What should the President do about unconstitutional laws?

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Mark Kleiman doesn't like Alito's claim that the president can violate unconstitutional statutes.
If the President can violate a statute, secretly, any time he deems in his sole discretion that the statute contravenes some "inherent power" of the Presidency, then his powers are limited only by his will (and his political judgment about what he can get away with) not by the law.

Of course "the Constitution trumps a statute." And the Constitution gives to the Congress, not the President, the authority "To make rules for the government and regulation of the land and naval forces." So if spying is an incident of warfare -- which seems reasonable -- then regulating how that spying takes place is squarely within the Constitutional ambit of the Congress.

Now that Judge Alito has finally come out of the closet as a royalist, the Senate Democrats have two choices: (1) filibuster to prevent his confirmation or (2) admit that their huffing and puffing about warrantless wiretapping wasn't really serious in the first place.

I think it's a little trickier than that. Consider what Alito said (copied from Kleiman's post so no link):

If Congress has "explicit authority under the Constitution to pass a law, and we pass that law, is the president bound by that law or does his plenary authority supersede that law?" Feinstein asked Alito.

"The president, like everybody else, is bound by statutes that are enacted by Congress," Alito said.

But he said a president could violate a statute "if statutes are unconstitutional because the Constitution takes precedence over a statute."

The first thing to note here is that Alito's answer here is evasive, since Feinstein clearly asked about cases where Congress has clear authority under the Constitution and Alito answered the question about where the statute violated the Constitution. Come to think of it, a lot of Alito's answers were like that.

But I think there's an interesting question hiding here. Say that Congress passes a law that's clearly unconstitutional, for instance a requirement forbidding Muslims from serving in public office (in clear violation of Article 6.). Say further that it was done over the President's veto. What should the President do?

Logically, it seems to me that the President can do one of three things:

  1. Obey the law.
  2. Challenge it in the courts as unconstitutional (it sounds crazy for the government to be suing itself, but see here)
  3. Simply violate it (e.g., by hiring a Muslim).

It seems to me that (1) is clearly problematic, since that means abiding by an unconstitutional law. That leaves us with (2) and (3), but I'm not convinced that (3), simply violating it, is the wrong answer here. It can take years to wind through the courts and in the meantime there's an unconstitutional law on the books. Is this consistent with the President's oath to "preserve, protect and defend the Constitution of the United States"? (As an aside, note that the President's primary duty is to defend the Constitution, not the country).

Of course, if the President does indeed violate the law, then what? Remember that unlike a private citizen the President cannot be directly tried for any crime. Congress impeaches? That seems fairly problematic as well since it means that there's no way to resolve questions about the constitutionality without risking a total government meltdown. An alternative would be to prosecute the specific executive branch agents who violate the law, but who would file those charges, since the DOJ works for the president? So, this alternative seems a bit problematic.

Obviously, even if you believe that the president should violate laws that are unconstitutional, the current case should be troubling because it was done in secret, thus rendering even the above (admittedly problematic) process nearly impossible. On the other hand, consider the alternative: if you accept the argument that the methods that the Administration wanted to use needed to be secret for national security reasons rather than political cover reasons, then there should be some way to settle the constitutional question in secret. Are the FISA courts set up to make this kind of constitutional determination in secret? Who would make the opposing argument?

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atlantic airlines from atlantic airlines on January 23, 2006 4:50 AM

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6 Comments

2 still works: Although it may take years for the courts to make a final decision, the inevitable injunction will keep the law from having an effect while things get sorted out.

Violate, but do it openly

I agree that it may be reasonable to violate an un-constitional law, but the violation should be make open and clear so that it can be dealt with by our political/legal system.

In your case, if hireing a muslim is illegal, then hireing one is not sufficient as the next adminstration/department may consider the law and secretly discriminate. If the law is possably unconstitutional, then the first Muslam hired should be published, as should the list of people who were not, so that they can bring suit to clarify the constitutionality of the law.

In the case of the WireTaps, it is reasonable that the President might wiretap where one end is in the US, but then the President should report on the action so that its legal state is clarified rather than letting the status be held in limbo for years.

Similary, If the President feels it is essentual to interigate and kill some captured people, let him publish the fact that it is done as soon as possible.

Though I think that we are going too far toward Security and can have more Freedom, I understand letting the courts, our representatives, and the people make the decision, but we MUST have the information to make these decisions in the public domain rather than running a hidden government.

In fairness, I should point out one thing that the Clinton administration did which was a bit dodgy but seems their answer to your question: the President can instruct the Department of Justice not to prosecute violations of said statute. (see http://clinton3.nara.gov/WH/Accomplishments/ac399.html )

This is an example of "prosecutorial discretion", which allows a prosecutor to decide when to prosecute someone, but writ very large. And one of the reasons I think the attempts to destroy "jury nullification" dubious... if prosecutors can decide a crime should not be considered a crime, why shouldn't the jury?

Actually, this is what got Johnson impeached--although for firing, not hiring.

In an idealized situation, the President publically ignores the law. But this is not an ideal situation, and when national security is at stake, you really DON'T want the President to be seen (by our enemies) as being hamstrung by the Congress.

Personally, I really don't like the President going to the courts, since his resposibility to the Constitution is more direct than theirs. Let him ignore the law, and let members of Congress sue. (This also has happened.) The reason to do it this way is that it leaves the President with the ability to ignore the Court--something that would be difficult in deed if he were to sue.

But if you want real world, look at McCain-Fiengold. It made it through the Congress because they expected the President to veto. The President signed because he expected the Court to throw it out. But the Court has a very low view of the Freedom of Speech, unless urine or nudity is involved. Only the FEC, whose appointment I understand is unconstitutional, seems to care.

Actually, I think the question should be broadened. How should citizens in general react to unconstitutional laws? If I think a law is unconstitutional, should I just ignore it? Perhaps. But will anyone buy my argument that I have a right to do so, when I get arrested for ignoring that law? Or is that something we only do when really powerful people ignore laws?

Let's be sure to address this before April 15th, as I think the answer could have some interesting revenue effects.

Lawyers browbeat juries, claiming that they have to accept the law from the judge. (ie: they all but forbid nullification) But the jury can still refuse to convict, and the court is very weak to determine why.

If you believe that the odds of getting such a jury are high enough to offset the risk, go for it.

You might want to talk to Terrance about his honeypot, while you're at it...

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But your question really is different, in that the President is directed (via the Oath Clause) to uphold the Constitution, and the Courts (via the Supremacy Clause) are freed not to violate it for the sake of statutes. Government officials are arguably paid first & foremost to uphold the Constitution, (it is the first element of the oath of enlistment) so they really are in a special position in that regard.

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