The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced. My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses.
Issues of constitutional structure and function are among the most daunting we face. We want to live in a rule-of-law society. We have a Constitution that we know and intend to be supreme. Yet its instructions are vague and dated. It does not in terms create a separation of powers, establish judicial review, define our day-to-day government, or much indicate the President's relationship to that government. Indeed, as Professor Walter Dellinger remarked at the opening of this conference, central questions respecting the presidency were not even addressed until the pressured final eleven days of the Constitutional Convention. After more than two centuries, some of the Constitution's most fundamental questions remain unanswered. Perhaps, as I understand Professor Alexander Bickel once remarked in another context, that is on the whole a good thing. Some questions are better left as questions, with fringes of uncertainty, doubt, and play that provide flexibility and stability through changing times.
Peter L. Strauss,
The President and Choices Not to Enforce,
Law and Contemp. Probs.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/426