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 deems 

inconsistent 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

My D ear Mr. 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 is 

supported 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

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Judicial 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 whenever 

they 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, and 

thereby 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 the 

Executive 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.

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every one of these instances, however, it was the Act of Congress itself 

that 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 change 

and 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 the 

authority 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 illustrates 

how 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 I 

could 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

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it 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 cannot lawfully do.

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

Constitutional Convention and other expressions of the 

Framers 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 

constitutional position. 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 were 

transparently 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, had 

a 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).

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President Jefferson’s view was not to prevail, although other early 

Presidents, 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 the 

Justice 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 he 

may 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

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upheld. 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 to 

rely 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 and 

defend 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 the 

statutes 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.

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on 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 States 

History 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 behalf 

of 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 constitutional 

grounds 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 of 

the 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

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either 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’s 

assertion that it can deny the validity of Acts of Congress?

A helpful scholarly discussion of this problem, together with citations 

to 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 a 

statute, “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

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questions, 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

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