In a recent column, Jeffrey Toobin of The New Yorker criticized Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit for a footnote in his Seven-Sky v. Holder opinion noting that “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.” Eugene posted about Toobin’s essay here.
The New Yorker has just published a letter by Professor Michael Dorf, a noted constitutional law professor at Cornell taking Toobin to task. Professor Dorf wrote:
Jeffrey Toobin takes Judge Brett M. Kavanaugh to task for attributing to the President the power not to enforce a federal statute, even if the courts have upheld it (Comment, March 26th). Citing the 1803 landmark case of Marbury v. Madison, Toobin asserts categorically that this “is not how it works.” He thus overlooks a long-standing debate about the scope of judicial precedent. Thomas Jefferson declined to enforce the Sedition Act, on the ground that it violated the First Amendment, even though the courts were prepared to uphold the Act. Abraham Lincoln, in his first Inaugural Address, suggested that the Supreme Court’s infamous Dred Scott decision might not be binding beyond the parties to the case. And President Obama has declined to defend the Defense of Marriage Act, on the ground that it is discriminatory. Whatever one thinks of these and other assertions of Presidential non-enforcement power, Judge Kavanaugh did not invent the idea. I share Toobin’s view that the health-care law is valid, but I see no need to accuse a federal appeals-court judge of misunderstanding lessons that he learned in his first week of law school.