The right-wing media have decried the Obama administration's decision to stop defending the Defense of Marriage Act, claiming the move is unlawful and “a form of dictatorship.” In fact, presidents from Thomas Jefferson to George W. Bush have opted against defending statutes they viewed as unconstitutional.
Right-Wing Media Dubiously Suggest Obama's DOMA Decision Is Unlawful
Crowley Calls DOMA Decision “A Form Of Dictatorship,” Argues That If Bush Had Done Something Similar, “There Would Be Calls For His Impeachment.” From Fox News' America Live:
MONICA CROWLEY (Fox News contributor): It's beyond belief. We are a nation of laws, not of men. We are governed by the rule of law. And what the Constitution says is that the president of the United States doesn't get to decide which laws he likes and which ones he's gonna enforce. He's the chief executive.
The law is on the books, the Defense of Marriage Act. It is his responsibility under the Constitution to enforce that law. Not just to decide, “Well, I don't like that law, so I'm not going to enforce it.”
That is -- to me, that is a form of dictatorship. That is Mubarak Obama. I mean, that is -- you can't just pick and choose which law you're gonna enforce when you're president of the United States or the attorney general.
KELLY: Something this big and this controversial, you have to wonder, you know, if a Republican president just decided, we're no longer going to enforce the laws that protect gays because we don't believe in those, there would be quite a national outcry.
CROWLEY: If President Bush had done that, there would be calls for his impeachment. I think this is a very serious story. [Fox News, America Live, 2/23/11]
Kelly Suggests DOJ Isn't Doing Its “Job.” From America Live:
KELLY: The Department of Justice, however you feel about this law, whether you like this law or you don't like this law, the Department of Justice's job is to defend the laws that are on the books. And it is now saying that pursuant to President Obama's feeling that this law is unconstitutional, and Eric Holder says he agrees, they're just not going to do it. So what happens now? [Fox News, America Live, 2/23/11]
Limbaugh: “They Can't Do, Legally, What They're Doing Here.” From Rush Limbaugh's radio show:
LIMBAUGH: But here's the thing folks. Irrespective of your view of the Defense of Marriage Act, it is the duty of the Executive Branch, the Justice Department, to defend in court the laws the U.S. Congress has passed. They can't do what they've done. Obama can't declare it unconstitutional and stop defending it. He can't do that without Supreme Court arriving.
Determining the constitutionality of a statue is not the job of the president, it's not the job of the attorney general. They can't do, legally, what they're doing here. They can't do it. These are the new left outlaws. [Premiere Radio Networks, The Rush Limbaugh Show, 2/23/11]
Beck: Obama “Thinks He Can Literally Do Anything He Wants Whether He Has A Legal Way To Accomplish It Or Not.” From Glenn Beck's radio show:
BECK: Talk about fundamental transformation for a minute. The Obama administration will no longer enforce DOGMA [sic], the Defense of Marriage Act. A lot of people are making this about gay marriage, which it is not. This is about a president who is just willy-nilly picking the laws that he likes and doesn't like. It's an end run around the Senate, the House, and even the previous Democratic president. This guy thinks he can literally do anything he wants whether he has a legal way to accomplish it or not, and it is frightening. [Premiere Radio Networks, The Glenn Beck Program, 2/24/11]
Hannity: “Do They Not Care About The Rule Of Law? Do They Not Care About Precedents?” From Fox News' Hannity:
SEAN HANNITY (host): And we continue now with our Great American Panel. All right, so the Obama administration, just on their own, decides they're not going to enforce the Defense of Marriage Act any more. We've got in Indiana, we've got in Wisconsin, you know, Democrats just leave town because they're going to lose.
And I'm thinking, it's almost like, they don't -- do they not care about the rule of law? Do they not care about precedents? Do they not care about the people that hired them to do a job, that they're bunch of cowards, they leave town like this or that they just decide through a fiat, “We're not going to enforce the law of the land?”
JUAN WILLIAMS (Fox News contributor): Who said they weren't going to enforce the law of the --
HANNITY: Eric Holder.
WILLIAMS: No, no, no.
