The executive's duty to disregard unconstitutional laws

Georgetown Law Journal

Volumn 96, Issue 5, 2008, Pages 1613-1683

  Prakash, Saikrishna Bangalore ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 47849089918     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (349)

1. See U.S. CONST, art. I, § 9, cl. 3.
2. See U.S. CONST, art. II, § 2. In Ex parte Garland, the Court held unconstitutional a statute that limited the effect of presidential pardons. 71 U.S. (4 Wall.) 333, 380 (1866).
3. Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT. 307, 335 (2006);
4. see id. at 322, 323 tbl.1 (citing statistics on presidential signing statements expressing concern about statutes on constitutional grounds).
5. See id. at 312. There is a question of whether President Bush has actually refused to enforce the statutory provisions he has deemed unconstitutional.
6. See id. at 332.
7. See, e.g., CHRISTOPHER N. MAY, PRESIDENTIAL DEFIANCE OF "UNCONSTITUTIONAL" LAWS: REVIVING THE ROYAL PREROGATIVE 16-18 (1998).
8. See, e.g., id. at 3-8.
9. Bill of Rights, 1689, 1 W. & M., c. 2 (Eng.) ("That the pretended Power of suspending of Laws, or the Execution of Laws, by regal Authority, without Consent of Parliament, is illegal. That the pretended Power of dispensing with Laws, or the Execution of Laws, by regal Authority, as it hath been assumed and exercised of late, is illegal.").
10. See, e.g., MAY, supra note 5, at 127, 130.
11. See id. at 130 (stating that "the historical record does not support an originalist argument for presidential defiance based on early governmental practices").
12. See generally TASK FORCE ON P RESIDENTIAL SIGNING STATEMENTS AND THE SEPARATION OF POWERS DOCTRINE, AM. BAR ASS'N, REPORT 5, 20, 25, 27 n.77, 28 (2006), available at http://www.abanet.org/op/ signmgstatements/ aba_final_signing_statements_recommendation-report_7-24-06.pdf [hereinafter ABA TASK FORCE] (making repeated statements that Executive Disregard is a threat to the rule of law).
13. For a defense of a discretionary power to disregard, see Presidential Authority To Decline To Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199, 200 (1994) (memorandum from Assistant Attorney General Walter Dellinger) [hereinafter Presidential Authority] (claiming the President has "authority" and "may" disregard unconstitutional statutes).
14. U.S. CONST, art. II, § 1.
15. The same must be said of federal treaties. Assuming that treaties can be self-executing, the President cannot enforce treaty provisions that he regards as unconstitutional. The duty to safeguard the Constitution bars him from executing statutes, treaties, or anything else that he regards as unconstitutional.
16. U.S. CONST, art. I, § 1.
17. U.S. CONST, art. VI.
18. Letter from Thomas Jefferson to Abigail Adams (July 22, 1804), in 1 THE ADAMS-JEFFERSON LETTERS 274, 275-76 (Lester J. Cappon ed., 1959).
19. Cf. Letter from Thomas Jefferson to Edward Livingston (Nov. 1, 1801), in 8 THE WRITINGS OF THOMAS JEFFERSON 57-58 n.l (Paul Leicester Ford ed., 1897) (discussing Jefferson's pardon of William Duane from his conviction under the Sedition Act).
20. Id. at 58 n. 1.
21. Letter from Thomas Jefferson to Wilson Cary Nicholas (June 13, 1809), in 9 THE WRITINGS OF THOMAS JEFFERSON, supra note 17, at 253, 254.
22. There have been many scholarly treatments discussing whether the President may (or must) disregard unconstitutional laws. See generally MAY, supra note 5;
23. David Barron, Constitutionalism in the Shadow of Doctrine: The President's Non-Enforcement Power, LAW & CONTEMP. PROBS., Winter/ Spring 2000, at 61[hereinafter Barron, Constitutionalism];
24. Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905 (1990);
25. Eugene Gressman, Take Care, Mr. President, 64 N.C. L. REV. 381 (1986);
26. John Harrison, The Constitutional Origins and Implications of Judicial Review, 84 VA. L. REV. 333, 336, 368-386 (1998);
27. Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, LAW & CONTEMP. PROBS., Winter/Spring 2000, at 7;
28. Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267 (1996);
29. Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 GEO. L.J. 373 (1994);
30. Christopher N. May, Presidential Defiance of " Unconstitutional" Laws: Reviving the Royal Prerogative, 21 HASTINGS CONST. L.Q. 865 (1994);
31. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power To Say What the Law Is, 83 GEO. L.J. 217 (1994);
32. Michael B. Rappaport, The President's Veto and the Constitution, 87 NW. U. L. REV. 735, 766-83 (1993);
33. Peter L. Strauss, The President and Choices Not To Enforce, LAW & CONTEMP. PROBS., Winter/Spring 2000, at 107;
34. Christine E. Burgess, Note, When May a President Refuse To Enforce The Law?, 72 TEX. L. REV. 631 (1994).
35. More recently, the American Bar Association's Task Force on Presidential Signing Statements and the Separation of Powers Doctrine issued a report that apparently condemned the practice of Executive Disregard. See ABA TASK FORCE, supra note 10, at 19 (arguing that the President cannot dispense with or suspend any law for any reason). A more careful reading, however, suggests that the Task Force took many positions that seemed to condemn the practice but refrained from actually doing so. Instead, the Task Force condemned signing statements for claiming the power to disregard unconstitutional statutes without actually condemning the practice of Executive Disregard.
36. See Posting of David Barron et al. to Georgetown Law Faculty Blog, htto://gulcfac.typepad.com/georgetown_university_law/2006/07/thanks to_the_p.html (July 31, 2006) [hereinafter Posting of Barron et al.].
37. When this Article discusses the President's duty to refrain from enforcing unconstitutional statutes and his ability to reach judgments about the Constitution's meaning, these references should be read against the backdrop of modern Executive Branch legal practice in which the President calls upon the constitutional and legal expertise of others within the Executive Branch and often defers to their constitutional judgments. Hence when this Article speaks of the President making constitutional conclusions, it should be understood that modern Presidents typically will rely upon the legal expertise of others. Section IV.C briefly discusses when it is appropriate for the President to adopt the reasoning of executive underlings and when such adoption is unwarranted.
