When it comes to getting his way on domestic policy, President Obama seems to have found a model in Herman Melville’s Bartleby, the Scrivener: What he cannot accomplish through the legislative process, he is achieving through deliberate inaction. When asked to do his job, Bartleby replies, “I prefer not to.” Notwithstanding President Obama’s constitutional duty to enforce the laws of the United States, he prefers not to. Where federal laws conflict with his policy preferences on controversial issues such as gay marriage, illegal immigration, and drug policy, the president has opted not to enforce or defend them. And, remarkably, he is doing this with the support of the Supreme Court.
By a narrow margin, the high court recently endorsed the president’s approach in two important cases involving the nonenforcement and nondefense of federal law: Arizona v. United States (2012) and United States v. Windsor (2013). These rulings go well beyond upholding the constitutionality of the president’s political agenda. They recognize and affirm the power of the president to shape public policy through what effectively amounts to the unilateral repeal of legislation—without the involvement of the legislative branch of the U.S. government. The Court has acquiesced in the creation of a super-veto that is a patent violation of the separation of powers.
Article II of the Constitution requires that the President “take Care that the Laws [of the United States] be faithfully executed.” And yet, despite this plain language, the president does have limited discretion not to enforce a federal law he believes is unconstitutional. After all, the president, like all public officials, swears an oath to preserve, protect, and defend the Constitution. The executive branch, which the president runs, is co-equal with the legislative branch, which Congress runs. Thus the president’s opinion on constitutional questions is not subordinate to the opinion of the legislature.
But historically the president has declined to enforce federal laws only in order to fend off attempts by Congress to limit the powers of the executive branch. For example, President Woodrow Wilson refused to comply with the Tenure of Office Act, which limited the president’s removal powers, and was vindicated when the Supreme Court invalidated the statute in Myers v. United States (1926).1 Similarly, there has been extensive debate over congressional encroachment on executive-branch autonomy under the War Powers Act, but it has never provoked a confrontation between the executive and the legislative for adjudication by the Supreme Court.
This is a mark of how rarely the executive branch has refused to enforce a federal law. It is no longer so rare, though, thanks to novel efforts by the Obama administration. Nonenforcement has become a useful tool in the administration’s political and electoral chest. Even more vexingly, the Supreme Court, under the leadership of Chief Justice John Roberts, is facilitating this highly problematic new approach to law and its enforcement.
Take illegal immigration. In 2011, the administration issued a directive to the leadership of the Immigration and Customs Enforcement Agency, or ICE. Citing limited resources, the directive instructed ICE to focus its enforcement efforts on felons, gang members, and individuals with extensive records of immigration fraud. All other illegal immigrants were to be treated as low-priority cases. With federal enforcement measures curtailed, the directive left Arizona even more vulnerable than usual to the effects of illegal immigration. The state responded by passing a local statute to fill the enforcement gap. That statute, S.B. 1070, incorporated offenses codified in the federal Immigration and Naturalization Act into Arizona state law. It also established state-level enforcement mechanisms and penalties for violations.
The Department of Justice challenged the statute’s constitutionality on the grounds that it encroached upon the foreign-relations power of the president and upon a field of regulation exclusive to the federal government. Arizona countered that the statute was constitutional because it did nothing more than enforce a federal law on the local level.
The issue came before the Supreme Court in Arizona v. United States. Chief Justice Roberts joined with Justices Kennedy, Breyer, Ginsburg, and Sotomayor in ruling that the Arizona statute was unconstitutional because federal law preempts the entire field of immigration law—thereby invalidating even those portions of the Arizona statute that merely codified the U.S. Immigration Act into state law. In his dissent, Antonin Scalia heaped scorn upon the opinion: “To say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”
But neither the majority nor the dissent mentioned that the administration’s constitutional arguments against the Arizona statute were late introductions to the debate. The executive’s decision not to enforce federal immigration law fully had nothing to do with the Constitution and everything to do with politics. The ICE directive came on the heels of the failure of the DREAM Act,2 the cornerstone of the Obama administration’s immigration-reform agenda, to advance in the Senate in late 2010. The Act would have provided a fast track to citizenship for certain illegal immigrants who had entered the United States as children, graduated from high school, or served in the United States armed forces. With an election year ahead and with Hispanic activists growing increasingly frustrated with the administration’s lack of progress on immigration issues, the ICE directive granted effective amnesty to the very people who would have benefited from the DREAM Act. Thus, where President Obama could not reform the law, he ignored it. And the Supreme Court’s ruling in Arizona signaled to the states that there was nothing they could do about it.
