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63 Law & Contemporary Problems 7 (2000)


This article, published in Law & Contemporary Problems, was presented at a Duke Law School conference, The Constitution Under Clinton: A Critical Assessment. It examines a recurring, unsettled issue of executive power: how the President best fulfills his constitutional responsibilities when confronted with the enforcement of a statute that he believes is unconstitutional. What should the President do if he believes enforcing a statutory provision would violate the Constitution? Should, for example, a President comply with a congressional command that he believes would violate the constitutional rights of individuals or compromise presidential power? The article examines the two prevailing approaches taken in the academic literature to this longstanding issue of the constitutional allocation of powers, described here as mandatory enforcement and routine non-enforcement of constitutionally objectionable statutes. It then draws upon executive branch policy and practice to develop a third approach: a context-dependent approach that views the President's non-enforcement authority and responsibility as dependent on the specific statutory provision at issue, including the circumstances surrounding the law's enactment. It suggests first the general principles and then particular factors that should guide presidential non-enforcement decisions. The article concludes with an application of those principles and factors to a recent, particularly difficult and close case confronted by President Clinton: a statutory provision (since repealed) that required the discharge of members of the armed forces who were HIV-positive.