                   The Attorney General’s Duty to Defend
                      the Constitutionality of Statutes

The Department o f 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 ra ble St r o m T h u r m o n d
C h a ir m a n
C o m m it t e e o n t h e J u d ic ia r y
U n it e d St a t e s S e n a t e
W a s h i n g t o n , D.C. 20510

H o n o r a b l e J o s e p h R . B id e n , J r .
C o m m it t e e o n t h e J u d ic ia r y
U n it e d St a t e s S e n a t e
W a s h i n g t o n , D.C. 20510


   D e a r M r. C h a ir m a n a n d S e n a t o r B id en : I am pleased to re­
spond to your letter o f F ebruary 3, 1981, requesting that I reconsider
the decision o f the D epartm ent o f Justice not to defend the constitu­
tionality o f 47 U.S.C. § 399(a) in the case o f League o f Women Voters v.
FCC, No. 80-5333 (9th Circuit).* Please forgive the delay in respond­
ing, but w e have undertaken a thorough review o f the question. I have
determ ined that the D epartm ent will participate in the litigation and
defend the statute.
   The Departm ent appropriately refuses to defend an act of Congress
only in the rare case when the statute either infringes on the constitu­
tional 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 Departm ent 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.

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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 o f the statute is possible. Here, for example, the statute’s
application to political endorsements by government-owned broadcast­
ers 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 il l ia m F r e n c h S m it h




   • • N o t e - Pursuant to the governm ent's request, the case w a s 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. C t. 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.

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