In the same year that the president instructed ICE agents not to enforce federal immigration law fully, he also instructed the Department of Justice not to defend the Defense of Marriage Act—which defined marriage for federal purposes as between one man and one woman—from legal challenge. In 2010, the statute was challenged by a recently widowed lesbian whose marriage was valid under New York law but not under federal law. She argued that federal nonrecognition of her marriage under DOMA was unconstitutional. When the Second Circuit Court agreed, neither party had a reason to appeal the ruling to the Supreme Court. The plaintiff had won her case and the administration had won a victory for gay rights simply by not defending the suit. Both sides could have gone home happy. But at every level of the suit, the Bipartisan Legal Advocacy Group (BLAG) of the House of Representatives intervened to defend the constitutionality of DOMA.
The BLAG is a standing group within the House whose function is to coordinate with the House Office of General Counsel. It consists of the speaker of the House, majority leader, majority whip, minority leader, and minority whip. When the BLAG decided to intervene in the Windsor case, it did so by a 3–2 vote (reflecting the partisan composition of the House). But before the BLAG could make its case in defense of DOMA, it first had to persuade the Court that it had standing in the suit. For a party to have standing in the federal courts, there must be genuine “adversity” between them. Article III of the Constitution requires that there be an actual case or controversy between the litigants before the courts can assert jurisdiction over their case. That is, the claimant must be seeking a remedy from the court for personal and tangible harm, not just a general advisory opinion on what the Court thinks the law is.
The majority of the Supreme Court—Justices Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor—ruled that the BLAG had standing in Windsor because of its interest “in defending the constitutionality of its legislative handiwork.” But as the chief justice, Justice Scalia, and Justice Thomas pointed out in their dissents, the BLAG does not have any “legislative handiwork” of its own. It does not represent all of Congress, but is simply an informal advisory group within the House. Congress can intervene in proceedings in defense of its legislation, but only by joint resolution of the House and Senate. That was not the case in Windsor, though. BLAG did not have standing to serve as the plaintiff. So why did the Court say it did?
Justice Scalia answered the question: The majority was so “eager—hungry—to tell everyone its view of the legal question at the heart of” Windsor that it accepted the BLAG’s standing so it would have the opportunity to do precisely that. The trouble, of course, is that if judges are not following the rules, who is? The standing requirement exists for a reason. It limits the power of the judiciary over legislation and public policy, affairs vested by the Constitution in the executive and legislative branches, by prohibiting judges from answering legal questions in the abstract.
In Windsor, enough judges on the Court agreed with the president’s view of marriage equality to dispense with procedural requirements and provide him with a judicial imprimatur where legislative approval was not forthcoming. And this, coupled with the Arizona majority’s unqualified deference to executive authority over the enforcement of federal immigration law, is a very troubling thing.
Taken together, these decisions allow the president not to do his job—to ignore federal law by instructing the responsible agencies not to enforce or defend statutes with which he disagrees. They authorize the president to render federal law a dead letter simply by disregarding it, a clear violation of the separation-of-powers doctrine. Under the Constitution, Congress has the power to change or repeal federal legislation with the approval of the president. But even where the president vetoes a bill, Congress may pass it through a legislative override. Yet what President Obama has done—and what the Supreme Court has endorsed—amounts to a super-veto contemplated nowhere in our Constitution. And it is clear that the president intends to use this super-veto to the hilt.
Two months (almost to the day) after the Court’s ruling in Windsor, Eric Holder informed the governors of Colorado and Washington that the Department of Justice would not oppose state statutes legalizing the production, sale, possession, and use of marijuana by adults within the states. The following day, the Justice Department issued a memorandum to all U.S. Attorneys advising them that the federal government would not challenge state statutes legalizing marijuana use. It also issued guidelines to federal prosecutors, encouraging them to use their limited resources to prosecute individuals for selling marijuana to minors or for engaging in cartel-related activities. In short, the administration agreed to defer to state laws directly conflicting with the federal Controlled Substances Act, a curious (if not utterly disingenuous) position given the federal government’s posture in Arizona, where it opposed a statute that largely incorporated federal law into state law.
These actions make it clear that President Obama intends to use executive nonenforcement of federal statutes more assertively and in a wider array of circumstances than any president before him. A prerogative power that presidents historically exercised sparingly is, in the hands of the Obama administration, being used to effect the functional repeal of federal laws. And, given the current membership of the Court, the president is getting away with it. The majority has, with almost discreditable solicitousness, given the president carte blanche to “prefer not to.” And the dissenting justices, by their silence on the president’s nonenforcement and nondefense of federal statutes, may only have emboldened him further. In this instance, the Supreme Court, like the president, has adopted Bartleby the Scrivener as its model, with long-term consequences we will all probably regret.
1 When President Andrew Johnson refused to comply with the act in 1867, he was impeached by Congress.
2 Development, Relief, and Education for Alien Minors Act.