Presidential Powers: Can Congress Checkmate The President?

The U.S. Constitution has a set of checks and balances to prevent any one branch of the government from becoming more powerful than the others. While the President has the power to issue executive orders, these cannot override federal laws and statutes, which must be passed by Congress. Congress can also enact a law to reverse a presidential action, provided it has the constitutional authority to do so. The Supreme Court has never explicitly held that the President may decline to enforce an unconstitutional statute, but some Presidents have ignored or refused to comply with laws they believe to be unconstitutional.

Presidential refusal to enforce laws

The question of whether a president can refuse to enforce laws has been a matter of debate. Some scholars argue that presidents must enforce all laws passed by Congress, regardless of their personal opinions on the constitutionality of the law. However, modern presidents have occasionally exercised their power to ignore certain laws, claiming that they are not "true laws" and thus not subject to the faithful execution duty. This practice has been compared to that of President Thomas Jefferson, who refused to enforce the Sedition Act as he deemed it unconstitutional.

There are also questions surrounding the president's obligation to enforce laws that limit their authority over law execution. It is unclear if Congress can pass a statute that allows others to implement laws without the need for presidential supervision or oversight.

The Take Care Clause, derived from Article II, Section 3 of the Constitution, is often cited in this debate. Some scholars argue that this clause prohibits the president from refusing to honour, defend, and enforce federal laws. On the other hand, others contend that the clause grants presidents the discretion to disregard laws they deem unconstitutional, even when there are substantial arguments to the contrary.

While the Supreme Court has never explicitly ruled that the president may decline to enforce unconstitutional statutes, several justices have hinted at such authority. Additionally, there have been instances where presidents have refused to enforce laws or court orders, such as President Andrew Jackson's refusal to abide by the Supreme Court's ruling in Worcester v. Georgia (1832), which recognised the Cherokees as an independent political community.

In practice, the "minimum" consequence for a president's refusal to execute their duties is often considered to be impeachment and conviction, as seen in the example of Governor George Wallace, who was forced to concede defeat and allow the integration of schools despite his initial refusal to comply with court orders.

Congress's power to reverse presidential actions

The US Constitution is designed with a set of checks and balances to ensure that no branch of the government holds more power than another. The President, for example, cannot use an executive order to override these checks and balances, nor can they take powers from other branches, such as the power vested in Congress to pass new statutes or in the courts to invalidate certain laws as unconstitutional.

Congress can enact a law that reverses presidential actions, provided it has the constitutional authority to legislate on the issue. A court can hold an executive order unlawful if it violates the Constitution or a federal statute.

There is debate about whether the President must abide by, defend, and enforce laws that he or she regards as unconstitutional. Some scholars argue that the President must enforce all congressional laws, regardless of their own constitutional opinions. However, modern presidents occasionally exercise a power to ignore such laws, mimicking the arguments and practice of President Thomas Jefferson, who refused to enforce the Sedition Act on the grounds that it was unconstitutional.

Presidents have wide-ranging discretion on how to enforce particular laws. They can revoke an executive order they have enacted and can rescind or amend previous executive orders. For example, in 2025, President Biden rescinded 78 Presidential orders and memoranda issued by his predecessor.

Congress has the power to control things like taxation, spending, and certain war powers. While the President can direct the military without specific congressional approval, their actions must not initiate war.

Presidential power to ignore unconstitutional laws

The US Constitution does not explicitly grant the President the power to ignore laws passed by Congress. However, there are several constraints and questions regarding the President's obligations to enforce laws, especially those that the President believes to be unconstitutional.

The Take Care Clause, as interpreted by some, grants the President discretion to disregard laws that they deem unconstitutional, even if there are substantial counterarguments. This interpretation suggests that unconstitutional laws are void from the beginning and, therefore, not subject to the Clause. This view aligns with the arguments and practice of President Thomas Jefferson, who refused to enforce the Sedition Act, claiming it was unconstitutional and "no law at all".

However, others argue that the President must enforce all congressional laws, regardless of their personal constitutional opinions. They contend that the President should not have the power to end-run the actions of Congress too easily. Additionally, the Supreme Court has never explicitly held that the President may decline to enforce unconstitutional statutes, although several Justices have hinted at such authority.

The creation of independent agencies by the Supreme Court further complicates the issue. These agencies, protected from executive influence, have been seen as a violation of the President's executive power and the Take Care Clause duty. Congress has also imposed "`for cause`" restrictions, making it challenging for the President to assess if the law is being faithfully executed.

While there is no clear consensus on the President's power to ignore unconstitutional laws, modern Presidents have occasionally exercised discretion in enforcing certain laws, particularly when there are policy disagreements or concerns about the constitutionality of the law. Ultimately, the interpretation of the President's powers and obligations under the Constitution remains a subject of ongoing debate and discussion.

Supreme Court's role in settling disputes

The Supreme Court is the highest court in the United States. It is composed of nine justices, including one Chief Justice and eight Associate Justices. The Supreme Court's most well-known power is judicial review, or the ability to declare a Legislative or Executive act in violation of the Constitution. This power was established in the case of Marbury v. Madison in 1803, where the Court held that an Act of Congress that is contrary to the Constitution is invalid. The Supreme Court has used this power to hold Acts of Congress unconstitutional in whole or in part, such as in the case of City of Boerne v. Flores in 1997, where the Court found that the Religious Freedom Restoration Act exceeded congressional power under the Fourteenth Amendment.

The Supreme Court plays a crucial role in settling disputes between the legislative, executive, and judicial branches of government. The Court has the authority to decide the constitutionality of federal laws and resolve cases involving federal laws. For example, in the case of Bartnicki v. Vopper in 2001, the Court found that a federal prohibition on the disclosure of illegally intercepted electronic communications violated the First Amendment. The Court also has the power to sanction the creation of independent agencies, which can execute federal laws and investigate and prosecute alleged violations.

The Supreme Court's decisions have a significant impact on society, and the Court has decided several landmark cases involving students, such as Tinker v. Des Moines Independent School District in 1969, which held that students could not be punished for wearing black armbands to school to protest the Vietnam War. The Court's caseload is primarily appellate, and its decisions cannot be appealed to any other authority, making it the final judicial arbiter in the United States on matters of federal law.

Before issuing a ruling, the Supreme Court typically hears oral arguments from the parties involved and may also consider arguments presented by the Solicitor General of the United States if the case involves the federal government. The Justices then hold private conferences, make their decision, and issue the Court's opinion along with any dissenting arguments. The Supreme Court's independence from political branches of government is protected by several restrictions, such as life tenure for justices and the requirement that their salaries cannot be decreased during their term of office.

Congress's control over declaring war

The US Constitution gives Congress the power to declare war. This was a deliberate decision by the framers of the Constitution, who were reluctant to give too much influence to the President. The Declare War Clause gives Congress the exclusive power to declare war formally and informally. In this context, to "declare war" means to "initiate war". This means that Congress can authorise hostile attacks without a formal declaration of war.

Congress has the power to federalise state militias and to raise and support armies. However, the President is named as the "Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States". This has led to debates over whether the President has the authority to open hostilities.

In the past, Congress has given the President broad powers to engage the military, such as in the Tonkin Gulf Resolution of 1964, which led to US involvement in Vietnam. However, Congress has not declared war since 1942.

The War Powers Resolution was enacted in 1973 to try to clarify the separation of powers between Congress and the President regarding war powers. However, this has led to further disputes, with some arguing that there are better ways to protect the original understanding of the Constitution.

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