The Attorney General’s Duty to Defend 

the Constitutionality of Statutes

The Department of Justice has a duty to defend the constitutionality of an Act of 

Congress whenever a reasonable argument can be made in its support, even if the 

Attorney General concludes that the argument may ultimately be unsuccessful in the 

courts. The statute at issue in the instant case could be held constitutional as applied in 

certain situations, and accordingly the Department will defend it.

April 6, 1981

H o n o r a b l e S t r o m T h u r m o n d

C h a ir m a n

C o m m i t t e e o n t h e J u d ic ia r y

U n i t e d S t a t e s S e n a t e

W a s h in g t o n , D.C. 20510

H o n o r a b l e J o s e p h R . B i d e n , J r .

C o m m i t t e e o n t h e J u d ic ia r y

U n i t e d St a t e s S e n a t e

W a s h in g t o n , D.C. 20510

D e a r M r. C h a irm a n a n d S e n a to r B iden: I am pleased to respond to your letter of February 3, 1981, requesting that I reconsider 

the decision of the D epartm ent of Justice not to defend the constitutionality of 47 U.S.C. § 399(a) in the case of League of Women Voters v. 

FCC, No. 80-5333 (9th Circuit).* Please forgive the delay in responding, but we have undertaken a thorough review of the question. I have 

determined that the Departm ent will participate in the litigation and 

defend the statute.

The Department appropriately refuses to defend an act of Congress 

only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly 

indicates that the statute is invalid. In my view, the Department has the 

duty to defend an act of Congress whenever a reasonable argument can 

be made in its support, even if the Attorney General and the lawyers

• N o t e * The Department of Justice’s decision not to defend the constitutionality of § 399 had been 

conveyed to Congress in an October 11, 1979, letter from Attorney General Civiletti to Senate 

Majority Leader Byrd. Ed.

25
examining the case conclude that the argument may ultimately be 

unsuccessful in the courts.

The prior decision not to defend § 399(a) was made by virtue of the 

conclusion that no reasonable defense of the constitutionality of this 

provision as a whole could be made. Under applicable Supreme Court 

precedent, however, even a statute that could have some impermissible 

applications will not be declared unconstitutional as a whole unless the 

provision is substantially overbroad and no limiting construction of the 

language of the statute is possible. Here, for example, the statute’s 

application to political endorsements by government-owned broadcasters might well be held by a court to be constitutional. In that event, the 

fact that the statute permissibly could be applied in some instances may 

be sufficient to preclude a finding that the provision as a whole is 

unconstitutional.

Accordingly, we will advise the Ninth Circuit of our position and 

request that the case be remanded to the district court to allow us to 

present our defense.**

Sincerely,

W i l l i a m F r e n c h S m it h

• • N o t e - Pursuant to the government's request, the case w as remanded by the court of appeals to 

the district court, whose judgment, holding § 399’s ban on editorializing by noncommerical stations 

unconstitutional, was ultimately affirmed by the Supreme Court. FCC v. League o f Women Voters o f

California.------U .S .-------, 104 S. Ct. 3106 (1984), a ffg 547 F. Supp. 379 (C.D. Cal. 1982). Section 399’s

separate ban on political endorsements by noncommercial stations was by then no longer at issue in 

the case, and the Supreme Court “express[ed] no view" on the constitutionality of that provision. 104 

S. Ct. at 3113. n 9. Ed.

26