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Don’t Defend, Don’t Appeal?

When may a president decline to defend a federal law?

Nov 8, 2010, Vol. 16, No. 08 • By EDWARD WHELAN
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The recent district court ruling that the “don’t ask, don’t tell” law governing homosexuals in the military is unconstitutional triggered speculation that the Obama administration, which is eager for Congress to repeal “don’t ask, don’t tell,” might choose not to appeal the ruling. That speculation proved mistaken—an appeal has been filed—but it provides an apt occasion to explore the principles that ought to govern a presidential administration in deciding whether to defend a federal law that it disfavors.

Don’t Defend, Don’t Appeal?

In considering those principles, it’s useful to test them against one’s political biases. So both supporters and opponents of “don’t ask, don’t tell” might consider, for example, the following hypothetical: It’s 2014, and Obama-care has withstood several constitutional attacks in the federal courts of appeals, but a district court has just issued a nationwide injunction against that law’s continued implementation. Is it proper for the Republican president who defeated Barack Obama’s bid for reelection to decline to appeal the injunction?


At the outset, it is essential to distinguish between laws that an administration opposes or disfavors on policy grounds only and laws that it regards as unconstitutional. When a president opposes a law on mere policy grounds, he is nonetheless obligated to defend it vigorously. That obligation flows directly from the president’s duty under Article II of the Constitution to “take Care that the Laws be faithfully executed,” for the duty to faithfully enforce a law entails defending it against attacks in court.

The president’s “take Care” obligation does not apply to laws that are unconstitutional, as the Constitution is first and foremost among the “Laws” that the president is dutybound to “take Care  …  be faithfully executed.” But that observation does not resolve the question how the president ought to go about deciding whether a particular law is unconstitutional and therefore ought not be enforced or defended. May he, for example, regard a law as unconstitutional only if the Supreme Court’s precedents clearly dictate that it would so hold? Or may he form that judgment on his own, where the Court’s case law is unclear or even where his judgment is contrary to the Court’s ruling that the law is constitutionally permissible?

As it turns out, these questions have been weightier in theory than in practice, at least insofar as the Department of Justice’s duty to litigate in defense of a federal statute is at issue. Over the last several decades, presidential administrations with very different theoretical understandings of the president’s authority to interpret the Constitution have embraced the general proposition that, with the exception of laws that intrude on executive-branch prerogatives, the Department of Justice should vigorously defend the constitutionality of any law for which a reasonable defense may be made under existing precedents. 

This general proposition has not been absolute. In rare instances, as Clinton Justice Department official Walter Dellinger outlined in a recent New York Times op-ed, an administration has determined not to offer a substantive constitutional defense of a defensible law. Instead, it has pursued only a nominal defense: It sets forth in its briefs its position that the law is unconstitutional but also files a formal appeal from a decision adverse to the law. That formal appeal ensures that the judicial hierarchy can operate to correct a wrong decision. Further, as Dellinger explains, when an administration pursues the option of making only a nominal defense, the courts can and should invite other interested and capable persons to defend the law. 

In theory, a hypothetical future president might exercise his powers much more robustly by declining to enforce and defend any law that he regards as unconstitutional, no matter how defensible it is under the Court’s precedents. There are limits, however, on how effective such an approach might be. The reality is that a president can’t, by mere nonenforcement, unilaterally and permanently wipe from the books a federal law that the courts might deem to be constitutionally permissible. That law might, for example, be enforceable by private parties or by a subsequent president.

Further, it would be cowardly and irresponsible for a president to attempt to nullify a law by declining to appeal a district-court ruling that strikes down the law. If the president believes that the law shouldn’t be enforced and defended, he ought to have the courage to adopt that course of conduct from the outset, rather than hiding behind the ruling of an inferior-court judge and trying to prevent that ruling from being reviewed by higher courts. 


Let’s now apply these principles to the “don’t ask, don’t tell” case and the Obamacare hypothetical.

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