06 Feb Walter Dellinger Endorses President (Clinton’s) Powers to Ignore Unconstitutional Statutes
Following up on the law prof’s letter about NSA spying from last week, Andrew McCarthy of National Review Online has dug up a very interesting 1994 memo from Clinton’s then-OLC chief Walter Dellinger arguing that the President has the authority to refuse to execute statutes that are unconstitutional. Dellinger’s memo is actually not limited to foreign affairs statutes, but with respect to all statutes that affect any part of the President’s inherent constitutional powers. Dellinger’s memo is interesting because, of course, Dellinger is one of the prominent law professors currently attacking the legality of the NSA spying program. This doesn’t mean Dellinger is contradicting himself, but it does give new credibility to defenders of the NSA spying program on constitutional grounds.
Interesting, although I thought if we’d learned anything from the last 2 supreme court nominations, it’s that one’s DOJ memos aren’t necessarily reflective of the one’s personal views. At least that was the party line.
Uh, no, Julian, it doesn’t give any credibility to defenders of the program. I don’t know how many times we have to say this, but the issue is *not* the President’s authority to refuse to enforce unconstitutional statutes. Figuring out when it’s appropriate to do so (rather than to, say, enforce and challenge it in court) is sometimes a hard question — although “in secret and so Congress doesn’t know” is not an eligible answer. But there’s little disagreement that nonenforcement can be appropriate. The problem here is that the statute *is* constitutional, and that the Administration’s theory for why it isn’t — i.e., on the *merits,* not the remedy — has profound ramifications.