out laws.

Civiletti says,

"The President should presume that enactments are constitutional. There will be some occasions, however, when a statute appears to conflict with the Constitution. In such cases, the President can and should exercise his independent judgment to determine whether the statute is constitutional. In reaching a conclusion, the President should give great deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional legislation. Where possible, the President should construe provisions to avoid constitutional problems."

The problem with this is that he is basing his recommendation on the opinions of lawyers, not upon the requirements of the Constitution or the rulings of the Supreme Court, which has never squarely addressed the issue.

The fact that the SCOTUS hasn't addressed the issue doesn't preclude the President from finding that it is unconstitutional. His hands aren't tied, waiting for some industrious litigant to spend the $200,000 needed to get from a trial court to the US Supreme Court, on the if-come that the SCOTUS will accept Certiorari, which it need not do.

True, the fact that the SCOTUS has not ruled does not preclude the President from finding a law unconstitutional, the Separation of Powers Doctrine and Article II, Section 3 does. The President simply has no power or authority to pass judgment on the laws Congress enacts, with the sole exceptions of the Veto and the Pardon. The legal maxim Expressio unius est exclusio alterius ("the express mention of one thing excludes all others") requires that where certain "legislative" or "judicial" authorities are expressly mentioned as being within the authority of the President in the Constitution, that the FAILURE to mention OTHER legislative or judicial powers is deliberate and intentional, and that other things (powers or authorities) of the same kind, CANNOT be assumed or granted.

Thus, the Veto and the Pardon, being expressly mentioned as executive powers that fall OUTSIDE of the ordinary executive powers available to the President, one being a legislative function (the veto) and the other being a judicial function (the pardon), limit the President's authority to those expressly-mentioned powers, and NO OTHERS (Expressio unius est exclusio alterius).

So, the Founders, recognizing a need for the President to exercise LIMITED legislative and LIMITED judicial powers, expressly mentioned and authorized those exercises in the Constitution. But in so doing they DENIED to the President ANY OTHER legislative or judicial powers, including the power to exercise a super-veto of a law passed over his legislative veto, and the power to "determine" whether a law is unconstitutional, which is an expressly judicial, not an executive, function.

The President should not merely "presume" that enactments are constitutional, he is REQUIRED to see that the laws enacted by Congress are "faithfully enforce" unless and until they are declared unconstitutional by a competent authority, which means the courts.

Here is where you are just dead wrong. You cite no Constitutional authority for this. You complain that my authority is insufficient, but you make an argument with zero authority behind it. The SCOTUS never ruled thusly. The Executive Branch takes the opposite position you take. And, the Congress inquired of the AG as to what the requirement was and the Office of Legal Council said that the President could make his own determination whether a statute was constitutional or not.

I have just done so. And the AG does not make law either, he just gives opinions, which Congress, and the Court are free to ignore.

The President has an obligation to protect and defend the Constitution. Enforcing unconstitutional laws does not do that. Does it?

Yup. But since all laws duly enacted by Congress are PRESUMPTIVELY CONSTITUTIONAL, according to the canons of legislative interpretation used by the courts, the President is obliged to enforce all laws unless and until they are declared by a court of competent jurisdiction to be unconstitutional. His duty to preserve, protect and defend the Constitution therefore REQUIRES him to bring a case challenging a statute he believes is unconstitutional before the court for adjudication. Nowhere does his oath permit him to determine for himself what is constitutional and what is not. If this were true, he could simply declare any law that he disliked to be unconstitutional and enforce, or not enforce however it pleases him, and it would place the burden upon citizens who were damaged by his refusal to enforce a law, or his enforcement of a law in a manner not authorized by Congress, to challenge the President's actions.

This makes of the President a tyrant, who can simply declare every law issued by Congress to be "unconstitutional" and thereby become a tyrant in fact, free to run the country as he sees fit while ignoring the representatives of the people. This was not only never contemplated by the Founders, it was expressly PREVENTED by them pursuant to Article II, Section 3 and the Separation of Powers Doctrine.

Under your theory the POTUS must continue to enforce a law he thinks is unconstitutional, on the if-come that the SCOTUS is ever going to decide it, which might be one year, or 5 years, or 10 years down the road, or never.

Wrong. The President can mount a legal challenge to any statute he believes to be unconstitutional on the basis that enforcing it would violate his duty to preserve, protect and defend the Constitution, or on the basis that the law (like the Tenure in Office Act) trenches unconstitutionally upon his executive authority.