HANNITY: He said that they concluded that the administration can't defend the federal law that defines marriage as --
WILLIAMS: Defend. Defend in court. Enforce the law across the country. They still are going to do it, because they will enforce the law. But they think that it's impossible now, given the scrutiny from the 2nd Circuit, impossible to say that you are applying the same standard to all Americans when you discriminate against gay people.
HANNITY: We have a law. And they're just saying, “All right, we're not going to defend the law.” And that's their role that's, their job, that's the attorney general. Enforce the law as it's written. They don't get to write it themselves.
HANNITY: Why do we have the legislative branch? Why do you have presidents that sign these bills?
WILLIAMS: That's right, but then they're going to enforce the law across the country.
HANNITY: No, they're not. When they say they're not going to defend it, they're not going to enforce it. They're not going to go near it.
WILLIAMS: That's your inter-- no, that's not fair to them, Sean.
DAVID WINSTON (Republican strategist): But here's the other thing --
HANNITY: I'm really noted for my fairness to Obama.
[laughter] [Fox News, Hannity, 2/23/11]
Goldberg: Obama “Announced This Week That He Will Violate” His Oath Of Office By Declining To Defend DOMA. From Jonah Goldberg's syndicated column:
Article 2 of the U.S. Constitution requires that each new president take the following oath:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
President Obama announced this week that he will violate that oath.
In a decision hailed by gay-rights activists, the White House announced that it will no longer defend the Defense of Marriage Act (DOMA) on the grounds that it has suddenly dawned on the president and attorney general that the law is unconstitutional.
Either way, what Obama is doing is flatly outrageous. [White House press secretary Jay] Carney says that “the president is constitutionally bound to enforce the laws and enforcement of the DOMA will continue.”
No, he is not.
President Obama says DOMA is unconstitutional, and yet the “law professor” says he will continue to enforce it.
In a properly ordered constitutional republic, this would be a scandal. But in America today, it's cause for eye-rolling, shrugs, and platitudes about the demands of politics. [Tribune Media Services, 2/24/11]
Gallagher: DOMA Decision Is “An End-Run Around Democracy.” From a post by Maggie Gallagher on the National Review Online blog The Corner:
We're seeing a pattern to how Democrats respond to election losses: do an end-run around democracy. You can't block a union bill? Flee the chambers. You can't repeal DOMA? Declare orientation a protected class all on your own. This tactic may backfire, however: It opens up the pathway for the House to intervene to defend the law.
This also shows how much they don't believe they have the Supreme Court votes to win yet. [The Corner, National Review Online, 2/23/11]
Duncan: “The DOJ (And The President) Are Attempting To Unilaterally Amend The Constitution To Add A Sexual-Orientation Discrimination Clause.” From a post by William C. Duncan on The Corner:
National Journal is reporting that the president is ordering the Department of Justice not to defend the Defense of Marriage Act in two pending court challenges in the U.S. Court of Appeals (1st and 2nd Circuits). He believes, the report says, that the law is unconstitutional. There's no word on the analysis used to come to this conclusion; I suspect politics is at the core [see below].
There is something about the marriage issue that provokes an “any means necessary” approach from its proponents (among whom I believe we can count the president, notwithstanding campaign rhetoric to the contrary).
Update: Daniel Foster has very helpfully provided the DOJ letter justifying (if that's the right word) the president's decision not to defend DOMA. The basic argument seems to be: (1) “Sexual orientation” is like race for all legal purposes, and (2) some DOMA supporters in Congress made arguments that reflect “moral disapproval” of gays and lesbians, so the law really can't be justified.
Some very initial reactions
- The DOJ (and the president) are attempting to unilaterally amend the Constitution to add a sexual-orientation discrimination clause. [The Corner, National Review Online, 2/23/11]
RedState: “The President's Refusal To Defend DOMA ... Flies In The Face Of Justice Department Policy And Principles Of Democratic Government.” From a post by RedState contributor Curt Levey:
President Obama's decision today to abandon the Defense of Marriage Act (DOMA) is both outrageous -- as a matter of Justice Department policy and constitutional law -- and a miscalculation that will decreases the chances of ObamaCare being implemented, while potentially increasing calls for Supreme Court Justice Kagan to recuse herself from certain gay rights cases.
