Matthew Steilen (SUNY Buffalo Law School) has posted Judicial Review and Non-Enforcement at the Founding on SSRN. Here is the abstract:
This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this same period the historical record contains hundreds of discussions of judicial review. The Article then advances an explanation of why there was considerable support for judicial review but none for non-enforcement. Judicial review followed from what that generation called “expounding” the law, which meant explaining it. A court was supposed to explain the law in the course of deciding a case. Explaining the law involved examining all potentially relevant legal rules and showing how they fit together to deductively justify the judgment reached. In that context, if a statute could not be reconciled with the constitution, it would not be given effect. Since the president neither decided cases nor expounded the law, he did not enjoy a power of non-enforcement parallel to the power of judicial review.