Even the Supreme Court is required by the canons of legislative interpretation to make the strong presumption that a duly-enacted statute is constitutional, and the bar for finding a statute unconstitutional is quite high, and the courts are required to defer to legislative judgment unless the act is manifestly a violation of some superior constitutional provision, in order to avoid usurping the role of the legislature.

That's a rule of construction created by the SCOTUS. It's not some immutable constitutional concept. They don't presume all laws to be constitutional. Laws that make distinctions based on certain classifications - like race - are strictly scrutinized and not at all presumed to be valid. These are not "canons" - they are rules of construction.

Wrong. The supremacy of the Legislative Branch in making law requires the Court to give strong deference to the legislature, which is the representative of the People. Courts must presume such acts to be valid, and may not, sua sponte, rule a law invalid. They must await a case properly brought and argued challenging the constitutionality of a statute. The level of scrutiny applied, which is to say the legal bar that the plaintiff must hurdle in proving the law unconstitutional varies with the specific law and whether it trenches upon fundamental constitutional rights or not. But it is the case that all duly-enacted laws are given the presumption of constitutionality, and that a case must be proven to the satisfaction of the court that the law is NOT constitutional.

Now, it is true that the Congress, or the People, could amend the Constitution to set the bar for constitutional scrutiny at some other level than that created by the courts, but they have not done so.

To say that the President has greater powers than the Supreme Court, and may, in his sovereign judgment, and without recourse to the tribunal appointed to resolve such issues,

The SCOTUS is not appointed to resolve such issues. Nothing in the Constitution gives the SCOTUS that power. The SCOTUS gave itself that power in Marbury v Madison and the court opined that it was an "implied" power. The President is not "above" the SCOTUS - the President is equal to the SCOTUS and within its purview may determine a statute unconstitutional and not enforce it.

No, he's not. He is the Chief Executive, not the Chief Justice. You need to go read the Federalist Papers and perhaps some of the original debates, where you will discover that the Founders clearly separated the executive functions, the legislative functions, and the judicial functions into the three branches of government, granting DIFFERENT powers to each branch. Your fallacious construction suggests that the Supreme Court, as "equal" to the President, can exercise executive functions, run the military, hire and fire federal employees or negotiate treaties, and that the Congress, which is also presumably "equal" can do the same. This, of course, is utter nonsense.

Only Progressives believe that the Separation of Powers Doctrine does not constrain the President to the executive role and grants him legislative and judicial powers. And they are delusionally wrong.

declare sua sponte that a law duly enacted by Congress is unconstitutional is to vest supreme judicial authority in the President, and nowhere in the Constitution is such authority even suggested.

The Constitution vests executive power in the President and that executive power must be undertaken in accordance with the constitution. Enforcing unconstitutional laws is an improper execution of executive power. It is not only the President's power, but his DUTY to preserve and protect and defend the Cosntitution, and if he sees that a law is unconstitutional it would exceed his executive authority and violate the constitution to enforce it.

And his recourse is to set a case before the court for adjudication.

Or, are you claiming that enforcing unconstitutional laws is part of the President's duty to preserve, protect and defend the Constitution? That does appear to be what you are claiming. You state that the President has to be "see no evil, hear no evil, speak no evil" and simply bow to the Congress - if Congress enacts a law, the President (a coequal political branch) in your opinion must accept the Congress' determination. If the POTUS thinks the law is unconstitutional, he has no choice but to wait for SCOTUS to get a writ of certiorari from a litigant, and then SCOTUS has to accept cert and make a decision, and if SCOTUS doesn't accept cert then POTUS is fucked on that issue. Yes?

Nope. He has full authority to bring a case before the court for resolution. He can even ask for an injunction to prevent its enforcement and an expedited appeal if it's a critical matter requiring the swift adjudication of justice. Of course, to obtain such an injunction, he has to show a substantial likelyhood of success on the merits of the case.

But his opinion is just that, and is not a particularly strong one either.

Stronger than yours. Yours makes no sense, and places places POTUS in the position of having to sit there and enforce laws POTUS has found are unconstitutional, and simply hope the SCOTUS some day gets a case or controversy to decide. That's not the law, never has been the law, and you have not even advanced one shred of legal support whether from the Constitution, a federal law, or a SCOTUS opinion, or even the opinion of a lawyer, counsel, judge, or anyone else, to support your personal supposition. If any opinion is "not particularly strong" it's the one you are advancing.

Hardly. My opinion is supported by the Constitution, history, and the statements of the Founders regarding the separation of powers.

