The President of the United States is tasked with enforcing our nation's federal laws. Our tradition is that laws are enforced evenly and without regard to the personal preferences of the president. We are a nation of laws, not whim. But there can be problems with enforcing our laws blindly. What if a law or regulation conflicts with the Constitution? If any such law is on the federal books, a president needs a remedy.
A law is deemed unconstitutional when it legally conflicts with the US Constitution. There have been many such laws in our history. They were enacted through the standard legislative process involving both Congress and the president. But they contained a flaw, usually giving the government more power than our Constitution allows. This creates a dangerous situation for the American people.
Unconstitutional laws are likely to harm Americans in some way. In our history, unconstitutional laws have threatened our most sacred values and rights of the people to life, liberty, pursuit of happiness, property rights, freely speaking our minds, and much more. Thankfully, our constitution is structured in such a way that allows for these unjust laws to be nullified by the courts or removed entirely by Congress. The courts typically lead the way in identifying and nullifying unconstitutional laws.
When a person is charged with a crime in America, the courts have a responsibility to try the person fairly, but metaphorically speaking, the law itself is also on trial. During the course of a trial, the court may find that the law the person broke, conflicts with the Constitution in some way. This is called judicial review. It is a legal procedure for the courts to uphold the Constitution as the highest law of the land. The courts will find that all ordinary statutes and regulations must comply with it.
In cases where a person breaks an unconstitutional law, is charged with a crime, and goes to trial, the court will have the opportunity to determine if the law itself is unconstitutional. If there is a legally substantial claim of unconstitutionality, the court will weigh the law against the Constitution. If the court finds that the law conflicts with the Constitution, the law will be “struck”. If that happens, the criminal case against the person is dropped, and the person is completely free of those charges. If anyone else in the country is charged with that crime, the charges against them are also dropped. Moving forward, no one else would be criminally charged with breaking that law. The law is dead.
Technically speaking, a law ‘struck’ by the court is only mostly dead. Reviving a law struck down by the courts is exceedingly rare. But it is important to keep in mind there is a difference between a law that is "mostly dead" and "all dead". For more information on the legal and political nuances, you may find The Writ-of-Erasure Fallacy by Jonathan F. Mitchell helpful. This article is useful for understanding the broader implications of laws struck by the courts as "mostly dead" versus those repealed by Congress as "all dead".
While judicial review is important for enforcing only constitutional law, the only way to permanently remove a bad law is to repeal it, by the same way it was made. Congress passes a repeal bill and sends it to the president. The president signs the repeal into law. Only then is the law “all dead”. After repeal, it’s as if the law never existed.
The best remedy for a bad law is for Congress to get rid of it by repeal. This requires a focused, determined effort of Congress and the president working together. We know that's not always easy, but "cleaning house" of bad laws is worth the work. I look forward to spending a significant amount of time working with Congress on this important goal. Our nation will be better served by clearing away laws that do not comport with the Constitution.
Because this legislative deep-cleaning will take years of effort, likely extending beyond my first term, I plan to use an additional tool called presidential standing. This is where a president enjoys presumed standing to file a lawsuit against any law identified as unconstitutional. Using this legal tool will help immediately clear the books of unconstitutional laws. Additionally, this legal tool provides additional benefits.
Congress will always hold the power and authority to repeal any law, at any time. But there can be political factors that might discourage Congress from repealing an unconstitutional law. Judicial review will help emphasize which laws Congress might consider repealing, or not, depending on the court decision. If the judiciary, less susceptible to politics, strikes a law, it can pave the way for the legislature to act. In politically sensitive situations, it could help reduce the political consequences of Congress repealing a bad law.
The functioning of a presidential petition for judicial review is the same as that of any lawsuit. When a person files a lawsuit, the court reviews their lawsuit to ensure it has a valid legal basis and that the person has standing. This ensures the courts are not inundated with trivial or frivolous lawsuits or lawsuits in which a person does not have a direct interest. It is assumed that a president would have a soundly articulable, legal basis for filing a lawsuit for judicial review. The presumption of standing that a president enjoys in this matter is found parallel to the same reasoning for judicial review itself.
