         The Attorney General’s Duty to Defend and Enforce
             Constitutionally Objectionable Legislation

T he A ttorney G eneral has a duty to defend and enforce both the A cts o f C ongress and
   the Constitution; w hen there is a conflict betw een the requirem ents o f the one and the
   requirem ents o f the other, it is alm ost alw ays the case that he can best discharge the
   responsibilities o f his office by defending and enforcing the A ct o f Congress.

While there is no general privilege        in the E xecutive to disregard laws that it deem s
 inconsistent with the Constitution,       in rare cases the Executive’s duty to the constitu­
 tional system may require action in       defiance o f a statute. In such a case, the E xecutive’s
 refusal to defend and enforce an           unconstitutional statute is authorized and lawful.

                                                                                       July 30, 1980

T   he   C   h a ir m a n   of the     S enate Subcom          m it t e e   on   L   im it a t io n s   of

    C ontracted             and   D   elegated   A   u t h o r it y

M y D ear M r . C h a ir m a n : In your letter o f 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 A cts o f Congress.” I am pleased to respond. I have
taken the liberty o f setting these eleven questions out verbatim so the
context in w hich my answers are given will be clear. M y answers
follow several prelim inary observations about the form o f the questions
asked and the general nature o f 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 re­
spective 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 govern­
ment and the citizenry from unconstitutional action, legislative and
executive; but only the Executive Branch can execute the statutes of
the United States. F or that reason alone, if executive officers w ere to
adopt a policy o f ignoring or attacking A cts o f Congress w henever
they believed them to be in conflict w ith the provisions of the Constitu­
tion, their conduct in office could jeopardize the equilibrium established
within our constitutional system.
   A t the same time, I believe that if C ongress w ere to enact a law
requiring, for example, that the A ttorney G eneral arrest and imprison
all m embers o f the opposition party w ithout 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 w ould be untrue to his office if
he w ere to do otherw ise. This is not because he has authority to “deny
the validity o f A cts o f C ongress.” It is because everything in our
constitutional jurisprudence inescapably establishes that neither he nor
any o th er executive officer can be given authority to enforce such a
law. T he “assertion” o f the D epartm ent o f Justice is nothing more, nor
less, than th is.1
   I have one further observation. In your letter you state that your
request “does not include those situations w here the A cts themselves
touch on constitutional separation o f pow ers between Executive and
Legislative Branches . . . .” Since almost all o f the legal authority
dealing with this question, from the trial o f A ndrew Johnson to the
argum ents o f A ttorney G eneral Levi in B uckley v. Valeo, 424 U.S. 1
(1976), deal w ith separation o f pow ers issues, your limitation is strin­
gent. I will not discuss all the pertinent authorities if you will permit
me to note that in this field the historical predom inance o f separation of
pow ers issues is no accident. I have said that the Executive can rarely
defy an A ct o f C ongress w ithout upsetting the equilibrium established
within our constitutional system; but if that equilibrium has already
been placed in jeopardy by the A ct o f C ongress itself, the case is much
m ore likely to fall within that narrow class.
   T he traditional debate over the nature and extent o f the President’s
supervisory authority as chief executive provides a good illustration of
the phenom enon to w hich I have just referred. From time to time
C ongress has attem pted to limit the President’s pow er to remove, and
thereby control, the officers o f the United States. Some o f these at­
tem pts have been consistent w ith 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 o r legally invalid. T h e well-established rule is that such
an injunction must be obeyed until it is dissolved o r modified on appeal in o rd e r to preserve the
integrity o f the judicial process. Walker v. C ity o f Birmingham, 388 U.S. 307 (1967). T h e C ourt in
Walker, how ever, was careful to em phasize that it did not have before it a case in w hich "the
injunction w as transparently invalid." Id. at 315. If an A ct o f C ongress directs or authorizes the
E xecutive to take action w hich is "tran sp aren tly invalid" w hen view ed in light o f established constitu­
tional law, I believe it is the Executive’s constitutional duty to decline to execute that pow er.


