Should States Choose Which Laws To Enforce?

The question of whether a state can decline to enforce an existing law is a complex one and has been a topic of debate for many years. While the laws of the United States are binding on the states and their citizens, there have been instances where states have declined to enforce certain laws, such as alcohol prohibition. The Supreme Court has also upheld state courts' refusal to hear federal claims on the basis of state law providing a valid excuse. The President of the United States also plays a role in this debate, as they have the authority to decline to execute statutes they believe to be unconstitutional, and their role in enforcing judicial orders has been questioned.

Presidential authority to decline to execute unconstitutional statutes

While the Constitution does not grant the President the authority to nullify laws, there is significant judicial approval of the proposition that a President has the authority to decline to execute statutes that they believe to be unconstitutional. This is backed by several historical examples, including the Court's decision in Myers v. United States, where the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. In Freytag v. Commissioner, all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional."

On at least two notable occasions, federal court decisions have been rendered unenforceable as a result of a president’s refusal to accept them. In Worcester v. Georgia (1832), the Supreme Court overturned the conviction of a missionary living among the Cherokee Nation for refusing to take an oath to obey the laws of Georgia. In an opinion written by Chief Justice John Marshall, the Court held that the Cherokees constituted an independent political community to which the state of Georgia could not apply its laws. Another example is Ex parte Merryman (1861), where Chief Justice Roger Taney, sitting on the US circuit court in Maryland, held that the power to suspend the writ rested exclusively with Congress. Despite holding Lincoln’s order unconstitutional, Taney acknowledged that he had no way of compelling the president or military authorities to comply with his ruling.

The President's authority to decline to execute unconstitutional statutes is further supported by their constitutional power to pardon, which allows them to forgive offenses even before trial or conviction, meaning that executive officers need not investigate and prosecute every offender of federal law. Additionally, resource constraints and innumerable violations of federal law preclude the complete enforcement of all federal laws, giving the President enforcement discretion.

However, it is important to note that the President may not prevent a member of the executive branch from performing a ministerial duty lawfully imposed upon them by Congress. Nor may the President take an action not authorized either by the Constitution or by a lawful statute. The President may not refuse to enforce a constitutional law, as that would amount to an extra-constitutional veto or suspension power.

Presidential refusal to enforce a constitutional law

Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. The executive power of the federal government is vested in the President of the United States, who is responsible for enforcing the laws passed by Congress.

However, there is ambiguity regarding whether the President must enforce laws that they believe are unconstitutional. Some scholars argue that the President must enforce all laws passed by Congress, regardless of their personal opinions. On the other hand, modern Presidents have occasionally exercised a power to ignore laws they deem unconstitutional, following the precedent set by President Thomas Jefferson, who refused to enforce the Sedition Act.

The "Take Care" Clause, or Article II, Section 3, Clause 5 of the United States Constitution, states that the President must "take Care that the Laws be faithfully executed". While this suggests that the President must enforce all laws, they have considerable leeway within prosecutorial discretion and funding priorities. For example, recent Presidents have chosen not to enforce federal marijuana possession laws in states where it has been decriminalized.

The Supreme Court has never explicitly held that the President may decline to enforce unconstitutional statutes, but Justices have hinted at such authority. In Myers v. United States (1926), the Court upheld the President's view that a statute was unconstitutional without suggesting that the President had acted improperly. Similarly, in Freytag v. Commissioner (1991), four Justices agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional."

In summary, while the President is generally expected to enforce constitutional laws, there is ambiguity and debate surrounding their obligation to enforce laws they believe are unconstitutional.

State laws held unconstitutional

In the United States, the President may decline to enforce a law if they believe it to be unconstitutional. This is supported by significant judicial approval, including the Court's decision in Myers v. United States (1926), where the Court agreed with the President's view that a statute was unconstitutional, and in Freytag v. Commissioner (1991), where four Justices agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional."

However, the President may not prevent a member of the executive branch from performing a duty lawfully imposed by Congress, nor may they take action that is unauthorized by the Constitution or a lawful statute. The President also cannot refuse to enforce a constitutional law, as that would amount to an extra-constitutional veto or suspension power.

