Take Care Now: Stare Decisis and the President’s Duty to Defend Acts of Congress

INTRODUCTION On January 20, 1981, Ronald Wilson Reagan took the Article II oath of office to become the fortieth President of the United States. (1) Following his inaugural address to the assembled throng on the National Mall streaming west from the Capitol, Reagan entered the Capitol building for the traditional lunch with members of Congress in Statuary Hall. (2) On that day, President Reagan also established what is now a tradition of going to the President's Room in the Capitol after taking his oath to sign a series of executive orders and officially transmit to the Senate his first series of nominations for many Cabinet-rank officials and various other principal officers. (3) Now step away from history into an alternate reality. Imagine that in the aforementioned series of nominations, there was no Secretary of Education. The explanation is found in one of President Reagan's executive orders. The President is acting upon the position he articulated as a candidate in 1980, that the Department of Education is unconstitutional, (4) as is the Act of Congress that created it and annually authorizes it. Therefore, President Reagan (1) will not nominate any principal officers to lead this agency; (2) will not appoint any inferior officers to implement its programs; (3) will order all civil servants in the agency not to do any work for its programs; (4) will spend no money on any of the agency's programs (beyond the salaries and benefits for employees), even if appropriated by Congress; and (5)--especially relevant to this Article on the duty to defend--will not defend any aspect of the agency or its programs against any legal challenges. Similarly, the Reagan Administration will not enforce or defend myriad provisions of the Clean Air Act, (5) Clean Water Act, (6) and Endangered Species Act, (7) as the President deems those statutes to be in excess of Congress's enumerated powers under the Commerce Clause. (8) Moreover, the President is ordering the Attorney General to identify additional Acts of Congress that are unconstitutional in whole or in part, as determined in accordance with the original meaning of Congress's enumerated powers in Article I, Section 8 of the Constitution, so that he may order such acts to be left dormant and undefended. The President is confident there are many such statutes and will also, by executive order, repeal all regulations implementing those statutes, once identified. President Reagan informs the nation that he can do so because the Constitution requires him to take Care that the Laws be faithfully executed. (9) He explains that this not only empowers him, but in fact obligates him, as a sworn constitutional officer, to make his own judgment regarding whether an Act of Congress is constitutional, and if in his sole judgment it is not, then to him it is a complete nullity. For each such statute, the President will not administer it, not fund it, and not defend it. In sum, it will be as if the statute does not exist. Had President Reagan invoked this rationale to effectuate his campaign statements regarding his sincerely-held opinions on the Constitution, much of the federal government would have been indefinitely paralyzed. Major federal programs would have been effectively abolished. As soon as a new President were elected to succeed President Reagan, however, those agencies and programs might come roaring back to life while a new slate of agencies and programs would suddenly be left dormant and undefended if a constitutional challenge were brought against them. Some scholars and law review articles argue that not only is the scenario sketched above possible--the Constitution actually demands it in so far as the President believes Acts of Congress to be unconstitutional. (10) They argue for a weak duty to defend--defined by the absence of an obligation to defend laws the President contends are unconstitutional--and seem to proceed from the view that the President's oath to preserve, protect, and defend the Constitution obliges him to essentially review the constitutionality of the entire United States Code de novo, with regard to each statute on the books and each provision within each of those statutes. …