The Constitution charges the President with the duty to “take Care that the Laws be faithfully executed . . . .” Moreover, the President takes an oath to “preserve, protect and defend the Constitution of the United States.” Although “[g]enerally, these duties are compatible . . ., when the Executive faces a law that he believes is unconstitutional, he must decide whether the law should be executed as written and defended if attacked, or whether the duty of faithfulness to the Constitution requires its repudiation.” This decision belongs to the President alone as the head of a co-equal branch of the federal government. The doctrine of separation of powers dictates, inter alia, that the President enforces the laws that Congress passes. But, a constitutional problem arises “[w]hen the President’s obligation to act in accord with the Constitution appears to be in tension with his duty to execute laws enacted by Congress . . . .” When advising the President, the Department of Justice (DOJ) has maintained since at least 1860 that “the Constitution provides the President with the authority to refuse to enforce unconstitutional provisions.” However, reasonable minds disagree as to the appropriate standard that should be used by the President and the DOJ when deciding whether or not to enforce a statute. Moreover, substantially less has come out of the DOJ regarding the President’s decision not to defend legislation.
The purposes of this paper are: (1) to summarize the case law, Office of Legal Counsel (OLC) opinions, and scholarship pertaining to the doctrines of non-enforcement and non-defense; (2) to propose workable standards for both non-enforcement and non-defense that can be used by future Presidents and the DOJ; and, (3) to apply these standards to President Obama’s recent decision to continue to enforce, but to not defend, Section 3 of The Defense of Marriage Act (DOMA) in order to show why the decision was proper.
Part I explores the distinction between executive non-enforcement and executive non-defense. Part I.A discusses the case law (I.A.1), OLC opinions (I.A.2), and scholarship (I.A.3) addressing non-enforcement, while Part I.B explores the case law (I.B.1), OLC opinions (I.B.2), and scholarship (I.B.3) regarding non-defense. Part II briefly surveys the history of DOMA and the recent decision by the Obama administration not to defend Section 3 of DOMA. Finally, Part III proposes standards to be used by future administrations faced with whether to enforce and defend a statute, and the section ends by applying the standards to conclude that the Obama administration’s decision to continue to enforce, but not to defend, Section 3 of DOMA was proper.