A friend of mine asked me to weigh in on this question. "Can a President refuse to enforce a law? If not, what recourse does...who...have? Doesn't that give him de facto line item veto?"
So, here is an attempt at a well though out response. This obviously came up because of Obama's recent refusal to defend the Defense of Marriage Act (DOMA), but he wanted a theoretical answer, not a diatribe for or against Obama. So, here goes.
First of all, the constitution vests the executive power in the President but does not clearly define that beyond some specific powers listed later. Often, those powers are used to determine the constitutionality of executive action, but do not always provide clear direction. However, also in article 2 is the oath of office which states: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." It can be interpreted that protecting and defending the Constitution includes defending and upholding the laws passed by Congress. However, as with most things in our government, it isn't that simple.
This article from the Harvard Journal of Law and Public Policy, presents an interesting view of executive power as defined by Justice Jackson. In the interest of full disclosure, Jackson is one of my least favorite Supreme Court justices because he expanded federal power at the expense of the constitution on many occasions in my opinion, but this argument is quite good for this situation.
The argument was made in the Steel Seizure case and basically goes like this: according to Jackson, there are three levels of executive power, the "maximum", the "zone of twilight", and the "lowest ebb". These are defined by Jackson this way: the President's power is at its maximum when he is exacting power that Congress has granted, the zone of twilight is when the President is doing something that he has not been specifically granted to do, but that he also receives no opposition from Congress on and finally his power is at the lowest ebb when he is acting in a way contrary to laws passed by Congress. Jackson doesn't argue the President doesn't have power here, just that it is tenuous. I would argue the President has no power here, but I tend to disagree with Jackson.
Now we come back to article 2. The oath of office clearly requires any President to uphold the constitution. Therefore, if Congress passes legislation that the President believes to be unconstitutional, it is his duty not to enforce it. This can obviously change with each successive President as their opinions on what is and what is not constitutional will change. So, in the case of the DOMA, Clinton and Bush obviously had no problem with it, defended it in the courts and directed the Justice Department, an arm of the Executive Branch (the President) to uphold and enforce it. However, Obama's announcement makes it clear he finds it unconstitutional and therefore he won't enforce it. If someone else is elected in 2012, they can choose to enforce and defend it once again, so your remedy is through the ballot box, but Congress can't force the President to enforce an unconstitutional law. This is actually the essence of separation of powers and deserves a seriuos discussion, which it won't get because of the law in question.
Now, one final point in regards to DOMA. Marriage laws have always been established by and through the states and DOMA was designed to allow the states to act as they pleased in regards to marriage rather than having to recognize a marriage their laws considered invalid, so the constitutionality of this law rests on the Constitution again. Does the full faith and credit requirement of the constitution make this law unconstitutional and therefore require states to act in ways contrary to their laws? That is the real question here and it is the as yet undecided constitutional issue. The Justice Department had been maintaining it was constitutional but now they will not defend this in the courts. However, the states can still sue or nullify as possible remedies assuming we all still want federalism. In the absence of federalism, we have no further recourse beyond the ballot box.
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