The President's Duty to Defend Statutes

28 Pages Posted: 5 Jul 2012

See all articles by Kevin Lee Brady

Kevin Lee Brady

University of Chicago - Law School

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

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

Kevin Lee Brady (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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