Presidents Refuse to Enforce Laws? Then Here’s An Idea…

President Obama recently announced that his administration would no longer enforce the laws that require deportation of illegal aliens in cases where the illegal alien had been brought to the United States as a child and was raised here.

Some have reacted to this announcement with shock, but there is a long history of Presidents threatening to refuse to enforce laws, and occasionally making good on that promise. The most famous (and notorious) example is President Andrew Jackson responding to a Supreme Court decision with the phrase, “[Chief Justice] John Marshall has made his decision.  Now let him enforce it!” By this statement, President Jackson was gruffly pointing out that the Supreme Court does not have an army or a police force, so it cannot execute upon its own orders. That executive function is left to the President.

The idea that the President can refuse to enforce an unjust or offensive law is a good thing. It is one of the checks and balances built into the federal system, and it is inherent in the idea that the three branches of the federal government are co-equal. Each branch must be left to do the job granted to it under the Constitution without interference from the other two branches. So, for example, the Supreme Court can rule however it wants on a case, regardless of what the President wants. One result of this co-equality of branches is the Political Question doctrine that is occasionally invoked by the Supreme Court. The Political Question doctrine holds that certain issues are best decided by the voters in the next election, especially issues that relate to disputes among the three branches of government, or issues relating to powers granted by the Constitution wholly to one branch of government.

Some might say that it’s one thing for a President to ignore a Supreme Court decision decided by 9 non-elected justices, but quite another and more arrogant thing for a President to refuse to enforce laws passed by the democratically elected representatives of the people in Congress. You can draw your own conclusion about that. In any event, President Obama took this bold and controversial step in order to avoid deporting young people, mostly Hispanic, who had been raised in this country. Whatever one thinks of the policy impact of Obama’s move, it at least reminds the current generation of Americans that Presidents can refuse to enforce laws that they find offensive or unjust.

So, here’s an idea. As long as we are refusing to enforce laws in order to protect children, let’s ignore Roe v. Wade. In the Roe case, the Supreme Court found that there is a right to abortion in the U.S. Constitution, an obvious falsification that will be apparent to anyone who has read the U.S. Constitution. The Court arrived at this inane result only by sophistry and rhetorical gymnastics of the highest order. After Roe, the President supposedly must send the federal marshals into any state that attempts to shut down abortion clinics and those marshals must force the state to allow the abortion clinic to continue to operate. But why not just ignore the Roe decision? Obama has showed us how to win. The next time we have a pro-life President, he should simply announce that the states can pass what laws they wish about abortion and the federal marshals will not be deployed. Game over.

James Taranto coined the phrase “the Roe Effect.”  The idea behind the Roe Effect is that people who condone abortion have more abortions, and thus slowly over time remove their genes and their family culture from society. Thus, abortion must eventually become illegal again, because the people who are left will be those who oppose abortion. So, under this view, abortion is inevitably headed for the dustbin of history. It’s going to happen. It’s just a question of when.

It would happen a lot sooner if a President would just refuse to enforce Roe v. Wade and let those army-less, police-less nerd lawyers over at the Supreme Court try to enforce it themselves with their gavels.

Good luck, nerds.

Joe L. Fulwiler is a bankruptcy attorney in Austin, Texas.  He holds a degree in Economics from Yale, a law degree from Columbia, and an MBA from Stanford, and he maintains a bankruptcy information site called www.BankruptcyStrategy.com. He is admitted to (and a frequent customer of) the bars of New York, New Jersey, and Texas.  He is also a CPA, a Papist, a grand multipara (male version), and a jedi.

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  • servantofcharity

    I love it.  I wonder how the press would react to that!

