Rightly enforcing wrong laws.

If Chief Justice Roberts is to be believed, it’s impossible. Here are his comments this week on Obama’s decision to keep implementing DOMA despite deeming it unconstitutional:

If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions… rather than saying, ‘Oh, we’ll wait ’til the Supreme Court tells us we have no choice.’

I speculate here, but it doesn’t seem too hard to work out what Obama’s logic will be. Let’s give this a go.

The American political system is built on a divisions of powers such that one body makes laws, another enforces them and another checks that those laws are constitutional. Liberty and prosperity have been built for centuries on those involved with government adhering to these designated roles and respecting the system. The day the President starts picking which laws to enforce, rather than following the decrees of the courts and Congress, is the day the system starts to dismantle. This holds even if the President believes a law is unconstitutional, because the point is that it’s not his place to make such decisions.

The most shocking thing is that the Supreme Court’s Chief Justice is apparently incapable of seeing the value of respecting law and power separations. Instead, he implies that the President is cowardly for fulfilling his constitutional duties.


2 thoughts on “Rightly enforcing wrong laws.

  1. Hm. That’s a bit legalistic, in the sense your argument proposes of legal/constitutional/tradition(al) and moral values, that if in conflict, the former are prima facie weightier than the latter. I think the judge proposes that the moral should lead and tradition follow. After all, what kind of tradition can’t accommodate prima facie duties to bring about the good? I may not know the US political system as well as you, but I’m just chucking that in there for the sake of argument.

  2. Hm, OK, so there’s also an argument from “the system will break down” added to the balance. Which I suppose would balance it in its favour were it the case. It’s interesting though how a judge thinks that the moral should dictate. And there is the problem that implementing what is wrong, does run to the “is it lawful to obey wrongful orders?” problem, or? This in turn runs to whether an evil law is unconstitutional only when declared so by the right person. But this would seem to overprivilege and overvalue the worth of rule by bureaucratic institutions (the argument from the worth of the latter appearing to be the basis of your point). So the question here is, can bureaucratic institutions still bless us all with their rule-of-law magic if they’re a little bit flexible?

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