One thing that shouldn't change

One of my first posts after the 2008 election offered ten issues whose partisan valence had been reversed by the election, but that were unchanged by the result. (See also the neutral principles section of this post.) Number one on my list was this: "The executive branch is still unitary. The Constitution vests the executive power in President Obama; 'this does not mean some of the executive power,' as Justice Scalia reminded us in Morrison, 'but all of the executive power.'"

Alas, this morning, NPR affirmed that all supposed principles are ad hoc for some, reporting on SG nominee Donald Verrilli's confirmation hearing. The fire under the kettle here is the President's recent decision to abandon DOMA, and some folks aren't happy about that:

Republican senators noted that the tradition of the Justice Department is that the solicitor general defends laws enacted by Congress unless those laws impinge on presidential authority or no reasonable argument can be made on behalf of the law. DOMA does not involve presidential authority, and the senators argued that because the Justice Department previously defended the law, there obviously were reasonable arguments to be made.

. . . .
Republican senators said it was crucial to know that Verrilli would act independently, as other solicitors general have done. ¶ Sen. Orrin Hatch (R-UT) said he and others needed "a simple and clear answer" from Verrilli. ¶ "If you believe reasonable arguments exist to defend a statute's constitutionality, but the attorney general or president says otherwise, will you defend the statutes or resign?" he asked.

Verrilli responded that he would "defend the statute unless instructed by [his] superiors not to do so." ¶ Replied Hatch: "That is not a good answer."

Actually, that's a perfectly good answer. For eight years, the GOP defended (and Democrats assailed) the prerogatives of the Presidency over the unitary executive branch. And now, given a Democratic President, and as night follows day, we have GOP Senators insisting on the SG's independence!

In fact, directing the SG to take a particular position in litigation was one of the examples I gave in the second post linked above of the President's unexceptional exercise of his authority. It's not hard to see why: In The President's Brief, I pointed out that it would be nonsense to inpute the SG's position in a case to the President unless the President can control the SG, and vice versa. And if the President can't control the SG, not only is the SG unaccountable to the people but the President's ability to discharge his obligation to take care that the laws be faithfully executed, U.S. Const., Art. II § 3, is compromised. Two posts from Septeber 2008 illustrate those points. As to the first: While agencies and officers like the Secretary of State or the SG aren't directly accountable to the people, they are so indirectly through President, who is. Chevron v. NRDC, 467 U.S. 837, 865-66 (1984). The President's authority to direct the unitary executive is necessary to ensure public control of the government. And as to the second: Governors and Presidents can't personally implement policy; they must they rely on their officers. Our first President perceived this almost instantly: "The impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust." 30 Writings of George Washington 333, 334 (May 25, 1789) (Fitzpatrick ed., 1939). To function effectively, a chief executive must work through and therefore be able to trust and rely on her subordinates"—their "hands," see United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en banc)—and among several necessary corollaries to that is that any officer to whom executive functions are assigned must be "fully within the supervision and control of the President." Morrison v. Olson, 487 U.S. 654, 708 (1988) (Scalia, J., dissenting).

What animates the debate is, as I have said, that Republicans generally like DOMA, and they're incensed that the President is somehow "cheating." (We would not be having this conversation if the Obama administration had announced that it would no longer defend Obamacare in court, and it would be Democrats making these points if President Bachmann had made the announcement.) Nevertheless, there is tension here is between the President's duty to take care that the laws be faithfully executed and his oath to uphold the Constitution. That oath allows (indeed, obligates) him to veto legislation that he deems unconstitutional, and in exceptional cases, it may allow (indeed, obligate) him to refuse to enforce a statute that he deems unconstitutional. (It would be a harder case if the Supreme Court had exercised its authoritative lawsaying role; then the President, pace President Jackson, would have to fall in line, in my own view.) But we need to distinguish between "statutes" and "law." An unconstitutional statute is not law. See U.S. Const., Art. VI, cl. 2 (only the Constitution "and the laws of the United States which shall be made in pursuance thereof" are the law of the land (emphasis added)); Marbury v. Madison, 5 U.S. 137 (1803). Here's a very glib statement of how I conceptualize law (to the extent relevant here): The sum of the Constitution and the statutes. But it's not all addition! A statute that is unconstitutional is deducted to that extent. Republicans are saying that the President is refusing to enforce "the law"; I think he's saying that because the statute isn't Constitutional, it isn't part of the totality of law, and he won't defend it.

So who's right? Well, there's the rub. The question actually becomes, who gets to decide. I think that whatever it lacks in theoretical elegance, the traditional view is a workable balance: Generally, the executive should make all good-faith arguments possible while retaining the authority in exceptional cases to refuse to defend. And that doesn't change just because I don't like this President or because I disagree with the call. The President's authority to direct the unitary executive branch has not, in my view, changed since 2008, and it will not change after 2012 either.