    John
    servantofcharity.blogspot.com

  • http://twitter.com/Pmccrsp Fr. Peter Calabrese

    I have posited further that the President could refuse to enforce the law that enforces free access to abortion clinics or could guarantee a pardon to anyone who acts against aboritonists or abortion clinics.  I know Presidents have refused to enforce laws but I am not sure this is a “doctrine” to be followed in as much as it becomes rule by fiat.   If Congress passes a law and a President signs it and it passes the Courts muster it should be enforced otherwise Presidents can simply undo what they cannot change through the legislature,  This is chaos and violates the oath to the COnsitution.  If ROmney were to be elected should he just enforce parts of the ACA on his whim or should he work to repeal it?  Such a doctrine does not ensure the check and balances it eliminates them and resorts to brute force ala Jackson.  This is a road – even for a good cause – I am not sure we should take.  Yes the next President could be pro-life but what if the President feels that tax exemption for churches is “unjust” should he be allowed to unilaterally do differently?  I think a President may have a conscience duty not to enforce an unjust law and there is some leeway under prudence but to change policy or interpret a law in the opposite sense is too far.

  • Peter Nyikos

     I’d go a step further, and suggest that Romney take the high road by publicly repudiating any such imitation of Obama.  I think Obama’s supporters, including Planned Parenthood, know what an abuse of power the refusal to support various laws is, and they will project their love of that abuse onto Romney unless he makes such a public statement.

    One strong talking point: the Supreme Court decision Jackson defied was a decision that people would overwhelmingly sympathize with today.  Here is what one source tells about it:

    “Chief Justice Marshall had read the Supreme Courts opinion in a dispute
    between the state of Georgia and two missionaries, who had been
    convicted of and imprisoned for living among the Cherokee Indians. The
    Supreme Court’s decision was in favor of the missionaries. The attorneys
    for the missionaries sought to have this judgment enforced, but could
    not. General Jackson was President, and would do nothing of the sort. So
    the missionaries languished years in prison .”
    http://quotationsbook.com/quote/45577/

    This same President Jackson later forced the Cherokees, who had aided him in his war against the Creeks when he was a general, to abandon their homes and move a thousand miles in what has come to be called “The Trail of Tears,” because of the great loss of life it caused among the Cherokees.  Jackson is the worst of all role models to follow as to executive decisions.

  • MaryK

    Thank you!  That bit of history really puts things into perspective.  So much of history sits in the memory banks until reminders like these.  However, I don’t think Romney has found the “High Road” you speak of and may never find it.  He has these knee-jerk reactions to everything and the Supreme Court’s reaction to the Health Care issue was no exception.  MR (and all his mimes) immediately declared, “Obama has just passed the largest tax increase in the history of the United States!”

    Anyone with average intelligence can all see the falsehood in that.  Another MR statement oft repeated, “I will reverse Obamacare on day 1.”  If that was a possibility the US would be in trouble.  Every 4 years, a contender could promise reversal of the past 4 years – what would ever get done?  Thankfully, such promises are moot.  Though I could never vote for Obama, i keep hoping MR (or his advisers) can come up with some honest plans so i can justify going to the polls in November.

    There is another issue that disturbs my mind – regarding the recent Supreme Court decision.  If a “Penalty” is waged on those who refuse to buy insurance, and the IRS collects it, where does the money go?  Will it be a restricted revenue to offset uninsured medical services received (eventually reducing individual cost of insurance), or will it simply be an unexpected increase in the public funds – just another source to pay for a bridge to nowhere?  

  • Victoria

    Not voting in November is the same as a vote for Obama. It will be a close election, and staying home will help the worst pro-abortion president in history to stay in office.

  • cwstelly

    Obviously, gentlemen, the most effective way to end abortion is one State at a time in those States that cares to via the principle of Nullification.  For more information, see the 10th Amendment Center website or Tom Woods book by that name.  A by-product will be more just and proper Supreme Court decisions as the Federal government is reduced to its size and enumerated powers stated in the Constitution. Our problem has two edges: 1) an over zealous federal government of three branches constantly united in growing its enfluence and power, and 2) State Legislators and Governors asleep or content to get a few favors if they remain inactive. Heaven help us or else the end is near!

  • A_True_Blue

    If the Pres. doesn’t enforce a law he doesn’t like, well, According to the Catholic Chief Justice of the Supreme court, American citizens really do not have to obey any federal law that they do not like. You see, they merely have to pay the penalty (tax whatever). And it is not such a burdensome penalty, right?

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