Constitutionalism in the Shadow of Doctrine: The President's Nonenforcement Power

This paper, which will be published later this year in Law & Contemporary Problems, was presented at a panel on executive authority at a Duke Law School conference entitled, "The Constitution Under Clinton: A Critical Assessment." The article addresses the extent of the President's power to decline to enforce a statute on the ground that it violates the federal constitution. It considers three distinct hypotheticals in the course of the argument: May a President refuse, on constitutional grounds, to enforce a statute that requires the firing of all HIV-positive military personnel? May a President rely upon the Fifth Amendment to bar federal prosecutors from using unwarned statements notwithstanding a federal statute that expressly validates their use? May a President invoke a constitutional norm of equality to decline to enforce a provision requiring the adoption of differential business regulations for similar professions that he "knows" to be the product of nothing more than special interest dealing? Through an analysis of these hypotheticals, the article challenges what it terms the court-centered view of the President's non-enforcement power. This view contends that the President should use his non-enforcement power sparingly and generally only when doing so would make the constitutionality of the statute in question susceptible of a judicial challenge. This view stems from a belief that constitutional interpretation is primarily the province of the Supreme Court. The article responds that the court-centered view fails to take account of the pervasively deferential character of the Supreme Court's constitutional doctrine. A judicial determination that a given governmental action is constitutional is often the product of a judicial decision to defer to the political branches's constitutional judgment. For that reason, the court-centered approach to presidential non-enforcement unduly circumscribes the bounds of constitutional limitations to those discernible by the Court, even though the Court frankly limits its powers of discernment out of respect for the interpretive capacities of the political branches. Thus, the article contends that the real question to be asked in a non-enforcement case concerns the deference that the President owes to the constitutional judgments of the Congress rather than, as the court-centered view would have it, the deference that the President owes to the constitutional judgments of the Supreme Court. Here, the article suggests that the familiar framework for resolving separation of powers controversies between the President and the Congress set forth long ago by Justice Jackson provides useful guidance as to when the President should defer to such congressional judgments. The article further contends that the fact that the President's decision to decline to enforce a statute may render the constitutional dispute nonjusticiable does not count as a sufficient reason for concluding that the President must enforce the statute. In most, if not all such cases, Congress could protect its interpretive authority by creating a cause of action for the beneficiaries of the statute that the President has refused to enforce. The congressional provision of such a cause of action would ensure that the act of non-enforcement would then be justiciable. Attention to this point reveals that in the battle for interpretive authority each of the political branches comes armed. Finally, the article distinguishes between the President's authority to enforce constitutional constraints on the federal government that are more expansive than those that a court would feel authorized to enforce, and the president's authority to disregard a Supreme Court determination that it would be unconstitutional for the federal government to undertake certain action. The president's non-enforcement power implicates only the former circumstance. Thus, a rejection of the court-centered view of the President's non-enforcement power does not amount to a challenge to the authority of the Supreme Court to issue constitutional judgments that are binding on the political branches.