Cameron Miranda
The United States Congress is made up of the House of Representatives and the Senate, and it is responsible for passing laws. Once a bill becomes law, the President must enforce it. However, there are instances where Presidents have chosen to ignore or not enforce certain laws, particularly when they believe parts of a law are unconstitutional or when they conflict with state laws. This has sparked debates about whether the President has the power to refuse to implement Congressional laws and the extent of that power.
| Characteristics | Values |
|---|---|
| Can the president refuse to implement congressional laws? | Yes, if the president believes parts of a law to be unconstitutional. |
| Can the president refuse to implement any law? | No, the president can only refuse to implement federal laws. |
| Can the president be compelled to implement a law? | Yes, through a writ of mandamus, or by Congress refusing to pass legislation the president favors, or by cutting off funds to executive agencies. |
| Can the president be impeached for refusing to implement a law? | Yes, if the president's own party decides to impeach and convict them for failure to execute their duties. |
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What You'll Learn
Presidential discretion on ignoring unconstitutional laws
While the US Constitution does not explicitly address whether the president can refuse to enforce a law, modern presidents have occasionally exercised a power to ignore certain laws, particularly those they deem unconstitutional. This discretion to disregard laws is a contentious issue, with some scholars arguing that the Take Care Clause prohibits the president from refusing to honour, defend, and enforce federal laws. They assert that once a bill becomes law, the president is obligated to enforce it.
However, a contrasting view, supported by several Supreme Court justices, suggests that unconstitutional laws are void from the outset and, therefore, not subject to the Take Care Clause. This perspective aligns with the precedent set by President Thomas Jefferson, who refused to enforce the Sedition Act, deeming it unconstitutional and "no law at all."
The question of presidential discretion in ignoring laws deemed unconstitutional is further complicated by concerns about concentrating too much power in the presidency. Critics argue that a broad interpretation of the Take Care provision could enable presidents to circumvent congressional actions too easily. As a result, some suggest that presidents should only refuse to comply with or defend laws when there is absolutely no credible constitutional defence for those provisions.
Additionally, there are recurring debates about whether the president can decline to enforce statutes based on policy reasons. While the Constitution does not grant the president the explicit power to suspend a statute, the nature of federal law enforcement affords a significant degree of enforcement discretion to the president. This discretion is not unique to the presidency, as governors, district attorneys, and law enforcement officers also exercise discretion in enforcing laws within their respective jurisdictions.
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Congress's power to impeach the president
The United States Constitution grants the House of Representatives the "sole Power of Impeachment" (Article I, section 2). The Constitution also gives the Senate the "sole Power to try all Impeachments" (Article I, section 3). The president, vice president, and all civil officers of the United States are subject to impeachment.
The impeachment process involves the House of Representatives charging an official of the federal government by approving articles of impeachment through a simple majority vote. The House of Representatives then sends the articles of impeachment to the Senate, which sits as a High Court of Impeachment to consider evidence, hear witnesses, and vote to acquit or convict the impeached official. A committee of representatives, called "managers," acts as prosecutors before the Senate. In the case of presidential impeachment trials, the chief justice of the United States presides.
The Constitution requires a two-thirds vote of the Senate to convict, and the penalty for an impeached official upon conviction is removal from office. The Senate may also disqualify officials from holding public offices in the future. The impeachment process is remedial rather than punitive, meaning that a party may still be subject to criminal or civil trial, prosecution, and conviction under the law after removal from office. The president cannot grant a pardon in an impeachment case, but may do so in any resulting federal criminal case.
Throughout history, three presidents have been impeached: Andrew Johnson in 1868, William J. Clinton in 1998, and Donald J. Trump in 2019 and 2021.
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The Take Care Clause
The clause also raises questions about the relationship between the President's power and that of Congress. For example, can Congress decree that the President must allow others to implement statutes without presidential oversight? Additionally, there are disagreements about whether the President must abide by, defend, and enforce laws they consider unconstitutional. Some scholars argue that the Take Care Clause prohibits the President from refusing to honour, defend, and enforce federal laws, while others suggest that unconstitutional laws are void from the beginning and thus not subject to the clause.
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Presidential enforcement of state laws
While the president of the United States is tasked with ensuring that laws are "faithfully executed", this does not mean that they are personally responsible for executing these laws. Instead, they must ensure that their subordinates in the executive branch execute the laws faithfully. This is known as the "take care clause", which states that the president "shall take Care that the Laws be faithfully executed".
However, this does not mean that the president must enforce all laws. Some scholars argue that presidents must enforce all congressional laws, regardless of their own constitutional opinions. Nevertheless, modern presidents have occasionally exercised a power to ignore certain laws on the grounds that they are not true "laws" and thus not subject to the faithful execution duty. For example, the Obama administration ordered the Department of Justice to not enforce federal drug possession laws regarding cannabis when they conflicted with state laws that had legalized possession.
Presidents have also, on occasion, declared that they will ignore provisions of laws that they believe to be unconstitutional. The Take Care Clause potentially implicates five executive powers, including the powers in the "opening and succeeding clauses of Article II" and acts of Congress that give powers to the president and to heads of departments and other executive branch or administrative agencies.
While the president does not personally execute laws, they can control executive officers and ensure faithful execution of the law by removing officers who fail to execute the laws faithfully or abuse their discretion.
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Presidential duty to execute shall duties
The U.S. President has a duty to execute "shall" duties, which are outlined in Article II, Section 3 of the U.S. Constitution. This article specifies the President's many duties, including the duty to "take Care that the Laws be faithfully executed". This clause, known as the Take Care Clause, bestows upon the President the power and duty to faithfully execute the laws, including congressional laws.
While there is debate over the extent of presidential power, with some arguing that the President can refuse to enforce laws they deem unconstitutional, the majority view is that the President must enforce all laws, regardless of their personal opinions. This is supported by the fact that the Supreme Court has never held that the President may decline to enforce unconstitutional statutes. However, it is important to note that the President does not directly execute the laws, but rather ensures that their subordinates execute them faithfully.
The President's duty to execute "shall" duties extends beyond just enforcing the laws. Article II of the U.S. Constitution outlines various other duties and powers of the President, including the power to:
- Act as Commander-in-Chief of the armed forces
- Enter into treaties with foreign nations (with congressional approval)
- Grant reprieves and pardons for offences against the United States (except in cases of impeachment)
- Fill up vacancies during the recess of the Senate
- Convene both Houses of Congress on extraordinary occasions
- Receive ambassadors and other public ministers
Overall, the President has a duty to execute "shall" duties, which encompass a wide range of responsibilities, including the enforcement of laws and the execution of various executive powers. While there may be some debate over the extent of presidential power, the majority view is that the President has a duty to faithfully execute the laws and uphold the Constitution.
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Frequently asked questions
The U.S. President cannot be held in contempt as they are not bound by court injunctions against the federal government. However, the President can be impeached and removed by Congress for refusing to enforce Congressional laws. While the President has enormous discretion in which laws to enforce, they must enforce all Congressional laws, regardless of their own constitutional opinions.
If the President refuses to enforce a Congressional law, Congress can counter by refusing to pass legislation the President favours, or by cutting off funds to Executive agencies. In extreme cases, Congress can impeach and remove the President.
Some scholars argue that the President must enforce federal laws, even those they deem to be unconstitutional. However, others argue that the President has wide discretion to disregard laws they believe are unconstitutional.
While the President cannot be held in contempt, the Justice Department, which the President oversees, can bring charges of criminal contempt. However, the President can void criminal contempt by issuing a pardon.
