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The Executive’s Duty to Disregard Unconstitutional Laws

71 Pages Posted: 23 Feb 2010  

Saikrishna Prakash

University of Virginia School of Law

Date Written: 2008

Abstract

Recent Presidents have claimed a power to disregard statutes that they deem unconstitutional, prompting critics to make an array of arguments against these assertions. As a matter of text, the Faithful Execution Clause supposedly bars such non-enforcement. As a matter of history, the English Parliament specifically prohibited a royal discretionary power to disregard statutes. Moreover, American Presidents did not exercise a power to disregard unconstitutional laws until almost a century after the Constitution’s creation. Taken together, these arguments are said to refute the regal pretensions of modern Presidents.This Article serves as an antidote to such claims, while sharpening our understanding of the proper Executive Branch stance towards unconstitutional statutes. The critics are correct in supposing that the President lacks a discretionary power to disregard unconstitutional statutes; instead, the Constitution is best read as obliging the President to disregard statutes he regards as unconstitutional. First, the Constitution never empowers the President to enforce unconstitutional statutes. He no more has the power to enforce such statutes than he has power to enforce the statutes of Georgia or Germany. Second, the President’s duty to preserve, protect, and defend the Constitution requires the President to disregard unconstitutional statutes. When the President enforces a statute he regards as unconstitutional, he violates the Constitution no less than if he were to imprison citizens without hope of trial. Third, the Faithful Execution Clause requires the President to choose the Constitution over unconstitutional laws, in the same way that courts must choose the former over the latter. Consistent with these understandings, John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws. Indeed, President Jefferson halted Sedition Act prosecutions on grounds that the Act was unconstitutional. According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it.

Keywords: Faithful Execution, Take Care Clause, Disregard, Unconstitutional, Suspensions, Dispensation, "Preserve, Protect, and Defend," President, Congress, Constitution, Jefferson

Suggested Citation

Prakash, Saikrishna, The Executive’s Duty to Disregard Unconstitutional Laws (2008). Georgetown Law Journal, Vol. 96, No. 1613, 2008; Virginia Public Law and Legal Theory Research Paper. Available at SSRN: https://ssrn.com/abstract=1557173

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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