LISTEN AND READ FOR YOURSELF: Audio and Transcript of Windsor Hearing
BY Michelle Garcia
March 27 2013 2:11 PM ET
MR. SRINIVASAN: Justice Scalia, one recognized situation in which an act of Congress won't be defended in court is when the President makes a determination that the act is unconstitutional. That's what happened here. The President made an accountable legal determination that this Act of Congress is unconstitutional.
JUSTICE KENNEDY: But then why does he enforce the statute?
MR. SRINIVASAN: Well, that's an option that's available to him, Justice Kennedy. In certain circumstances, it makes sense not to enforce. But I don't think the take-care responsibility is an all or nothing proposition such that when the President reaches a determination that a statute is unconstitutional, it necessarily follows that he wouldn't enforce it. That's not what happened in Lovett. That's not -
JUSTICE KENNEDY: But let me ask you, suppose that constitutional scholars have grave doubts about the practice of the President signing a bill but saying that he thinks it's, unconstitutional -- what do you call it, signing statements or something like that. It seems to me that if we adopt your position that that would ratify and confirm and encourage that questionable practice, because if the President thinks the law is unconstitutional he shouldn't sign it, according to some view. And that's a lot like what you're arguing here. It's very troubling.
MR. SRINIVASAN: I -- in the -- in the signing statement situation, Your Honor, one example in the past is Turner Broadcasting. In Turner Broadcasting, that was a circumstance in which it was -it was a veto, but in the course of the veto the President made the determination that a particular aspect of that statute was unconstitutional.
And what happened as a result of that is that the Department of Justice didn't defend that aspect of the statute in litigation. Now, a subsequent President reached a contrary conclusion. But -- but my point is simply that when the President makes a determination that a statute is unconstitutional, it can follow that the Department of Justice won't defend it in litigation.
CHIEF JUSTICE ROBERTS: Sometimes you do and sometimes you don't. What is the test for when you think your obligation to take care that the laws be faithfully executed means you'll follow your view about whether it's constitutional or not or you won't follow your view?
MR. SRINIVASAN: Mr. Chief Justice, I'd hesitate to give you a black-and-white algorithm. There are -- there are several considerations that would factor into it. One of the considerations -
JUSTICE SCALIA: Excuse me. It's not your view. It's the President's. It's only when the President thinks it's unconstitutional that you can decline to defend it? Or what if the Attorney General thinks it's unconstitutional?
MR. SRINIVASAN: No, no. Of course -
JUSTICE SCALIA: Or the Solicitor General, is that enough?
MR. SRINIVASAN: 28 U.S.C. 530(d) presupposes -- Congress presupposes that there are going to be occasions in which a statute is -- is not defended because of a conclusion by the Attorney General that it's unconstitutional.
JUSTICE SCALIA: Oh, it can be either the Attorney General or the Solicitor General?
MR. SRINIVASAN: It could be, but this is a situation in which the President made the determination. And when the President makes that determination, there are a few considerations that I think would factor into the mix in determining whether enforcement will follow. One of them would be the consequences of enforcement for the individuals who are affected.
And so, for example, I would assume that if it's a criminal statute that we're talking about, an enforcement would require criminal enforcement against somebody and -- which would beget criminal sanctions. That may be -
JUSTICE SCALIA: So when Congress enacts a statute, it cannot be defended, it has no assurance that that statute will be defended in court, if the Solicitor General in his view thinks it's unconstitutional?
MR. SRINIVASAN: There have --Justice Scalia -
JUSTICE SCALIA: Is that right?
MR. SRINIVASAN: -- there have been occasions in the past.
JUSTICE SCALIA: Yes or no?
MR. SRINIVASAN: Yes. Yes, it's true. And 28 U.S.C. 530(d) exactly presupposes that. That's the exact occasion in which that process is -- is occasioned. Congress knew that this would happen. Now, it can happen also when -- in the rare instance in which the President himself makes that determination. And I don't think that the take-care clause responsibility has this all or nothing capacity to it. It can be that the President decides -
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