The first instance of judicial review under our Constitution occurred in 1803 in the case of Marbury v. Madison, and the court's opinion was written by Chief Justice John Marshall. In the decision, Justice Marshall justified judicial review. As explained above, in a case before the court, the law is also on trial.
Justice Marshall writes, "So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." Clearly, the court is bound to hold the Constitution as the highest law in every case. Judicial review is simply the word for upholding the Constitution.
Judicial review is also entirely justified by other avenues of reasoning. The oath that judges take when assuming office is a real basis for requiring judges to uphold the Constitution as the highest law.
Justice Marshall writes, "Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime." We see that for Chief Justice Marshall, the oath of office has a real, plain English meaning. That meaning compels and empowers judges to carefully weigh the law in question against the Constitution itself.
Presidents also take an oath of office that charges them with supporting and defending the Constitution. Just as judges are empowered to measure laws against the Constitution, so are presidents empowered to actively defend it using all legal and reasonable means. Filling a lawsuit is both legal and reasonable when a person is directly involved in a matter of law. How can we find that a president is not directly involved in matters of law, when the president is specifically charged to enforce them?
Imagine the cruel "mockery" of a president who would be charged with enforcing a law while being able to articulate a legal basis for it's invalidity, and having no power to actively pursue a remedy. That situation is a direct harm to the president. It is a harm to professional capacity, ethics, and reputation. This harm is the basis for presumed standing. It is the same harm that would afflict judges if they were unable to practice judicial review. For the president, the harm affects the core of his or her relationship to the American people. Without presumed standing, the president must confess having one less tool to defend the American people against a government of unjust laws.
There are detractors of presumed standing. Here are some of the arguments they may offer:
Presidential standing is not valid because it is not described in the Constitution…. But neither is judicial review. Further, this is not assuming a new power. All the president is doing is petitioning the court. This is done to defend the Constitution, a charge of the Constitution itself, and that is done on behalf of the American people, the president acting as the first among equal citizens. This is reasonable and legal.
The rules of standing do not allow people to file lawsuits on behalf of other people…. The president is harmed by the mere existence of an unconstitutional law and the potential that he or she may need to enforce that law. Presidential standing is to remedy a direct harm to the president himself or herself. The court has the power to provide the needed remedy.
Working with Congress to repeal a law is sufficient. The president can use the political process where Congress repeals and the president signs the repeal into law… A president needs all available tools that are both legal and reasonable. Working with Congress may be stymied for any number of political influences that could possibly never resolve as long as any unjust law is on the books. An entrenched class of patrons may hold political influence indefinitely. Working with Congress for full repeal is important but insufficient.
Presidential standing may tend to reduce liberty and increase government power over people if good laws are struck by the courts… Highly unlikely. Laws almost always give government additional power. Striking them would then reduce government power. But in the case of a good law that is helpful and is constitutional, the president would be very unlikely to want to have it struck, and further the courts would resist striking a constitutional law. So, it's unlikely that two branches of government would both find a legal basis to strike good laws. A further protection in case that happened is Congress making an amendment to the Constitution, specifically granting the power in question, and making the law by definition constitutional.
The concept of presidential standing is grounded in the principles of our Constitution and the very oaths taken by our nation's leaders. It’s not an attempt to circumvent Congress or usurp power but a reasonable and legal tool for a president to actively defend the Constitution. While detractors may raise concerns, the practice of presidential standing is consistent with the checks and balances inherent in our system of government. It offers a dynamic way to ensure that our laws align with our nation's core values and protect the liberties of the American people. In my administration, this will be an important tool of pruning and reshaping our government along just, constitutional lines.
I hope that this essay opens the door to an ongoing conversation with you, the American citizen. As I consider the potential for judicial review and the laws that might warrant it, I invite you to reflect not just on my intentions but on your own desires for our government. What do you want our nation's laws to accomplish? How can we ensure that our government operates with fairness and integrity, upholding the golden rule for all, regardless of who holds power? These are the questions that guide my commitment to serving you, and they reflect the beautiful principles embedded in our beloved Constitution. Together, we can work to create a government that serves and honors us all.
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