Presidents sometimes make the controversial decision not to defend a federal statute they believe is unconstitutional. It may be tempting, when assessing the appropriateness of these decisions, to adopt one of two categorical positions: either that the President should never refuse to defend a law based on his view that it is unconstitutional, or that the President has unlimited constitutional authority to refuse to defend laws on that basis.
I do not believe that either of these categorical approaches is warranted. The former view insufficiently accounts for the fact that the Executive Branch, as a co-equal branch of government, has an independent duty to “interpret and implement the Constitution.” As Professor Dawn Johnsen has explained, “Congress and the President . . . are obligated to uphold, and thus by necessity to interpret, the Constitution, and the process of constitutional interpretation benefits from the thoughtful participation of the elected representatives of the people in the public dialogue about the meaning of the Constitution.”