The Editorial Board of the New York Times today encourages the Obama Justice Department to stop defending the Defense of Marriage Act in federal court.  The law, they say, is “blatant discrimination” that should be “presumed to be unconstitutional.”  With this, I agree.  DOMA, signed into law by Bill Clinton, creates federal permission for state discrimination and locks same-sex partners in many states into a status of separate but equal.  The fact that the law has survived this long is incredible as it is so clearly unconstitutional on its face.  The New York Times is absolutely right that the arguments put forth to justify the law initially and to defend it since are flimsy at best, and hateful and bigoted at worst.

Still, the Editorial Board of the Times does not seem to have thought through its position to any kind of logical conclusion.  The fact that DOMA is indefensible is clear, and yet the Obama administration is still defending it. So, they conclude, “[t]he executive branch’s duty to defend federal laws is not inviolate,” and the Justice Department should agree with the law’s challengers that it is unconstitutional and cease to defend it in court.  This position is indefensible with any kind of projection of the long-term consequences of such a choice.

A choice by the administration to stop defending a law passed by both houses of Congress and signed by the president would clearly enrage conservatives and be seen as a gross overreach of executive authority.  This overreach would likely, in turn, be seen by conservatives as a license to return the favor when next a Republican president was in office.  Progressive bills passed by the current Congress, and even bills long-standing in federal law, would be at risk of being overturned by conservative courts simply by virtue of not being defended by the Justice Department.

The most obvious candidate for this treatment would be the health care overhaul.  The current challenges to the health care bill are surely to continue through 2012 and even conceivably 2016.  If, in either of those elections, a Republican were to take the White House, they would face the choice to defend the law, or to agree with its challengers that it is unconstitutional.  If the current administration allows DOMA to go undefended, the health care law would likely precipitate the same choice by a future Republican administration.

The grand effect of this precedent would be to give each successive presidential administration an effective veto on the legislation passed under previous congresses and presidents.  Whenever a president of one party signed into law a bill opposed by the opposition party (which currently would be all of them), opponents could simply wait until a president from the opposition party is elected, challenge the law in court, and sit back assuming that the current president would support their challenge.  Without standing to oppose these challenges, no parties outside the federal government could stand up to prevent the invalidation of law after law, and then reinstatement of an opposed legal regime by each successive administration.

Even if President Obama opposes DOMA, which he does, and even if the arguments supporting DOMA are weak, which they are, the Obama Justice Department should still make those arguments.  Some of the more extremely facially discriminatory arguments could be avoided, but overall a sitting administration has a responsibility to defend a law currently on the books.  There is no reason to believe a law on such weak constitutional footing as DOMA will ultimately be upheld.  Progressives should wait until the inevitable striking down of DOMA is final.  If the law was defended throughout its legal challenge, conservatives will be left with few arguments for reverting back to any kind of DOMA-like regime.  Any steps by the Obama administration to do anything less than fully defend DOMA (to the extent it is defensible) will only be fodder for conservatives to attack the process, rather than the substance, when the law is overturned.

There are many constitutional issues on which I would not encourage patience.  Waiting for democracy to grant rights that should be fundamental guarantees too often leads to indefinite waiting.  In this case, we are waiting not for democracy, consensus, or majority opinion.  Instead, democracy has spoken with a unconstitutional voice, and we are waiting for the process of judicial review to take its course.  Though this process is slow, it is inevitable.  Let the different branches of government do their respective jobs, the executive defending the law and the judiciary judging its validity.  DOMA will be struck down, and the process that achieves that result will be unimpeachable.

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7 Comments

  1. Jason Harrow says:

    Noah-

    I don’t disagree with your ultimate conclusion. But I do want to quibble with your assumption that “the grand effect of this precedent would be to give each successive presidential administration an effective veto on the legislation passed under previous congresses and presidents.” In fact, the executive branch’s declining to defend the constitutionality of a legislative action has a long history, and it does not necessarily determine the outcome of the case. A decision not to defend also does not mean that no party will be able to defend the enactment in court, and that it is therefore automatically declared void.

    For instance, in the Prop 8 case in California, the state declined to defend the law, but the proposition’s backers stepped in at the trial level to do so (whether those intervenors now have standing to appeal is as yet undecided). And in other cases, like U.S. v. Lovett (1946) and Morrison v. Olson (1988), the Supreme Court allowed amici to represent the views of Congress when the SG declined to defend those enactments. In light of cases like this, there is no principled reason why a court would not permit a lawyer representing the interests of Congress to defend DOMA or the healthcare law if the DOJ declined to defend either. (A 1994 OLC memo listing more such cases is available at http://www.justice.gov/olc/nonexcut.htm.)

