Ex Parte McCardle and the Attorney General's Duty to Defend Acts of Congress

Abstract

Over the years, Attorneys General of the United States have professed the view that their office “has a duty to defend and enforce both the Acts of Congress and the Constitution.” Consequently, as a general rule, Attorneys General have consistently affirmed that it is not the place of their office to declare statutes unconstitutional. When faced with a legislative act that they believe violates the Constitution, the Attorney General “can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.” The reason for this position is inherent in our system of checks and balances and the constitutional separation of powers. Whereas “[i]t is emphatically the province and duty of the judicial department to say what the law is,” the executive branch must “take Care that the Laws be faithfully executed.” Allowing the Attorney General — a member of the executive branch — to pass on the constitutionality of an act of Congress “could jeopardize the equilibrium established within our constitutional system.” The delicate balance created by the separation of powers between the three branches of government is imperiled when one branch assumes the province of another. Despite this seemingly explicit and unambiguous division of powers, there have been numerous occasions in which the Attorney General, acting either on his own behalf or upon the instruction of the President, has refused to defend an act of Congress. Many scholarly attempts to discuss the Attorney General’s role in deciding whether to enforce or defend a particular statute have been prepared by former Attorneys or Solicitors General themselves. Much of that discussion has focused on the unique role of the Solicitor General in the modern era. Scholarly focus on the Solicitor General’s office is understandable, because most contemporary commentary mistakenly claims that executive refusal to defend statutes is a recent development. On the contrary, Attorneys General have been declining to defend the government going at least as far back as Marbury v. Madison. More significantly, in Ex Parte McCardle, Attorney General Henry Stanbery refused to defend the Reconstruction Acts of 1867 on the grounds that he found them unconstitutional. Stanbery instructed the War Department to engage other counsel and the Department employed two sitting senators, Lyman Trumbull of Illinois and Matthew Carpenter of Wisconsin. This marked the first time in United States history that an act of Congress was actively represented by Congress itself, rather than by a member of the executive branch. McCardle presents an oft-overlooked first instance of public debate over an Attorney General’s refusal to appear in defense of a statute on the grounds that he believed the it to be unconstitutional. Contemporary discussion of Stanbery’s decision, both in the newspapers and in Congress, closely resembled the discussion that is had in similar situations today. This evidences both the timelessness of the issues raised by these executive decisions, as well as the lack of progress made toward resolving them over the past 140 years. The goal of this Article is to demonstrate that the Attorney General’s practice of refusing to defend statutes he views as unconstitutional is long-standing. Neither this phenomenon nor the debate surrounding it is “newly emergent,” as is often asserted.19 Rather, although commentators and congressmen frequently profess hypocritical surprise that the other side would dare do such a thing, the exercise of executive discretion in appearing on behalf of the government has been present since the earliest days of the republic. This Article paints a historical picture of the executive branch’s selective refusal to defend the United States in federal courts, and will offer some conclusions on the propriety of that practice. Part I provides a historical sketch of the Attorney General’s role in defending the United States in litigation. It also lays out the conventional doctrine for when it is traditionally appropriate for the Attorney General to decline to defend. Part II explores several of the earliest examples of refusals to defend, with a discussion of Marbury v. Madison and United States v. Hudson & Goodwin, with particular focus on what appears to be the first real example of an Attorney General refusing to defend an otherwise defensible statute, Ex Parte McCardle. Part III will discuss some of the questions raised by the decisions of the Attorneys General in the cases discussed and attempt to identify some of the key lessons that can be drawn from those episodes.