38. When dealing with a potentially sweeping subject matter and a space constraint, one ought to narrow the ambit somewhat. Difficult questions arise about how best to satisfy the Executive Disregard duty. For instance, should the President be an originalist or embrace the idea of a living Constitution? Likewise, what standard of review should he apply? Perhaps the President should disregard only those statutes he believes are clearly unconstitutional. This Article does not consider these interesting questions. Furthermore, this Article makes no claims regarding a related topic in the news: whether the President may sign a statute that he believes contains unconstitutional provisions. Rather it only considers whether the President may (or must) disregard statutes that have become law, regardless of when or how they may have become law. For a discussion of this quite different topic, see generally Saikrishna Prakash, Why the President Must Veto Unconstitutional Bills, 16 WM. & MARY BILL RTS. J. 81 (2007).
39. U.S. CONST, art. I, § 1.
40. See, e.g., ABA TASK FORCE, supra note 10, at 19 ("Because the 'take care' obligation of the President requires him to faithfully execute all laws, his obligation is to veto bills he believes are unconstitutional. He may not sign that into law and then emulate King James II by refusing to enforce them.").
41. See U.S. CONST. art. I, § 7.
42. Id.
43. See Clinton v. City of New York, 524 U.S. 417, 439-40 (1998).
44. See generally Rappaport, supra note 20, at 771.
45. I have previously argued that Congress lacks a generic power to regulate presidential powers. See Saikrishna Prakash, Regulating Presidential Power, 91 CORNELL L. REV. 215 (2005) (reviewing HAROLD KRENT, PRESIDENTIAL POWERS (2005)).
46. For a somewhat contrary view, see Harold Krent, The Lamentable Notion of Indefeasible Presidential Powers: A Reply to Professor Prakash, 91 CORNELL L. REV. 1383 (2006).
47. See generally ABA TASK FORCE, supra note 10.
48. See id. at 5, 20, 25, 27 n.77, 28.
49. MAY, supra note 5, at 3-8.
50. Bill of Rights, 1689, 1 W. & M., c. 2 (Eng.).
51. This executive non-acquiescence can take the form of either intercircuit or intracircuit non-acquiescence. Intercircuit non-acquiescence is the decision not to apply the law of one federal circuit court in cases that are within the jurisdiction of other cases. Hence even if the Ninth Circuit has held that a particular environmental statute does not regulate a particular pollutant, the Environmental Protection Agency may continue to act as if the statute does regulate the pollutant in areas outside the jurisdiction of the Ninth Circuit. See Patricia M. Wald, "For the United States": Government Lawyers in Court, LAW & CONTEMP. PROBS., Winter 1998, at 107, 125. Intracircuit non-acquiscence is the more controversial of the two. Essentially the government decides not to adhere to the logic of a court's opinion in all future cases.
52. See id.;
53. Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 687 (1989).
54. United States v. Mendoza, 464 U.S. 154, 162 (1984).
55. In this volume of The Georgetown Law Journal, Will Baude comprehensively discusses the proper, limited effect a judgment should have on the Executive Branch.
56. See generally William Baude, The Judgment Power, 96 GEO. L.J. (forthcoming Aug. 2008).
57. 462 U.S. 919 (1983).
58. See MAY, supra note 5, at 76, 78-79.
59. See H. Jefferson Powell, The Province and Duty of the Political Departments, 65 U. CHI. L. REV. 365, 380-83 (1998). Though he believed the statute was unconstitutional, Clinton said he would enforce it.
60. Id. at 381. Yet he also claimed he would not defend the statute's constitutionality in court.
61. Id.
62. See, e.g., Larry D. Kramer, The Supreme Court 2000 Term Foreword: We the Court, 115 HARV. L. REV. 4, 59 (2000) (suggesting that judicial review of statutes infringing judicial power may have a firmer constitutional basis than judicial review more broadly).
63. See David Greene, Missing Man in the Filibuster Fight, NPR.ORG, May 19, 2005, http:// www.npr.org/templates/story/ story.php?storyId=4659584 ("Time after time after time, administrations have traded away the authority of the president to do his job. We're not going to do that in this administration. The president's bound and determined to defend those principles and to pass on this office, his and mine, to future generations in better shape than we found it." (quoting Vice President Dick Cheney)).
64. This theme of Presidents who try to recapture lost or bartered away presidential powers is a familiar one. For instance, though early-twentieth- century Presidents may have been instrumental in the creation and legitimization of the legislative veto, see Louis Fisher, The Legislative Veto: Invalidated, It Survives, LAW & CONTEMP. PROBS., Autumn 1993, at 273, 277-78, late-twentieth-century Presidents' administrations (Carter's and Reagan's) argued that the innovation was unconstitutional.
65. Id. at 284-85.
66. Such a reaction is by no means guaranteed. As discussed in section I.A, those who deny that the President can disregard any statute might be especially perturbed by the specter of Presidents who disregard statutes meant to limit presidential power. Because these sections discuss different perspectives, it is hardly surprising that people have different intuitions about the desirability of Defensive Executive Disregard and, indeed, any form of Executive Disregard.
67. Presidential Authority, supra note 11, at 200.
68. Id. at 201.
69. Id.
70. Id. Others have endorsed similar multi-factor balancing tests.
71. See, e.g., Barron, Constitutionalism, supra note 20;
72. Johnsen, supra note 20, at 43;
73. Posting of Barron et al., supra note 20.
74. Presidential Authority, supra note 11, at 200.
75. Still, Congress might defend its statute. See, e.g., United States v. Lovett, 328 U.S. 303 (1946) (allowing Congress to defend a statute's constitutionality when the Executive Branch declined to do so).
76. For instance, if no one had Article III standing to challenge the President's decision not to enforce a particular statute, the President's constitutional reading - that the statute was unconstitutional-could not be reviewed in court.
77. U.S. CONST, art. II, § 1.
78. U.S. CONST, art. II, § 3, cl. 4.
79. The Supremacy Clause makes the Constitution law and hence triggers the Faithful Execution duty. See U.S. CONST, art. VI, cl. 2.