The President's refusal to defend DOMA, a federal statute enacted by overwhelming margins in the Senate (85 - 14) and House (342 - 67) and signed into law by President Clinton, flies in the face of Justice Department policy and principles of democratic government. It has long been the Department's policy to defend any challenged federal statute unless no plausible argument can be made in its defense. By ignoring that policy, President Obama is engaging in a disturbing power grab that, if taken to its logical conclusion, would allow him to undermine any duly enacted federal law that he doesn't personally agree with. [RedState, 2/23/11]
Wash. Times: Obama Administration “Refuses” To Comply With The Public's “Right For Their Laws To Be Defended By The Executive Branch.” From a Washington Times editorial:
The Obama administration announced yesterday that it will not defend the constitutionality of the Defense of Marriage Act (DOMA). This is the next step of President Obama's strategy to force the radical homosexual agenda on America against the will of the people and Congress.
At issue is Section 3 of DOMA, which stipulates that any mention of “marriage” in federal law should be interpreted to refer only to “a legal union between one man and one woman.” No legal provision could be more basic. As the administration itself noted in a Jan. 20 brief in a different DOMA case, this definition of marriage “is derived from that of 'the standard law dictionary,' which itself was derived from historical definitions in state case law.”
DOMA was passed by elected representatives of the people and signed into law by President Clinton; the public has the right for their laws to be defended by the executive branch. This administration refuses. [The Washington Times, 2/23/11]
Kuhner: The Justice Department Not Defending DOMA Is “A Severe Violation Of Its Constitutional Responsibilities.” From Jeffrey Kuhner's column in The Washington Times:
Mr. Obama ordered the Justice Department on Wednesday not to defend the constitutionality of the Defense of Marriage Act (DOMA). In the face of lawsuits, the federal government is abdicating its role to uphold laws enacted by Congress - at least those the administration does not agree with.
This is not only a severe violation of its constitutional responsibilities but a blatant surrender to the homosexual lobby. DOMA was passed in 1996 by Congress and signed by then-President Bill Clinton. [The Washington Times, 2/24/11]
President, DOJ Have Authority To Choose Not To Enforce Unconstitutional Statutes
1994 DOJ Memo Outlines “Circumstances In Which The President May Appropriately Decline To Enforce A Statute That He Views As Unconstitutional.” From a 1994 Department of Justice memo, written by then-Assistant Attorney General Walter Dellinger, titled “Presidential Authority To Decline To Execute Unconstitutional Statutes” :
I have reflected further on the difficult questions surrounding a President's decision to decline to execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts to share with you. Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.
First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has “the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional.” Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).
Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).
While the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable, it does not offer sufficient guidance as to the appropriate course in specific circumstances. [Justice.gov, 11/2/94]
Legal Scholar Prakash: “The President's Duty To Preserve, Protect, And Defend The Constitution Requires The President To Disregard Unconstitutional Statutes.” From a paper by University of Virginia Law School professor Saikrishna Prakash, published in the Georgetown Law Journal:
Recent Presidents have claimed a power to disregard statutes that they deem unconstitutional, prompting critics to make an array of arguments against these assertions. As a matter of text, the Faithful Execution Clause supposedly bars such non-enforcement. As a matter of history, the English Parliament specifically prohibited a royal discretionary power to disregard statutes. Moreover, American Presidents did not exercise a power to disregard unconstitutional laws until almost a century after the Constitution's creation. Taken together, these arguments are said to refute the regal pretensions of modern Presidents. This Article serves as an antidote to such claims, while sharpening our understanding of the proper Executive Branch stance towards unconstitutional statutes. The critics are correct in supposing that the President lacks a discretionary power to disregard unconstitutional statutes; instead, the Constitution is best read as obliging the President to disregard statutes he regards as unconstitutional. First, the Constitution never empowers the President to enforce unconstitutional statutes. He no more has the power to enforce such statutes than he has power to enforce the statutes of Georgia or Germany. Second, the President's duty to preserve, protect, and defend the Constitution requires the President to disregard unconstitutional statutes. When the President enforces a statute he regards as unconstitutional, he violates the Constitution no less than if he were to imprison citizens without hope of trial. Third, the Faithful Execution Clause requires the President to choose the Constitution over unconstitutional laws, in the same way that courts must choose the former over the latter. Consistent with these understandings, John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws. Indeed, President Jefferson halted Sedition Act prosecutions on grounds that the Act was unconstitutional. According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it. [Georgetown Law Journal, 6/08]
