Right Thinking From The Left Coast
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Wednesday, February 23, 2011


This is interesting.

President Obama has decided that he won’t “defend the constitutionality” of a part of the Defense of Marriage Act that seeks to bar gays from marrying, the Justice Department announced.

The change in the White House’s position means that the administration will no longer argue for that part of the law in two lawsuits filed in the Second Circuit challenging it.

Attorney General Eric Holder said in a statement Wednesday that Obama “has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.”

“The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional,” Holder said. “Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”.

Being supportive of gay liberty, you’d think I’d be all for this.  But it actually makes me a little nervous.  Orin Kerr has a great commentary over at Volokh arguing that this amounts to a power grab by the executive branch.  By refusing to defend the Constitutionality of a law—based on a legal theory expounded by ... no one, really—they are retroactively vetoing the legislation.  It’s a power grab equivalent to the Bush Administration’s re-interpretation of Article II powers.

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

Kerr goes on to suggest that this is a way to retroactively repeal legislation without actually repealing it.  For example, if Sarah Palin wins the election in 2012, she could refuse to defend Obamacare in court, effectively repealing the legislation without a vote.  That may sound fine and dandy to you if you oppose Obamacare, but imagine the same tactic being used to stop the Patriot Act.  Or entitlement reform.  Or any other piece of contentious legislation you can imagine.  Hell, imagine the next Administration decides they’re going to resume enforcing DOMA in the absence of a Supreme Court ruling.  Do we want that to be the case—when the applicability of federal law depends of the opinions of the President? I think the President should have the power to refuse to enforce or defend legislation that is an egregious violation of the Constitution.  Any my view of negative power is that all three branches should agree that a law is Constitutional before it is enforced.  But I don’t think DOMA is so thorough a violation of fundamental liberty that it warrants the nuclear option.

In the end, I think this may be unimportant.  I believe that gay marriage opponents can defend DOMA in court without support from the Administration although I can’t seem to find a definitive statement on this.  However, the game has shifted dramatically.

Posted by Hal_10000 on 02/23/11 at 09:07 PM in Politics   Law, & Economics  • (0) TrackbacksPermalink
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