[Coito ergo sum]

Let's say that Congress went hog-wild and passed a bill of attainder and ex post facto law stating that it shall henceforth be a felony for one Warren Dew to post on on http://www.Rationalia.com any expressions of political opinion, and that all previous posts are retroactively illegal. Is the Executive Branch - through the FBI - required to prosecute you for that? Or, could POTUS make the independent determination that this law is an unconstitutional and they will not pursue it?

The administration should enforce that law, providing an opportunity for the judiciary to rule it unconstitutional, thus establishing a precedent. If the president can't bring himself Otherwise Congress could continue passing such bills, and the administration - possibly even local administration officials - could pick and choose which people they wanted to detain.

The FBI should arrest you? And, then whether the judiciary addresses it depends wholly on whether you or your attorney are smart enough to raise the constitutional issue (some attorneys don't know a constitutional question if it jumps up and bites them on the ass, an old friend of mine once said)? And, whether you have the wherewithal to appeal your conviction?

There is a big problem with what your saying - and that is that if you are convicted, you have to appeal to have the question heard. If you don't, the law stands, even when it shouldn't, just because a litigant is too lacking in knowledge or funding to persuasively raise the issue on appeal. If you aren't convicted, then a decision is never reached on the issue. A trial court in Podunk County, East Bumfuck, Idaho doesn't set precedent, and there are thousands of decisions made every day. There is no clearinghouse of trial court rulings that organizes all the cases electronically so that we know when a statute has been ruled unconstitutional, and the decision of a judge in Podunk County only has any precedential effect in Podunk County (and generally not even then). On appeal the case might go to the next layer of Court of Appeals and a decision is only precedent in that limited jurisdiction of a few counties in a given state. And,then on appeal it goes to the highest court in the State, and might become State law Precedent. And, then if there is a federal constitutional issue, a writ of certiorari is filed with the Supreme Court (if the defendant/litigant chooses to go that round and has an attorney willing to take the case), and then the Supreme Court has to pick that case out of the thousands of other writs of certiorari filed.

That's not the constitutional requirement. The Constitutional requirement is that each branch has an independent obligation to follow the Constitution. If the Congress passes an ex post facto bill of attainder, then it has acted lawlessly and nobody is lawfully obliged to follow that law. It's like the right of every American to resist an unlawful arrest.

That example is particularly easy, since the cost to society of having a single person detained for the very limited period until a court orders a release, is minimal, and of far less cost than the value establishing the important precedent that such bills are not permitted.

Criminal trial courts don't establish precedent, and the vast majority of cases never reach an appeal. This is an interesting cost-benefit analysis, but it is not the Constitutional system we have. Moreover, the liberty to be free from an unconstitutional arrest is not decided on a cost-benefit analysis. You have an absolute right not to be unconstitutionally detained even for a few hours. The cost to society is minimal, but the cost to the individual being arrested is huge, ask anyone who has been arrested, after they leave jail after being manhandled by police, questioned, treated rudely, left to sit in jail with thugs for hours or even days until bail can be made, and then the longer term stigma of having been arrest. The cost to the individual is huge.

Unilateral action on the part of the president, in contrast, has no precedential value; he might decline to enforce such a law against me, but then turn around and enforce the next one against you.

He might do lots of things. What we're talking about, though, is the obligation of the President to protect, defend and preserve the Constitution of the US, which is set forth explicitly in the Constitution. If he enforces an unconstitutional law, is he doing that?

Ignoring the supreme court's judicial power to interpret the law, including the constitution, would result in multiple branches of government doing the constitutional interpretation, and disagreements would be bound to arise.

It's not "ignoring" the SCOTUS's power to interpret the law. They still have that power. And, yes, there could be conflicting decisions as to what the Constitution requires. That's the reality of it. And, that's the system we have. It happens all the time. Congress passes a law believing it is constitutional, and they represent the will of the people. The SCOTUS, an unelected group of justices, decide it's not constitutional. So, that's two branches that each decide within their purview what is and is not constitutional. On what basis does the President not also have that power?

Then you would have different branches of government acting at cross purposes - with, say, the attorney general held in contempt of court or contempt of congress and imprisoned by the court or congressional bailiff. Then the president sends the military to try to free him, and you have a civil war between the branches of government.

The Court can't hold the President in contempt of court for stating that he believes the law is unconstitutional and won't defend it in court cases. That's like holding a lawyer in contempt of court for not believing a legal argument is persuasive and therefore not raising it.

Again, the reason for deference to the judiciary on interpretation of the law here is that the fundamental purpose of the constitution is to protect individuals against democratic majorities. To prevent a unjust dictatorship of the majority, it's important that constitutional interpretation be reserved to a stable, unelected branch of government not beholden to the short term whims of the electorate.