80. Imagine a statute that regulated private property disputes in the territories and the District of Columbia. Suppose the statute seemed to take property from A and give it to B. Even though the President might have constitutional concerns about this statute, any refusal to enforce the statute is of no moment because the President is uninvolved in its immediate execution. At most, the President would be involved in the execution of a judicial judgment. But then the President would be enforcing the judgment and not actually enforcing the underlying law. See Baude, supra note 35 (discussing President's duty to enforce judgments even where he disagrees with legal conclusions that underlie judgment).
81. See U.S. CONST, art. I, § 4, cl. 1 (providing that Congress may override the states' laws relating to elections for federal legislators).
82. Given the wording of the President's oath, one might suppose that the President must play a far more active role in precluding constitutional violations. See U.S. CONST, art. II, § 1, cl. 7 ('"I do solemnly swear (or affirm) that I will faithfully execute the Office of President . . . and will to the best of my Ability, preserve, protect and defend the Constitution . . . .'"). For instance, maybe the President ought to aggressively halt violations of the Constitution as a means of preserving, protecting, and defending the Constitution, even where his agency is not required to carry out the violation. As should be clear, this Article does not discuss this broader conception of the duty arising from the President's oath.
83. See MAY, supra note 5, at 144 (non-enforcement is only permissible as a means of securing judicial consideration of the constitutional merits).
84. The next section argues that the Faithful Execution Clause never requires the President to execute unconstitutional laws. See infra section II.A.2.
85. U.S. CONST, art. II, § 1, cl. 7.
86. The presidential oath might plausibly be read as requiring more of the President. The oath arguably requires much more because it seems to require the President to prevent any violations of the Constitution for otherwise the President is not acting to '"preserve, protect and defend the Constitution.'" Id. For instance, if the President believes some state law unconstitutionally infringes upon the rights of criminal defendants, perhaps his oath requires him to take steps to preclude the enforcement of that state statute. Indeed, if the President stands idly by while such constitutional violations occur, he does not seem to be "defend[ing]" the Constitution. Instead he seems more a passive observer of assaults on the Constitution. This conception of the presidential oath is beyond the scope of this Article.
87. See U.S. CONST, art. II, § 3, cl. 4.
88. See U.S. CONST, art. VI, cl. 2.
89. See Easterbrook, supra note 20, at 919;
90. see also Letter from Nicholas Quinn Rosenkranz, Assoc. Professor of Law, Georgetown Univ. Law Ctr., to John Conyers, Chairman, Comm. on the Judiciary, U.S. House of Representatives (Mar. 17, 2007) (included in appendix to Presidential Signing Statements Under the Bush Administration: A Threat to Checks and Balances and the Rule of Law?: Hearing Before the H. Comm. on the Judiciary, 110th Cong. 118, 119-20 (2007), available at htto://www.fas.org/irp/congress/2007_hr/signing.pdf) (making the same point)
91. Ibid.
92. U.S. CONST, art. II, § 2.
93. See generally Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. ILL. L. REV. 701;
94. Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001).
95. U.S. CONST, art. II, § 3, cl. 4.
96. See U.S. CONST, art. I, § 8.
97. U.S. CONST, art. VI.
98. The one exception to this reading of "laws" may be the arising under jurisdiction of Article III. See U.S. CONST, art. III, § 2. If the arising under jurisdiction only referred to constitutional laws, then when people brought cases on the basis of federal statutes, the courts might have to, sua sponte, determine whether the statute was constitutional in order to determine if they had jurisdiction to hear the case. In other words, the constitutionality of federal statutes might become a jurisdictional matter that the federal courts would be forced to consider each time a case arose under a federal statute.
99. See ABA TASK FORCE, supra note 10, at 19.
100. U.S. CONST, art. VI.
101. U.S. CONST, art. II, § 1.
102. U.S. CONST, art. I, § 7.
103. See MAY, supra note 5, at 29.
104. Whenever presidential administrations confront legal questions previously addressed by their predecessors, there is the question of whether they ought to defer to the statutory and constitutional judgments of their predecessors. For instance, Presidents C-Z might apply the policy of stare decisis to the constitutional decisions of President B. Hence they might conclude that even though they believe that certain statutory provisions are constitutional they should nonetheless continue President B's decision not to enforce those same provisions. Though this is not the place to discuss the policy of stare decisis, it is important to note that presidential administrations make many legal decisions, including many constitutional ones, all of which might benefit from decision of a successor President to apply stare decisis to some or all of such decisions.
105. For instance, Congress's broader interpretation of the Free Exercise Clause, as reflected in the Religious Freedom Restoration Act (RFRA), was not rendered pointless merely because the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997), adhered to the narrow conception of free exercise enunciated in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990). Notwithstanding the Supreme Court's unwillingness to enforce RFRA, Congress's expression of disagreement with the Smith free exercise test was useful and meaningful.
106. Similar points were made at Philadelphia by delegates who wished to put judges on a counril of revision that would wield a veto. See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 94-95, 97, 104, 108-12 (Max Farrand ed., 1966). Even though judges would have a chance to declare statutes unconstitutional when deciding cases, arming some judges with a share of the veto gave them a rather different power to prevent something from becoming law for any reason.
107. See id. at 109 (comments of Rufus King, arguing against the proposal), m particular, judges could use policy preferences as a reason to veto some proposed legislation, something that they could not do in their capacity as judges.
108. See id. at 97-98 (arguing against the council of revision, Elbridge Gerry stated that it was contrary to the nature of judges' duties "to make them judges of the policy of public measures").
109. See ABA TASK FORCE, supra note 10, at 18.
110. See Clinton v. City of New York, 524 U.S. 417, 421 (1998).
111. See, e.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-97 (1987) (severing unconstitutional legislative veto provision from other provisions);
112. see also Lars Noah, The Executive Line Item Veto and the Judicial Power To Sever: What's the Difference?, 56 WASH. & LEE L. REV. 235 (1999) (considering the parallels between judicial severance and the Line Item Veto Act enacted during the Clinton administration).
113. See generally Israel E. Friedman, Comment, Inseverability Clauses in Statutes, 64 U. CHI. L. REV. 903 (1997) (discussing courts' dealings with inseverability clauses).
114. See id. at 903.
115. We can distinguish Citizen Disregard from civil disobedience in that the former is a claim that some statute has no force because it is unconstitutional. Though Citizen Disregard is a subset of civil disobedience, civil disobedience often involves the flouting of an unjust law that many or all agree is constitutional.
