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Presidential Power

The President's Duty to Take Care that the Law Be Faithfully Executed - Event Video

2014 National Lawyers Convention
John S. Baker, Jr., Ronald A. Cass, Neal E. Devins, Christopher Schroeder, Thomas B. Griffith, John C. Eastman November 17, 2014

Is President Obama failing in this basic obligation of the President?  Allegations of lawlessness have been made about his decisions not to enforce the immigration law, to suspend some requirements of the Affordable Care Act, and to flout Congress’s requirement of thirty-day notice before freeing prisoners from Guantanamo.  Are these fair charges or does the President enjoy inherent constitutional power or specific statutory authority to decline enforcement?  What should be Congress’s reaction to non-enforcement?  Does this pattern of non-enforcement imply anything more general about the President’s legal or political philosophy?

The Federalist Society's Federalism & Separation of Powers Practice Group presented this panel on "The President's Duty to Take Care that the Law Be Faithfully Executed" on Thursday, November 13, during the 2014 National Lawyers Convention.

Featuring:

  • Dr. John S. Baker, Jr. Visiting Professor of Law, Georgetown University Law Center; Professor Emeritus of Law, Dale E. Bennett Professor of Law, Louisiana State University Law School
  • Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC
  • Prof. Neal E. Devins, Goodrich Professor of Law, Cabell Research Professor, Professor of Government, Director, Institute of Bill of Rights Law; and Director, Election Law Program, The College of William & Mary
  • Prof. Christopher H. Schroeder, Charles S. Murphy Professor of Law and Public Policy Studies; Co-Director of the Program in Public Law, Duke Law School
  • Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit
  • Introduction: Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service; Former Dean (2007 – 2010); and Director, Center for Constitutional Jurisprudence, Dale E Fowler School of Law, Chapman University; and Chairman, Federalism & Separation of Powers Practice Group

Mayflower Hotel
Washington, DC

2014 National Lawyers Convention Opening with Justice Scalia - Event Video

2014 National Lawyers Convention
Antonin Scalia, Leonard A. Leo November 13, 2014

United States Supreme Court Justice Antonin Scalia opened the 2014 National Lawyers Convention on November 13 at the Mayflower Hotel in Washington, DC. Justice Scalia discussed the importance of Magna Carta.

Featuring:

  • Hon. Antonin Scalia, United States Supreme Court
  • Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society

Mayflower Hotel
Washington, DC

IS It Legal? Legal Authority for the Campaign Against the Islamic State - Event Audio/Video

DC Young Lawyers Chapter and The Alexander Hamilton Society
John Bellinger, Steven G. Bradbury, Rachel Brand, Sarah Hawkins Warren October 24, 2014

The Federalist Society's DC Young Lawyers Chapter and The Alexander Hamilton Society co-hosted this event on October 22, 2014, at the Mayflower Hotel in Washington, DC.

Featuring:

  • John Bellinger, Partner, Arnold & Porter and former Legal Advisor to the Department of State (2005 -2009)
  • Steve Bradbury, Partner, Dechert LLP and former Head of the Office of Legal Counsel, U.S. Department of Justice (2004-2009)
  • Moderator: Rachel L. Brand, Member, Privacy and Civil Liberties Oversight Board; Senior Advisor to the U.S. Chamber Litigation Center, United States Chamber of Commerce; and former Assistant U.S. Attorney General for Legal Policy, U.S. Department of Justice
  • Introduction: Sarah Hawkins Warren, Partner, Kirkland & Ellis LLP and President, DC Young Lawyers Chapter

The Mayflower Hotel
Washington, DC

Take Care Now: Stare Decisis and the President’s Duty to Defend Acts Of Congress - Podcast

Federalism & Separation of Powers Practice Group Podcast
Neal E. Devins, Curt Levey October 14, 2014

The recent debate over President Obama’s enforcement of immigration laws and the Affordable Care Act has focused attention on a President’s duty to enforce federal statutes, arising from his constitutional obligation to “Take Care that the Laws be faithfully executed.” Also arising from the Take Care Clause is a President’s distinct duty to defend the constitutionality of federal laws when they are challenged in court, a duty whose scope was hotly debated when Attorney General Eric Holder announced that the Justice Department would not defend section 3 of the Defense of Marriage Act. Some scholars – most notably Professors Neal Devins and Saikrishna Prakash – argue that a presidential duty to defend federal statutes lacks any sound constitutional basis and is unnecessary (see their paper, "The Indefensible Duty to Defend"). However, recent United States Attorneys General – with the possible exception of Attorney General Holder – have agreed that the President has such a duty, subject only to narrow exceptions for laws that are transparently unconstitutional or that the President believes unconstitutionally encroach upon executive power.

In their article “Take Care Now: Stare Decisis and the President’s Duty to Defend Acts Of Congress” in the Harvard Journal of Law & Public Policy, authors Curt Levey and Ken Klukowski argue for a strong presidential duty to defend, including a duty to defend even statutes alleged to be transparently unconstitutional where the administration’s defense is the only way to facilitate a judicial determination of constitutionality. Levey and Klukowski contend that a strong duty to defend is necessary to maintain the separation of powers under which the judiciary serves as the final voice in constitutional challenges, to prevent Presidents from enacting a form of post-enactment veto of legislation they dislike, and – like the judicial doctrine of stare decisis – to provide federal law with stability and predictability.

  • Prof. Neal E. Devins, Goodrich Professor of Law, Cabell Research Professor, Professor of Government, Director, Institute of Bill of Rights Law and Director, Election Law Program, William & Mary Law School
  • Curt A. Levey, President and Executive Director, The Committee for Justice

Obama's Enforcer: Eric Holder's Justice Department - Event Audio/Video

Las Vegas Lawyers Chapter
John Fund, Hans A. von Spakovsky August 28, 2014

From “Fast and Furious” to the unprecedented surveillance of journalists, Eric Holder’s Justice Department has become the dark side of the Obama Administration. The Attorney General is at the center of a growing list of scandals and congressional investigations. Obama’s Enforcer uncovers how the DOJ has become a hotbed of left-wing legal activism. It delves into the close personal association of Holder and Obama, describes the politicization of the Department of Justice, and provides in-depth portraits of the radical lawyers in Holder’s inner circle. The book has been endorsed by Sen. Ted Cruz and Radio Talk Show host Mark Levin. The Las Vegas Lawyers Chapter hosted this event on August 11, 2014.

Featuring:

  • John Fund, Columnist, National Review Online, and Senior Editor, The American Spectator
  • Hans A. von Spakovsky, Senior Legal Fellow, The Heritage Foundation