Where in the Constitution is that again?

By the same token - the DOMA law can be said by POTUS to violate equal protection of the laws and the Full Faith and Credit Clause, and is therefore invalid. The POTUS can move its resources elsewhere, and then the SCOTUS can issue whatever opinions it wants in any cases it decides to hear. This may cause a constitutional crisis, but nevertheless it is not "treason" on the part of the President to do this.

And, I reiterate something that Seth never addressed. The President takes a constitutionally required oath to preserve, protect and defend the CONSTITUTION of the U.S. If a law violates the Constitution, what action taken by the President fulfills that oath? Upholding the Constitution by refraining from enforcing it, or upholding an unconstitutional law on the if-come that the SCOTUS might actually decide the case on the merits?

If the president is in doubt about the the constitutionality of a law, he may request an advisory opinion from the supreme court.

No, he may not.

The only reason not to do so is

...because it would be unconstitutional. The SCOTUS does not issue advisory opinions. It decides "cases and controversies." Article III, US Constitution.

if he thinks the supreme court will disagree with his personal opinion. In that case, going with his personal opinion is inviting a constitutional crisis, which is the exact opposite of his sworn duty to defend the constitution.

[/quote]

He has the obligation to preserve protect and defend the constitution to the "best of [his] ability." The Constitution builds in to the oath of office the OBLIGATION to use his personal opinion. It's HIS ability that he must use the best of to preserve, protect, and defend the Constitution. To abdicate that obligation because somewhere down the line 1, 2, 5 or 10 years from now, or never, the SCOTUS might decide an issue, is to not use the best of HIS ability.

And, besides, your argument doesn't work, since there aren't these "advisory opinions" you referred to.

In a letter to President George Washington, replying to the president's request for such an opinion, then-Chief Justice John Jay replied that it would violate the separation of powers for the Supreme Court to provide such an opinion, noting that the president could rely on advice from anyone within the executive branch under Article Two of the United States Constitution which expressly permits the President of the United States to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." In other words, Jay informed President Washington that the President ought to turn to the Attorney General and perhaps other Cabinet secretaries when they require legal advice concerning American law.

Since the founding of the US, the President makes his own decisions on interpretation of American law (absent a case/controversy) and his advice comes not from the SCOTUS but from the AG or other cabinet members.

[Coito ergo sum]

Additional authority:

The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980): Attorney General Civiletti, in answer to a congressional inquiry, observed that "Myersv. United States, 272 U.S. 52 (1926). holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts." Id. at 59. He added as a cautionary note that "[t]he President has no `dispensing power,'" meaning that the President and his subordinates "may not lawfully defy an Act of Congress if the Act is constitutional. . . . In those rare instances in which the Executive may lawfully act in contravention of a statute, it is the Constitution that dispenses with the operation of the statute. The Executive cannot." Id. at 59-60.

Thus, my analysis is in line with the Executive Branch's opinion on this topic. The Congress inquired of the Office of Legal Council of the Attorney General (cabinet level lawyer for the President) what the President's lawful power was here. And, they stated that the President CAN refuse to implement unconstitutional legislation. That power comes from the Constitution, and the Prez is not required to execute them provisionally, against the day that they are declared unconstitutional by the courts.

There really is nothing wrong with Obama announcing he will not defend DOMA. It is most certainly in line with the equal dignity of the three branches of government and the independent obligation of EACH BRANCH to act constitutionally and to protect and defend the Constitution of the US.

An Attorney General's opinion carries no legal force whatsoever. It's just an attorney's opinion.

That's absolutely false. It carries no precedential force in court, as in common law precedent. But, it is the opinion of the executive branch which carries as much weight as an opinion of the judicial branch on this kind of an issue. That's why Congress sent an inquiry to the AG to get this opinion.

An Attorney General's opinion, whether it be at the state or federal level, is "to be given great weight" by a court, but does not in any way constitute a legal precedent that is binding upon a court.

We're not in court at the moment. We're talking about the issue of whether the President must enforce an unconstitutional law pending a decision of the SCOTUS which may never come.

Of course it's not legally binding precedent upon a court. Most court opinions are not legally binding precedent in other courts. There are very specific rules of stare decisis. But, that's not what we're talking about here.

It's an attorney's opinion, that's all.

It's the President's opinion. That's all, but also NO LESS than that.

It is most certainly does NOT "carry as much weight as an opinion of the judicial branch." No way, no how.

