The separation of powers and the federal and state executive duty to review the law.

• Author: Pryor, William H., Jr.

CONTENTS I. THE DUTY OF EXECUTIVE REVIEW II. EXAMPLES FROM MY SERVICE IN AN OFFICE OF STATE ATTORNEY GENERAL III. THE COMPARATIVE ADVANTAGES OF EXECUTIVE REVIEW Twenty-four years ago, Judge Frank Easterbrook delivered the Sumner Canary Lecture on the topic "presidential review." (1) In that memorable and often-cited lecture, (2) Judge Easterbrook argued that the President must interpret the Constitution in the performance of his executive duties and act "at variance with statutory law, when persuaded that the law departs from the Constitution." (3) He maintained that the President has a duty to exercise a power of executive review on par with the power of judicial review exercised by the Supreme Court. (4) I want to return to the topic of executive review but not limit myself to the topic of the President's duty.

I want to endorse and restate Judge Easterbrook's argument using both a contemporary controversy and my earlier experience as a state attorney general as frames of reference. In the last few years, both federal and state executives have refused to defend laws respecting traditional marriage. Although I cannot discuss whether the Constitution grants homosexual couples a right to marry while that issue is being litigated in several courts, I will argue that supporters of judicial restraint and the separation of powers should defend the authority of both the federal executive and state executives not to enforce or defend laws that they, in good faith, conclude violate the Constitution.

I acknowledge that, by addressing the duty of state executives, I go beyond what Judge Easterbrook was willing to argue. In his lecture, Judge Easterbrook declined to defend the authority of a state executive to interpret the Constitution. He put it this way: "There is a big difference between a power in the President and a power in Orville Faubus." (5) But I will argue that the logic of Judge Easterbrook's argument for presidential review suggests no material difference between federal and state executive review.

Let us consider the contemporary context. In 2011, President Barack Obama concluded that Section 3 of the Defense of Marriage Act, as applied to homosexual couples married under state law, violated the equal protection guarantee of the Fifth Amendment to the United States Constitution. (6) Attorney General Eric Holder then instructed attorneys in the Department of Justice not to defend Section 3 of the Act in pending litigation. (7) But President Obama instructed other executive officials to comply with Section 3 while that litigation remained pending. (8) Nevertheless, the Supreme Court decided last year in United States v. Windsor (9) that, even though the executive branch refused to defend Section 3, there still remained a "case or controversy" between Edith Windsor and the executive branch. (10)

Meanwhile, in lawsuits challenging state constitutional amendments defining marriage as between a man and a woman, several state attorneys general refused to defend those amendments and instead argued that the amendments violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. (11) Even the attorneys general of a few Southern states--Virginia, (12) North Carolina, (13) and Kentucky (14)--refused to defend the marriage amendments to their state constitutions. Attorney General Holder weighed in on that issue in February of this year and argued that state attorneys general are not obligated to defend their state constitutional amendments. (15) He explained that " [i]f [he] were attorney general in Kansas in 1953, [he] would not have defended a Kansas statute that put in place separate-but-equal facilities." (16)

Some state officials refused to continue the defense of their state laws only after lower federal courts ruled that traditional marriage laws were unconstitutional. On May 21, Governor Tom Corbett, for example, announced that he would not appeal a decision by a federal district judge that the marriage laws of Pennsylvania violated the federal Constitution. (17) And on July 28, Attorney General Roy Cooper of North Carolina announced that he would no longer defend the marriage laws of his state after the United States Court of Appeals for the Fourth Circuit ruled that the same kind of laws in Virginia violated the federal Constitution. (18)

