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]

Pres. Andrew Jackson made the same point even more clearly in his national bank veto.

“The Congress, the Executive and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.” 

I’ll take this a step further. If the president enforces a law he knows is unconstitutional, he commits treason.

That may sound like an extreme statement, but that’s exactly what St. George Tucker said. In the first systematic commentary on the Constitution, he wrote:

“If in a limited government, the public functionaries exceed the limits which the constitution prescribes to their powers, every such act is an act of usurpation in the government, and, as such, treason against the sovereignty of the people, which is thus endeavored to be subverted and transferred to the usurpers.” [Emphasis added]

Every person who swears an oath to defend and protect the Constitution takes on the obligation to act when anybody threatens it – that includes people in other branches of the federal government. Insisting that the president must enforce every law, including those that clearly require the exercise of powers that were not delegated to the federal government, undermines the Constitution. Enforcing unconstitutional acts does not uphold the rule of law. It obliterates it.

People like our emailer who claim nullification destroys the system miss the point. Usurpation of power and unconstitutional acts already threaten to destroy the system. Letting these acts continue because of fidelity to some mythical process doesn’t save the system. It breaks it down further.

Mike Maharrey

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