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.
