In Seven-Sky v. Holder (D.C. Cir. 2011), the D.C. Circuit case on the individual mandate, Judge Brett Kavanaugh dissented as to jurisdiction and declined to reach the merits: He concluded that the federal courts lacked jurisdiction to consider the case, because of “the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters.” In the process, he also wrote that, “The principle that we avoid premature or unnecessary constitutional decisions applies with special force here. That’s because if we do not decide the constitutional issue now, we may never have to decide it.” And one reason he gave was that,
Second, but far more broadly, by 2015 Congress might choose to eliminate Section 5000A altogether—that is, eliminate this financial disincentive for failing to have health insurance. Or the President might not enforce the individual mandate provision if the President concludes that enforcing it would be unconstitutional.[43] In one of those events, the courts would likewise never have to opine on the constitutional issues presented in this case.
[Footnote 43] Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional. See Freytag v. Commissioner, 501 U.S. 868, 906, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring) (the President possesses “the power to veto encroaching laws or even to disregard them when they are unconstitutional”) (citation omitted). Similarly, Congress may repeal or decline to pass a statute based on its own constitutional interpretation even if the courts have (or would have) upheld the statute as constitutional.
This power does not work in reverse, either for the President or Congress. In other words, the President may not enforce a statute against a private individual when the statute is deemed unconstitutional by the courts. Nor may Congress pass a statute and have it enforced against private individuals simply because Congress disagrees with the Supreme Court. In those situations, the Judiciary has the final word on the meaning of the Constitution. See, e.g., Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008); Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); United States v. Eichman, 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990).
The first sentence in footnote 43 — “Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional” — might seem surprising to a layman, but it’s certainly well within the mainstream of constitutional thought, and I suspect that it might even be the dominant view among constitutional scholars. The Freytag opinion that it cites was written by Justice Scalia and joined by Justices O’Connor, Kennedy, and Souter. Indeed, a quick Google search for president refuse to enforce unconstitutional laws pops up a 1994 Memorandum to White House Counsel Abner Mikva by Assistant Attorney General Walter Dellinger, which says (in its second sentence):
Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.
Dellinger is a highly prominent and respected liberal lawyer, Duke University law professor, and former Acting Solicitor General.
Now Freytag and the Dellinger opinion do not say that the presidential power not to enforce certain statutes endures even once “a court” has upheld them. But their logic, and especially the logic of the Dellinger opinion, strongly suggest this power is not automatically erased by a decision from some court. To be sure, the Dellinger opinion seems to suggest that the President should defer (at least “[a]s a general matter”) to the Supreme Court’s decisions, and even to his predictions about the Supreme Court’s decisions. (“As a general matter, if the President believes that the [Supreme] Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue.”)
But Judge Kavanaugh’s opinion does not speak of the President’s ignoring the Supreme Court, though some scholars would argue that the President has that power, in the circumstances that the opinions suggests. (Ed Whelan (National Review Online) sets forth the argument, but others — such as liberal Stanford Law School Dean Larry Kramer — have taken the same view, as have other scholars; see, e.g., pp. 1031-33 of this article, which briefly discuss Kramer’s and other scholars’ views.) Rather, he speaks of a situation where “a court has held or would hold the statute constitutional”; “a court” does not seem to necessarily refer to the Supreme Court. Indeed, the opinion’s view was that the issue should have been dismissed for lack of jurisdiction, so that the Supreme Court should not have heard the merits.
This makes Jeffrey Toobin’s column, which is an extended criticism of this one footnote sentence — and of Kavanaugh more broadly — especially odd. Here is an excerpt of what Toobin writes:
Late last year, a three-judge panel of the D.C. Circuit voted, two to one, to uphold President Obama’s health-care reform, known as the Affordable Care Act (ACA). Kavanaugh dissented, primarily on the ground that the lawsuit was premature. In a sixty-five-page opinion, Kavanaugh appeared to offer some advice to the Republicans who are challenging Obama in the election this year. “Under the Constitution,” Kavanaugh wrote, “the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
In other words, according to Kavanaugh, even if the Supreme Court upholds the law this spring, a President Santorum, say, could refuse to enforce ACA because he “deems” the law unconstitutional. That, to put the matter plainly, is not how it works. Courts, not Presidents, “deem” laws unconstitutional, or uphold them. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in Marbury v. Madison, in 1803, and that observation, and that case, have served as bedrocks of American constitutional law ever since. Kavanaugh, in his decision, wasn’t interpreting the Constitution; he was pandering to the base.
In the nineteen-nineties, during Kavanaugh’s first brush with prominence, it was said that some conservatives suffered from Clinton derangement syndrome — an obsessive belief that the President and the First Lady had committed every misdeed that was attributed to them. (Hillary Clinton was involved in Vince Foster’s death; Bill Clinton had trafficked narcotics through Mena, Arkansas; and so on.) Kavanaugh’s bizarre opinion confirms that a contemporary analogue to the Clinton malady has taken hold: health-care derangement syndrome.
But, as I mentioned, Kavanaugh’s opinion never said that the President may ignore the Supreme Court; rather, he said the President may ignore “a court,” in an opinion that set forth a view under which the Supreme Court should never even consider the case. Presidents as well as courts may deem laws unconstitutional, in the view of Justices Scalia, O’Connor, Kennedy, and Souter, as well as Walter Dellinger and many others. Chief Justice John Marshall in Marbury spoke of the courts’ duty to say what the law is in deciding cases before them; he wasn’t saying that the President had the obligation to follow the courts’ view, in the absence of a court order commanding the President to do something or in the absence of private rights that would be violated by the President’s taking a contrary position (which is what the last passage of footnote 43 discusses).
And of course, as Ed Whelan points out, “Recall that Kavanaugh concluded that the courts do not even have jurisdiction to consider the challenge to Obamacare’s individual mandate. I would have thought that someone who would be accused of ‘pandering to the base’ and of displaying symptoms of ‘health-care derangement syndrome’ might, at a minimum, have actually voted to strike down the individual mandate (rather than bury an unobjectionable passage in footnote 43 on page 58).” Unless I’m missing something here — and please tell me if I am — Toobin’s criticism of Kavanaugh’s opinion seems rather ill-founded.
Disclosure: Brett Kavanaugh and I clerked the same year on the Supreme Court, and before that clerked (though in different years) for the same circuit judge; we have talked on various occasions since then.