U.S. Solicitor General Donald Verrilli, Jr. discussed the circumstances under which the executive branch can decline to defend an act of Congress at the Stephen R. Volk ’57 Lecture held in honor of “Law Day.” More than 100 students, faculty members and community members filled Rockefeller 003 to hear Verrilli speak about the separation of powers in the United States. Verrilli said that the lecture reflected his own personal views and not the views of the U.S. government, but he added that the question of whether or not to defend particular statutes is an important part of the role of solicitor general.
“One school of thought is that the president is obliged to uphold every act of legislature,” Verrilli said. “In fact, Article II of the Constitution reads that the president must take care that laws are faithfully executed.”
In contrast, Article VI states that the Constitution is supreme, above and beyond Congressional laws. This opposing sentiment supports the “Take Care” clause in Article II, which “obliges the president to refuse to defend in court any statute the president believes to be unconstitutional,” Verrilli said.
Verrilli said he believes that the executive branch has a “crucial obligation” to make judgments to uphold the Constitution and long-term goals of the country, while appropriately recognizing the separation of powers.
Verrilli drew mostly on historical precedent to establish two categories of cases in which it has been recognized that the executive branch can decline to uphold statutes. The first category is when the statute encroaches upon the authority of the executive branch, and the second is when no reasonable argument can be made that the statute is constitutional.
A historical example of the first category occurred when the Senate tried to block former President Andrew Johnson from firing Secretary of War Edwin Stanton. Although the Senate impeached Johnson for violating the Tenure of Office Act, he was acquitted, and it was later decided that “the Tenure Act violated executive powers,” Verrilli said.
The case became an important precedent when the Supreme Court affirmed the ability of the president to remove a postmaster without congressional approval. It was a landmark case because the solicitor general chose to attack the constitutionality of the statute based on Johnson’s precedent as opposed to defending it, according to Verrilli. Typically, the solicitor general represents the U.S. government and defends statutes that have been passed.
“It was interesting that not one member of the court thought it was inappropriate that the president and the solicitor general attacked a statute of the United States instead of upholding it,” Verrilli said.
Former President George W. Bush passed a bill in 2003 that allowed people born in Jerusalem to list Israel as their country of birth on U.S. documents because he approved of other parts of the bill, according to Verrilli. The State Department was instructed not to uphold the entire bill because Bush was opposed to the portion addressing Israeli nationality. When President Barack Obama’s administration was sued for not executing the clause, the president and the solicitor general once again argued against the legislation.
“Again, the court made no suggestion that the president or solicitor general did anything inappropriate by challenging the statute,” Verrilli said.
Throughout the lecture, Verrilli cited several other historical cases that refuted the view that the government must uphold statutes. He emphasized the complexity of the judgments that the executive government must make on a day-to-day basis.
“People who want a clear line of demarcation will not have an answer, but they should take comfort that the judgments of the executive branch recognize separation of powers,” Verrilli said.
Decisions to not uphold statutes are serious and rare and are usually done in good faith, Verrilli said.
In response to how he has adapted to the political environment of his new job, Verrilli said the Department of Justice is one of the few places in Washington where political affiliation does not matter.
“We focus on the interest of the United States and try to make sound judgments,” Verrilli said. “I believe solicitors general would say that they are the custodians of the long-term interest of the administration.”
Verrilli attended Yale University and then Columbia Law School, where he was editor-in-chief of the Columbia Law Review. After graduating, he clerked for former Supreme Court Justice William Brennan, Jr. After working as a litigator at a private law firm and an adjunct professor at Georgetown Law School, Obama appointed Verrilli United States deputy attorney general and later deputy counsel to the president. In June 2011, Verrilli replaced Elena Kagan as solicitor general.
In an interview with The Dartmouth, Verrilli said it was not difficult to transition from one position to another because each employed similar skills and approaches.
Although he worked in private practice for many years, Verrilli also spoke of the importance of pro bono work in his career.
“Taking on pro bono cases gave me a great sense of fulfillment, and I was able to grow as a lawyer in ways I wouldn’t have been able to as a young lawyer,” Verrilli said. “Law is a public profession, and we owe it to the public to conduct our jobs with integrity.”
Verrilli’s also said aspiring lawyers should choose the profession, rather than get backed into it.
“If you’re going into law, you should make sure you’re really in it, or you’re going to miss the fulfillment and the richness of the experience,” Verrilli said. “It’s a profession that requires you to be in positions where you’re really putting it all on the line.”
Verrilli himself realized in the first year of law school that the legal profession was for him, he said. Although he specialized in First Amendment law as a litigator, he faces various kinds of legal cases in his current role.
“The responsibilities of this job have been a growing experience,” Verrilli said. “I hope I feel that way until the very last day that I practice law.”
Responses to Verrilli’s visit were overwhelmingly positive across campus.
Verrilli was introduced by Vice President of the Dartmouth Lawyer Association Xander Meise Bay ’01, who said Verrilli has been a popular speaker during his time at the College.
“There has been a great turnout to his events, and it really reinforces a legal interest on campus,” Bay said. “People say Hanover is remote, but it’s obvious the world can come to Hanover.”
In addition to Thursday’s lecture, Verrilli will visit three classes and serve as a panelist on a Friday discussion about the separation of powers. Thursday’s talk was co-sponsored by the Dartmouth Legal Studies Faculty Group, the Dartmouth Lawyers Association and the Rockefeller Center.