### The Attorney General’s Duty to Defend and Enforce

Constitutionally Objectionable Legislation

The Attorney General has a duty to defend and enforce both the A cts of Congress and the Constitution; when there is a conflict between the requirements of the one and the requirements of the other, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.

While there is no general privilege in the Executive to disregard laws that it deemsinconsistent with the Constitution, in rare cases the Executive’s duty to the constitutional system may require action in defiance of a statute. In such a case, the Executive’s
refusal to defend and enforce an unconstitutional statute is authorized and lawful.



### July 30, 1980

T h e C h a i r m a n o f t h e S e n a t e S u b c o m m i t t e e o n L i m i t a t i o n s o f

C o n t r a c t e d a n d D e l e g a t e d A u t h o r i t y

M y D ear M r . C hairm an : In your letter of June 25, 1980, you asked that I answer eleven questions posed by you concerning the legal “authority” supporting “the Justice D epartm ent’s assertion that it can deny the validity of Acts of Congress.” I am pleased to respond. I have taken the liberty of setting these eleven questions out verbatim so the context in which my answers are given will be clear. My answers follow several preliminary observations about the form of the questions asked and the general nature of the D epartm ent’s “assertion” in this

matter. 

### The Attorney General has a duty to defend and enforce the Acts of Congress. He also has a duty to defend and enforce the Constitution. If he is to perform these duties faithfully, he must exercise conscientious judgment. He must examine the Acts of Congress and the Constitution and determine what they require of him; and if he finds in a given case that there is conflict between the requirements of the one and the requirements of the other, he must acknowledge his dilemma and decide how to deal with it. That task is inescapably his. I concur fully in the view, expressed by nearly all of my predecessors that when the Attorney General is confronted with such a choice, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress. That view issupported by compelling constitutional considerations. Within their respective spheres of action the three branches of government can and do exercise judgment with respect to constitutional questions, and the

55Judicial Branch is ordinarily in a position to protect both the government and the citizenry from unconstitutional action, legislative and executive; but only the Executive Branch can execute the statutes of the United States. For that reason alone, if executive officers were to adopt a policy of ignoring or attacking Acts of Congress wheneverthey believed them to be in conflict with the provisions of the Constitution, their conduct in office could jeopardize the equilibrium established within our constitutional system. At the same time, I believe that if Congress were to enact a law requiring, for example, that the A ttorney General arrest and imprison all members of the opposition party without trial, the A ttorney General could lawfully decline to enforce such a law; and he could lawfully decline to defend it in court. Indeed, he would be untrue to his office if he were to do otherwise. This is not because he has authority to “deny the validity of Acts of Congress.” It is because everything in our constitutional jurisprudence inescapably establishes that neither he nor any other executive officer can be given authority to enforce such a law. The “assertion” of the D epartm ent of Justice is nothing more, nor less, than this.1 I have one further observation. In your letter you state that your request “does not include those situations w here the Acts themselves touch on constitutional separation of powers between Executive and Legislative Branches . . . .” Since almost all of the legal authority dealing with this question, from the trial of A ndrew Johnson to the arguments of A ttorney General Levi in Buckley v. Valeo, 424 U.S. 1(1976), deal with separation of powers issues, your limitation is stringent. I will not discuss all the pertinent authorities if you will permit me to note that in this field the historical predominance of separation of powers issues is no accident. I have said that the Executive can rarely defy an Act of Congress without upsetting the equilibrium established within our constitutional system; but if that equilibrium has already been placed in jeopardy by the Act of Congress itself, the case is much more likely to fall within that narrow class.

The traditional debate over the nature and extent of the President’s supervisory authority as chief executive provides a good illustration of the phenomenon to which I have just referred. From time to time Congress has attem pted to limit the President’s power to remove, andthereby control, the officers of the United States. Some of these attempts have been consistent with the Constitution; others have not. In

11 note that an analogous situation is presented w here an individual subject to a court injunction believes that injunction to be unconstitutional or legally invalid. T he well-established rule is that such an injunction must be obeyed until it is dissolved or modified on appeal in order to preserve the integrity of the judicial process. Walker v. City o f Birmingham, 388 U.S. 307 (1967). The Court in Walker, how ever, was careful to emphasize that it did not have before it a case in w hich "the injunction was transparently invalid." Id. at 315. If an A ct o f Congress directs or authorizes theExecutive to take action w hich is "transparently invalid" when view ed in light o f established constitutional law, I believe it is the Executive’s constitutional duty to decline to execute that power.