116. The difference between the President and a citizen is that the President has a general duty to resist unconstitutional statutes, whereas the citizen may acquiesce to abrogation of his rights. The only time the President may acquiesce to an unconstitutional statute is when the only party affected is the President and it does not contradict any of his duties. For instance, if a President does not violate statutes that prohibit him from criticizing members of Congress and bar pardons, his adherence could be explained as a decision that the statute was unconstitutional coupled with a personal decision not to exercise his individual rights and constitutional powers. In contrast, he cannot acquiesce to a statute that calls upon him to abrogate the constitutional rights of others because the President has no ability to decide that others should not exercise their constitutional rights.
117. See Baude, supra note 35.
118. U.S. CONST, art. I, §§ 2-3 (granting the House the sole power to impeach and the Senate the sole power to try impeachments);
119. U.S. CONST, art. II, § 4 (making clear that the President may be impeached). This is not to say that Congress must impeach and convict in this situation, only that it may. Most recognize that impeachment is a political process, where political judgments about the desirability of removing the President play a considerable role in deciding whether to impeach and remove.
120. See generally THE FEDERAUST NO. 65 (Alexander Hamilton) (discussing the role that politics would likely play in impeachments).
121. The possibility that Presidents might be impeached and removed for reaching constitutional conclusions that Congress regards as erroneous might strike some as a lamentable and mistaken reading of what it means to commit a "high Crime[] and Misdemeanor[]." U.S. CONST, art. II, § 4. Yet if the President can avoid being removed merely because he has a good faith belief in the constitutionality of his actions, I am afraid that it will become very difficult (if not virtually impossible) for Congress to ever impeach the President. For Presidents will tend to convince themselves (with the help of their smart legal advisors) that what they are doing is constitutional.
122. From the nation's beginning, Presidents could not go to court in a bid to resolve legal questions that puzzled them. In 1793, George Washington famously sought legal advice from Supreme Court Justices about the meaning of various terms in a treaty with France. The Justices refused to give such advice. For a discussion of this episode of early executive advice-seeking (and others), see STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES 77-170 (1997);
123. Russell Wheeler, Extrajudicial Activities of the Early Supreme Court, 1973 SUP. CT. REV. 123, 144-50. Whether the refusal of the Justices was proper (or consistent with the prior practice) is beside the point. The point here is that the President did not go to court afterward and seek to establish a case or controversy and force the judiciary to opine on these legal matters. Washington presumably did not file such a case because he understood that he could not.
124. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-80 (1803).
125. See Easterbrook, supra note 20, at 919-22;
126. Paulsen, supra note 20, at 241-45.
127. See ABA TASK FORCE, supra note 10, at 5, 20, 25, 27 n.77, 28 (making repeated references to rule of law).
128. Excerpts from Interview with Nixon About Domestic Effects of Indochina War, N. Y. TIMES, May 20, 1977, at A16.
129. See Marbury, 5 U.S. (1 Cranch) at 158-59. It is true that the courts will not entertain suits attempting to enjoin the President.
130. See Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 500-01 (1866). But this poses no real obstacle to judicial review. Congress can write statutes that impose duties on executive officers rather than the President. The President may tell his executive officers not to enforce a law because he believes it is unconstitutional. But should a court conclude otherwise, it can order the official to execute the statute.
131. Modern Presidents have adopted the proper understanding of the President's relationship to judgments. See Baude, supra note 35.
132. See MAY, supra note 5, at 57-64.
133. See id.
134. An Act Regulating the Tenure of Certain Civil Offices § 1, 14 Stat. 430, 430 (1867) (repealed 1887).
135. See MAY, supra note 5, at 61. For a discussion of why the impeachment was justified,
136. see MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON (1973). For a more sympathetic portrayal of Johnson,
137. see generally WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON (1992).
138. See Jodi Wilgoren, Citing Issue of Fairness, Governor Clears Out Death Row in Illinois, N.Y. TIMES, Jan. 12, 2003, at A1.
139. U.S. CONST, art. VI, cl. 2.
140. For a discussion of these (and many other constitutional episodes) in the early Congresses, see DAVID CURRIE, THE CONSTITUTION IN CONGRESS, THE FEDERALIST PERIOD: 1789-1801 (1997).
141. Washington famously received opinions on whether to sign or veto the Bank Bill. See, e.g., Alexander Hamilton, Opinion on the Constitutionality of the Bank (Feb. 23, 1791), in 3 THE FOUNDERS' CONSTITUTION 245, 245-47 (Philip B. Kurland & Ralph Lerner eds., 1987);
142. Thomas Jefferson, Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), in 3 THE FOUNDERS' CONSTITUTION, supra, at 247, 247-50.
143. For a discussion of Washington's conclusion that executive officers served at his pleasure, a decision informed by the Decision of 1789 but not dictated by it, see Saikrishna Prakash, Removal and Tenure in Office, 92 VA. L. REV. 1779 (2006).
144. See George Washington, Veto Message (Apr. 5, 1792), in 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, at 124, 124 (James D. Richardson ed., 1896) [hereinafter PRESIDENTS COMPILATION].
145. See infra notes 217-44, 247-58 and accompanying text.
146. See Andrew Jackson, Veto Message (July 10, 1832), in 2 PRESIDENTS COMPILATION, supra note 103, at 576.
147. 17 U.S. (4 Wheat.) 316, 425 (1819).
148. See Letter from Thomas Jefferson to Edward Livingston (Nov. 1, 1801), in 8 THE WRITINGS OF THOMAS JEFFERSON, supra note 17, at 57;
149. Jackson, supra note 105, at 582.
150. U.S. CONST, art. II, § 1, cl. 8.
151. See U.S. CONST, art. III, § 2, cl. 1 (noting that judicial power granted in Article III, Section 1 extends to several classes of "Cases" or "Controversies").
152. Executive Disregard cannot be used as a means of expanding federal legislative power because like judicial review, Executive Disregard cannot force Congress to enact expansive federal statutes. The President cannot use his duty to disregard unconstitutional statutes as a means of convincing Congress to enact statutes curtailing civil liberties or to enact statutes embracing a broad view of the commerce power. Because Executive Disregard is a duty and not a power, the President cannot use the duty as a bargaining chip that might be used to convince Congress to enact statutes that expand federal power.
