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power." Id. at 13.

2) Memorandum from the Congressional Research Service to the Committee on Government
Operations concerning "The Executive's Duty to Enforce the Laws" (Feb. 6, 1985), reprinted in
Constitutionality of GAO's Bid Protest Function: Hearings Before a Subcomm. of the House Comm.
on Government Operations, 99th Cong., 1st Sess. 544 (1985): This memorandum stated that the
President lacks the authority to decline to enforce statutes. The CRS argued that "[t]he refusal of the
President to execute the law is indistinguishable from the power to suspend the laws. That power, as is
true of the power to amend or to revive an expired law, is a legislative power." Id. at 554.

Cases (not included in the submitted materials)

1) Myers v. United States, 272 U.S. 52 (1926): The President refused to comply with -- that is, enforce
-- a limitation on his power of removal that he regarded as unconstitutional, even though the question
had not been addressed by the Supreme Court. A member of Congress, Senator Pepper, urged the
Supreme Court to uphold the validity of the provision. The Supreme Court vindicated the President's
interpretation without any member of the Court indicating that the President had acted unlawfully or
inappropriately in refusing to enforce the removal restriction based on his belief that it was
unconstitutional.

2) United States v. Lovett, 328 U.S. 303 (1946): The President enforced a statute that directed him to
withhold compensation from three named employees, even though the President believed the law to be
unconstitutional. The Justice Department argued against the constitutionality of the statute in the
ensuing litigation. (The Court permitted an attorney to appear on behalf of Congress, amicus curiae, to
defend the statute.)

3) INS v. Chadha, 462 U.S. 919 (1983): This case involved the withholding of citizenship from an
applicant pursuant to a legislative veto of an Attorney General decision to grant citizenship. Despite a
Carter Administration policy against complying with legislative vetoes (see Carter Presidential
memorandum, supra), the executive branch enforced the legislative veto, and, in so doing, allowed for
judicial review of the statute. As with Lovett, the Justice Department argued against the
constitutionality of the statute.

4) Morrison v. Olson, 487 U.S. 654 (1988): The President viewed the independent counsel statute as
unconstitutional. The Attorney General enforced it, making findings and forwarding them to the
Special Division. In litigation, however, the Justice Department attacked the constitutionality of the
statute and left its defense to the Senate Counsel, as amicus curiae, and the independent counsel
herself.

5) Freytag v. Commissioner, 501 U.S. 868 (1991): A unanimous Court ruled that the appointment of
special trial judges by the Chief Judge of the United States Tax Court did not violate the Appointments
Clause. Five Justices concluded that the Tax Court was a "Court of Law" for Appointments Clause
purposes, despite the fact that it was an Article I court, so that the Tax Court could constitutionally
appoint inferior officers. Four Justices, in a concurrence by Justice Scalia, contended that the Tax Court
was a "Department" under the Appointments Clause. The concurrence stated that "Court of Law" did
not include Article I courts and that the Framers intended to prevent Congress from having the power
both to create offices and to appoint officers. In this regard, the concurrence stated that "it was not
enough simply to repose the power to execute the laws (or to appoint) in the President; it was also
necessary to provide him with the means to resist legislative encroachment upon that power. The
means selected were various, including a separate political constituency, to which he alone was
responsible, and the power to veto encroaching laws, see Art. I, § 7, or even to disregard them when
they are unconstitutional." Id. at 906 (Scalia, J., concurring).

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