56every one of these instances, however, it was the Act of Congress itselfthat altered the balance of forces between the Executive and Legislative Branches; and if the Executive had invariably honored the Act, our constitutional system would have been changed by fa it accompli. Accordingly, in some of the cases in which the constitutionality of the Act was in doubt, the Executive determined that it could best preserve our constitutional system by refusing to honor the limitation imposed by the Act, thereby creating, through opposition, an opportunity for changeand correction that would not have existed had the Executive acquiesced. See Myers v. United States, 272 U.S. 52 (1926). Inter-branch disputes over other separation-of-powers issues can follow a similar

course.
I now turn to your specific questions.

Question 1: What is the specific authority (if any) deriving from English constitutional history which supports the Justice D epartm ent’s assertion that it can deny the validity of Acts of Congress?

As I have suggested, the D epartm ent’s “assertion” depends entirely upon the proposition that there are fundamental limitations on theauthority of the Legislative and Executive Branches of our government. This, in fact, is the central legal principle in our constitutional system—our system of “limited” governm ent—and it is a principle that the English have rejected. Accordingly, English constitutional history is important for our purposes, not because it supports my view that in a system of “limited” government there are powers and duties that cannot be imposed upon executive officers, but because it illustrateshow constitutional government can develop towards a radically different model—a model in which there is no fundamental limitation upon legislative power. It is true that there are early English cases that Icould cite in my behalf. I am reminded in particular of Coke’s judgment in Calvin's Case, 1 Co. Rep. 1 (immutable natural law prevents Parliament from separating a subject from the protection of his king). But even though these early precedents enjoyed some vitality on this
side of the Atlantic as late as the time of the American Revolution(consider, for example, James Otis’ classic attack on the writs of assistance, February 24, 1761, printed in Commager, Documents of American History 45 (5th ed. 1949)), they did not carry the day in their own
country.I should add that I consider the 17th century dispute between Parliament and the Stuart kings over the so-called “dispensing pow er” to be directly relevant to the questions you have raised. The history of that dispute was well-known to the Framers of the Constitution, and it is clear that they intended to deny our President any discretionary power of the sort that the Stuarts claimed. We must remember, however, that

57it was largely as a result of Parliament’s victory in that m atter that the

English came to abandon any notion that “fundamental law” limited the powers of the legislative sovereign. This is the very notion upon which our Constitution, and the D epartm ent’s view of this question, depends. In our system of limited government, unlike the English system, there are some things that the legislature and the officers of the
government cannotlawfully do.

Question 2: W hat is the specific authority (if any) deriving from the

Constitutional Convention and other expressions of theFramers which supports the Justice D epartm ent’s assertion that it can deny the validity of Acts of Congress?

The available evidence concerning the intentions of the Framers lends no specific support to the proposition that the Executive has a constitutional privilege to disregard statutes that are deemed by it to be inconsistent with the Constitution. The Fram ers gave the President a veto for the purpose, among others, of enabling him to defend his

constitutionalposition. They also provided that his veto could be overridden by extraordinary majority in both Houses. That being so, an argument can be made that the Fram ers assumed that the President would not be free to ignore, on constitutional grounds or otherwise, an A ct of Congress that he had been unwilling to veto 2 or had been
enacted over his veto.A t the same time, I believe that there is relatively little direct evidence of what the Fram ers thought, or might have thought, about the Executive’s obligations with regard to Acts of Congress that weretransparently inconsistent with the Constitution; and, indeed, the question remained open for some time after the Constitution was adopted. President Jefferson, for example, writing of the Alien and Sedition Acts in 1804, concluded that each branch had pow er to exercise independent judgm ent on constitutional questions and that this was an important element in the system of checks and balances:

T he judges believing the [Sedition law] constitutional, hada right to pass a sentence of fine and imprisonment; because that pow er was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution.
The instrument meant that its coordinate branches should
be checks on each other.

8 W ritings of Thomas Jefferson 310 (1897).

2T he President’s failure to veto an unconstitutional A ct of Congress does not in itself estop the Executive from challenging the A ct in court at a future date, nor does it cure the constitutional defect w here the question is one o f separation of powers. See Myers v. United States, 272 U.S. 52 (1926); National League o f Cities v. Usery, 426 U.S. 833, 841 n.12 (1976).

