Duty to Defend A Law

There have been some very interesting posts over a Volokh on whether or not Obama is right to sandbag on defending the Defense of Marriage Act in Court. The Administration has suggested that the law is unconstitutional. Orin Kerr referred to it as an executive power grab. David Bernstein takes the administration to ask for saying they won’t defend it, but will keep enforcing it. Also, Ilya Somin looks at it from both a theoretical and practical point of view.

Speaking strictly as a matter of theory , I’ve never agreed with the notion that the Supreme Court is the only body that can have an opinion on a law’s constitutionality. While I would agree they certainly have the final say in the matter, I have no issue with a sitting President refusing to enforce or defend laws that President has a good faith belief are unconstitutional. In fact, I expect Presidents to stand by their oath and refuse to enforce or defend unconstitutional laws.

That said, I’m not sure I agree with the President that DOMA is unconstitutional, even if politically I agree with the end result of not defending it. Sandbagging the defense of DOMA could also, potentially, be smart politics for the Democrats. Homosexuality is a divisive issue for Republicans, since acceptance of it alienates social conservatives, while rallying against it tends to scare off younger voters, some independents, and libertarian Republicans.

As long as Republicans are busy making themselves seen as trying to cut deficits and spending, the Democrats are going to be on the losing side of the middle in that debate. If Obama can goad the Republicans into fighting on better ground for the Democrats, namely contentious social issues, it probably helps their party over the long term, as the generation gap on the gay issue gets larger. I don’t think this tactic is going to help them as long as the economy is sour, so the short term effect won’t accomplish anything more than keeping the Democrat base from totally falling apart heading into the 2012 elections. But longer term, the Democrats are on the right side of this issue politically.

20 thoughts on “Duty to Defend A Law”

  1. The President of the United States is obligated to enforce the laws of the United States. That’s the role of the executive branch–to enforce laws passed by the legislative branch. If they are unconstitutional, the judicial branch is supposed to fix this.

    What especially upsets me when an executive officer refuses to enforce a law is that it often means that no one else has standing to defend the law–as happened with Prop. 8 in California.

  2. Actually that Supreme Court right to decide the constitutionality of an issue was one that was self-awarded in the Marbury v. Madison case in 1803.

    It is the absolute best reason to *SPIT* when the term “stare decisis” is used by the judicial elite

  3. That’s the role of the executive branch–to enforce laws passed by the legislative branch.

    Yes, but the executive branch also has the obligation to enforce the Constitution – a duty which trumps the obligation to enforce laws passed by the legislature.

    If Congress passed a law today ordering the Army to immediately confiscate all privately owned firearms, the President has a duty to order the Army to refuse, and every soldier from General to Private has that same duty to refuse because the law is unconstitutional.

    That is, in fact, one of the Executive branch’s “checks and balances” against the Legislative branch. The Judicial branch can then order the Executive to enforce that law if it is Constitutional, or back the Executive if it is not.

  4. I’m curious as to which enumerated power authorizes DOMA. Especially eager to hear from socially conservative strict constructionists…

  5. As others have said, the President also has a duty to uphold and defend the Constitution. And, as others have said, where in the US Constitution does it say that federal government has the power and authority to enact the DOMA. As a matter of fact, it can be argued (like with concealed carry) that other states have to honor same sex marriages performed in the states where it is legal (full faith and credit), just like they have to honor other contracts and licenses.

    Also, if the President/Executive Branch is required to enforce and defend DOMA, the same goes for all other laws on the federal books, including others that are either antiquated or seen as harmful to others.

  6. Homosexuality isn’t exactly a cut and dried issue on the left either. A lot of minority groups like African Americans are politically liberal but socially conservative.

  7. If the Dems want to take this route, just wait till the tables turn and we stop enforcing Roe v Wade and Obamacare.

  8. I have an even better question:

    Let’s suppose that Congress declares war on Canada tomorrow. What happens when the president, as commander in chief, simply refuses to mobilize the troops?

  9. The legislative branch has the power to remove a president. If they decide that the president failing to act on something is worthy of impeachment they can remove him.

  10. If Obama, as chief executive, won’t enforce a law he claims is unconstitutional, why should a “junior executive,” like a commissioned officer in the armed forces, carry out an order he feels is unconstitutional (for whatever reason)?

    Obama has been told by a federal court in Florida that Obamacare is unconstitutional, but his administration is enacting it anyway. Furthermore, courts have ordered an end to certain restrictions on off-shore drilling; the administration has refused to issue permits for such drilling, and has been found in contempt of court for doing so.

    We’re really on the brink of chaos here, folks.

  11. This is an interesting prospect. The president and his administration is forging into new territory by creating a precedent of weakly defending a law he doesn’t want to enforce.

    We all know how US vs Miller got us a fairly unappetizing result simply because the only side that was presented to the Supreme court was the government’s side. What if the newly found executive power is to encourage a suit challenging a law unliked by the president’s party, and then assigning a deliberately weak lawyer to make a fluff case on the behalf of the government?

    Then you’ll get the result you want, and a precedent that will compel via stare decisis that a similar law cannot also be passed.

    This is bad juju. Put it to a Democratic supporter this way: what would happen if Roe v. Wade was reversed this way? What would happen if federal welfare was challenged for failing to provide equal protection (I don’t know how, just make something up). What if the entire Dept of Education was challenged on 10th amendment grounds, and the Attorney General’s defense was “meh”, or, better, “Well, they have a good point about the constitutionality, yerhonner, but think of the children!”

    Maybe I can put it more clearly: If Obama pulls this off, then GAME ON. There’s a whole lotta federal law that can we wiped out this way.

  12. “I’m curious as to which enumerated power authorizes DOMA. Especially eager to hear from socially conservative strict constructionists…”

    Protecting the powers reserved to the states by the Tenth Amendment. Clear enough? DOMA does not prevent any state from recognizing same-sex marriage if it so chooses. it does say that a state is not obligated to recognize a same-sex marriage from another state.

  13. DOMA is unconstitutional and just plain wrong. Equivalent to law preventing whites and blacks from marrying and enjoying equal protection and benefits of citizenship. Though late in coming, I applaud the President on his decision.

    I find the stripping of rights from people, whether by partisans of the right or left, morally and ethically repugnant.

  14. Actually that Supreme Court right to decide the constitutionality of an issue was one that was self-awarded in the Marbury v. Madison case in 1803.</blockquote/.
    I'm curious: If not the courts, then who? And how would that fit into the idea of "separation of powers"?

  15. Clayton, the 10th Amendment does not authorize a state to violate the individual rights of its residents, as I know you know. I think people have 1st Amendment right to freedom of association, and marriage is the ultimate association of two people. The 14th Amendment incorporates that against state police powers. It also provides that we can’t discriminate, such as laws preventing blacks and whites to intermarry. Gender discrimination is also prohibited.

    Tell me what incredibly important governmental objective requires the prevention of gay marriage? So far, every religious person I speak to who is against gay marriage has no answer than somehow their marriage is being harmed. I don’t see how. If it is a religious thing, then government has no business regulating it.

  16. The admistration isn’t too hot on enforcing immigration laws either. We sit here worrying about DOMA?? If gays want to call their arrangement marriage let them do it. I just don’t want to hear any crying when it comes to divorce.

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