Is It Always Unconstitutional for the President to Refuse to Enforce the Law?

by Gerard Emershaw

As discussed in a previous column, Senator Ted Cruz has recently published a list of 76 alleged abuses of power by President Barack Obama. Among these alleged abuses of power is President Obama’s refusal to prosecute violations of drug laws involving certain mandatory minimum sentences. This raises the question of whether it is always wrong for the President to refuse to enforce a lawfully enacted act of Congress. Article II, Section 3 of the Constitution states that the President “shall take care that the laws be faithfully executed.” While the federal government seems to have forgotten that it is the Congress and not the President, the executive regulatory agencies, or the federal courts which may legislate, it is clear that the major role of the President domestically is to enforce duly enacted federal laws.

However, the President takes an oath which states: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” What happens if the President views a duly enacted act of Congress as being unconstitutional? What if his mandate to execute laws and his oath to defend the Constitution are at odds?

Imagine that Congress passes a law that bans Christianity. Or passes a law that requires the military to confiscate all guns held by American civilians. Or passes a law that mandates the confiscation of all land owned by civilians in the United States. Does the President have a duty to enforce such laws? Is it only the Supreme Court which has the power to declare a law unconstitutional? Is it only the states which have the right to nullify laws passed by Congress?

In the case of the refusal to prosecute certain federal drug crimes involving mandatory minimum sentences, what if President Obama is doing that because he views it as an unconstitutional violation of the separation of powers to allow the legislative branch to usurp the authority of the judicial branch regarding specific criminal sentencing? Is this any different than if he would rightly refuse to uphold the hypothetical despotic and unconstitutional laws mentioned previously?

Is there anything in the Constitution which mandates that the President or any other elected federal official must do something which is unconstitutional? Are the Constitution and the Republic which it serves both not safer if all elected federal officials defend the Constitution even if it means not carrying out a law which they believe—rightly or wrongly—to be unconstitutional? Is it even possible for the President to faithfully execute every law even if none are unconstitutional? Does the federal government have the money or manpower to do so? Are all duly enacted laws necessarily consistent? Can they all even be faithfully enforced?

A much bigger problem with the Commander-in-Chief in recent decades has been the President doing things which he knows are unconstitutional rather than refusing to do things which he believes are unconstitutional. If President Obama and all future presidents would concentrate on defending the Constitution, even if their Constitutional interpretations turned out to be erroneous, if these interpretations are sincere and in good faith, then the country and its citizens would be much better off.