In this context, it does. In the context of the political separation of powers, it does.

The AG is the attorney for Congress,

He's in the President's Cabinet. No, he's not the attorney for Congress.

and asking an opinion of the AG is merely one branch of government asking its lawyer for an opinion letter, which is no different from a corporation asking its corporate attorneys for an opinion on a legal matter.

No. According to former Supreme Court Justice John Jay, in a response to a request for an advisory opinion from President George Washington, asking the attorney general is the proper constitutional way for the President to decide a question on American law. Nobody can ask the SCOTUS for an advisory opinion on the constitutionality of a law. There must be a case or controversy for the SCOTUS to get involved, and even then it may never get involved even if there is a case or controversy.

While a court might grant more deference to the U.S. Attorney General when considering a case, it is absolutely untrue that the court is under any requirement whatsoever to defer to the AG. An "opinion" of the judicial branch, which is to say a ruling by a court, has binding legal authority upon even the AG, the obverse is not true.

I never said the SCOTUS must defer. Did I?

I said the President didn't have to wait until the SCOTUS rules on a case, if ever, to make his own independent judgment that a law violates the Constitution.

Well, since declaring laws unconstitutional is inherently a judicial act,

It isn't inherently a judicial act. If it was, the Constitution would have said so. Marbury v Madison formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was the first time in the world that a court invalidated a law by declaring it "unconstitutional." So, if it was "inherent" in judicial power for courts to do that, then we would have seen English courts doing it for centuries before. They didn't, because it wasn't.

and the President is not a part of the Judicial Branch, I would think it would be pretty obvious why the Supreme Court, which IS a part of the Judicial Branch, is empowered to render judicial judgments.

And, I haven't suggested that they aren't empowered to do so. The President, however, has the obligation to preserve, protect, and defend the constitution to the best of his ability, and if he sees a law that is unconstitutional he need not wait for the SCOTUS to decide to accept the case. That would result in years of enforcement of an unconstitutional law, all to no avail and leaving no recourse for convicted and fined persons who were subjected to unconstitutional governmental action. The constitution does not require that.

Further, nowhere in the concept of "executive" is judicial authority found.

Nobody is suggesting the executive has the judicial authority - which in the US is to decide cases and controversies arising under the laws of the US. What is suggested is that the President use the best of his ability to preserve, protect and defend the constitution. If Congress passes a law stating that no gay person could vote, the President need not wait for the SCOTUS to decide a case, if one ever arose. He could refuse to enforce it.

If the system was as you say it is, the Constitution would provide for an advisory opinion, so the President could submit questions of constitutionality to the SCOTUS for immediate review. As it happens, that is not the way it is. There must be a ripe and justiciable case or controversy brought by a willing litigant who voluntarily and privately decides to fight the good fight. The President need not wait on such events to do his duty.

The Executive Branch is tasked with the day-to-day operations of the federal government and its employees, and it is bound to "faithful enforcement" of the laws passed by the Legislative Branch.

No no no. You're missing it.

Here is what the Constitution ACTUALLY says - The President, "...will to the best of my Ability, preserve,
protect and defend the Constitution of the United States." And, "...he shall take Care that the Laws be faithfully executed." The Constitution is above the laws passed by the Legislative Branch, and is the SUPREME LAW OF THE LAND. Article VI.

Therefore, the President is charged with taking care that "the Laws," which includes the Constitution, be faithfully executed. If he enforces a law passed by Congress when it violates a provision of the Constitution, the president has failed to take Care that the laws be faithfully executed, and has not preserved, protected or defended the Constitution. He has not done his duty.

Hardly. My opinion is supported by the Constitution, history, and the statements of the Founders regarding the separation of powers.

Then why do you never quote the Constitution or any other authority to support your opinion?

I have cited and QUOTED from the Constitution. You haven't. I have cited and QUOTED Founding Fathers - you haven't. I have cited and QUOTED historical authority, opinions of the SCOTUS, AG opinions. You haven't.

You've stated that the President must enforce an unconstitutional law because he is charged with faithfully executing the laws passed by Congress. But, you wholly and completely ignore the requirement that the President also faithfully enforce THE CONSTITUTION - which is the SUPREME LAW OF THE LAND - as stated explicitly in nothing less than "the constitution." If he puts a law of Congress above a requirement of the Constitution, then he is ignoring the Constitution, which is exactly what he takes an oath swearing to protect, preserve and defend.

What's your authority, now? Specifically?