153. See U.S. CONST, art. I, § 4, cl. 1 (permitting Congress to override state election laws relating to elections of federal legislators);
154. U.S. CONST, art. I, § 10, cl. 2 (permitting Congress to revise state tariffs on exports and imports).
155. For skepticism about such claims, see generally Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541 (1994);
156. Prakash, supra note 64.
157. The only way that Executive Disregard could matter with respect to the statutes committed to the independent agencies is if the President concluded that it is unconstitutional for Congress to vest law execution power with independent agencies. One can imagine such a President assuming control of independent agencies and commanding their officials to refrain from enforcing those provisions that the President believes are unconstitutional. Alternatively, the President might conclude that the Congress would have wanted an entire regulatory scheme rendered a nullity if either a court or the President concluded that the underlying independent agency was unconstitutional. Having concluded that independent agencies are unconstitutional and that Congress would have wanted the entire statutory scheme rendered inoperative if such a decision was made, the President would bar the execution of any portion of such statute. Obviously, this decision would end the enforcement of the laws that the President regards as unconstitutional.
158. See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV. 123, 126-29 (1999).
159. See MAY, supra note 5, at 3-8.
160. Bill of Rights, 1689, 1 W. & M., c. 2 (Eng.).
161. See generally THE FEDERALIST NO. 69 (Alexander Hamilton).
162. See, e.g., MAY, supra note 5, at 127.
163. See id. at 37-38 (quoting the government's argument, which was adopted by the court in United States v. Smith, 27 F. Cas. 1192 (C.C.N.Y. 1806) (No. 16,342)).
164. See generally C. ELLIS STEVENS, SOURCES OF THE CONSTITUTION OF THE UNITED STATES: CONSIDERED IN RELATION TO COLONIAL AND ENGLISH HISTORY (2d ed. 1894);
165. see also infra notes 156-59 and accompanying text (discussing the British origins of the Constitution).
166. See, e.g., Browning-Ferris Indus, of Vt, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266-67 (1989) (drawing upon the meaning of the English Bill of Rights to illuminate the meaning of the Excessive Fines Clause of Eighth Amendment);
167. United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (drawing upon English law to discern scope of pardon power).
168. MAY, supra note 5, at 3-4.
169. Carolyn A. Edie, Tactics and Strategies: Parliament's Attack upon the Royal Dispensing Power 1597-1689, 29 AM. J. LEGAL HIST. 197, 198 (1985).
170. Id.
171. MAY, supra note 5, at 5.
172. See F.W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 302-03 (1908).
173. See id.
174. See MAY, supra note 5, at 6-7.
175. See FRANK BATE, DECLARATION OF INDULGENCE, 1672: A STUDY IN THE RISE OF ORGANISED DISSENT 123 (1908) (describing how Charles II withdrew his Declaration of Indulgence, which had suspended certain laws).
176. MAY, supra note 5, at 7.
177. See BATE, supra note 129. The fact that suspensions could be withdrawn necessarily meant that the previously suspended law could then be executed. Indeed, the very word "suspension" implies a temporary measure.
178. Edie, supra note 123, at 228, 230.
179. Bill of Rights, 1689,1 W. & M., c. 2 (Eng.).
180. MAY, supra note 5, at 23.
181. See Sai Prakash, Take Care Clause, in THE HERITAGE GUIDE TO THE CONSTITUTION 222, 222 (2005) (discussing the state antecedents in New York and Pennsylvania).
182. See, e.g., id. at 16;
183. ABA TASK FORCE, supra note 10, at 19.
184. See VT. CONST, ch. I, § 20.
185. See id. § 15.
186. U.S. CONST, art. II, § 1, cl. 1 ("The executive Power shall be vested in a President of the United States of America.").
187. See MAY, supra note 5, at 16.
188. See id. at 3.
189. See ABA TASK FORCE, supra note 10, at 19.
190. See supra text accompanying notes 123-25.
191. See Edie, supra note 123, at 209 n.25 (classifying the
192. See, e.g., WILLIAM EDWARD HEARN, THE GOVERNMENT OF ENGLAND: ITS STRUCTURE AND ITS DEVELOPMENT 44 (2d ed. 1886) (describing how Charles II had used the suspending power to suspend the Navigation Acts, laws related to vehicles, and other matters of "minor importance," thereby indicating that the Crown had discretion).
193. EDGAR SANDERSON, A HISTORY OF THE BRITISH EMPIRE 249 (1882);
194. see also id. at 263 (describing James II as claiming the right to "null all penal statutes that he chose").
195. 2 JAMES MACKINTOSH, Review of the Causes of the Revolution of 1688, in THE MISCELLANEOUS WORKS OF THE RIGHT HONOURABLE SIR JAMES MACKINTOSH 1, 161-62 (new ed. 1854) ("[T]he King ... must have resolved on altogether suspending the operation of penal laws relating to religion by one general measure .... But every exercise of the power of indefinitely suspending a whole class of laws which must be grounded on general reasons of policy, without any consideration of the circumstances of particular individuals, is evidently a more undisguised assumption of legislative authority.").
196. See MAY, supra note 5, at 5-6, 8.
197. Id. at 19 (listing events like the Magna Carta, the Petition of Right, and the Bill of Rights).
198. For instance, William and Mary agreed to the Bill of Rights and the Act of Settlement, each of which limited the Crown's powers in various ways. See History of the Monarchy: The Stuarts - Mary II and William III, http://www.royal.gov.uk/output/page100.asp (last visited Feb. 29, 2008).
199. See 2 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 432 (Jonathan Elliot ed., 2d ed. 1891) [hereinafter ELLIOT, DEBATES] (noting the comments of James Wilson that "[t]he British constitution is just what the British Parliament pleases" and that "[t]he idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. There are, at least, no traces of practice conformable to such a principle.").
200. See U.S. CONST, art II, § 1, cl. 7.
201. See id
202. See Coronation Oath Act, 1688, 1 W. & M., c. 6 (Eng.) (including no language in the Coronation Oath similar to the U.S. President's duty to "preserve, protect and defend the Constitution").
