Imagine a hypothetical legal and factual backdrop that is somewhat different from the actual backdrop to Korematsu v. United States: In the immediate aftermath of the Japanese attack on Pearl Harbor, Congress passes, and President Roosevelt signs, a law compelling the president to detain Japanese-Americans in internment camps for the duration of the war. The Supreme Court rules in 1944 that the law is constitutionally permissible. President Roosevelt is defeated in his bid for re-election later that year. In 1945 the newly elected president, Thomas Dewey, refuses to enforce the law on the ground that he deems it to be unconstitutional, and he closes the internment camps and orders the detainees released. Has Dewey, in so doing, violated the duties of his office?


To the New Yorker’s Jeffrey Toobin, it’s beyond dispute that Dewey is acting unconstitutionally. In Toobin’s view, Marbury v. Madison established as a “bedrock[] of constitutional law” the proposition that “Courts, not presidents, ‘deem’ laws unconstitutional, or uphold them”—and presidents must enforce whatever laws the Court says are permissible.

It’s on the basis of this misunderstanding that Toobin flays D.C. Circuit judge Brett Kavanaugh for a sentence in his 65-page dissent in an Obamacare ruling last November. In that case, the panel majority rejected the claim that Congress lacked the power under the Commerce Clause to impose Obamacare’s individual mandate. Kavanaugh also ruled against the claim but did so on the separate ground that the Anti-Injunction Act deprived the court of jurisdiction to decide the claim. (Kavanaugh’s opinion is a dissent rather than a concurrence in the judgment because his disposition would require that the judgment below be vacated (for lack of jurisdiction) rather than affirmed.)

Toobin finds appalling this sentence from footnote 43 (page 58) of Kavanaugh’s opinion, which Toobin says “appeared to offer advice to the Republicans who are challenging Obama in the election this year”:

Under the Constitution, the President may decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.


That would mean, observes Toobin, that “even if the Supreme Court upholds the law this spring, a President Santorum, say, could refuse to enforce ACA [the so-called Affordable Care Act, aka Obamacare] because he ‘deems’ the law unconstitutional.” But, Toobin declares, “That, to put the matter plainly, is not how it works” and purportedly runs counter to Chief Justice Marshall’s statement in Marbury that “It is emphatically the province and duty of the judicial department to say what the law is.” In contending otherwise, Kavanaugh, according to Toobin, “was pandering to the base” and displaying symptoms of “health-care derangement syndrome.”

Toobin, I’ll further note, begins his misplaced attack on Kavanaugh by asserting that Kavanaugh (who worked for Independent Counsel Ken Starr when Starr was investigating President Clinton’s perjuries about the Monica Lewinsky scandal) was “a principal author of the Starr Report, the investigative bodice ripper that transfixed the reading public in the autumn of 1998.” Toobin even quotes a passage from the report that supposedly illustrates Kavanaugh’s “bracing literary standard.” And Toobin closes with a warning that if a Republican president is elected this November, “his most likely first nominee to the Supreme Court will be Brett Kavanaugh.”

Let me try to untangle Toobin’s confusions:



1. Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply (the power of judicial review). As I’ve pointed out before, one good thing to come out of the American Bar Association’s badly confused report opposing presidential signing statements was liberal scholar Laurence Tribe’s acknowledgment that Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.” The Court itself didn’t assert the myth of judicial supremacy until 1958. And, as Abraham Lincoln put it in his First Inaugural Address:

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.



In short, Marbury simply doesn’t stand for what Toobin imagines it to stand for.

2. Nor, as my hypothetical aims to illustrate, is there any compelling reason for a rule that a president must enforce any law that the Supreme Court has found constitutionally permissible. (Much more extreme hypotheticals are easy to imagine.) To be sure, as Lincoln put it, Supreme Court decisions are “entitled to very high respect and consideration in all parallel cases by all other departments of the Government.” And, in a well-functioning system, the instances in which a president would decline to enforce a law that the Supreme Court has upheld might well be rare indeed.

3. Toobin fails to put Kavanaugh’s observation in context. Kavanaugh’s observation comes in Part V.C of his opinion (slip op. at 53-60), which is dedicated to explaining that there are not any “compelling prudential considerations that would justify overriding the limits of the Anti-Injunction Act and deciding this case now”—and, in particular, that “waiting to decide might mean never having to decide.” (Emphasis in original.) In context, it’s clear that Kavanaugh isn’t “offer[ing] advice to the Republicans who are challenging Obama in the election this year,” just as his observation in that same part that Congress could “fix the alleged constitutional shortcoming” by basing the individual mandate on the Taxing Clause isn’t recommending that Congress do so. Rather, what Kavanaugh is doing is identifying theoretical reasons why the case might disappear without having to be decided.

4. Even more hilarious are Toobin’s charges that Kavanaugh “was pandering to the base” and displaying symptoms of “health-care derangement syndrome.” Recall that Kavanaugh concluded that the courts do not even have jurisdiction to consider the challenge to Obamacare’s individual mandate. I would have thought that someone who would be accused of “pandering to the base” and of displaying symptoms of “health-care derangement syndrome” might, at a minimum, have actually voted to strike down the individual mandate (rather than bury an unobjectionable passage in footnote 43 on page 58).


5. Toobin is wrong to attribute to Kavanaugh the “bodice ripper” passages from the Starr Report. Far from drafting the narrative section, Kavanaugh (according to multiple accounts, including Bob Woodward’s), vigorously objected to its recounting of graphic sexual details.

* * *

Kavanaugh is one of many highly qualified candidates that the next Republican president would be wise to consider for appointment to the Supreme Court. Nothing in Toobin’s badly confused account should provide anyone cause for alarm over that prospect.