The Constitution, the White House, and the Military HIV Ban: A New Threshold for Presidential Non-Defense of Statutes

The President’s constitutional duty to ‘take Care that the Laws be faithfully executed” implies that the President is entrusted with the responsibility to defend those laws against court challenges. On occasion, however, Presidents faced with legislation that they deem unconstitutional have declined to defend that legislation against legal challenges. On February 10, 1996, President Clinton declined to defend a provision included in the National Defense Authorization Act for Fiscal Year 1996 that required discharge from the military of all HIV-positive servicemembers because he believed that the provision violated the Equal Protection Clause of the Fourteenth Amendment. This Note explores whether President Clinton’s decision not to defend the HIV provision was appropriate as a matter of law and policy. This Note asserts that President Clinton’s decision reflects an emerging practice that allows the President to meet a lower threshold of unconstitutionality before declining to defend legislation: the President may decline to defend legislation where he determines that the legislation is probably, although not necessarily patently, unconstitutional. This Note concludes that requiring a lower threshold for presidential non-defense of legislation satisfies separation of powers concerns and is appropriate as an executive branch prerogative.