In the Trump administration’s response to the lawsuit brought by Texas and the Texas Public Policy Foundation challenging the current constitutionality of the Affordable Care Act (ACA), the Department of Justice agreed that several key portions of the ACA were unconstitutional. Immediately, several commentators reported that the Justice Department’s failure to defend the law in its entirety was a radical and dangerous departure from precedent.
The Associated Press called the move a “rare departure from the Justice Department's practice of defending federal laws in court.” Former Solicitor General Donald Verrilli, called it “a sad moment” and “impossible to believe.” University of Michigan health law professor Nicholas Bagley wrote on Twitter, “I am at a loss for words to explain how big of a deal this is.” One former Justice Department attorney said the refusal to defend the entire ACA shows a “depth of institutional decay at the Department of Justice.”
The demise of the republic has been greatly overstated. The truth is, the government’s decision not to defend a clearly unconstitutional law is neither unprecedented, nor even rare. Indeed, it is what the founders expected and precisely how we should want government lawyers to behave.
During the ratification debates, founding father James Wilson made clear that the president “could shield himself, and refuse to carry into effect an act that violates the Constitution.”
Several years later, President Thomas Jefferson refused to enforce or defend the Alien and Sedition Acts on the ground that he believed they were unconstitutional. Writing to Abigail Adams, Jefferson noted that his “oath to protect the Constitution” created in him a “duty to arrest [the Sedition Act's] execution in every stage.”
This remained the standard interpretation of presidential duties for more than a century. The so called “duty to defend” didn’t appear until an Office of Legal Counsel opinion letter in 1980. But even after 1980, presidents have been inconsistent in its application. President Reagan’s justice department thought it was improper to defend the constitutionality of certain provisions of the Banker Amendments and Federal Judgeship Act of 1984. In 1996, President Clinton refused to defend the statutory ouster of HIV-positive members of the military. In 2011, President Obama’s justice department declined to defend the constitutionality of the Defense of Marriage Act. None of these refusals to defend laws were the existential threat to the republic that some commenters now suggest will be wrought by the Trump administration’s refusal to defend the ACA.
But the insistence that government attorneys enforce and defend unconstitutional laws creates a larger problem. It creates bad moral habits in government attorneys. The founders expected that each branch of government would make independent decisions about whether a law violated the Constitution. While the Supreme Court provides a final check to defend constitutional rights, the Founders thought relying on the courts would be a rare remedy. They believed that congressmen would think about whether the laws proposed were constitutional before they voted on them, the president would consider whether laws were constitutional before he signed them, and the justice department would consider whether laws were constitutional before they enforced them. It is no accident that every attorney, even in private practice, swears an oath to the Constitution before he can practice law.
Requiring that Justice Department attorneys concoct strange arguments to defend unconstitutional laws creates a culture of indifference to constitutional rights that we shouldn’t want in public servants who wield the power of law enforcement. It also creates a culture of tribalism where government lawyers reflexively defend “their team” even when government harms its citizens. Such an ethic is contrary to the very idea that the Justice Department is supposed to represent the people and defend justice — hence the name.
None of this is to say that the president may simply refuse to enforce laws with which he disagrees. The Constitution is clear that the president has a duty to ensure “that the laws are faithfully executed.” But first and foremost, the president must faithfully execute the Constitution. And as the Supreme Court has repeatedly noted, any law contrary to the Constitution is “null and void.” In the present case, the ACA is unconstitutional and the president has a duty not to defend it.
This commentary was originally featured in The Hill on June 14, 2018.