Executive Responsibility to Enforce Laws

In the past week, the Oregon Attorney General has stated that her office will no longer defend the state’s constitutional ban on gay marriage.  (Bloomberg)  This has come at a time when the voters of that state look to be voting on the issue to revoke the ban.  In recent months and even in the past year, we have seen several governors and attorneys general refuse to defend certain discriminatory laws.  Even President Obama (along with Attorney General Eric Holder) refused to defend the Defense of Marriage Act before the Supreme Court last year.

Coming from the side where such decisions are of great benefit, it is usually something to cheer.  However, I must also look at things in terms of the role of government.  Here we have executives (both state and federal) determining unilaterally which laws they will enforce and which they will not.

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article I, Section 1 – US Constitution

Each branch of government (whether state or federal) has predetermined responsibilities.  The Legislative Branch passes laws while the Executive Branch enforces those laws.  (see also By Order of the Executive)  No where in the responsibilities of the Executive Branch does it state that the chief executive (e.g. Governor, President) has the right to determine which laws to enforce and which ones not to.  The role of the executive is to enforce all of the laws that are passed.

“[H]e shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”
Article II, Section 3, Clause 5 – US Constitution

According to Humphrey’s Executor v. United States (1935), the Supreme Court ruled that the President (as the Executive) must obey the law and cannot dispense with the law’s execution even if he/she disagrees with it.  Even during the Whiskey Rebellion (1791-1794), President Washington stated, “[I]t is my duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to that duty.”

So though we may cheer about progress when an Executive, whether it’s a Governor, Attorney General, or even a President, decides not to enforce a discriminatory law against same-sex marriage, we must also be wary.  We are giving our approval for one person to decide if a law is enforced or not.  This can set a dangerous precedent.

If a law is detrimental to the citizens then it should be either ruled unconstitutional in the courts (if it violates part of the Constitution) or repealed/amended through the legislative process.  Our government has been set up so that one person does have full authority.  And any Executive that fails to enforce the laws that have been passed by the legislature  has failed to uphold their responsibilities of the office.

Just because we might tend to think that the Executive is doing the right thing now in not enforcing or defending such discriminatory laws, what will we say when another Executive decides to not enforce or defend another law that could be detrimental to the public?  We don’t get to pick and choose which laws to obey once they have been passed.

If a law has been passed that is harmful to the people then we have legal ways of reversing it.  We have the freedom of speech and assembly that is guaranteed by the Fist Amendment to the Constitution.  We can elect new legislators and an Executive so that they can repeal the law.  We can send a lawsuit through the court system to have them rule as to whether that particular law violates the Constitution.  Regardless, allowing an Executive to have the sole authoritarian role of determining whether a law is enforced/defended is not a legal option and is dangerous to overall society.