In practice, there have been instances where Presidents have refused to enforce federal court decisions. For example, in Worcester v. Georgia (1832), the President refused to accept the Supreme Court's ruling that the state of Georgia could not apply its laws to the Cherokees, an independent political community. In another instance, President Eisenhower issued a statement proclaiming that federal law and orders of a United States District Court could not be flouted and promising to use force if necessary to enforce the law.

At the state level, there have been cases where state laws have been held unconstitutional and thus preempted by federal law. For example, in United States v. Peters (1809), a Pennsylvania statute prohibiting the execution of any process issued to enforce a certain sentence of a federal court was held to be without legal foundation as it attempted to annul the judgment of a court of the United States. In Fletcher v. Peck (1810), a Georgia statute annulling conveyance of public lands authorized by a prior enactment violated the Contracts Clause of the Constitution. These cases demonstrate that while states may not explicitly decline to enforce an existing law, certain state laws may be held unconstitutional and thus preempted or invalidated by federal law or the Constitution.

State court enforcement of federal law

The concept of state court enforcement of federal law involves the interplay between the federal judiciary, state courts, and the executive branch in upholding federal laws and ensuring compliance. While the federal judiciary, including the Supreme Court of the United States, has the authority to interpret and enforce federal laws, it relies on state courts and the executive branch for assistance in implementing its decisions.

In the United States, the judicial power is vested in the Supreme Court and inferior courts established by Congress, as outlined in Article III of the Constitution. While the Supreme Court is the final arbiter of federal law, it does not have direct enforcement powers. This dynamic often comes into play when dealing with controversial court decisions that inspire defiance or when a state's jurisdiction and policies conflict with federal laws.

Historically, there have been instances where state courts have refused to enforce federal laws, citing reasons such as contrary state public policy or the belief that they cannot be compelled to enforce certain federal laws. For example, in the Federal Employers' Liability Act (FELA) case, Connecticut courts initially refused to enforce an FELA claim, arguing that it went against the state's public policy. However, the Supreme Court, invoking the Supremacy Clause, asserted that when Congress establishes a national policy, it applies equally to all states.

In another instance, the Court upheld New York's refusal to adjudicate an FELA claim that fell into a class of cases typically not entertained under state law. This decision suggested that state practices and procedures could, in certain circumstances, preclude enforcement in state courts. Nevertheless, in cases with analogous claims under state law, state courts are generally required to enforce federal "penal" laws, as seen in Testa v. Katt (1947).

The dynamic between federal and state courts in enforcing federal laws is complex and often subject to debate. While the Supreme Court provides guidance and interpretation of federal laws, the actual enforcement of these laws involves a delicate balance between federal authority and state autonomy.

Presidential discretion to make cost-benefit analyses

While the US President does not have the authority to prevent a member of the executive branch from performing a ministerial duty lawfully imposed upon them by Congress, they do have the power to veto or disregard laws that they deem to be unconstitutional. In such cases, the President's decision has been supported by the Court.

The President also has the discretion to make cost-benefit analyses about the allocation of resources. Cost-benefit analysis (CBA) is a process used by governments to make and evaluate public policy through the quantification of consequences. CBA is used to crudely implement utilitarianism, which claims that actions are only right if they promote happiness or pleasure. These are used to measure the overall welfare of society—the aggregate sum of the welfare of individuals is measured as the overall welfare of the population.

CBA is used as a preliminary evaluation and possibly as the deciding factor in cases of comparable consequences, but never as the only method of analysis for public policy. It is also used to measure individual welfare beyond income or financial situations. CBA is still used at the beginning of each policy evaluation and sometimes at the end, giving citizens the means to hold decision-makers responsible.

Executive Order 12866, issued by President Clinton in 1993, requires a cost-benefit analysis for any new regulation that is "economically significant", defined as having an annual effect on the economy of $100 million or more or adversely affecting the economy, a sector of the economy, productivity, competition, or jobs.

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