[Seth]

Additional authority:

The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980): Attorney General Civiletti, in answer to a congressional inquiry, observed that "Myersv. United States, 272 U.S. 52 (1926). holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts." Id. at 59. He added as a cautionary note that "[t]he President has no `dispensing power,'" meaning that the President and his subordinates "may not lawfully defy an Act of Congress if the Act is constitutional. . . . In those rare instances in which the Executive may lawfully act in contravention of a statute, it is the Constitution that dispenses with the operation of the statute. The Executive cannot." Id. at 59-60.

Thus, my analysis is in line with the Executive Branch's opinion on this topic. The Congress inquired of the Office of Legal Council of the Attorney General (cabinet level lawyer for the President) what the President's lawful power was here. And, they stated that the President CAN refuse to implement unconstitutional legislation. That power comes from the Constitution, and the Prez is not required to execute them provisionally, against the day that they are declared unconstitutional by the courts.

There really is nothing wrong with Obama announcing he will not defend DOMA. It is most certainly in line with the equal dignity of the three branches of government and the independent obligation of EACH BRANCH to act constitutionally and to protect and defend the Constitution of the US.

An Attorney General's opinion carries no legal force whatsoever. It's just an attorney's opinion.

That's absolutely false. It carries no precedential force in court, as in common law precedent. But, it is the opinion of the executive branch which carries as much weight as an opinion of the judicial branch on this kind of an issue. That's why Congress sent an inquiry to the AG to get this opinion.

An Attorney General's opinion, whether it be at the state or federal level, is "to be given great weight" by a court, but does not in any way constitute a legal precedent that is binding upon a court.

We're not in court at the moment. We're talking about the issue of whether the President must enforce an unconstitutional law pending a decision of the SCOTUS which may never come.

It will come in due course, after due process, if and when the President chooses to file a case in the federal courts challenging the law, just like any other plaintiff is required to do when they allege that a law is unconstitutional.

It's an attorney's opinion, that's all.

It's the President's opinion. That's all, but also NO LESS than that.

And as his opinion, it has no legal force or weight, nor does it authorize him to disobey or disregard any law. He is bound by the law even more strictly than your average citizen. They are required only to not violate the law, but the President is constitutionally REQUIRED to see that the law is "faithfully enforced."

It is most certainly does NOT "carry as much weight as an opinion of the judicial branch." No way, no how.

In this context, it does. In the context of the political separation of powers, it does.

Clearly you do not understand the Separation of Powers Doctrine. It does NOT describe a tripartite government of "equal" powers, each having the same duties and powers as the others that are entitled to equal respect by the other two branches. That's nonsensical. The SoPD is a doctrine that states that the three branches of our government, and the States and People as well, each have certain, defined powers and authorities specific to the particular branch. And all powers and rights that are not EXPRESSLY reserved to a branch of the federal government are RESERVED to the States, or to the People.

One branch of the federal government may NOT trench upon the powers and authorities of another branch of government unless there is express authorization found in the Constitution for that interference, or unless laws are duly enacted that do not unconstitutionally affect the other branch.

In the case of the President, he has ONE, and ONLY ONE express legislative power; the veto. He has ONE and ONLY ONE express judicial power: the pardon.

Other than those two enumerated powers, he cannot make law, and he cannot judge the law. Those powers are reserved to the Congress and the Courts EXCLUSIVELY.

The AG is the attorney for Congress,

He's in the President's Cabinet. No, he's not the attorney for Congress.

Wrong. Go read Holder's own website, where it specifically states that the Justice Department and the AG are the attorneys for the federal government, which includes the Congress. The AG serves at the pleasure of the President, but he's not the President's personal attorney.

and asking an opinion of the AG is merely one branch of government asking its lawyer for an opinion letter, which is no different from a corporation asking its corporate attorneys for an opinion on a legal matter.

No. According to former Supreme Court Justice John Jay, in a response to a request for an advisory opinion from President George Washington, asking the attorney general is the proper constitutional way for the President to decide a question on American law. Nobody can ask the SCOTUS for an advisory opinion on the constitutionality of a law. There must be a case or controversy for the SCOTUS to get involved, and even then it may never get involved even if there is a case or controversy.

The President can ask the AG for an advisory opinion, but that opinion has little legal force because it's a lawyer's opinion. The President may not ask the SCOTUS for an "advisory opinion," but he CAN ask the court for a ruling by presenting a proper case to the Court. He has standing to do so if he believes that enforcing a law will cause him to violate his oath to the Constitution. It's called a Motion for Declaratory Judgment, in which any plaintiff who is, or even may be harmed by the enforcement of a law can ask a judge to render a judgment as to what the law says and how it's to be interpreted. The President can also simply challenge the constitutionality of the statute directly, as can any other citizen who is affected by the law and has standing to sue.