                                                    56
every one o f these instances, how ever, it was the A ct o f Congress itself
that altered the balance o f forces between the Executive and Legisla­
tive Branches; and if the Executive had invariably honored the A ct, our
constitutional system w ould have been changed by fa it accompli. A c­
cordingly, in some o f the cases in which the constitutionality o f the A ct
was in doubt, the Executive determ ined that it could best preserve our
constitutional system by refusing to honor the limitation imposed by the
A ct, thereby creating, through opposition, an opportunity for change
and correction that would not have existed had the Executive acqui­
esced. 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:   W hat is the specific authority (if any) deriving from E ng­
              lish constitutional history which supports the Justice D e­
              partm ent’s assertion that it can deny the validity o f 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 o f the Legislative and Executive Branches o f our govern­
ment. This, in fact, is the central legal principle in our constitutional
system—our system o f “lim ited” governm ent—and it is a principle that
the English have rejected. A ccordingly, English constitutional history is
im portant for our purposes, not because it supports my view that in a
system o f “limited” governm ent there are pow ers and duties that
cannot be imposed upon executive officers, but because it illustrates
how constitutional governm ent can develop tow ards a radically differ­
ent model—a model in w hich 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 o f C oke’s ju d g ­
ment in Calvin's Case, 1 Co. Rep. 1 (immutable natural law prevents
Parliam ent from separating a subject from the protection o f his king).
But even though these early precedents enjoyed some vitality on this
side o f the Atlantic as late as the time o f the Am erican Revolution
(consider, for example, James Otis’ classic attack on the writs o f assist­
ance, February 24, 1761, printed in Commager, D ocum ents o f A m eri­
can History 45 (5th ed. 1949)), they did not carry the day in their ow n
country.
   I should add that I consider the 17th century dispute between Parlia­
ment and the Stuart kings over the so-called “dispensing pow er” to be
directly relevant to the questions you have raised. T he history o f that
dispute was well-known to the Fram ers o f the Constitution, and it is
clear that they intended to deny our President any discretionary pow er
o f the sort that the Stuarts claimed. W e must remember, how ever, that

                                    57
it was largely as a result o f Parliam ent’s victory in that m atter that the
English came to abandon any notion that “ fundamental law ” limited
the pow ers o f the legislative sovereign. This is the very notion upon
w hich o ur Constitution, and the D epartm ent’s view o f this question,
depends. In our system o f limited governm ent, unlike the English
system, there are some things that the legislature and the officers o f the
governm ent cannot lawfully do.
Question 2:         W hat is the specific authority (if any) deriving from the
                    Constitutional C onvention and other expressions of the
                    Fram ers w hich supports the Justice D epartm ent’s asser­
                    tion that it can deny the validity o f A cts of Congress?
   T he available evidence concerning the intentions o f the Fram ers
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. T he Fram ers gave the President a
veto for the purpose, among others, o f enabling him to defend his
constitutional position. T hey also provided that his veto could be over­
ridden by extraordinary m ajority in both Houses. T hat being so, an
argum ent 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 o f 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 evi­
dence o f w hat the Fram ers thought, o r m ight have thought, about the
E xecutive’s obligations w ith regard to A cts o f Congress that w ere
transparently inconsistent w ith the Constitution; and, indeed, the ques­
tion remained open for some time after the Constitution was adopted.
President Jefferson, for example, w riting o f 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 im portant
elem ent in the system o f checks and balances:
          T h e judges believing the [Sedition law] constitutional, had
          a right to pass a sentence o f fine and imprisonment; be­
          cause that pow er was placed in their hands by the Consti­
          tution. But the executive, believing the law to be uncon­
          stitutional, was bound to remit the execution o f it; because
          that pow er has been confided to him by the Constitution.
          T he instrum ent meant that its coordinate branches should
          be checks on each other.
8 W ritings o f Thom as Jefferson 310 (1897).

   2T h e P resident’s failure to veto an unconstitutional A ct o f C ongress does not in itself estop the
E xecutive from challenging the A ct in co u rt at a future date, n o r does it cure the constitutional defect
w here the question is one o f separation o f pow ers. See M yers v. United States, 272 U.S. 52 (1926);
N ational League o f Cities v. Usery, 426 U.S. 833, 841 n.12 (1976).


