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After President Donald Trump nominated Brett Kavanaugh for the U.S. Supreme Court, Democrats highlighted bits of his paper trail on the D.C. Court of Appeals to galvanize opposition.
Sen. Bernie Sanders, I-Vt., called out Kavanaugh’s generous interpretation of the powers granted to the president by the Constitution.
"Brett Kavanaugh, contrary to 200 years of Supreme Court precedent, believes a president ‘may decline to enforce a statute … when the president deems the statute unconstitutional,’ " Sanders wrote in a Facebook post.
Sanders has a point about what Kavanaugh thinks about the president’s enforcement of statutes, but he’s very wrong when he suggests Kavanaugh’s opinion is at odds with 200 years of Supreme Court precedent.
Sanders’ team pointed us to what Kavanaugh wrote in an opinion on Seven-Sky vs. Holder, a 2011 D.C. circuit case that challenged the individual mandate of the Affordable Care Act.
In his dissent, Kavanaugh wrote:
"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."
Kavanaugh’s remark was a footnote explaining why the court shouldn’t have been considering the case, given that the president might not even enforce the individual mandate. He was citing Justice Antonin Scalia, who made a similar argument in a 2011 concurring opinion.
The implication of Kavanaugh’s opinion was that a president could supersede the court’s authority on a question of unconstitutionality.
"Kavanaugh makes a strong version of the claim, and it’s probably a minority position among professors, but it’s never been definitively settled by the Supreme Court," said Kermit Roosevelt, constitutional law professor at Penn Law School.
Experts generally agree that a president is not bound by a lower court’s decision when deciding a law is unconstitutional but diverge on whether the Supreme Court has the final say.
However, the Supreme Court has never dealt with this exact question, according to Mark Tushnet, a law professor at Harvard University.
Sanders cited Marbury vs. Madison, one of the most famous Supreme Court cases in history, as evidence that the court, not the president, has the final say. The case states that "it is emphatically the province and the duty of the Judicial Department to say what the law is."
But according to Saikrishna Prakash, professor at University of Virginia School of Law, the decision is "about whether the court can second-guess Congress. (It can.) It doesn’t say it’s only the duty of the court to decide constitutional questions."
Instead, each branch has a duty to stay faithful to the Constitution, even if it clashes with another branch’s view.
"I will say that there are lots of people who believe the Supreme Court has a special role in constitutional interpretation, and that’s a general view," Prakash said. "There are people like myself who think the court doesn’t have a special role."
The idea that a president may not enforce the law sounds odd, but the legal experts we talked to said it was common.
"As a practical matter, there is little doubt that the president sets law enforcement priorities, and that some laws will be vigorously enforced and others will not," said Sarah Duggin, a professor at the Columbus School of Law. "It is also true that at various times in our history, presidents have declined to enforce laws they deemed unconstitutional."
The practice of declining to enforce a law because they find it unconstitutional dates back to the Founding Fathers, and has been done by at least the past six administrations, Prakash said.
When President Thomas Jefferson came into office, he refused to enforce the Sedition Act passed by President John Adams on the basis that it was unconstitutional and pardoned those serving sentences. The issue did not go to court.
In signing the Foreign Relations Authorization Act, President George W. Bush declined to enforce on constitutional grounds a provision mandating that passports display Israel as the place of birth for those born in Jerusalem. When the issue went to the Supreme Court, the court sided with the president.
When signing the National Defense Authorization Act for 2016, Obama wrote that in the event restrictions on the transfer of Guantanamo detainees violated the Constitution, his administration would implement the law in a "manner that avoids the constitutional conflict."
Sanders said Kavanaugh’s belief that a president "may decline to enforce a statute . . . when the president deems the statute unconstitutional" is "contrary to 200 years of Supreme Court precedent."
In practical terms, presidents have indeed declined to enforce statutes they deemed unconstitutional. The question has never come before the court, however. Marbury vs. Madison held that the Supreme Court could declare statutes unconstitutional, but did not deny that presidents could also enforce constitutional principles.
We rate this statement Mostly False.
Facebook, Bernie Sanders, July 10, 2018
Email interview with Josh Miller-Lewis, Sanders communications director, July 11, 2018
Phone interview with Sarah Duggin, professor at Catholic University’s Columbus School of Law, July 12, 2018
Phone interview with Dan Kobil, constitutional law professor at Capital University Law School, July 12, 2018
Email interview with Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School, July 11, 2018
Phone interview with Akhil Reed Amar, Sterling Professor of Law at Yale Law School, July 11, 2018
Email interview with Kermit Roosevelt, constitutional law professor at Penn Law School, July 12, 2018
Phone interview with Saikrishna Prakash, professor at University of Virginia School of Law, July 16, 2018
Scholar.google.com, Freytag et al. vs. Commissioner of Internal Revenue, June 27, 1991
Cases.Justia.com, Seven-Sky vs. Holder, Nov. 8, 2011
Federation of American Scientists, Memorandum on presidential authority to decline to execute unconstitutional statutes, Nov. 2, 1994
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