203. Although the Coronation Oath Act states that the monarch must "maintaine ... the People and Inhabitants ... in their Spirituall and Civill Rights and Properties," id., in a system of Parliamentary supremacy, the Crown was supposed to safeguard the spiritual and civil rights of citizens, as laid down by Parliament. Indeed, this language was preceded by a requirement "to maintaine the Statutes Laws and Customs of the said Realme."
204. Id. Moreover, the actual oath included this latter phraseology and pointedly required the Crown to protect the rights and privileges of Anglicans.
205. Id. (swearing to govern "according to the Statutes in Parlyament Agreed on" and to "maintaine the Laws of God the true Profession of the Gospell and the Protestant Reformed Religion Established by Law"). These rights came at the expense of others, such as Catholics and other Protestants.
206. See generally STEVENS, supra note 120.
207. U.S. CONST, art. Et, § 2, cl. 1;
208. see United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (noting that the English Crown had the pardon power and drawing upon English law and treatises to discern the scope of the pardon power).
209. See U.S. CONST, art. III, § 1.
210. For a discussion of the meaning of good behavior tenure and its English origins, see Saikrishna Prakash & Steven D. Smith, How To Remove a Federal Judge, 116 YALE L.J. 72, 88-128 (2006).
211. See U.S. CONST, art. I, § 6, cl. 1.
212. For the English origins of the Speech and Debate Clause, see 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 159-61 (1765).
213. See supra note 151 and accompanying text (discussing how Parliament could change the British Constitution simply by statute).
214. See generally Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. CHI. L. REV. 887 (2003).
215. See Coronation Oath Act, 1688, 1 W. & M., c. 6 (Eng.): This oath was incorporated by the Act of Settlement, 1700, 12 & 13 Will. 3, c. 2, § 2 (Eng.).
216. U.S. CONST, art. II, § 1, cl. 7.
217. Letter from Thomas Jefferson to Abigail Adams, supra note 16, at 275.
218. See generally Kramer, supra note 39 (arguing that the people were active in defending their constitutional rights).
219. THOMAS JEFFERSON, A Summary View of the Rights of British America, in THE ESSENTIAL JEFFERSON 3, 7 (Jean M. Yarbrough ed., 2006).
220. 2 AMERICAN ARCHIVES: A DOCUMENTARY HISTORY, FOURTH SERIES 883 (Peter Force ed., 1846);
221. see also id at 884.
222. TRACTS OF THE AMERICAN REVOLUTION, 1763-1776, at xxxi (Merrill Jensen ed., Hackett Publ'g Co. 2003) (1966).
223. Id.
224. JOSIAH QUINCY, JUNIOR, REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT OF JUDICATUR OF THE PROVINCE OF MASSACHUSETTS BAY, BETWEEN 1761 AND 1772, at 474 (Samuel M. Quincy ed., 1865).
225. James Otis, The Rights of the British Colonies Asserted and Proved, in 1 PAMPHLETS OF THE AMERICAN REVOLUTION, 1750-1776, at 408, 454 (Bernard Bailyn ed., 1965).
226. Strangely enough, Otis thought that Americans were nonetheless bound to obey these "void" laws. See id. at 448.
227. 1 N.C. (Mart.) 5 (1787).
228. 1 Kirby 444 (Conn. Super. Ct. 1785).
229. See Commonwealth v. Caton, 8 Va. (4 Call) 5 (1782) (noting that unconstitutional laws were void, while finding the act in question constitutional).
230. See generally William Michael Treanor, The Case of the Prisoners and the Origins of Judicial Review, 143 U. PA. L. REV. 491 (1994) (discussing the Case of the Prisoners as evidencing early acceptance of judicial review).
231. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 76, at 376.
232. See id. at 78, 92, 93, 440.
233. 4 ELLIOT, DEBATES, supra note 151, at 188.
234. 2 id. at 196.
235. 3 id. at 539-41.
236. 2 id. at 93.
237. Id. at 446 (emphasis omitted).
238. The ABA Task Force colorfully referred to Wilson's statement as a "vagrant remark." ABA TASK FORCE, supra note 10, at 18. If by "vagrant," the Task Force meant "isolated," the Task Force is well off the mark. As we have seen, numerous people were of the view that unconstitutional laws would be null and void. Moreover, Wilson was one of the most learned lawyers of his day and would become a Supreme Court Justice. Wilson may have been mistaken, but it is wrong to dismiss his statement so casually.
239. 2 ELLIOT, DEBATES, supra note 151, at 162.
240. THE FEDERALIST NO. 44, at 131 (James Madison) (Roy P. Fairfield ed., 2d ed. 1981).
241. Madison's statement makes no sense under a premise that the Executive must enforce unconstitutional laws. If the Executive had to enforce unconstitutional laws, the success of the congressional violation of the Constitution clearly would not depend on the Executive at all. The success of the usurpation would depend on nothing more than the passage of an unconstitutional law, with Executive enforcement following automatically.
242. See generally Prakash & Yoo, supra note 161.
243. Letter from George Washington to the Senate (Feb. 28, 1793), in 32 THE WRITINGS OF GEORGE WASHINGTON 362, 362 (John C Fitzpatrick ed., 1939).
244. GLENN A. PHELPS, GEORGE WASHINGTON AND AMERICAN CONSTITUTIONALISM 137 (1993) (citing U.S. CONST, art. I, § 6, cl. 2).
245. Id.
246. There is no reason to suppose that Washington believed that his unconstitutional actions were uniquely null and void. Rather his statement suggests that unconstitutional actions were null and void, whatever their origin.
247. George Washington, Thanksgiving Proclamation Address to Regional Meeting of Quakers (Oct. 3, 1789), in GEORGE WASHINGTON: A COLLECTION 534, 534-35 (W.B. Allen ed., 1988) (emphasis added).
248. George Washington, Third Annual Address, Address to Congress (Oct. 25, 1791), in 1 PRESIDENTS COMPILATION, supra note 103, at 103, 105 (emphasis added).
249. See Circular from George Washington to the Governors of Pennsylvania, North Carolina, and South Carolina (Sept. 29, 1792), in 10 THE WRITINGS OF GEORGE WASHINGTON 533, 533 (Jared Sparks ed., 1855) (emphasis added).
