The law and its officers

[fpb]

Point one: Mr Eric Holder, the United States' chief law enforcement officer, has announced that his department will not defend lawsuits involving the Defence of Marriage Act, a federal law duly passed by Congress and signed by (a Democrat) President.
Point two: In Italian law there is a crime called omission of an official duty, which carries, I believe, a jail term.

Comments

[fpb.livejournal.com]

Sorry, I don't see it. The President has no more right to decide which law is constitutional or not than any other elected or unelected officer, with the exception of judges, [part of] whose job it is. The executive is supposed to execute, that is, carry out, the laws. If we thought otherwise, there would be no defence against, say, a law enforcement officer sympathetic to a terrorist movement deciding that the laws that condemn terrorism are unconstitutional. Or has that already happened?

[luckymarty.livejournal.com]

The President takes an oath to uphold the Constitution. Both Congress and the President have in recent years decided to farm out the duty of deciding what the Constitution is to the Supreme Court. This is an understandable reaction to the prevailing school of constitutional interpretation which has (to be blunt) been corrupted by both theory and practice over the course of the last several decades.

However, it is by no means self-evident that the President ought to pretend that he doesn't possess the faculty of judgement in upholding his duties of office. Take the easy case first: if the President thinks that a bill passed by Congress is unconsitutional, he has a duty to veto it. The case in which an unconstitutional law has been passed and signed by a predecessor is harder. If it's gone before the Supreme Court and withstood constitutional scrutiny, the President ought to uphold it. Most laws, however, have never undergone such judicial review. In such a case, if the President is convinced a statute is unconstitutional, it's in keeping with his oath of office to refuse to enforce it. It would also, of course, be incumbent on him in such a case to seek to have the offending statute repealed by Congress (which he has no resources to accomplish other than rhetorical) or overturned by the Supreme Court (which he is in a good position to accomplish through the Department of Justice).

Note that I don't say this duty exists for all members of the executive branch: under the Consitution, all of the President's underlings have only delegated constitutional authority. A similar duty *does* exist for members of Congress, but it only affects how they ought to vote on proposed legislation.

Anyway, that's the argument. For what it's worth, I think it's probably correct in the abstract -- but it's probably just as well it's not commonly accepted under the current constitutional regime, in which all three branches of the federal government routinely exceed their powers.