The President and Choices Not to Enforce

Abstract

PETER L. STRAUSS [*] The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the and, therefore, should not be enforced. [1] My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses. Issues of constitutional structure and function are among the most daunting we face. We want to live in a rule-of-law society. We have a that we know and intend to be supreme. Yet its instructions are vague and dated. It does not in terms create a separation of powers, establish judicial review, define our day-to-day government, or much indicate the President's relationship to that government. Indeed, as Professor Walter Dellinger remarked at the opening of this conference, central questions respecting the presidency were not even addressed until the pressured final eleven days of the Constitutional Convention. After more than two centuries, some of the Constitution's most fundamental questions remain unanswered. Perhaps, as I understand Professor Alexander Bickel once remarked in another context, that is on the whole a good thing. Some questions are better left as questions, with fringes of uncertainty, doubt, and play that provide flexibility and stability through changing times. It is perhaps best to begin these impressionistic responses to Professor Johnsen's ambitious paper by stating some premises central to my thinking about these problems, premises about which we might disagree. First, the Take Care Clause--which ending Section 3 of Article II of the Constitution, might not be thought the most important in the eyes of its drafters--does not in terms direct the President himself to faithful execution of the laws. Between saying that the President shall receive Ambassadors and other public ministers, and that he shall Commission all the officers of the United it says that he is to take Care that the be faithfully executed. [2] Thus, in ordinary English- appropriate in this sense to its placement late in the text of Article II--the Clause imagines that others do the actual executing and that the President be overseeing those persons, ensuring that their execution is faithful. While early Attorneys General disagreed about just how directory that oversig ht could be, they nonetheless recognized that Congress could specify oversight, not personal execution, as the presidential role. [3] Congress's statutory assignments of role--at least unless they are unconstitutional, and the Necessary and Proper Clause gives Congress broad discretion in making those assignments--are a part of the laws, the faithful execution of which the President is enjoined to assure. Second, appreciating the passive voice of the Take Care Clause permits us to see more clearly that the term it uses, laws is not a synonym for Laws necessarily includes the Constitution. The Clause is actually the second place at which Article II refers to faithful execution. In the presidential oath, specified earlier in the article, the President undertakes that he will faithfully execute the Office of President of the United States, and to the best of [his] ability protect and defend the of the United States. [4] Here, the diction is active, not passive, and its only reference to law is to the Constitution, not to statutes. It would be strange indeed if, having taken that oath, the President were precluded from considering what would preserve, protect and defend the Constitution in the course of seeing to it that others were faithful in their performance of duty. …