"The Dellinger Memorandum"
I haven't found the full text of it. Dawn E. Johnsen's law review article, "Presidential Non-enforcement of Constitutionally Objectionable Statutes" discusses the Dillinger memorandum at some length.
Under Dellinger's formulation, whether the President should [*pg 24] enforce a particular statute that he considers unconstitutional depends largely on a prediction of how the Supreme Court would rule on the constitutionality of the provision in question. That is, the President typically has the authority to decline to enforce a statute if he determines both that a law is unconstitutional and that it is probable that the Court would agree. By contrast, if the President believes the Court would uphold the law, he generally should comply with the law. When the President's own powers are threatened, he has greater authority: The President may decline to enforce a statute unless he is convinced that the Court would disagree with his assessment. Dellinger also identified several other factors the President should consider in deciding whether to exercise non-enforcement authority, such as the likely effect of non-enforcement on the justiciability of the law and on the constitutional rights of affected individuals. ...
The Dellinger Memorandum recognizes that an important factor in the President's decision whether to disregard a constitutionally objectionable statute is how clear the constitutional defect is. The Dellinger Memorandum also addresses the related central issue of the appropriateness of presidential deference to the constitutional views of the other branches. The Dellinger formulation requires the President to base his enforcement decisions not only on his own views but also on great deference to Congress and a prediction of how the Supreme Court likely would rule. If the Court likely would sustain the provision, the President "as a general matter" should enforce the provision. "If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the [*pg 45] President has the authority to decline to execute the statute." Dellinger endorses a standard more permissive of non-enforcement for provisions that encroach on presidential powers. ...
... I would add to the Dellinger formulation that the President's own constitutional views should play a greater role when the presidency, as an institution, possesses special expertise such that the President's views on at least some aspect of the constitutional issue are likely to be superior to those of the Court and to any considered view Congress seems to have been expressing. [*pg 46] The President's views may be deserving of added weight, for example, on issues regarding which the courts typically defer to the political branches or treat as nonjusticiable and entrust to the executive branch, either alone or together with Congress.
The Dellinger Memorandum describes the President's non-enforcement authority as greatly enhanced when the law encroaches on the constitutional powers of the presidency: "Where the President believes that an enactment unconstitutionally limits his powers, he has the authority to defend his office and decline to abide by it, unless he is convinced that the Court would disagree with his assessment." The Dellinger position is consistent with past executive branch policy and practice.
The executive branch typically has justified enhanced non-enforcement authority when the President's powers are threatened as necessary to self-defense, and, in turn, preservation of the constitutional balance of powers. The 1980 Civiletti Memorandum describes this rationale well: "[T]he Executive can rarely defy an Act of Congress without upsetting the equilibrium established within our constitutional system; but if that equilibrium has already been placed [*pg 51] in jeopardy by the Act of Congress itself, the case is much more likely to fall within that narrow class."
63 Law & Contemp. Probs. 7 (Winter/Spring 2000)
Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes
63 Law & Contemp. Probs. 125 (Winter/Spring 2000)
Lori Fisler Damrosch, The Clinton Administration and War Powers
63 Law & Contemp. Probs. 479 (Winter/Spring 2000)
Alan J. Meese, Bakke Betrayed
Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (1994)
(memorandum from Assistant Attorney General Walter Dellinger)
The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. Off. Legal Counsel 55 (1980)
(memorandum from Attorney General Benjamin R. Civiletti)
[Recommendation] 7. Congress should update and clarify the almost 200 standby statutory authorities, triggered variously and often ambiguously by "declared war," "war" alone, "time of war,"or "national emergency,"and it should codify selected laws of war.
An authorization for the use of force affects not just the foreign target.By virtue of almost 200 statutes providing standby domestic legal authority, each authorization triggers "domino"domestic legal effects. Unfortunately, not all of these are known to or intended by Congress because the domestic standby statutes have accumulated haphazardly over many years and have not been updated or clarified to fit the contemporary congressional preference for using use-of-force authorizations rather than declarations of war. Congress has not codified important aspects of the law of war, especially regarding the scope and procedures for military detention and military trial of enemy combatants - law which has recently been invoked by the President to detain even U.S. citizens in conjunction with the 2001 use-of-force authorization.
Deciding to Use Force Abroad: War Powers in a System of Checks and Balances
An Initiative of The Constitution Project | 2005
THat's the one..the same guy apparently just wrote some article attacking Bush..in effect saying the exact opposite..