                                                     58
    President Jefferson’s view was not to prevail, although other early
Presidents, including A ndrew Jackson, w ere to express similar senti­
ments 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 A cts o f 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
o f the statute is authorized and lawful if the statute is unconstitutional.
T hat brings me to your next question.
Question 3:   W hat is the specific authority (if any) deriving from Su­
              prem e C ourt or other judicial opinions w hich supports the
              Justice D epartm ent’s assertion that it can deny the validi­
              ty o f A cts o f Congress?
   In M yers v. United States, 272 U.S. 52 (1926), the Supreme C ourt was
asked to decide w hether the President had acted lawfully in rem oving a
postm aster from office in contravention o f an A ct o f Congress. T he
A ct provided that postmasters w ere not to be rem oved by the President
w ithout the advice and consent o f the Senate. T he case involved a
claim for back salary filed by the heirs o f the postm aster w ho had been
removed. T he action was brought in the C ourt o f Claims under statute
that gives that court jurisdiction to hear cases not sounding in tort
arising out o f conduct by executive officers alleged to be unlawful
under the C onstitution or A cts o f Congress.
   W hen the case came before the Supreme C ourt, the Solicitor G en­
eral, appearing for the United States, assailed the attem pt 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. T he C ourt
ruled that the statute was unconstitutional. M ore to the point, the C ourt
ruled that the President’s action in defiance o f the statute had been
lawful. It gave rise to no actionable claim for damages under the
Constitution or an A ct o f Congress in the C ourt o f Claims.
   In my view, M yers is very nearly decisive o f the issue you have
raised. M yers 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 uncon­
stitutional from the start.
   I wish to add a cautionary note. T he 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 condem ned if the A ct is ultim ately

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upheld. T heir ow n views regarding the legality or desirability o f the
statute do not suspend its operation and do not immunize their conduct
from judicial control. T hey may not lawfully defy an A ct o f Congress
if the A ct is constitutional. This was the teaching o f a near sequel o f
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 w hich the Executive may lawfully act in contravention o f a
statute, it is the Constitution that dispenses with the operation o f the
statute. T he E xecutive cannot.
Question 4:          W hat is the specific authority (if any) deriving from opin­
                     ions o f the A ttorneys G eneral w hich supports the Justice
                     D epartm ent’s assertion that it can deny the validity of
                     A cts o f Congress?
   T he formal opinions o f my predecessors in this Office establish with
clarity the general principles upon w hich this D epartm ent continues to
rely in dealing with real or apparent conflicts between A cts o f C on­
gress 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 o f them emphasize our param ount obligation to the A cts o f
Congress. None o f them concludes that the Executive must enforce and
defend every A ct o f C ongress in every conceivable case, the require­
ments o f the Constitution notw ithstanding.
Question 5:         W hat is the specific authority (if any) deriving from ex­
                    press language in statutes o r their legislative history
                    w hich supports the Justice D epartm ent’s assertion that it
                    can deny the validity o f A cts o f Congress?
   T he statutes that define the Office o f the A ttorney G eneral require
him to render opinions upon questions o f law, and they require him to
conduct litigation in w hich the U nited States is interested. None o f the
statutes either requires or forbids him to inquire into the constitutional­
ity o f statutes.3 As I have said, the traditional opinion has been that the
A ttorney G eneral, in the due perform ance o f his constitutional function
as an officer o f the United States, must ordinarily defend the A cts o f
Congress. As I have said, I subscribe fully to that position.
Question 6:         W hat is the specific authority (if any) deriving from his­
                    toric practice prior to the current Adm inistration which
                    supports the Justice D epartm ent’s assertion that it can
                    deny the validity o f A cts o f Congress?
  M arbury v. Madison, 1 C ranch 137 (1803), was probably the first case
in w hich the E xecutive made no effort to defend an A ct o f Congress

