Apparently, a lot of people want the feds to enforce unconstitutional laws because refusing to do so will “break the system.”
Recently, we released a report showing the Trump administration has ramped up enforcement of federal gun laws. ATF enforcement actions were up more than 10% in the first year Trump was in office compared to Obama’s last year.
Several people wrote to take issue with the report, arguing that the president is obligated to enforce every law. Here’s one example.
“This is inappropriate. You are complaining that under Trump the laws are being enforced. You have to be kidding. Do you really want your public officials to decide what laws they will enforce and what laws they will not? Our country is a mess because special interests encourage their public officials to commit official misconduct toward their benefit. If you disagree with the gun laws, do what you can to change it, but don’t undermine the entire system to serve a personal interest.”
In other words, our emailer thinks it’s imperative to enforce every law, no matter how constitutionally dubious, because refusing to do so will break the system. His devotion to the process actually leads him to believe failing to follow it constitutes “official misconduct, even to stop an unconstitutional action”
The truth of the matter is enforcing an unconstitutional act is wrong in and of itself. You could refer to it as official misconduct. As Alexander Hamilton asserted in Federalist #78. an unconstitutional law is “void.”
You don’t enforce “void” laws.
Of course, the counter-argument is that the president has to enforce the law until a federal court declares it unconstitutional.
Thomas Jefferson disagreed. He said each branch of the government is responsible for protecting the integrity of the Constitution, no matter what the other branches do. In an 1819 letter to Judge Spencer Roane, he wrote.
…each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.
James Madison agreed with Jefferson. As a member of the First Congress, he made a speech on the House floor saying, “It is incontrovertibly of as much importance to this branch of government as to any other, that the Constitution should be preserved entire. It is our duty, so far as it depends on us, to take care that the powers of the Constitution be preserved entire to every department of government.” [Emphasis added]
Later, Madison wrote in an 1834 letter to an unknown recipient:
“As the Legislative, Executive & Judicial Departments of the U. S. are co-ordinate, and each equally bound to support the Constitution, it follows that each must in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and consequently, that in the event of irreconcileable interpretations, the prevalence of the one or the other Departmt. must depend on the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect, without involving the functions of any other.” [Emphasis added]