The President's Power: Declaring Laws Unconstitutional

The US Constitution divides the federal government into three branches: the legislative, executive, and judicial. While the President of the United States is the head of state and government, they cannot declare laws unconstitutional. The power to make laws lies with Congress, and the Supreme Court interprets the Constitution and can deem a law unconstitutional. The President's role is to ensure the laws are faithfully executed. However, there is a debate about whether the President must enforce laws they believe to be unconstitutional. Some scholars argue the President must enforce all laws, while others suggest that the President can ignore laws they deem unconstitutional.

The President's power to ignore laws

The US Constitution divides the federal government into three branches: the legislative, executive, and judicial. The President of the United States is the head of state and government but is not vested with the power to make or declare laws unconstitutional. That power lies with Congress and the Supreme Court.

However, there is ambiguity regarding the President's power to ignore laws he or she believes to be unconstitutional. Some scholars argue that the President must enforce all congressional laws, regardless of their constitutional opinions. On the other hand, modern Presidents have, on occasion, exercised a form of veto by refusing to enforce laws they deem unconstitutional. This practice dates back to Thomas Jefferson, who refused to enforce the Sedition Act, believing it to be unconstitutional.

The Take Care Clause, which obligates the President to "take care that the laws be faithfully executed," further complicates this issue. Some scholars interpret this clause as prohibiting the President from refusing to honour, defend, and enforce federal laws. In contrast, others argue that unconstitutional laws are void from the beginning and, therefore, not subject to the Clause. While the Supreme Court has never explicitly ruled that the President may decline to enforce such statutes, several Justices have hinted at this authority.

Additionally, Congress can enact laws that reverse the President's actions, provided they have the constitutional authority to do so. The President also cannot use executive orders to override federal laws and statutes or to sidestep the checks and balances inherent in the Constitution.

The Take Care Clause

• Powers directly conferred upon the President by the Constitution: This includes the power to act as commander-in-chief of the armed forces, enter into treaties with foreign nations (with congressional approval), and nominate other officials such as federal judges and the US Attorney General.
• Powers conferred upon the President by congressional acts: These are powers that are granted to the President by acts of Congress, such as the power to pardon people who have committed federal offences.
• Powers conferred upon heads of departments and other executive agencies: This includes the power to appoint and remove executive officers and the power to control the conduct of subordinate executives.
• Power to enforce criminal statutes: This is the power that stems from the duty to enforce the criminal laws of the United States, including the power to bring criminally negligent officials to book.
• Power to carry out ministerial duties: These are duties that an executive officer can perform with limited discretion as to the occasion or manner of their discharge.

The President's power to enforce laws

While the US president has executive power over the government, including the obligation to "take care that the laws be faithfully executed", they cannot declare laws unconstitutional. The power to declare a law unconstitutional lies with the courts.

The president can issue executive orders, which are written directives ordering the government to take specific actions to ensure "the laws be faithfully executed". However, these orders cannot override federal laws and statutes, nor can they be used to sidestep the checks and balances in the Constitution that ensure no one branch of the government is more powerful than another.

There is disagreement among constitutional scholars about whether the president must enforce laws they believe to be unconstitutional. Some argue that the president must enforce all congressional laws, regardless of their personal constitutional opinions. However, modern presidents have occasionally ignored laws they deem unconstitutional, following the example set by Thomas Jefferson, who refused to enforce the Sedition Act.

While the president cannot declare a law unconstitutional, they can use their power to issue executive orders to direct federal agencies on how to implement a statute. For example, while Congress decides whether a drug is legal or illegal, the president can use an executive order to tell the Department of Justice whether prosecuting drug cases is a priority.

The Supreme Court's role in interpreting the Constitution

The Supreme Court is the highest court in the United States and is tasked with interpreting the Constitution. It has the final say on whether a right is protected by the Constitution and whether a law is unconstitutional. The Court's power of judicial review is essential for maintaining the balance of power between the three branches of government.

When interpreting the Constitution, the Supreme Court relies on certain "methods" or "modes" of interpretation. Textualism, for example, focuses on the plain meaning of the text and how the terms would have been understood by people at the time of ratification. Judicial precedent is another important source of constitutional interpretation, where the Court's prior decisions on questions of constitutional law provide principles, rules, or standards for future cases.

The Supreme Court also employs pragmatist approaches, which involve weighing the practical consequences of different interpretations of the Constitution. This may include considering the future costs and benefits of an interpretation to society or the role the judiciary can play in deciding a question of constitutional law. The Court's decision in Baker v. Carr, for instance, illustrates a pragmatist approach where the Court declined to rule on constitutional issues to avoid becoming embroiled in public controversies.

In summary, the Supreme Court's role in interpreting the Constitution is essential for maintaining the balance of power between the branches of government and protecting the rights and liberties of citizens. The Court's interpretations are guided by various methods, including textualism, judicial precedent, and pragmatist approaches. While the President can issue executive orders to guide the implementation of statutes, the Supreme Court has the ultimate authority to interpret the Constitution and determine whether a law is unconstitutional.

The President's use of executive orders

The US Constitution vests the president with executive power over the government, including the obligation to "take care that the laws be faithfully executed". An executive order is a written directive, signed by the president, that orders the government to take specific actions to ensure "the laws be faithfully executed".

Executive orders cannot be used to create new statutes, but they can tell federal agencies how to implement a statute. For example, an executive order can be used to tell the Department of Justice if prosecuting certain drug cases is a priority or not. The president cannot use an executive order to sidestep the checks and balances in the Constitution, and they cannot take over 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.

Executive orders cannot override federal laws and statutes. Statutes must be passed by Congress and signed by the president. Congress can also enact a law that reverses what the president has done, provided it has the constitutional authority to legislate on the issue. A court can hold that an executive order is unlawful if it violates the Constitution or a federal statute.

There are disagreements about whether the president must abide by, defend, and enforce laws that he regards as unconstitutional. Some scholars argue that the president must enforce all congressional laws, without regard to their own constitutional opinions. However, modern presidents occasionally exercise a power to ignore such laws on the grounds that they are not true "laws" subject to the faithful execution duty. This argument was first made by President Thomas Jefferson, who refused to enforce the Sedition Act as he believed it was unconstitutional.

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