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The recent debate over President Obama’s enforcement of immigration laws and the Affordable Care Act has focused attention on a President’s duty to enforce federal statutes, arising from his constitutional obligation to “Take Care that the Laws be faithfully executed.” Also arising from the Take Care Clause is a President’s distinct duty to defend the constitutionality of federal laws when they are challenged in court, a duty whose scope was hotly debated when Attorney General Eric Holder announced that the Justice Department would not defend section 3 of the Defense of Marriage Act. Some scholars – most notably Professors Neal Devins and Saikrishna Prakash – argue that a presidential duty to defend federal statutes lacks any sound constitutional basis and is unnecessary (see their paper, "The Indefensible Duty to Defend"). However, recent United States Attorneys General – with the possible exception of Attorney General Holder – have agreed that the President has such a duty, subject only to narrow exceptions for laws that are transparently unconstitutional or that the President believes unconstitutionally encroach upon executive power.
In their article “Take Care Now: Stare Decisis and the President’s Duty to Defend Acts Of Congress” in the Harvard Journal of Law & Public Policy, authors Curt Levey and Ken Klukowski argue for a strong presidential duty to defend, including a duty to defend even statutes alleged to be transparently unconstitutional where the administration’s defense is the only way to facilitate a judicial determination of constitutionality. Levey and Klukowski contend that a strong duty to defend is necessary to maintain the separation of powers under which the judiciary serves as the final voice in constitutional challenges, to prevent Presidents from enacting a form of post-enactment veto of legislation they dislike, and – like the judicial doctrine of stare decisis – to provide federal law with stability and predictability.
- Prof. Neal E. Devins, Goodrich Professor of Law, Cabell Research Professor, Professor of Government, Director, Institute of Bill of Rights Law and Director, Election Law Program, William & Mary Law School
- Curt A. Levey, President and Executive Director, The Committee for Justice