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• Monday, January 5, 2009 12:16 PM

  Here's the gist of the Johnsen's conclusion about

  "PRESIDENTIAL NON-ENFORCEMENT OF CONSTITUTIONALLY OBJECTIONABLE STATUTES"

  Though a close question, the best course here seems the one chosen by President Clinton, with the caveat that, had the repeal effort failed and litigation ensued, a strong argument could have been made against affording Congress the extreme degree of judicial deference that usually accompanies rational basis review. That argument would proceed as follows. When the President takes the extraordinary step of offering a court his considered judgment that a statutory provision is unconstitutional, and he possesses relevant interpretive expertise, judicial review should be more searching and assess the constitutional views presented by both the President and Congress, in light of their relative interpretive expertise. The reviewing court also should consider the extent to which Congress actually considered the constitutional issue in enacting the provision, rather than apply the usual rule under rational basis review that finds "entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature."200 The difficulties inherent in the courts playing an enhanced role of this kind in scrutinizing acts of Congress are justified in these limited circumstances, and a more searching judicial review would be more respectful of Congress's lawmaking function than would an expansion of presidential non-enforcement of constitutionally objectionable statutes.

  Here's Clinton's signing statement:

  the Secretary of Defense and the Chairman of the Joint Chiefs of Staff have advised me that the arbitrary discharge of these men and women would be both unwarranted and unwise; that such discharge is unnecessary as a matter of sound military policy; and that discharging service members deemed fit for duty would waste the [g]overnment's investment in the training of these people and would be disruptive to [*pg 57] the military programs in which they play an integral role.191

  —harpie Read harpie's other letters
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