Constitutionalism in the shadow of doctrine: the president's non-enforcement power.(reponse to article by Dawn E. Johnson in this issue, p. 7)

Law and Contemporary Problems, January, 2000 by Barron, David

DAVID BARRON [*]

I

INTRODUCTION

May a President refuse, on constitutional grounds, to enforce a statute that requires the firing of all HIV-positive military personnel? May a President rely upon the Fifth Amendment to bar federal prosecutors from using unwarned statements notwithstanding a federal statute that expressly validates their use? May a President invoke a constitutional norm of equality to decline to enforce a provision requiring the adoption of differential business regulations for similar professions that he "knows" to be the product of nothing more than special interest dealing?

There is a tendency among those sympathetic to the Supreme Court's rights-protecting role to be wary of an affirmative answer to such...

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