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  1. 2 Ad Americam

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  1. 2 Stolicki D. M.

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  2. 1 2011

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Is the President of the United States permitted to disregard unconstitutional statutes?

100%
Stolicki D. M.
Ad Americam
|
2011
|
vol. 12
105-124
EN
his article analyzes the issue of the United States president's right not to execute statutes that he in good faith considers to be unconstitutional. Such a right has been claimed by presidents since the times of Thomas Jefferson and Andrew Jackson. After a historical introduction, the article analyzes principal arguments in support of and in opposition to executive non-enforcement of unconstitutional statutes. Among the former, there are arguments derived from the presidential oath of office, from the principle of separation of powers, and from the analogy with judicial review. Among the arguments against presidential nonenforcement are arguments that the Constitution requires the president to take care that all laws be faithfully executed, that presidential non-enforcement is equivalent to an unconstitutional absolute veto, and that it infringes on exclusive rights of the judiciary. These arguments rest on a misunderstanding of the principles of constitutional supremacy and judicial review. The article also demonstrates that the Constitution provides sufficient means to guard against abuse of executive non-enforcement. The article therefore concludes that the president is permitted to disregard unconstitutional statutes. It also analyzes circumstances in which such disregard is appropriate, concluding that the president should be guided by principles of deference and accommodation of the views of other branches.
2

The Law and Practice of Government Shutdowns in the United States

100%
Stolicki D. M.
Ad Americam
|
2015
|
issue 16
69-97
EN
This article analyzes the legal rules governing operations of the federal government of the United States during lapses of appropriations (commonly known as government shutdowns). After briefly explaining what government shutdowns are and when they happen, it presents the main sources of the applicable law, starting with its statutory basis – the Antideficiency Act. After analyzing the history, purpose, and text of that statute, the article presents two official opinions of the Attorney General which interpreted the Act to require suspension of non‑essential government operations during funding gaps. The article then proceeds to delineate statutory and implied exceptions to that requirement. Its second part consists of an analysis of actual administration practice during shutdowns. On the basis of agency contingency plans posted during the 2013 shutdown, it identifies the government activities that continued despite the shutdown, and briefly describes each activity’s scale and the legal basis for it being exempt from the generally applicable rules. It concludes that while there have been disputes about the administration’s handling of the shutdown, the agency’s practice was generally consistent with the legal rules, though the statutory framework itself would benefit from congressional revision and clarification.
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