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Should the Executive Branch Have to Enforce Unconstitutional Laws?

by James Spurgeon, published

In my last column, I wrote of the Executive Branch's responsibility to enforce all laws passed by the legislature. Failure to do so means that the executive (whether governor or president) is not doing his or her job. However, I was at dinner the other night with a friend who studies constitutional law when she posed this question in response: If a law is passed by the legislature that is in clear violation of the U.S. Constitution (or even a state constitution), does the executive have a responsibility to still enforce the law?



My response to her question was to quote conservative columnist George Will, who once stated on This Week with George Stephanopoulos that no law is unconstitutional until it is ruled so by the courts. And though my response seemed to move the conversation in an entirely different direction, it still had my mind thinking about it.

According to the legal encyclopedia, American Jurisprudence,

"The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed ... An unconstitutional law is void." (16 Am. Jur. 2d, Sec. 178)

In my previous column, I basically discussed the topic of same-sex marriage, but in this instance I will use a couple of other topics.

Let's say a state legislature decides to take away a woman's right to vote or brings back segregation laws. The nation has already decided on these two issues. A woman is guaranteed the right to vote as guaranteed by the Nineteenth Amendment to the U.S. Constitution. Additionally, segregation laws were ruled unconstitutional based on the Equal Protection Clause of the Fourteenth Amendment.

So, are these laws automatically unconstitutional or do they need to be ruled so by the courts yet again since they pertain to different laws? This is also somewhat being played out in the religious freedom bills that are coming up in states like Arizona, which would protect people and businesses from lawsuits for denying goods or services to people based on religious convictions -- including members of the LGBT community.

These laws seem to be quite similar to the old segregation laws and would be in clear violation of the Equal Protection Clause of the Fourteenth Amendment in the same way. So if they are enacted, does the governor or state attorney general have the responsibility to defend these laws in court? The definition found in the American Jurisprudence would indicate 'no' since the law is already null and void.

When it comes to the federal executive (the president), remember the oath of office he or she must take: "[...] preserve, protect, and defend the Constitution of the United States." And though the oaths of office for the various state governors might be different, they are still similar in their overall message... to uphold their state constitution and the U.S. Constitution as no law may violate this document.

Some laws are a bit murkier and the courts need to make a decision regarding their constitutionality. But, when it comes to laws that are in clear violation, it would seem the government doesn't really have the responsibility to defend the law in court (or even enforce the law) as the law is already null and void from the start.

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