250. Letter from George Washington to Alexander Hamilton (Feb. 16, 1791), in 8 THE PAPERS OF ALEXANDER HAMILTON 50, 50 (Harold C. Syrett & Jacob E. Cooke eds., 1965).
251. PHELPS, supra note 188, at 152, 154.
252. Id. at 176-77.
253. Id. at 176.
254. Id.
255. 2 JOURNAL OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, BEING THE FIRST SESSION OF THE FOURTH CONGRESS: BEGUN AND HELD AT THE CITY OF PHILADELPHIA, DECEMBER 7, 1795, at 488 (1826) [hereinafter JOURNAL OF THE HOUSE].
256. See PHELPS, supra note 188, at 177.
257. Washington agreed that had the House requested the papers in their impeachment capacity, they would have had every right to the papers. Id.
258. 2 JOURNAL OF THE HOUSE, supra note 199, at 489.
259. Id.
260. In a previous article, I suggested that Washington might have complied with the House's request had a statute commanded him to turn over the documents. See Saikrishna Bangalore Prakash, A Critical Comment on the Constitutionality of Executive Privilege, 83 MINN. L. REV. 1143, 1180 (1999). Reexamining the episode, I now think that previous suggestion was in error.
261. U.S. CONST, art. VI, cl. 2.
262. See PHELPS, supra note 188, at 162-63.
263. See id. at 152.
264. For an extended discussion of why the President has a power to remove executive officers, see Prakash, supra note 102, at 1815-45.
265. See Letter from John Adams to Benjamin Rush (Dec. 25, 1811), in CORRESPONDENCE OF JOHN ADAMS AND THOMAS JEFFERSON, 1812-1826, at 26, 27 (Paul Wilstach ed., 1925).
266. 3 JOHN ADAMS, DIARY AND AUTOBIOGRAPHY OF JOHN ADAMS 283 (L.H. Butterfield ed., 1962). The Stamp Act required numerous documents (including newspapers, legal documents, and playing cards) to carry a tax stamp.
267. For a discussion of the Stamp Act, see generally EDMUND S. MORGAN & HELEN M. MORGAN, THE STAMP ACT CRISIS: PROLOGUE TO REVOLUTION (new revised ed., Collier Books 1963) (1953).
268. 3 ADAMS, supra note 209, at 283.
269. Id. at 283-84.
270. See MORGAN & MORGAN, supra note 209, at 182.
271. John Adams, Instructions of the Town of Braintree to Their Representative, BOSTON GAZETTE, Oct. 14, 1765, at D2
272. reprinted in 3 JOHN ADAMS, THE WORKS OF JOHN ADAMS 465, 465 (Charles Francis Adams ed., 1851).
273. Id.
274. reprinted in 3 ADAMS, supra note 213, at 465, 467.
275. John Adams, Novanglus No. VI, BOSTON GAZETTE, Feb. 27, 1775
276. reprinted in JOHN ADAMS & JONATHAN SEWALL, NOVANGLUS AND MASSACHUSETTENSIS 62, 70 (1819) (writing in response to Massachusettensis, who was initially believed to be Jonothan Sewall, but later determined to be Daniel Leonard).
277. See JEFFERSON, supra note 166, at 7.
278. See Kentucky Resolutions of 1798 and 1799, in 4 ELLIOT, DEBATES, supra note 151, at 540, 540-41 (noting that the original draft was prepared by Jefferson).
279. Id. at 541.
280. Id. at 540-42.
281. Akhil Reed Amar, Kentucky and the Constitution: Lessons from the 1790s for the 1990s, 85 KY. L.J. 1, 3 (1997).
282. See Letter from Thomas Jefferson to Edward Livingston, supra note 17, at 57-58.
283. Alien and Sedition Act of 1798, ch. 74, § 4, 1 Stat. 596, 597 (1798).
284. See PETER S. ONUF & LEONARD J. SADOSKY, JEEFERSONIAN AMERICA 33 (2002) (noting that Jefferson took office on March 4, 1801).
285. Alien and Sedition Act of 1798, ch. 74, § 4, 1 Stat. 596, 597 (1798).
286. Id.
287. See Letter from Thomas Jefferson to William Duane (May 23, 1801), in 8 THE WRITINGS OF THOMAS JEFFERSON, supra note 17, at 54, 55.
288. Id. at 55.
289. Letter from Thomas Jefferson to Edward Livingston, supra note 17, at 57-58.
290. Message from Thomas Jefferson to the Senate, in 8 THE WRITINGS OF THOMAS JEFFERSON, supra note 17, at 57-58 n.1 (also noting that the message may never have been transmitted to the Senate).
291. Letter from Thomas Jefferson to Wilson Cary Nicholas (June 13, 1809), in 9 THE WRITINGS OF THOMAS JEFFERSON, supra note 17, at 253, 254 (1898).
292. Letter from Thomas Jefferson to Abigail Adams, supra note 16, at 275.
293. Id.
294. Id. at 276.
295. Letter from Thomas Jefferson to Abigail Adams (Sept. 11, 1804), in 1 THE ADAMS-JEFFERSON LETTERS, supra note 16, at 278, 279.
296. Id. (emphasis added).
297. Letter from Thomas Jefferson to Gideon Granger (Mar. 19, 1814), in 9 THE WRITINGS OF THOMAS JEFFERSON, supra note 17, at 454, 456-57 (1898).
298. Id. at 457.
299. The Paragraph Omitted from the Final Draft of Jefferson's Message to Congress, December 8, 1801, in 3 ALBERT J. BEVERIDGE, THE LIFE OF JOHN MARSHALL app. A at 605, 605 (1919) [hereinafter Paragraph Omitted].
300. Id.
301. Id.
302. Id.
303. Id. at 605-06.
304. Id. at 606.
305. Jefferson decided against using the passage because it was "'capable of being chicaned, and furnishing the opposition something to make a handle of.'" DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 269 (1994) (noting that Jefferson wrote this sentence on the margin of his Paragraph Omitted, supra note 238);
306. see also JEREMY D. BAILEY, THOMAS JEFFERSON AND EXECUTIVE POWER 229 (2007).
