The Proposition that Presidents May Decline to Enforce Unconstitutional Statutes Is 'Unassailable'

So said Walter Dellinger, chief of the Clinton Justice Department's Office of Legal Counsel in a formal 1994 OLC opinion. In fact, it is the president's duty to decline to enforce, for example, congressional enactments that encroach upon his authorities precisely because such statutes undermine the separation of powers that is the foundation of the Constitution. As Dellinger put it:

Where the President believes that an enactment [by Congress] unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it. . . . The general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable. 

Not that Jonah and Shannen need the help, but this has long been the position of the Justice Department's Office of Legal Counsel, under administrations of both parties. I wrote a column on this topic five years ago (it's here) when former Clinton Justice Department officials seemed to get amnesia about the president's prerogative not to enforce unconstitutional statutes. They were then attacking President Bush's authorization of a wartime warrantless surveillance program that did not comply with Congress's FISA statute (i.e., the Foreign Intelligence Surveillance Act). Bush's theory (which had also been Clinton's theory) was that, regardless of FISA's purported limitations on executive power to collect intelligence against foreign threats, the president maintained authority under Article II of the Constitution that could not be reduced by a mere statute. That theory had also been espoused by the federal courts, including the Foreign Intelligence Court of Review.

The problem with what the Obama administration is doing with DOMA is political, not legal. Nothing requires a president to defend or enforce a law he truly believes is unconstitutional, or even a law he believes is constitutional but chooses, in his discretion, not to enforce as a matter of policy (see, e.g., Obama on the immigration laws).

Putting the law to the side, it is outrageous for an administration to use its Justice Department's privileged position as the lawyer for the United States to sabotage a case, and for a president to claim his legal position is evolving when, in fact, he is transparently pandering to a key constituency. Those are reasons to vote him out of office, and for Congress not to trust the administration to carry out the Justice Department's mission faithfully -- Congress ought to be slashing DOJ's budget and holding aggressive DOJ oversight hearings. But I don't see anything legally wrong with Obama's refusal to defend DOMA. (FWIW, I think it's ethically preposterous to claim DOMA is unconstitutional yet continue enforcing it -- but, again, I think the idea is to hold Obama politically accountable.) 

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Andrew C. McCarthy