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PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE
UNCONSTITUTIONAL STATUTES

This memorandum discusses the President's constitutional authority to decline to execute
unconstitutional statutes.

November 2, 1994

MEMORANDUM FOR THE HONORABLE ABNER J. MIKVA
COUNSEL TO THE PRESIDENT

I have reflected further on the difficult questions surrounding a President's decision to decline to
execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts
to share with you. Let me start with a general proposition that I believe to be uncontroversial: there are
circumstances in which the President may appropriately decline to enforce a statute that he views as
unconstitutional.

First, there is significant judicial approval of this proposition. Most notable is the Court's decision
in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the
statute at issue was unconstitutional without any member of the Court suggesting that the President had
acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501
U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the
power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at
906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38
(1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a
statutory command).

Second, consistent and substantial executive practice also confirms this general proposition.
Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that
the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462,
469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer);
see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as
we discuss more fully below, numerous Presidents have provided advance notice of their intention not
to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme
Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting
that Presidents often sign legislation containing constitutionally objectionable provisions and indicate
that they will not comply with those provisions).

While the general proposition that in some situations the President may decline to enforce
unconstitutional statutes is unassailable, it does not offer sufficient guidance as to the appropriate
course in specific circumstances. To continue our conversation about these complex issues, I offer the
following propositions for your consideration.

1. The President's office and authority are created and bounded by the Constitution; he is required to
act within its terms. Put somewhat differently, in serving as the executive created by the Constitution,
the President is required to act in accordance with the laws -- including the Constitution, which takes
precedence over other forms of law. This obligation is reflected in the Take Care Clause and in the
President's oath of office.

2. When bills are under consideration by Congress, the executive branch should promptly identify
unconstitutional provisions and communicate its concerns to Congress so that the provisions can be
corrected. Although this may seem elementary, in practice there have been occasions in which the
President has been presented with enrolled bills containing constitutional flaws that should have been

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