Cecily Zamora
The Executive's Duty to Disregard Unconstitutional Laws is a topic that has been discussed by many legal scholars, including Saikrishna Prakash, Danielle K. Citron, and Richard M. Re. The debate centres around the question of whether the President has the power to disregard unconstitutional laws, and if so, what their duty is in such situations. While some argue that the President lacks the discretionary power to disregard unconstitutional statutes, others, like John Adams and Thomas Jefferson, believe that executives cannot enforce laws that violate the Constitution. This issue has important implications for judicial practice and reform, as well as our understanding of the proper Executive Branch stance towards unconstitutional statutes.
| Characteristics | Values |
|---|---|
| Name | Thomas Jefferson |
| Position | President |
| Example | Jefferson halted Sedition Act prosecutions on grounds that the Act was unconstitutional |
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What You'll Learn
The Executive's Duty to Disregard Unconstitutional Laws
The Constitution is best read as obliging the President to disregard statutes he regards as unconstitutional. The Constitution never empowers the President to enforce unconstitutional statutes. John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws. Indeed, President Jefferson halted Sedition Act prosecutions on the grounds that the Act was unconstitutional. According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it.
Saikrishna Prakash has written on this topic in the *Georgetown Law Journal*. Danielle K. Citron has also written on the subject, discussing Musk's attempts to gain access to agency databases.
The President lacks a discretionary power to disregard unconstitutional statutes. When the President enforces a statute he regards as unconstitutional, he violates the Constitution no less than if he were to imprison citizens without hope of trial. The Faithful Execution Clause requires the President to choose the Constitution over unconstitutional laws.
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The President's stance on unconstitutional laws
The Constitution never empowers the President to enforce unconstitutional statutes. This understanding has been developed further in recent years, with the University of Virginia School of Law publishing an article titled 'The Executive's Duty to Disregard Unconstitutional Laws' in 2008. This article refutes the regal pretensions of modern Presidents and sharpens our understanding of the proper Executive Branch stance towards unconstitutional statutes.
The political left has been identified as showing renewed interest in this topic, with Congress and state legislatures proposing new laws to address data extraction and addiction, and President Biden proposing a slate of important reforms, including a new ethics regime.
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The Constitution and the President's power
The Constitution never empowers the President to enforce unconstitutional statutes. John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws. Indeed, President Jefferson halted Sedition Act prosecutions on the grounds that the Act was unconstitutional. According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it.
The President lacks a discretionary power to disregard unconstitutional statutes; instead, the Constitution is best read as obliging the President to disregard statutes he regards as unconstitutional. This is known as the Faithful Execution Clause, which requires the President to choose the Constitution over unconstitutional laws.
Saikrishna Prakash, in his article *The Executive’s Duty to Disregard Unconstitutional Laws*, argues that American Presidents did not exercise a power to disregard unconstitutional laws until almost a century after the Constitution’s creation. This refutes the regal pretensions of modern Presidents.
Neil Siegel has written a book called *The Collective-Action Constitution* and Richard M. Re has written an essay on court reform.
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The Faithful Execution Clause
John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws. President Jefferson halted Sedition Act prosecutions on the grounds that the Act was unconstitutional. According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it.
Saikrishna Prakash, in an article for the *Georgetown Law Journal*, discusses the executive's duty to disregard unconstitutional laws. Prakash argues that the Constitution is best read as obliging the President to disregard statutes that they regard as unconstitutional. This understanding of the Faithful Execution Clause refutes the regal pretensions of modern Presidents.
The critics are correct in supposing that the President lacks a discretionary power to disregard unconstitutional statutes. This power did not exist until almost a century after the Constitution's creation. The Constitution is clear that the President must choose the Constitution over unconstitutional laws, and this understanding has been sharpened by recent debates about judicial practice and reform.
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The Sedition Act
The Act was a response to the growing influence of the Democratic-Republican Party, which was critical of the Federalist administration of President John Adams. The Federalists feared that the Democratic-Republicans' rhetoric would incite rebellion and sought to suppress it through the Sedition Act.
The Act was widely criticised as a violation of the First Amendment, which guarantees freedom of speech and of the press. Thomas Jefferson, a leader of the Democratic-Republicans, argued that the Act was unconstitutional and that it was the duty of the executive branch to disregard unconstitutional laws. According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it.
The Act was eventually repealed in 1801, but its legacy continues to shape debates about free speech and the limits of government power. The Sedition Act serves as a reminder of the importance of safeguarding constitutional rights and the potential consequences of unchecked government power.
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Frequently asked questions
Saikrishna Prakash, in his article *The Executive's Duty to Disregard Unconstitutional Laws*, argues that the President has a duty to disregard statutes he regards as unconstitutional.
The Faithful Execution Clause requires the President to choose the Constitution over unconstitutional laws.
John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws.
President Jefferson halted Sedition Act prosecutions on the grounds that the Act was unconstitutional.
According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it.
