Take care now: stare decisis and the president's duty to defend acts of Congress.

• Author: Levey, Curt A.
• Position: The Conflict Between Executive Discretion and the Rule of Law

INTRODUCTION

On January 20, 1981, Ronald Wilson Reagan took the Article II oath of office to become the fortieth President of the United States. (1) Following his inaugural address to the assembled throng on the National Mall streaming west from the Capitol, Reagan entered the Capitol building for the traditional lunch with members of Congress in Statuary Hall. (2) On that day, President Reagan also established what is now a tradition of going to the President's Room in the Capitol after taking his oath to sign a series of executive orders and officially transmit to the Senate his first series of nominations for many Cabinet-rank officials and various other principal officers. (3)

Now step away from history into an alternate reality. Imagine that in the aforementioned series of nominations, there was no Secretary of Education. The explanation is found in one of President Reagan's executive orders. The President is acting upon the position he articulated as a candidate in 1980, that the Department of Education is unconstitutional, (4) as is the Act of Congress that created it and annually authorizes it. Therefore, President Reagan (1) will not nominate any principal officers to lead this agency; (2) will not appoint any inferior officers to implement its programs; (3) will order all civil servants in the agency not to do any work for its programs; (4) will spend no money on any of the agency's programs (beyond the salaries and benefits for employees), even if appropriated by Congress; and (5)--especially relevant to this Article on the duty to defend--will not defend any aspect of the agency or its programs against any legal challenges.

Similarly, the Reagan Administration will not enforce or defend myriad provisions of the Clean Air Act, (5) Clean Water Act, (6) and Endangered Species Act, (7) as the President deems those statutes to be in excess of Congress's enumerated powers under the Commerce Clause. (8) Moreover, the President is ordering the Attorney General to identify additional Acts of Congress that are unconstitutional in whole or in part, as determined in accordance with the original meaning of Congress's enumerated powers in Article I, Section 8 of the Constitution, so that he may order such acts to be left dormant and undefended. The President is confident there are many such statutes and will also, by executive order, repeal all regulations implementing those statutes, once identified.

President Reagan informs the nation that he can do so because the Constitution requires him to "take Care that the Laws be faithfully executed." (9) He explains that this not only empowers him, but in fact obligates him, as a sworn constitutional officer, to make his own judgment regarding whether an Act of Congress is constitutional, and if in his sole judgment it is not, then to him it is a complete nullity. For each such statute, the President will not administer it, not fund it, and not defend it. In sum, it will be as if the statute does not exist.

Had President Reagan invoked this rationale to effectuate his campaign statements regarding his sincerely-held opinions on the Constitution, much of the federal government would have been indefinitely paralyzed. Major federal programs would have been effectively abolished. As soon as a new President were elected to succeed President Reagan, however, those agencies and programs might come roaring back to life while a new slate of agencies and programs would suddenly be left dormant and undefended if a constitutional challenge were brought against them.

Some scholars and law review articles argue that not only is the scenario sketched above possible--the Constitution actually demands it in so far as the President believes Acts of Congress to be unconstitutional. (10) They argue for a weak duty to defend--defined by the absence of an obligation to defend laws the President contends are unconstitutional--and seem to proceed from the view that the President's oath to preserve, protect, and defend the Constitution obliges him to essentially review the constitutionality of the entire United States Code de novo, with regard to each statute on the books and each provision within each of those statutes. (11)

Although a plausible defense of that view can be made, this Article highlights the weaknesses in it and contrasts it with the opposite theory: a strong duty to defend, under which the President and his administration are obligated to defend the constitutionality of Acts of Congress, subject only to the two narrow exceptions discussed in Part IV of this Article. (12) This strong duty is premised on a different view of the President's oath, one which focuses on the inherently executive aspects of the presidency, including the enforcement and defense of

statutes. (13) Under this view, which we adopt and expand on, the President's proper response to a law he believes to be unconstitutional is not to abandon it, but to adjust its enforcement within the bounds of the statute or to press for its repeal.

As the judicial doctrine of stare decisis provides stability, consistency, and predictability to the rule of law, a strong duty to defend provides stability to federal law and the federal government. Equally important, by facilitating justiciable cases with adverse parties wherein the federal courts can properly resolve constitutional issues, this duty maintains the constitutional equilibrium--rooted in the separation of powers and the system of checks and balances--under which the judiciary serves as the final voice in constitutional challenges. Finally, this duty prevents a President from enacting "a form of post-enactment veto of legislation that [he] dislikes" through failure to defend the legislation when it is challenged in court, (14) in contravention of the text and structure of the Constitution.

Justice Robert Jackson famously said in the context of national security that the Constitution is not a "suicide pact." (15) Applying that concept more broadly to all areas of government, we would add that the Constitution is not a recipe for chaos. The election of a President is not a free-for-all whereby every instrumentality and aspect of federal governance is suddenly a national question mark that depends on the winner's opinion about its constitutionality.

While our theory of a strong duty to defend looks to the text, structure, and history of the Constitution, we acknowledge that several scholars advocating a weak duty also do so based on text, structure, and history. (16) This is one instance where lawyers adhering to the same interpretive principles can arrive at very different conclusions. But in examining the original meaning of the Take Care Clause and the structure of the first three articles of the Constitution, one must consider that if the President were to refuse to enforce or defend every Act of Congress he considers unconstitutional, the President would vitiate vital checks and balances that the Constitution vests in Congress and the courts as a limit on his executive power. That cannot be what the Framers wrought when they drafted the Take Care Clause. Although this Article will look to practical consequences to the extent that they shed light on what the Framers wrought, we want to make it clear that we are not adopting a consequentialist approach. (17) Courts should not focus on practical consequences when interpreting legal text--constitutional or otherwise--as that invades the policy purviews of the legislative and executive branches. (18)

This question of whether--and if so, when--a President can refuse to defend an Act of Congress he believes to be unconstitutional has been prominent in national discourse since Attorney General Eric Holder informed Congress in 201119 that President Barack Obama had decided to discontinue defending section 3 of the Defense of Marriage Act (20) (DOMA) against constitutional challenges, (21) even though strong arguments could be made in its defense. (22) In 2014, debate about the duty to defend intensified after several state attorneys general refused to defend their states' prohibition of same-sex marriage--raising the same issues of stability, justiciability, and the separation of powers implicated at the federal level--and Attorney General Holder encouraged the trend. (23)

The correct approach to the President's duty under the Take Care Clause is illustrated by President Reagan's actual approach to reconciling his convictions about the constitutionality of the statutes mentioned above, rather than by our fictitious scenario. Instead of refusing to enforce or defend Acts of Congress he believed to be unconstitutional, President Reagan sought their repeal through the legislative process. During his first State of the Union address, Reagan announced that he was proposing legislation to abolish the Department of Education. (24) Nonetheless, President Reagan continued to faithfully administer those statutes whose constitutionality he rejected and surely would have defended their constitutionality in court had they come under legal attack. (25)

This Article focuses on the President's duty to defend Acts of Congress rooted in the Take Care Clause, as distinct from his broader duty to enforce and otherwise effectuate federal statutes. In Part I of this Article, we give an overview of the duty to defend. Part II explores the origin of this duty, including its relation to the separation of powers and system of checks and balances. Part III explains how judicial principles of stare decisis analogously support the President's duty to defend. Part IV discusses the scope and contours of the duty to defend, including exceptions to the duty and Attorney General Eric Holder's seeming expansion of one exception. Part V concludes with an illustration of how these principles might apply under a future President.

1. OVERVIEW OF THE DUTY TO DEFEND

   The duty to defend requires the President and the executive branch he heads to...