These refusals to defend laws have been sharply criticized, especially by conservatives. Attorney General John Suthers of Colorado, for example, published an op-ed in the Washington Post on February 3 in which he argued that "this practice corrodes our system of checks and balances, public belief in the power of democracy and ultimately the moral and legal authority on which attorneys general must depend." (19) General Suthers acknowledged that on some occasions an attorney general cannot "in good faith defend a law," but he argued that an attorney general must defend a controversial law so long as it is not '"clearly unconstitutional'" based on binding precedent of the Supreme Court. (20) In January, Attorney General Lawrence Wasden of Idaho argued that he had an "obligation as the attorney general ... to defend [his] state's view, the people's view." (21) In March, former attorney general Ken Cuccinelli of Virginia criticized his successor, Mark Herring, for refusing to defend the Virginia amendment on marriage. (22) Cuccinnelli asserted, "If you're going to run for attorney general, this is part of the job.... If you're not willing to do it, you ought not run." (23) In Michigan, Attorney General Bill Schuette argued that he was "duty-bound to defend the wishes of the voters. To do anything less would be a dereliction of duty." (24) And conservative commentator Ed Whelan wrote earlier this year in The Weekly Standard that state attorneys general must "vigorously defend any [state] laws against challenge under federal law so long as there are reasonable (i.e., nonfrivolous) grounds for doing so." (25)

On this issue, the so-called duty to defend, I part ways with these conservatives. I submit that neither the President nor the Attorney General of the United States nor any state executive, whether a governor or attorney general, is bound to either enforce or defend a law that the executive officer in good faith concludes violates the federal Constitution. Executive officers, both federal and state, are duty-bound to interpret and obey the Constitution in the performance of their duties, and in doing so, they owe no deference to other authorities.

To explain my perspective, I will address three matters. First, I will explain the classical understanding of an executive's authority to interpret the Constitution in the performance of his duties. Second, I will explain how that understanding guided me in the performance of my duties in different kinds of legal controversies when I formerly served as a state attorney general. Third, I will explain the comparative advantages of having executive officials take seriously the duty to obey the Constitution without deferring to other branches of government.

1. THE DUTY OF EXECUTIVE REVIEW

   The duty to interpret the Constitution begins and ends with every officer's oath. The Constitution provides that all executives, legislators, and judges, both federal and state, "shall be bound by Oath or Affirmation, to support this Constitution." (26) That clause appears in clause 3 of Article VI, and fittingly follows the Supremacy Clause in clause 2 of Article VI. And the Supremacy Clause, of course, makes the Constitution the supreme law of the land. So when an executive officer, federal or state, swears to support the Constitution, he swears to support it as the highest of all laws.

   In the event of a conflict between the Constitution and a federal or state law, every executive must support the Constitution. As Chief Justice John Marshall explained in Marbury v. Madison, (27) "a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument." (28) That concluding passage of Marbury means that a law in conflict with the Constitution is a nullity--that is, no law at all--and all departments--executive, legislative, and judicial--must follow the Constitution as the law and ignore the nullity. And that logic applies no matter whether the executive sworn to support the Constitution is a federal or state officer.

   Our constitutional history establishes that many presidents have exercised an independent power of executive review. Washington, Jefferson, Madison, Jackson, and Lincoln, among others, interpreted the Constitution in the performance of their executive duties without deferring to the interpretations of either the judiciary or Congress. And sometimes those presidents had the last word.

   As Judge Easterbrook explained in his lecture, early presidents often vetoed legislation on constitutional grounds. (29) President Washington vetoed the first bill apportioning representatives among the states. (30) President Madison vetoed a bill chartering a church in the District of Columbia (31) and a bill for internal improvements (32) both on constitutional grounds. And President Jackson vetoed a bill to reauthorize the national bank (33) even though the Supreme Court had held that Congress had the power to charter the bank. (34)

   Thomas Jefferson provided perhaps the most provocative examples of executive review. Jefferson considered the Sedition Act of 1798 to violate the First Amendment. (35) As a result, while he served as president, he refused to prosecute anyone for violating the Act, and he pardoned all who had been convicted for violating it even though the courts had upheld the Act. (36)

   President Lincoln, of course, rejected the decision of the Supreme Court in Dred Scott v. Sandford. (37) Lincoln acknowledged the authority of the decision as between the parties. (38) But he refused to abide by its rule in other matters of executive...