The President's Duty to Defend Statutes
28 Pages Posted: 5 Jul 2012
Date Written: July 4, 2012
Abstract
Statutes often come under constitutional attack. The president traditionally provides a defense. This has led some to conclude that the president has a duty to defend — perhaps under the Oath or Take Care Clauses. My article examines the text and original understanding of the Constitution. Neither indicates the president has a duty to defend. The text implies that the president shouldn’t defend unconstitutional statutes. And in early cases, the president generally didn’t defend, nor did anyone expect him to.
Keywords: judicial review, duty to defend, statutes, president, executive branch
Suggested Citation: Suggested Citation
Brady, Kevin Lee, The President's Duty to Defend Statutes (July 4, 2012). Available at SSRN: https://ssrn.com/abstract=2100616 or http://dx.doi.org/10.2139/ssrn.2100616
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