   3Q uite apart from the provisions o f any statute prescribing the duties o r the authority o f the
A ttorn ey G eneral, the C onstitution itself provides that the President ' ‘may require the O pinion in
W riting, o f the principal O fficer in each o f the executive D epartm ents upon any subject relating to the
D uties o f their respective O ffices." U.S. C onst. A rt. 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 Suprem e C ourt (or any other
court) authority to control executive officers through the issuance of
writs o f mandamus. See 1 W arren, T he Suprem e C ourt in United States
History 232, 242-43 (1922). W hen Mr. M arbury and the other “mid­
night judges” initiated an original action in the Supreme C ourt to
com pel delivery o f their commissions, President Jefferson’s A ttorney
General, Levi Lincoln, made no appearance in the case except as a
reluctant witness. See 1 C ranch 143-44. No attorney appeared on behalf
o f Secretary Madison. T he C ourt ultimately resolved the case by agree­
ing and disagreeing with President Jefferson. T he C ourt held that the
relevant statute was unconstitutional to the extent that it attem pted to
give the Supreme C ourt pow er to issue writs o f mandamus against
executive officers, but that there was no general principle o f law that
would prevent Congress from giving that pow er to the low er courts.
   A second significant historical incident involving a refusal by the
Executive to execute or defend the A cts o f Congress on constitutional
grounds arose during the adm inistration o f A ndrew Johnson. In defi­
ance o f the T enure in Office A ct, w hich he deemed to be unconstitu­
tional, President Johnson rem oved his Secretary o f 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 o f the responsibilities o f the Executive in our
constitutional system. See 2 Trial o f 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 o f W orld W ar II, as a result o f
the w ork o f the House Com mittee on Un-Am erican Activities, C on­
gress provided, in a deficiency appropriations act, that no salary or
com pensation could be paid to certain named governm ent employees.
These individuals had been branded in the House as “ irresponsible,
unrepresentative, crackpot, radical bureaucrats.” T he Executive re­
sponded to the statute by taking tw o courses at once. T he Executive
enforced the letter o f the statute (by not paying the salary o f the
employees in question), but joined with the employees in a legal attack
upon the constitutionality o f the relevant provision. W hen the case
came before the Suprem e C ourt, an attorney was perm itted to appear
on behalf o f Congress, as amicus curiae, to defend the statute against
the com bined assault. T he C ourt struck the relevant provision, holding
that it was a bill o f attainder, and allowed the employees to recover.
United States v. Lovett, 328 U.S. 303 (1946).
   A ltogether, there have been very few occasions in our history when
Presidents or A ttorneys G eneral have undertaken to defy, o r to refuse
to defend, an A ct o f Congress. M ost o f the relevant cases are cited

                                    61
either in the foregoing discussion o r 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 o r book for the Justice D epartm ent’s
                assertion that it can deny the validity o f A cts o f C on­
                gress?
   A helpful scholarly discussion o f this problem , together with citations
 to o ther works, may be found in E dw ard C orw in’s book on the Presi­
dency. Taking full advantage o f his scholarly prerogative, Corw in
ignores the teaching and, indeed, the holding o f M yers and concludes
that the President, even though he may doubt the constitutionality of a
statute, “must prom ote its enforcem ent by all the pow ers constitution­
ally at his disposal unless and until enforcem ent is prevented by regular
judicial process.” 2 E. C orw in, T he President, Office and Powers,
 1887-1957, 66 (4th rev. ed. 1957).
Question 8:     W hat is the specific authority (if any) deriving from ethi­
                cal pronouncem ents w hich supports the Justice D epart­
                m ent’s assertion that it can deny the validity o f A cts o f
                Congress?
  T he “ethical” obligations that devolve upon the A ttorney G eneral as
a mem ber o f the legal profession cannot enlarge or contract his duties
as an officer o f the U nited States. T here is nothing in my obligation to
my profession or to the courts that prevents me from discharging my
duty either to defend the A cts o f C ongress o r to question them in the
rare cases in w hich that is appropriate.
Question 9:     W hat specific instances are there in w hich a court o r bar
                association has expressly asserted an ethical duty for gov­
                ernm ent litigators to inquire into the validity o f A cts of
                Congress?
   I know o f no decision by a court or a bar association that expressly
asserts that governm ent litigators have an ethical duty either to inquire
into the validity o f A cts o f C ongress or to defend them.
 Question 10:     Has the Justice D epartm ent ever sought from Congress
                  legislation to deal with any asserted ethical problem in
                  litigation concerning the validity o f A cts o f Congress?
  No.
 Question 11:     Has there been any relevant change in the ethical rules
                  in the past few years, since the Justice D epartm ent has
                  first begun denying the validity o f A cts o f Congress?
  I know o f no recent change in any ethical rule that relates to this
problem . Y our question assumes that the Justice D epartm ent has some
new policy in this field. F rom w hat 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. O ur policy is an old one.

                                      Sincerely,
                                      B e n ja m in   R.   C iv il e t t i




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