Could President Santorum Refuse to Enforce the Affordable Care Act?

In a short article in the New Yorker, Jeffrey Toobin takes issue with speculation by Judge Kavanaugh, in his dissent from the D.C. Circuit’s Affordable Care Act decision, that “the President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional.”

Judge Kavanaugh, who teaches a course on the Separation of Powers at Harvard Law School, explained in a footnote that “[u]nder the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”  As support, Judge Kavanaugh cited Justice Scalia’s statement that the President possesses “the power to veto encroaching laws or even to disregard them when they are unconstitutional.”

Unpersuaded, Toobin insists that the President has no business interpreting the Constitution:

In other words, according to Kavanaugh, even if the Supreme Court upholds the law this spring, a President Santorum, say, could refuse to enforce ACA because he “deems” the law unconstitutional. That, to put the matter plainly, is not how it works. Courts, not Presidents, “deem” laws unconstitutional, or uphold them. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in Marbury v. Madison, in 1803, and that observation, and that case, have served as bedrocks of American constitutional law ever since. Kavanaugh, in his decision, wasn’t interpreting the Constitution; he was pandering to the base.

In an effort to “put the matter plainly,” Toobin may have put it a bit too plainly.  Dawn Johnsen, who is not known as a partisan of unlimited executive power, described the “parameters of the President’s authority to refuse to enforce constitutionally objectionable statutes” as “hotly contested.”  And she rejected Toobin’s admittedly simplistic argument from Marbury:  “Presidential non-enforcement does not directly or invariably conflict with Congress’s ability to pass legislation or the judiciary’s responsibility to ‘say what the law is’ in the context of resolving justiciable controversies.”

Toobin diagnoses Judge Kavanaugh with “health-care derangement syndrome,” but history has favored more than one case of constitutional interpretation by the chief executive:  Consider Jefferson’s nullification of the Alien and Sedition Act by pardoning those convicted under it and Lincoln’s rejection of Dred Scott.

Johnsen’s answer to the question whether a President may refuse to enforce a law he deems unconstitutional is a nuanced ‘it depends.’  Based on executive branch precedent, she argues that “[t]he presumption [against presidential non-enforcement] should be overcome only when non-enforcement would allow the President responsibly and usefully to advance constitutional norms and dialogue regarding their definition.”  A President’s decision as to whether that is so for a given statute should be guided, according to Johnsen, by three factors: “First, how clear is the provision’s constitutional infirmity? Second, what effect would non-enforcement have on the prospects for judicial review of the statutory provision? Finally, does the provision encroach on executive power?”

Assuming the Court upholds the Affordable Care Act before the next President takes office, Johnsen’s analysis would likely boil down to the first factor:  just how clearly unconstitutional is the individual mandate?  And the answer to that question, as the lower courts’ decisions and related legal commentary attest, is a point of some disagreement.

Toobin ends with a reminder that elections have consequences: “If a Republican, any Republican, wins in November, his most likely first nominee to the Supreme Court will be Brett Kavanaugh.”

Seven-Sky v. Holder, No. 11-5047 (Nov. 8, 2011) (Silberman, S.J., with concurrence by Edwards, S.J., and dissent by Kavanaugh, J.)

Prior Coverage:

See also:

  • Ed Whelen, Jeffrey Toobin’s Cheap Whack at Judge Kavanaugh, National Review Online (Mar. 19, 2012) (“[O]ne good thing to come out of the American Bar Association’s badly confused report opposing presidential signing statements was liberal scholar Laurence Tribe’s acknowledgment that Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means:  ‘presidents have never taken so wholly juricentric . . . a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.’ . . .  In short, Marbury simply doesn’t stand for what Toobin imagines it to stand for.”).
  • Saikrishna Bangalore Prakash, The Executive’s Duty To Disregard Unconstitutional Laws, 96 Georgetown L.J. 1613 (2008) (“[M]any of the structural arguments famously made by Chief Justice John Marshall in favor of judicial review also favor Executive Disregard: the written nature of the Constitution, the notion that Congress cannot change the Constitution by statute, and the idea that Congress cannot be the sole judge of the limits of its powers. These considerations suggest Executive Disregard no less than they suggest judicial review.”)
  • Michael B. Rappaport, The Unconstitutionality of “Signing and Not-Enforcing”, 16 William & Mary Bill of Rights Journal (2007) (“Defenders of presidential review, however, also articulate a respectable view that allows the President to not-enforce unconstitutional provisions. Ironically enough, this view also derives from Marbury v. Madison. This reading of Marbury views the executive as occupying a role similar to that of the judiciary. Just as the judiciary should enforce the Constitution rather than a conflicting statute, so should the President.  Far from involving a usurpation of the judicial power, this reading of Marbury sees the President’s refusal to enforce an unconstitutional provision as his fidelity to the supremacy of the Constitution.  Textually, this reading views both the executive and judicial powers as properly including the authority to determine whether a statute conforms to the Constitution.”)
  • Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemp. Probs. 7 (2000)

Update:

  • Michael Dorf, Re: Holding Court, New Yorker (April 3, 2012) (Toobin “overlooks a long-standing debate about the scope of judicial precedent. Thomas Jefferson declined to enforce the Sedition Act, on the ground that it violated the First Amendment, even though the courts were prepared to uphold the Act. Abraham Lincoln, in his first Inaugural Address, suggested that the Supreme Court’s infamous Dred Scott decision might not be binding beyond the parties to the case. And President Obama has declined to defend the Defense of Marriage Act, on the ground that it is discriminatory. Whatever one thinks of these and other assertions of Presidential non-enforcement power, Judge Kavanaugh did not invent the idea.”)
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One response to “Could President Santorum Refuse to Enforce the Affordable Care Act?

  1. Pingback: Judge Kavanaugh Three-peats Three-Mile Victory | D.C. Circuit Review

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