    Again, this does not necessarily change the outcome of your interesting analysis, as it may well be that defending DOMA makes sense to legitimate any ultimate decision and and to set a precedent for healthcare. But I think it may change the calculus somewhat.

    • Noah Kaplan says:

      Jason, I think the Proposition 8 comparison is apt, but as you stated, as yet undecided. If the court does not allow amici to step in on behalf of the state due to a lack of standing, then the administration in California has effectively vetoed a law passed by popular referendum simply by not defending it in court. Though again in that case I agree with the ultimate outcome that Proposition 8 is unconstitutional, the precedent set could be a dangerous one. I’m sure many legal scholars are keeping a close eye on that case for the legal standing issues as well as the rights in play.

      The memo that you link to, though interesting in itself, is responding to a different question. The memo addressed whether a president may choose unilaterally to stop enforcing a law that the president decides is unconstitutional. I think a president clearly has the prerogative to not enforce a law while a constitutional challenge to that law plays out in court. Though the memo cites sources relating to the duty to defend, it doesn’t address that question directly.

      You’re right that if amici were allowed to represent the interests of Congress, my point about a future presidential veto is weakened. I’m not sure based on what I know of standing required in federal courts whether or not that action is allowed with enough latitude to prevent the type of situation that I describe.

  2. Jason Harrow says:

    Noah-

    I appreciate the response, but I continue to think the situation is somewhat more nuanced than you give it credit for: even though the state did not defend in California, that decision was not the equivalent of a veto. There in fact was a full trial in California, and counsel for intervenors ably represented the view that Prop 8 was constitutional. It was up to the trial judge to find it unconstitutional or not.

    Curiously, you also claim in your comment that the President may unilaterally disobey a law when he believes it’s unconstitutional (and when there is a pending court challenge, though I’m not sure why that matters). But isn’t that worse than enforcing but declining to defend it in court? Isn’t your situation more like exercising a de facto veto than simply arguing to a judge that the executive believes a Congressional enactment is unconstitutional?

    Consider what would happen if Obama simply disobeyed DOMA and unilaterally directed the Office of Personnel Management to issue full benefits to same-sex partners of government employees (or take that example and replace “Obama” with “Palin” change around the law at issue). On your view, this seems to be more “legitimate” than obeying the law but declining to defend its constitutionality in court. That seems to me backwards, though. After all, as a first approximation, Congress is supposed to pass laws, the executive is supposed to follow them, and the judiciary is supposed to say whether they are Constitutional. I realize things aren’t always so clean, but that seems to me at least a nice ideal.

    • Noah Kaplan says:

      Obviously a very nuanced question, and I guess my answer came across much more blunt than I had intended. In the Proposition 8 case, and I admit I had to do some research to update my knowledge of the progress of the litigation, intervenors were allowed to argue for the constitutionality of the law in place of the California government. However, at this time, the 9th Circuit has submitted the question of standing to the California Supreme Court. So, even though the 9th Circuit has heard argument on the merits, if the California Supreme Court rules that the intervenors don’t have standing to appeal Judge Walker’s opinion from the district court, the appeal will be dismissed. This is the effective veto to which I referred. You are correct that there was a full trial, but now that Judge Walker ruled it unconstitutional, the choice not to defend has the effect of overturning of the law. Had the government of California made the choice not to defend the law at the trial court level, it could have been overturned without trial.

      My comment on the president choosing to not enforce laws was more limited than you took it to be. I was referring to the situation, as described in the memo you linked in your first post, in which a president signs a bill into law, and then chooses not a to enforce a particular part of the bill pending a court determination of its constitutionality. The president is not free to ignore laws signed by previous presidents or to sign and then ignore entire pieces of legislation. It is relevant that a court challenge be pending because the president’s analysis of the law’s constitutionality will then be vindicated or repudiated by a court, and that decision would guide the executive’s future actions.

      President Obama, I hope, would not have signed DOMA into law based on his assessment of its constitutionality. A hypothetical President Palin would not sign into law the contrary. My argument from the beginning has been that a president should uphold the responsibility of the Justice Department as the voice of the people in court to defend laws passed by both houses of Congress and signed by a previous president. I think the power of the executive would be too greatly enhanced by supplementing executive authority with the discretion to allow laws to be overturned in court without a full and vigorous defense to the extent that the law is defensible.

  3. Jason Harrow says:

    Noah, a quick coda to our exchange: the Obama Administration today announced that it will in fact not defend DOMA in new cases filed in the Second Circuit. http://www.justice.gov/opa/pr/2011/February/11-ag-222.html. The Press Release noted that the AG has “informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.”

    So, interestingly, it looks like we’ll get to what happens with the Administration pursuing both options simultaneously — defending DOMA in the First Circuit and declining to defend in the Second Circuit. Somewhat baffling, but should make for an intriguing experiment.

    -Jason

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