58President Jefferson’s view was not to prevail, although other earlyPresidents, including Andrew Jackson, were to express similar sentiments from time to time. As I have said, I do not believe that the prerogative of the Executive is to exercise free and independent judgm ent on constitutional questions presented by Acts of Congress. At the same time, I think that in rare cases the Executive’s duty to the constitutional system may require that a statute be challenged; and if that happens, executive action in defiance
of the statute is authorized and lawful if the statute is unconstitutional. That brings me to your next question.
Question 3: W hat is the specific authority (if any) deriving from Supreme Court or other judicial opinions which supports theJustice D epartm ent’s assertion that it can deny the validity of Acts of Congress?

In Myers v. United States, 272 U.S. 52 (1926), the Supreme Court was asked to decide whether the President had acted lawfully in removing a postmaster from office in contravention of an Act of Congress. The Act provided that postmasters were not to be removed by the President
without the advice and consent of the Senate. The case involved a claim for back salary filed by the heirs of the postmaster who had been removed. The action was brought in the Court of Claims under statute that gives that court jurisdiction to hear cases not sounding in tort arising out of conduct by executive officers alleged to be unlawful under the Constitution or Acts of Congress.When the case came before the Supreme Court, the Solicitor G eneral, appearing for the United States, assailed the attempt to limit the removal power. He argued that the statute imposed an unconstitutional burden upon the President’s supervisory authority over subordinate officers in the Executive Branch. Senator Pepper made an amicus curiae appearance and argued that the statute was constitutional. The Court ruled that the statute was unconstitutional. M ore to the point, the Court
ruled that the President’s action in defiance of the statute had been lawful. It gave rise to no actionable claim for damages under the Constitution or an Act of Congress in the Court of Claims. In my view, Myers is very nearly decisive of the issue you have
raised. Myers holds that the President’s constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts. He cannot be required by statute to retain postmasters against his will unless and until a court says that hemay lawfully let them go. If the statute is unconstitutional, it is unconstitutional from the start. I wish to add a cautionary note. The President has no “dispensing pow er.” If he or his subordinates, acting at his direction, defy an A ct of Congress, their action will be condemned if the Act is ultimately

59upheld. Their own views regarding the legality or desirability of the

statute do not suspend its operation and do not immunize their conduct from judicial control. They may not lawfully defy an Act of Congress if the A ct is constitutional. This was the teaching of a near sequel of Myers, H um phrey’s Executor v. United States, 295 U.S. 602 (1935); and it is a proposition that was implicit in many prior holdings. In those rare instances in which the Executive may lawfully act in contravention of a statute, it is the Constitution that dispenses with the operation of the
statute. The Executive cannot.
Question 4: W hat is the specific authority (if any) deriving from opinions of the A ttorneys General which supports the Justice D epartm ent’s assertion that it can deny the validity of Acts of Congress?

The formal opinions of my predecessors in this Office establish with clarity the general principles upon which this Departm ent continues torely in dealing with real or apparent conflicts between Acts of Congress and the Constitution. See, e.g., 40 Op. A tt’y Gen. 158, 160, and opinions cited therein. As I have already said, I support those opinions fully. All of them emphasize our paramount obligation to the Acts of Congress. None of them concludes that the Executive must enforce anddefend every A ct of Congress in every conceivable case, the requirements of the Constitution notwithstanding.

Question 5: W hat is the specific authority (if any) deriving from express language in statutes or their legislative history which supports the Justice D epartm ent’s assertion that it can deny the validity of Acts of Congress?

The statutes that define the Office of the A ttorney General require him to render opinions upon questions of law, and they require him to conduct litigation in which the United States is interested. None of thestatutes either requires or forbids him to inquire into the constitutionality of statutes.3 As I have said, the traditional opinion has been that the A ttorney General, in the due performance of his constitutional function as an officer of the United States, must ordinarily defend the Acts of Congress. As I have said, I subscribe fully to that position.
Question 6: W hat is the specific authority (if any) deriving from historic practice prior to the current Administration which supports the Justice D epartm ent’s assertion that it can deny the validity of Acts of Congress?

Marbury v. Madison, 1 Cranch 137 (1803), was probably the first case in which the Executive made no effort to defend an A ct of Congress

3Quite apart from the provisions o f any statute prescribing the duties or the authority of the A ttorney G eneral, the C onstitution itself provides that the President '‘may require the Opinion in W riting, of the principal Officer in each o f the executive Departm ents upon any subject relating to the Duties of their respective Offices." U.S. Const. Art. II, § 2, cl. I.