307. Letter from Thomas Jefferson to Levi Lincoln (June 1, 1803), in 8 THE WRITINGS OF THOMAS JEFFERSON, supra note 17, at 233, 238 n.1 (emphasis added).
308. See id.
309. See supra note 234 and accompanying text.
310. Letter from Thomas Jefferson to Edward Livingston, supra note 17, at 58 n.1.
311. See supra text accompanying notes 222-25.
312. That Jefferson affirmatively decided not to enforce the Sedition Act is confirmed by analogy. Suppose a benefit statute provides that anyone who gets a college degree is entitled to $1000. And suppose the statute specifically provides that everyone who meets the eligibility requirements before the statute expires is entitled to the benefit. Even after the statute expires, the law requires the Executive to disburse the funds. He cannot decline to disburse the funds on the grounds that the statute has expired, for the statute continues to have lingering and significant effects.
313. See U.S. CONST. art. II, § 2, cl. 1.
314. See Saikrishna Prakash, The Chief Prosecutor, 73 GEO. WASH. L. REV. 521, 579 & n.336 (2005).
315. See supra section III.A.1 (discussing English suspensive power).
316. 27 F. Cas. 1192, 1203 (C.C.N.Y. 1806) (No. 16, 342).
317. Id.
318. Id. at 1230.
319. See THOMAS JEFFERSON, Opinion on the Constitutionality of a National Bank, in 5 THE WRITINGS OF THOMAS JEFFERSON, supra note 17, at 284-89 (1895).
320. MAYER, supra note 244, at 209.
321. What might have Jefferson done to impede the operations of the Bank? He might have withdrawn all federal funds, as Andrew Jackson did. See RICHARD H. TIMBERLAKE, MONETARY POLICY IN THE UNITED STATES 43 (1993).
322. Or Jefferson might have tried to have the Bank's stock sold to the public, thus privatizing the Bank, as Jackson proposed. See Jackson, supra note 105, at 577 (suggesting that Congress sell all stock in the Bank of the United States). Finally, Jefferson might have taken more extreme measures, such as using marshals to shut down branches.
323. Letter from Thomas Jefferson to Edward Livingston, supra note 17, at 58 n.1 ("I affirm that act to be no law, because in opposition to the constitution; and I shall treat it as a nullity, wherever it comes in the way of my functions." (emphasis added));
324. Letter from Thomas Jefferson to William Duane, supra note 226, at 55 ("[W]henever in the line of my functions I should be met by the Sedition law, I should treat it as a nullity." (emphasis added)).
325. See JEFFERSON, supra note 257, at 288.
326. See MAYER, supra note 244, at 209.
327. Id.
328. As noted earlier, the Kentucky Resolutions denounced several statutes as unconstitutional. See supra text accompanying notes 217-19. I know of no evidence that Jefferson's administration either enforced or did not enforce the statutes that Jefferson had previously denounced as unconstitutional and therefore void.
329. In 1980, Attorney General Benjamin Civiletti claimed that "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 Attorney General's Duty To Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. Off. Legal Counsel 55, 58 (1980) (memorandum from Attorney General Benjamin R. Civiletti). Civiletti was unaware of much of the evidence discussed in this Article. Moreover, Civiletti spoke of a privilege rather than a duty. Thus Civiletti was searching for evidence for the wrong proposition. Finally, the question is not whether there is tremendous evidence for a duty to disregard. The question is whether the evidence favors that proposition over a proposition that apparently has no early evidence in its favor.
330. Letter from Thomas Jefferson to Abigail Adams, supra note 16, at 275 (noting that just because courts had judged Sedition Act constitutional did not mean that the President had to come to same conclusion).
331. See Kentucky Resolutions of 1798 and 1799, supra note 217, at 541.
332. See Presidential Authority, supra note 11, at 200.
333. See generally Barron, Constitutionalism, supra note 20;
334. Johnsen, supra note 20;
335. Posting of Barron et al., supra note 20.
336. See supra section I.E.
337. See supra section II.A.
338. Presidential Authority, supra note 11, at 200.
339. See U.S. CONST. art. II, 1, cl. 7.
340. See WALTER E. DELLINGER ET AL., PRINCIPLES TO GUIDE THE OFFICE OF LEGAL COUNSEL 1 (2004), available at http://www.acslaw.org/files/ 2004%20programs_OLC%20principles_white%20paper.pdf (noting that OLC opinions are considered binding on the Executive Branch).
341. Of course, nothing said here precludes the President from silently disregarding statutes on the grounds that they are unconstitutional. In many cases, however, such disregard may be possible to detect, as when prosecutions of a particular statute are discontinued for no stated reason. Saying nothing in such a context will invite suspicion and hence it makes little sense for the President to disregard silently in this situation. Where it is difficult or impossible to detect whether the Executive Branch has chosen to ignore a statute, Presidents might choose to engage in Executive Disregard without any announcement and the attendant publicity. But regardless of whether the Constitution requires Executive Disregard, Presidents have the practical ability to surreptitiously ignore some statutory provisions. That is to say, if the public cannot tell whether an administration is honoring a statutory command, a President already has the practical ability to flout that statutory command. The duty to disregard provides no additional cover in this situation. Put simply, Executive Disregard does not make it easier to avoid detection when a President chooses to disregard a statutory provision; it merely provides a potential legal excuse for presidential non-enforcement of some statutory provision.
342. Presidents might be most tempted to silently disregard statutes that they regard as unconstitutional where doing so will enable them to better execute other statutes or better fulfill other duties. A President who believes that some statute limiting his enforcement options is unconstitutional may well choose to disregard the statute silently for fear that highlighting his constitutional disagreement and disregard will bring unhelpful attention to the enforcement methods and mechanisms that will be useful in ensnaring alleged criminals. Yet, when the President declines to shed light on his decision to disregard and that decision comes to light, he invites more fierce second-guessing about his motives and about the wisdom of his decision.
343. See JEFFERSON, supra note 257, at 289.
344. GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME: FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 71 (2004) (noting that Sedition Act harmed Federalists and helped Republicans).
345. MAYER, supra note 244, at 270.
346. MAY, supra note 5, at 57-59.
347. Id. at 59.
348. See Baude, supra note 35.
349. Letter from Thomas Jefferson to Edward Livingston, supra note 17, at 58 n.1.