While a court might grant more deference to the U.S. Attorney General when considering a case, it is absolutely untrue that the court is under any requirement whatsoever to defer to the AG. An "opinion" of the judicial branch, which is to say a ruling by a court, has binding legal authority upon even the AG, the obverse is not true.

I never said the SCOTUS must defer. Did I?

I said the President didn't have to wait until the SCOTUS rules on a case, if ever, to make his own independent judgment that a law violates the Constitution.

But you cite no constitutional authority for making this statement. The best you have is an AG opinion, not a SCOTUS ruling.

Well, since declaring laws unconstitutional is inherently a judicial act,

It isn't inherently a judicial act. If it was, the Constitution would have said so. Marbury v Madison formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was the first time in the world that a court invalidated a law by declaring it "unconstitutional." So, if it was "inherent" in judicial power for courts to do that, then we would have seen English courts doing it for centuries before. They didn't, because it wasn't.

Well, that's the difference between England and the United States. English law recognizes the King as sovereign and supreme and his laws cannot be overturned by a court. The United States rejected that sovereignty, as was recognized in Marbury v. Madison, where the court said, rightly, that the function of the court is to judge cases, and an essential element of judging cases is determining if the law involved comports with the Constitution. If the court cannot determine if a law comports with the Constitution, it cannot do it's judicial duty.

In any event, if your argument is that because there is not a express declaration in the Constitution authorizing the Supreme Court to render judgment on a law, it's not a judicial prerogative, then your argument fails because nowhere in the Constitution is the President expressly granted authority to declare statutes unconstitutional. And in fact, such a construction goes completely against the entire intent and purpose of the SoPD, in which the Founders expressly restricted the President's judicial authority to one thing: the pardon. According to your own argument, if the Founders had intended that the President be allowed to nullify any law passed by Congress on the excuse that it's "unconstitutional" in his sole opinion, they would have explicitly said so. They didn't.

The construction you suggest makes a tyrant of the President because he can simply ignore any inconvenient law he wishes, including an impeachment, merely by "deeming" them to be unconstitutional, and thereby set himself up as dictator for life, like Robert Mugabwe.

That's nonsensical.

and the President is not a part of the Judicial Branch, I would think it would be pretty obvious why the Supreme Court, which IS a part of the Judicial Branch, is empowered to render judicial judgments.

And, I haven't suggested that they aren't empowered to do so. The President, however, has the obligation to preserve, protect, and defend the constitution to the best of his ability, and if he sees a law that is unconstitutional he need not wait for the SCOTUS to decide to accept the case.

Where is this authority cited in the Constitution?

That would result in years of enforcement of an unconstitutional law, all to no avail and leaving no recourse for convicted and fined persons who were subjected to unconstitutional governmental action.

Unconstitutional laws are enforced all the time because until they are RULED unconstitutional by a court of competent jurisdiction, the law is presumed to be constitutional absent a proper legal challenge. Since the President CAN bring a case himself, which I've said before and you soundly ignore, the situation is not as dire as you suggest.

The constitution does not require that.

Yes, in fact, it does, by setting up a Judicial Branch, which establishes the processes by which cases and controversies are heard by the Supreme Court.

Further, nowhere in the concept of "executive" is judicial authority found.

Nobody is suggesting the executive has the judicial authority

You are.

- which in the US is to decide cases and controversies arising under the laws of the US.

The absolute power to deem a law unconstitutional by the President is a judicial act in all but name.

What is suggested is that the President use the best of his ability to preserve, protect and defend the constitution.

Yes, but he is required to do so within the systems created to resolve such issues, not on his own authority and without recourse by the People. Your system sets him up as a monarch, who can dispense with laws he doesn't like absolutely and without restraint, based only on his personal judgment on the constitutionality of the law, and in defiance of the Congress and the Supreme Court. One of the dangers of the President doing so is that by suspending the enforcement of a law, he DENIES standing to sue to everyone else, which means the law may remain in effect, even if he doesn't enforce it. This point was brought out in the Congressional Research paper I cited some time ago.

If Congress passes a law stating that no gay person could vote, the President need not wait for the SCOTUS to decide a case, if one ever arose. He could refuse to enforce it.

We disagree.

If the system was as you say it is, the Constitution would provide for an advisory opinion, so the President could submit questions of constitutionality to the SCOTUS for immediate review. As it happens, that is not the way it is. There must be a ripe and justiciable case or controversy brought by a willing litigant who voluntarily and privately decides to fight the good fight. The President need not wait on such events to do his duty.

