In the past week, the Oregon attorney general stated that her office will no longer defend the state’s constitutional ban on gay marriage. This has come at a time when state voters may soon revoke this ban.
In recent months and even in the past year, we have seen several governors and attorney generals 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, we 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 ones 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 – U.S. Constitution
Each branch of government (whether state or federal) has predetermined responsibilities. The Legislative Branch passes laws while the Executive Branch enforces those laws. 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 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 – U.S. Constitution
Also Read: A Brief History of the Executive Order
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 or she disagrees with it. Even during the Whiskey Rebellion (1791-1794), President George 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.”
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the citizens then it should be either ruled unconstitutional in the courts (if it violates part of the Constitution) or repealed/amended through the legislative process.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 was set up so that one person does not 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.
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 of the U.S. 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 so it can rule on the constitutionality of the law. Regardless, allowing an executive to have the sole authoritarian role of determining whether a law is enforced or defended is not a legal option and is dangerous to overall society.