And so it comes to pass yesterday that the Obama administration will not defend DOMA against legal challenges in the federal courts, because the administration does not believe the law to be Constitutional. The dual politics of gay marriage and federalism aside, what should we make of a President’s decision not to defend a properly-enacted congressional statute in the courts?
Again, leaving aside the situational anti-monarchists, there are those who think this is bad for the legislature. After all, under a traditional whiggish view of the relationship between the President and statute, Congress has hired the President to faithfully execute their laws, and until a court says their laws are not legitimate, then that is exactly what the President should do: faithfully execute their laws without regard to his opinion of their wisdom or Constitutionality.
Presumably, anyone taking up this sort of agent role should, ex ante, have no business making their own independent judgements of the constitutionality of a given statute; if Congress thought it was bad policy, they would repeal it. If Congress did not want it defended in court against challenges, they would instruct the President not to defend it in court. Until then, he should just assume that it is both wise and legitimate and the continuing desire of Congress, and defend it as such.
Well, at least that’s the theory.
I’m much more of the mind that executive discretion over the legal defense of congressional statute is, on balance, ok. The most important thing to realize is that we are not talking about executive discretion over the enforcement of a statute or executive discretion over compliance with a statute. Both of those things are supremely dangerous to a legislature, and should not be tolerated even minimally, particularly the latter.
For instance, if Congress passed a statute in 1953 requiring the desegregation of public schools, and the President decided it was unconstitutional and instructed the justice department and federal agents not to enforce the law (say, in Little Rock), that is bad. Very bad. Even more so, if Congress passed a statute requiring the President to notify them any time he used a power they had granted him (say, warrantless wiretap authority), and he decided that was unconstitutional and he would not comply, that is unacceptable. Utterly.
But that’s not what is going on here. The Obama administration isn’t saying it won’t execute the law; it’s saying it won’t legally defend the law in court. It’s not like the administration is instructing OPM to ignore DOMA and start giving health insurance and other benefits to gay spouses of federal employees in Massachusetts; regardless of how you feel about DOMA, that would indeed be serious cause for concern as a separation of powers issue. But again, that’s not the case. And if DOMA is held ultimately to be constitutional, the administration will continue to enforce it (I recognize that “enforcing” DOMA is much more passive that enforcing, for instance, the federal criminal code).
Furthermore, if the Obama administration believes DOMA to be unconstitutional — either genuinely, or simply from a partisan political point of view — then it might behoove supporters of DOMA to get the justice department out of the courtroom. While there are those who say that a lack of standing will prevent DOMA from getting any defense in court absent the administration, recent history seems to suggest otherwise. In cases where the Clinton and Bush I administration decided not to back laws they believed unconstitutional (no, Obama didn’t invent this tactic), legal defenders, quite capable ones, were found for the statutes. So it’s quite possible that DOMA could benefit from the adminsitration’s refusal to defend it — it might acquire a more capable and willing legal team than Obama/DOJ.
More thoughts to come.
