Each branch can consider if law is unconstitutional. It takes all three in agreement to execute it.
The legislature is bound not to create unconstitutional laws. If the law does pass, the executive is bound not to execute it. If the law is executed, the court is bound to strike it (you can argue the court is also bound to strike it even if it's not executed, but Knife Rights v Garland for example found there is at least in that case no standing to challenge a non-executed law).
It's not that one branch has all the power so much as each branch has veto power to stop the unconstitutional law from actually coming into effect. The power to actually do something takes all 3 branches but the power to stop something only takes one. Even the founders understood this -- Jefferson helped block the Sedition Act and actively encouraged states to nullify and avert its enforcement. Obama and later presidents stopped the enforcement of many prohibitions on recreational intrastate commerce of marijuana, a blatantly unconstitutional federal law, which nonetheless still stands (enforcement of medical marijuana is defunded but not recreational). These increased our compliance with the constitution, without creating dictators.
The constitution states the bounds of the government, then gives the president no authority to outstep them. The 10th amendment is what you seek, it stops POTUS from executing extra-constitutional law as it would outstep the powers outlined for the federal government in the constitution.
That is, the constitution limits POTUS powers to ones explicitly given. If the law exceeds it, he cannot implement it, regardless of the opinion of the judiciary or congress. This is bound on all 3 branches, and due to the design of the constitution it only takes one branch blocking a law to stop it.
Now, you state we need to challenge laws before the president can stop enforce them. Riddle me this, why is it the federal courts won't even let you challenge the federal Switchblade Act, because they state no standing as it hasn't been enforced (by their definition) in over 10 years (Knife Rights v Garland) []. How could what you say possibly be true if the law isn't even allowed to be challenged? If what you said was true, and POTUS had to enforce the law, then there would always be standing by the people jeopardized by it to challenge it. The courts wont even let you do what you've asked.
> Each branch can consider if law is unconstitutional. It takes all three in agreement to execute it. The legislature is bound not to create unconstitutional laws. If the law does pass, the executive is bound not to execute it.
I agree the legislature is bound to not create unconstitutional laws, but the sole power the executive has under the Constitution as to the constitutionality of laws is his veto power, which was intentionally limited by the Framers:
“But it is to be remembered that this qualified negative is in no respect a violation of the rule which declares that the legislative power shall be vested in the Congress. It is not a transfer of the power of legislation to the Executive, because it does not enable him to do any thing more than to suspend the passage of a law, and is a mere check upon the legislative body, by subjecting their resolutions to revision and consideration. The power of preventing bad laws includes that of preventing good ones; and this alone would furnish a complete answer to the objection, if any could be supposed to exist. But the principal answer is, that the veto is not absolute, and that it may be overcome by two-thirds of both Houses.” - Alexander Hamilton, Federalist No. 73
You're saying that the President actually has an absolute veto; if he vetoes a bill, and Congress overrides the veto, you're saying the President gets the ultimate veto in that he can just claim the law is unconstitutional and refuse to implement it. So now you have to answer why the Framers would have limited the veto power if they had intended POTUS to have an ultimate veto through selective execution of laws.
> Even the founders understood this -- Jefferson helped block the Sedition Act and actively encouraged states to nullify and avert its enforcement.
The Sedition Act expired as soon as he entered office, so I'm not sure how you figure he "blocked" it in any sense. Whatever Jefferson had to say about the sedition act was his right, but he didn't use any unconstitutional powers to work against it.
> Obama and later presidents stopped the enforcement of many prohibitions on recreational intrastate commerce of marijuana, a blatantly unconstitutional federal law, which nonetheless still stands (enforcement of medical marijuana is defunded but not recreational).
The scope of POTUS' power over the DOJ is circumscribed by Congress; Article II gives the President general executive power, but the specific scope of prosecutorial discretion is grounded in statutory law -- whatever discretion he has over prosecutions is granted by Congress. You concede that POTUS have not stopped enforcement of the law entirely, which would be unconstitutional; but they have used persecutorial discretion to focus resources, which is constitutional.
>You're saying that the President actually has an absolute veto; if he vetoes a bill, and Congress overrides the veto, you're saying the President gets the ultimate veto in that he can just claim the law is unconstitutional and refuse to implement it. So now you have to answer why the Framers would have limited the veto power if they had intended POTUS to have an ultimate veto through selective execution of laws.
Veto prevents the law from going on the books.
Unconstitutional 'veto' doesn't stop future administrations, it's much softer and merely reflects the president following his oath, but allows people to elect another executive who could then enforce the law. That is, veto power is for stopping constitutional or constitutional laws from going on the books. Refusing to execute doesn't strike from the books but allows execution of oath to follow the constitution.
Of course, I'm not sure your point about president not acting on good faith and thus refusing to execute constitutional laws -- in that case he could be impeached but if not it's a sign the whole system has broken down as at that point at least 2 of the 3 branches of government no longer respect the constitution.
>The Sedition Act expired as soon as he entered office, so I'm not sure how you figure he "blocked" it in any sense. Whatever Jefferson had to say about the sedition act was his right, but he didn't use any unconstitutional powers to work against it.
You're right that his time in office didn't actually block it, although Jefferson made clear that he believed the executive had the power to stop enforcing it, and had encouraged states to nullify it before he even took office and before it expired. I'll concede here the argument he personally was the one that blocked it was weak, although it clearly shows a founders take that the constitution permits the executive to follow the constitution instead of an unconstitutional legislation.
>You concede that POTUS have not stopped enforcement of the law entirely, which would be unconstitutional; but they have used persecutorial discretion to focus resources, which is constitutional.
If you prefer, you can switch to the Switchblade Act , which the federal courts have absolutely and unequivocally ruled has had the enforcement of the law "stopped entirely" (albeit in very twisted logic, they didn't count seizures that were then returned) for 10 years (Knife Rights v Garland). In fact the courts in that case basically found you couldn't even challenge a law that had been unenforced by the executive in 10 years, as they basically considered it as no one having standing as it basically doesn't exist as something jeopardizing anyone. Of course the main reason to challenge it is because it's unconstitutional (violates 2nd amendment) in the first place (thankfully executive took care of this before it went to courts, though would be nice if they'd double tap on it)!
I would think if the courts agreed with you, and the executive did have to enforce the laws, they couldn't have argued there is no standing to challenge the Switchblade Act, since the executive was bound to enforce it. The fact you can't challenge a law the executive has chosen not to enforce would seem to presume the courts have decided that the lack of standing stands on a legitimate machination of government, else it would be an absolutely preposterous premise that you won't be in jeopardy.
The legislature is bound not to create unconstitutional laws. If the law does pass, the executive is bound not to execute it. If the law is executed, the court is bound to strike it (you can argue the court is also bound to strike it even if it's not executed, but Knife Rights v Garland for example found there is at least in that case no standing to challenge a non-executed law).
It's not that one branch has all the power so much as each branch has veto power to stop the unconstitutional law from actually coming into effect. The power to actually do something takes all 3 branches but the power to stop something only takes one. Even the founders understood this -- Jefferson helped block the Sedition Act and actively encouraged states to nullify and avert its enforcement. Obama and later presidents stopped the enforcement of many prohibitions on recreational intrastate commerce of marijuana, a blatantly unconstitutional federal law, which nonetheless still stands (enforcement of medical marijuana is defunded but not recreational). These increased our compliance with the constitution, without creating dictators.