Dispatches from the Creation Wars

To What Extent the Appeal?

- guest-blogged y W. Kevin Vicklund

The 9th Circuit Court of Appeals just heard arguments on the Prop 8 trial, i.e. Perry v. “da Guvernator.” The DoJ keeps appealing challenges to Bush-era laws. What do these have in common? The issue of how far the executive branch is obligated to go in order to uphold a law or action it feels is unconstitutional.

The answer is not clear-cut. There are a number of principled stances that can be taken. The executive branch is charged with faithfully executing the laws maade by the legislature (or the people, in the case of a referendum or other direct action). By refusing to defend or enforce these laws, the executive usurps the power of the legislature. Yet the executive is also charged with upholding the constitution. How can these laws be defended if the executive believes in good faith that the laws are unconstitutional?

One solution is to take the stance that the executive does not have the authority to interpret the constitutionality of a legislative action. Its role is to create a regulatory framework to enforce the laws where the framework doesn’t violate the constitution. Barring direction from the legislature, the executive is obligated to defend the laws to the fullest extent possible. Appeals are automatic, and settlements where the law doesn’t get upheld are not allowed. (This does not apply to challenges to the regulatory structure, which the executive has authority over and can thus proceed as it desires). Another solution is to allow the executive to decide whether or not to defend the law.

However, I take a middle-of-the-road approach. I think the executive should be required to defend the law at the trial level, or permit an intervenor to conduct the defense. However, the executive should have the option to “cut bait” and refuse to appeal if the law is struck down, unless given specific directions otherwise. At this point, the executives belief that the law is unconstitutional has been upheld by a court with the authority to determine its constitutionality.