Speaker John Boehner says the House will sue President Barack Obama’s administration over what he called a pattern of ignoring parts of federal laws the president doesn’t like. Photographer: Alex Wong/Getty Images
Speaker John Boehner says the House will sue President Barack Obama’s administration over what he called a pattern of ignoring parts of federal laws the president doesn’t like. Photographer: Alex Wong/Getty Images

House Speaker John Boehner is suing President Barack Obama for “not faithfully executing the laws of Congress.” Republicans single out the president’s refusal to deport certain populations of “illegal” immigrants, the administration's selective enforcement of drug laws, as well as delays in the enforcement of the Affordable Care Act.

There’s more than a bit of political maneuvering behind Boehner’s suit. But it raises an important question: Is the president bound to enforce the law exactly as Congress demands? Or does the president have some discretion, particularly if he believes the law to be unreasonable or unconstitutional?

Article II, Section 3 of the Constitution enumerates the duties of the president in carrying out laws passed by Congress. The key phrase is the one legal scholars call the “Take Care Clause,” which specifies that the president “shall take Care that the Laws be faithfully executed.”

This seems pretty straightforward: Congress makes laws, the president executes them. But the Constitution isn’t so clear on what the president should do if he thinks those laws are unconstitutional or, more likely, just plain objectionable. This has been a gray area since the founding of the republic, bedeviling the executive and legislative branches alike.

When Thomas Jefferson became president in 1801, he inherited the infamous Alien and Sedition Acts, which gave the executive branch staggering amounts of power to deport, imprison and otherwise harass anyone who spoke ill of the government, a broad mandate that could extend to those who opposed the ruling Federalist Party.

Jefferson despised these laws, which had been used to target his political allies in the late 1790. He had special contempt for the so-called Sedition Act, even though Federalist judges had effectively upheld its constitutionality.

Jefferson disagreed. As he later explained in a letter to Abigail Adams, “nothing in the Constitution” had given these judges “a right to decide for the executive.” Jefferson's certainty that the law was unconstitutional led him to call off pending prosecutions and to pardon those already convicted. Those actions were relatively uncontroversial, given that the law was expiring anyway.

The reaction was far more heated when a president advanced this line of reasoning against a law that was still fully in force. In 1868, embattled President Andrew Johnson sought to remove Secretary of War Edwin Stanton, a legacy of President Abraham Lincoln's administration.

Under the “Tenure of Office Act,” Johnson had to secure the Senate’s approval, but the president believed the act was unconstitutional. His solution was to refuse to follow the letter of the law and simply remove Stanton without the Senate’s approval, triggering a much-needed judicial review.

Instead, his action triggered an impeachment proceeding during which one of his inquisitors declared that “no power whatsoever is conferred by the Constitution to inquire whether the law that he is charged to execute is or is not constitutional.”

In subsequent administrations, presidential advisors vacillated on whether the executive branch could refuse to enforce laws. In 1919, Attorney General A. Mitchell Palmer concluded that “it is the duty of the executive department to administer [a law] until it is declared unconstitutional by the courts.”

Yet the following year, President Woodrow Wilson removed the postmaster of Portland, Oregon, without consent of the Senate, as required by a law similar to the Tenure of Office Act. Wilson maintained that the law was unconstitutional, and in Myers v. United States (1926), the Supreme Court agreed with him.

Although several justices dissented, none commented on Wilson’s claim that he had a right to assert that the law was unconstitutional. Since this decision, executive-branch officials and legal scholars have taken this silence as significant.

President Jimmy Carter's attorney general Benjamin Civiletti, for example, declared in 1980 that “Myers holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts.” The Supreme Court echoed this sentiment in Freytag v. Commissioner (1991), holding that the president has “the power to veto encroaching laws … or even to disregard them when they are unconstitutional.”

Most legal theorists prefer to see this power as deeply circumscribed. In fact, scholars as diverse as Obama appointee Dawn E. Johnson, Daniel Meltzer and George W. Bush-administration lawyer John Yoo have argued, in very different contexts, for limiting this kind of presidential power.

Presidents, of course, have other ways of asserting their power without risking open confrontation. They can, for example, sign a law and enforce it, but then refuse to defend it against court challenges. According to legal scholars Neal Devins and Saikrishna Prakash, this strategy was devised in 1943, when Congress passed an appropriations bill that contained a rider barring payments to executive officials suspected of being communists.

President Franklin D. Roosevelt declared the rider “not only unwise and discriminatory, but unconstitutional.” But he needed to fight a war. So he signed the bill and honored the rider, which enabled the aggrieved parties to file suit. He then refused to defend the law, and the Supreme Court found for the plaintiffs. Obama adopted a similar strategy toward the Defense of Marriage Act.

More controversial are so-called signing statements, which presidents append to bills to register constitutional objections to specific pieces of legislation.

Signing statements were first used during the Eisenhower administration and became more commonplace in the 1980s, when Samuel Alito, then a staff attorney in the Department of Justice, proposed using them to “increase the power of the Executive to shape the law.” Alito argued the “the President's understanding of the bill should be just as important as that of Congress.”

This was a subtle but important shift. Alito -- who is now a Supreme Court justice -- wanted signing statements “to address questions of interpretation” rather than mere concerns over constitutionality. This served to shore up presidential power: By affirming the president’s right to interpret laws, Alito endorsed the idea that the president had significant latitude in their implementation and enforcement.

“Congress,” he wrote, “is likely to resent the fact that the President will get in the last word on questions of interpretation.”

Alito's assessment of the cost turned out to be right on the money. What he couldn’t foresee is that it would be a Democratic president who would embrace his vision of executive power, and that a Republican House speaker would be the one resenting it.

To contact the writer of this article: Stephen Mihm at mihmstep@yahoo.com.

To contact the editor responsible for this article: Max Berley at mberley@bloomberg.net.