You need to distinguish between an "advisory opinion" and a "case." The President does not have authority to demand an advisory opinion from the SCOTUS, but he does have authority to file a case. You consistently ignore this simple fact that makes your entire argument specious. The system is set up to deal with the threat you fear, and there is a carefully constructed process that allows the President to get an authoritative ruling on such matters, but he is required to actually go through the process of filing a case and defending it in court.

The Executive Branch is tasked with the day-to-day operations of the federal government and its employees, and it is bound to "faithful enforcement" of the laws passed by the Legislative Branch.

No no no. You're missing it.

Here is what the Constitution ACTUALLY says - The President, "...will to the best of my Ability, preserve,
protect and defend the Constitution of the United States." And, "...he shall take Care that the Laws be faithfully executed." The Constitution is above the laws passed by the Legislative Branch, and is the SUPREME LAW OF THE LAND. Article VI.

Therefore, the President is charged with taking care that "the Laws," which includes the Constitution, be faithfully executed. If he enforces a law passed by Congress when it violates a provision of the Constitution, the president has failed to take Care that the laws be faithfully executed, and has not preserved, protected or defended the Constitution. He has not done his duty.

The problem is that a law passed by Congress is presumed NOT to violate the Constitution, because the Congress is presumed to know what it's doing, unless and until judicial review reveals that the law is NOT constitutional. Therefore, the President is not violating his oath of office by enforcing a presumptively constitutional law any more than your local cop is violating his oath by enforcing a presumptively constitutional state or federal law. If he BELIEVES it to be unconstitutional, he need only challenge it in court and obtain a ruling, at which point he can cease enforcing it. Constitutionality is PRESUMED for duly-enacted laws, and they may be enforced fully unless and until they are overturned by a court or they are repealed by Congress.

Hardly. My opinion is supported by the Constitution, history, and the statements of the Founders regarding the separation of powers.

Then why do you never quote the Constitution or any other authority to support your opinion?

I did.

I have cited and QUOTED from the Constitution.

And then promptly misinterpreted it.

You haven't.

Sure I have.

I have cited and QUOTED Founding Fathers - you haven't.

I guess I missed the quote from a Founding Father that says that a President can disregard whatever law it pleases him to disregard. I depend on what the Constitution actually says, which is that the President is obliged to see that the laws of the nation are "faithfully executed." Refusing to enforce a law is not "faithfully executing" the law.

I have cited and QUOTED historical authority, opinions of the SCOTUS, AG opinions. You haven't.

Sure I have.

You've stated that the President must enforce an unconstitutional law because he is charged with faithfully executing the laws passed by Congress.

No, I've said that the President has no constitutional authority to determine what laws are constitutional and what laws are not. He has no such authority, only the People and the Courts do.

But, you wholly and completely ignore the requirement that the President also faithfully enforce THE CONSTITUTION - which is the SUPREME LAW OF THE LAND - as stated explicitly in nothing less than "the constitution." If he puts a law of Congress above a requirement of the Constitution, then he is ignoring the Constitution, which is exactly what he takes an oath swearing to protect, preserve and defend.

He must preserve, protect and defend the Constitution as it is written, not as he chooses to interpret it, and one of the express requirements on the President is to see that the laws of the nation created by the Congress pursuant to the Constitution and their legislative authority are "faithfully executed." This is not a discretionary matter, he "shall" see that they are "faithfully executed." It does not say that he "may" see that the laws are faithfully executed, if he agrees with their constitutionality. It does not say he may NOT enforce the laws he "determines" are unconstitutional. It gives him absolutely no express authority to render judgment on any law other than the exercise of his veto, which may be overridden by the Congress.

His duty to preserve, protect and defend the Constitution does not give him plenary authority to decide HOW he will do so. He is specifically prohibited from doing so, for example, by suspending the Writ of Habeas Corpus except in time of war. He may not do so by quartering soldiers in private homes except in time of war. He may not begin summarily executing citizens or imprisoning them for exercises of free speech on the excuse that he's "protecting" the Constitution. There are many constraints on HOW he may lawfully fulfill his oath. He doesn't get to decide all on his own how to do so, he's obliged to work within the system of checks and balances provided expressly to impose constraints on tyrannical actions by the President.

Obtaining a judicial ruling declaring a law unconstitutional is one of those checks and balances that prevent him from becoming a tyrant.

What's your authority, now? Specifically?

Article II, Section 3, among others.