Obviously, this title is in reference to two fairly recent acts by Barack Obama: his decision not to defend DOMA in courts, and his decision not to enforce certain aspects of federal immigration law and policy. Both issues are discretely different and require a different analysis. The absolutist view is that which we learned in grade school civics class: the Legislative Branch passes the laws, the Executive enforces the laws, and the Judicial branch interprets the laws. If it were only that simple. Ever since this country's founding, there has been a tension between the Executive and Legislative branches of government. In response to the Quasi-War between the US and France under the administration of John Adams, the Alien and Sedition Acts were passed. Among other things, it was a crime to criticize the federalist government of John Adams. Although it expired as Thomas Jefferson assumed office, had it not been, does anyone think that Jefferson would have supported the law in any court? But that is the hypothetical.
There are real-world examples of Presidents, through their Justice Department, refusing to defend existing laws in courts, although it is rare. In fact, a research of the literature uncovers, before DOMA, only eleven cases. I will not recite all the cases, but the first example occurred in 1948 in the case of U.S. v. Lovett which involved salaries for certain federal employees. Then, the Justice Department refused to defend the law in court claiming it was a Bill of Attainder. In 1963, the Kennedy Administration refused to defend a law that codified the doctrine of "separate but equal" in hospital funding. Likewise, there are cases where one Administration decided not to defend a law and the next Administration's interpretation of its constitutionality is different and they choose to defend the law. For example, the Carter Administration decided not to defend a ban on non-commercial radio stations from editorializing or endorsing candidates on First Amendment grounds, but the Reagan Administration found a way to defend the law. The Bush I Administration decided not to enforce the "must carry" provisions of the FCC, but the Clinton Administration changed course. Lest anyone think that when the government decides not to defend a law in court it somehow means the government's position will prevail, their record in these 11 cases is 6 victories and 5 defeats. So just because the Obama Administration chooses not to defend Section 3 of DOMA in court does not guarantee Section 3 will be struck down.
An Administration cannot willy nilly decide not to defend a law in court. To do so, they must reach the decision, after analysis, that the provisions in question are unconstitutional. They cannot simply stop defending a duly enacted law in court because they have a policy disagreement with it. And even then, they must have a reasonable expectation of prevailing in the argument when the courts do decide the constitutionality of the provision or law in question.
As for enforcing duly enacted legislation, the case become a little more muddy. The President takes an oath to faithfully execute the laws of the United States. As important, if not more important, that oath also specifies that they uphold the Constitution. That is one "out" for the Executive branch- they can refuse to enforce a law if they believe it is unconstitutional since the Constitution, as the supreme law of the land, takes precedence over acts of Congress. Hence, Congress is under a duty not to pass unconstitutional laws, the President is under a duty not to enforce unconstitutional laws, and the courts are under a duty to strike down unconstitutional laws.
Barack Obama would be the among good company when it comes to saying he will not enforce a law. For example, Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Franklin Roosevelt all stated their intention of non-enforcement or, in Lincoln's case, he actually followed through (The Habeas Cases). Unlike the aforementioned Presidents, however, Obama is basing his non-enforcement decision not on the constitutionality of the law or provision, but on what can only be described as a policy disagreement. It could best be described as political pandering, but that is a separate subject.
And unlike those other Presidents, Obama's reasoning is totally out of the mainstream. In all other cases, the law in question impinged upon the executive powers of the Presidency, particularly the President's constitutional role as Commander-in-Chief. Existing immigration laws has a very tenuous relationship to that role. Also, if one looks at the statement regarding the announcement, we hear a lot about "fairness" and nothing about "constitutionality." That leads to no other conclusion than this decision was predicated upon a policy difference.
From a constitutional standpoint, the President has three options with respect to laws. He can sign the legislation into law, do nothing (the pocket veto), or veto the legislation. All of this is specified in the Presentment Clause. But what is a President to do with respect to laws they inherit, such as the case here? Ideally, he should show some leadership and work to change the law, repeal it, replace it, or amend it. Obama chose none of these options. He can blame an obstructionist Congress until doomsday, but is lack of Presidential leadership that is the main roadblock to reform.
But the story does not end there. If you again read the statement by Obama, alongside the "fairness" issues, he cites the fact that law enforcement and immigration officials can now focus their attention on removing criminals and drug dealers and the like. Hence, although truly a "fairness" issue, the Administration likewise is invoking prosecutorial discretion. Because of limited resources, the executive branch cannot seek prosecutions of every conceivable violation of the law. And it happens all the time. Sometimes the little fish are let go to get the bigger fish. Police often turn their backs on marijuana use at rock concerts. And so on and so on. But, imagine the precedent this establishes. Liberals are all gung-ho about this decision characterizing it as leadership where the Congress has failed to act. Will they be saying the same thing when and if Romney is elected? What if, as John Yoo noted, Romney wanted to unilaterally lower tax rates by telling the IRS not to enforce capital gains tax collection? What if a President Romney, assuming Obamacare does not go away, directs the IRS not to collect any penalty (er, tax) under the mandate, thus unilaterally repealing Obamacare? Will liberals be as accepting of the precedent Obama has now set?
However, assertions by Newt Gingrich that this action by Obama is an impeachable offense is silly. All Obama would have to do- and he has the words as cover- is claim prosecutorial discretion. Statements like this from Gingrich make me believe that he may have attended the Barack Obama School of Constitutional Law. Although not an impeachable offense, it certainly is in poor taste and it definitely sets a bad precedent that only reinforces the notion of an imperial presidency.
Of course, no discussion of this topic would be complete without commenting on Presidential signing statements. James Monroe was the first President to issue a signing statement and between Monroe and Reagan, only 75 such statements were ever issued usually of a rhetorical or political nature. Between Reagan, George H.W. Bush, and Clinton, there were 247 signing statements and 157 under George W. Bush. And the new tradition is being carried on by Obama who, despite campaign promises to the contrary, may very well challenge Bush for the record. In effect, opponents of the practice charge that Presidents are using this as a vehicle for a de facto line item veto. Line item vetoes were ruled unconstitutional by the Supreme Court.
The fact is that our Founders never envisioned things like omnibus spending bills and the like. Outside of declaring war and appropriating the funds for execution of that war, they never envisioned Congress encroaching on the President's powers as Commander-in-Chief and their execution of a war. In fact, many of the Bush signing statements can be justified since they questioned legal provisions that encroached upon his executive powers enacted by an increasingly hostile and partisan Congress. Granted, many signing statements were issued in his first term when his party held Congressional majorities. But in what could best be described as a legislative and spending free for all, items that did encroach on executive powers certainly made their way into that legislation. I am no more defending Bush's use of signing statements than I am defending the usage by Obama. The best laws are those that are constitutionally sound and "clean."
So, can the Administration refuse to defend a duly enacted law? Yes they can and they have provided (1) there is considered belief the provision in question is unconstitutional and (2) they reasonably believe their view will ultimately prevail upon judicial review. Obama's action is rare, but not novel with respect to DOMA. Can a President refuse to enforce a law? Yes they can, but only if there is a constitutional question involved that impinges on the power of the Executive, especially as concerns their role as Commander-in-Chief. At best, Obama can say he is exercising prosecutorial discretion.
[Two interesting historical facts: the increased use of the Presidential signing statement in the Reagan Administration was based on a memo regarding its legality written by a Justice Department lawyer named Samuel Alito. With regards to the non-defense of a federal law in court by the Justice Department, a famous memo was written by an Acting Solicitor General named John Roberts arguing against affirmative action in the rewarding of FCC broadcast licenses.]