The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation

Headnotes: 

The Attorney General has a duty to defend and enforce both the Acts of Congress and the Constitution; when there is a conflict between the requirements of the one and the requirements of the other, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.

While there is no general privilege in the Executive to disregard laws that it deems inconsistent with the Constitution, in rare cases the Executive’s duty to the constitutional system may require action in defiance of a statute.  In such a case, the Executive’s refusal to defend and enforce an unconstitutional statute is authorized and lawful.

Updated July 9, 2014