60on a constitutional point. President Jefferson was strongly o f the view

that Congress had no pow er to give the Supreme Court (or any other court) authority to control executive officers through the issuance of
writs of mandamus. See 1 Warren, The Supreme Court in United StatesHistory 232, 242-43 (1922). When Mr. M arbury and the other “midnight judges” initiated an original action in the Supreme Court to compel delivery of their commissions, President Jefferson’s A ttorney General, Levi Lincoln, made no appearance in the case except as a
reluctant witness. See 1 Cranch 143-44. No attorney appeared on behalfof Secretary Madison. The Court ultimately resolved the case by agreeing and disagreeing with President Jefferson. The Court held that the relevant statute was unconstitutional to the extent that it attempted to give the Supreme Court power to issue writs of mandamus against executive officers, but that there was no general principle of law that would prevent Congress from giving that pow er to the lower courts. A second significant historical incident involving a refusal by the Executive to execute or defend the Acts of Congress on constitutionalgrounds arose during the administration of A ndrew Johnson. In defiance of the Tenure in Office Act, which he deemed to be unconstitutional, President Johnson removed his Secretary of War. This action provided the legal basis for one of the charges that was lodged against him by his opponents in the House; and during his subsequent trial in the Senate, the arguments offered by counsel on both sides provided an illuminating discussion of the responsibilities of the Executive in our constitutional system. See 2 Trial of A ndrew Johnson 200 (W ashington 1868). President Johnson was acquitted by one vote. I will mention a third incident that illustrates an interesting variation on the historical practice. In the midst of W orld W ar II, as a result ofthe work of the House Committee on Un-American Activities, Congress provided, in a deficiency appropriations act, that no salary or compensation could be paid to certain named government employees. These individuals had been branded in the House as “irresponsible,unrepresentative, crackpot, radical bureaucrats.” The Executive responded to the statute by taking two courses at once. The Executive enforced the letter of the statute (by not paying the salary of the employees in question), but joined with the employees in a legal attack upon the constitutionality of the relevant provision. W hen the case came before the Supreme Court, an attorney was permitted to appear on behalf of Congress, as amicus curiae, to defend the statute against the combined assault. The Court struck the relevant provision, holding that it was a bill of attainder, and allowed the employees to recover.

United States v. Lovett, 328 U.S. 303 (1946). Altogether, there have been very few occasions in our history when Presidents or Attorneys General have undertaken to defy, or to refuse to defend, an Act of Congress. Most of the relevant cases are cited

61either in the foregoing discussion or in the answers that the Senate

Legal Counsel has provided to you in response to these same questions.
Question 7: W hat is the specific support (if any) expressed in any

scholarly article or book for the Justice D epartm ent’sassertion that it can deny the validity of Acts of Congress?

A helpful scholarly discussion of this problem, together with citationsto other works, may be found in Edw ard Corw in’s book on the Presidency. Taking full advantage of his scholarly prerogative, Corwin ignores the teaching and, indeed, the holding of Myers and concludes that the President, even though he may doubt the constitutionality of astatute, “must prom ote its enforcement by all the powers constitutionally at his disposal unless and until enforcement is prevented by regular judicial process.” 2 E. Corwin, The President, Office and Powers, 1887-1957, 66 (4th rev. ed. 1957).

Question 8: W hat is the specific authority (if any) deriving from ethical pronouncements which supports the Justice D epartm ent’s assertion that it can deny the validity of Acts of Congress?

The “ethical” obligations that devolve upon the A ttorney General as a member of the legal profession cannot enlarge or contract his duties as an officer of the United States. There is nothing in my obligation to my profession or to the courts that prevents me from discharging my duty either to defend the Acts of Congress or to question them in the rare cases in which that is appropriate.

Question 9: W hat specific instances are there in which a court or bar

association has expressly asserted an ethical duty for government litigators to inquire into the validity of Acts of Congress?

I know of no decision by a court or a bar association that expressly asserts that government litigators have an ethical duty either to inquire into the validity of Acts of Congress or to defend them.
Question 10: Has the Justice Departm ent ever sought from Congress

legislation to deal with any asserted ethical problem in litigation concerning the validity of Acts of Congress?

No.
Question 11: Has there been any relevant change in the ethical rules

in the past few years, since the Justice Departm ent has first begun denying the validity of Acts of Congress?

I know of no recent change in any ethical rule that relates to this problem. Your question assumes that the Justice Departm ent has some new policy in this field. From what I have said in response to your

62questions, and from the historical examples I have given, I hope it is clear that we have no new policy. Our policy is an old one.

Sincerely,

B e n j a m i n R . C i v i l e t t i

63