Prakash: Thomas Jefferson Was The First President To Refuse Enforcement Of An Unconstitutional Statute. From Prakash's Georgetown Law Journal paper:
As a matter of history, Thomas Jefferson was the first President who felt compelled to cease enforcement of a statute he regarded as unconstitutional. Believing that the Sedition Act was unconstitutional, Jefferson ordered his prosecutors to cease all existing Sedition Act prosecutions. Jefferson felt constitutionally obliged to arrest the execution of unconstitutional laws. He also concluded that his Faithful Execution duty did not extend to unconstitutional laws because the latter were null and void. He was confident in his conclusions, believing there was “no weak part in any of these positions or inferences.” [Georgetown Law Journal, 6/08]
George H.W. Bush Administration Chose Not To Defend “Must-Carry” Measures. According to the Los Angeles Times:
In an unusual move, the U.S. Justice Department has decided not to defend the government against lawsuits seeking to strike down a provision of the recently passed cable re-regulation law that allows local broadcast stations to demand that their programs be carried on cable systems.
In a two-page letter sent to Vice President Dan Quayle on Wednesday, Assistant Atty. Gen. Stuart M. Gerson said similar “must-carry” measures have been struck down twice by the courts. In addition, he wrote that President Bush, who opposed the cable measure, is the “ultimate client” of the Justice Department and thus an “ethical conflict of interest would be created were the department now to defend these actions of the statute.” [Los Angeles Times, 11/6/92]
Clinton Administration Refused To Defend Amendment Requiring Dismissal Of HIV-Positive Troops. According to a press briefing by then-White House counsel Jack Quinn:
QUINN: As Mike indicated, we anticipate that tomorrow the President will sign the Department of Defense Authorization bill. As you also know, the President's indicated previously that there's a provision in that bill that he finds completely abhorrent and offensive -- the Dornan Amendment, which would require the Armed Forces to toss out of the military everyone who is HIV positive, no matter what the cause of that affliction, and despite the fact that these people are physically and medically able to perform their military duties.
This provision of the bill, in the President's judgment, is mean-spirited and serves no purpose other than to punish people who deserve this government's help, not its hatred.
The President's response to this provision is three parts. First, we will vigorously support the Kennedy-Cohen legislation which we anticipate will soon be introduced to repeal the Dornan Amendment. The President calls upon Congress to act swiftly on this legislation and pass it.
The second, the President has determined that this provision is unconstitutional. He's, therefore, directed the Attorney General not to defend it in court. The President has been informed in this regard by the Department of Defense that in its judgment the Dornan Amendment serves no legitimate military purpose; that it is arbitrary, unwarranted, and unwise. [Clinton Presidential Center, 2/9/96]
George W. Bush DOJ Opted Not To Defend Federal Statute That Prohibited Federal Money For Transit Systems That Accepted Ads Advocating Legalization Of Drugs. According to Congressional Quarterly:
The Justice Department will not defend a legislative provision that withholds federal money from transit systems that accept ads advocating the relaxation of drug laws.
The language, inserted into the fiscal 2004 appropriations omnibus (PL 108-199) by Rep. Ernest Istook, R-Okla., chairman of the Transportation-Treasury Appropriations Subcommittee, decreed that any local transit authority that ran ads advocating the legalization of drugs would forfeit any money extended through the omnibus.
Acting Solicitor General Paul Clement told the Senate legal counsel in December that the Justice Department would not appeal Friedman's decision, which had held “under well-established Supreme Court precedent [that] the funding condition amounted to viewpoint discrimination in violation of the First Amendment,” and that “the government does not have a viable argument to advance in the statute's defense.” [Congressional Quarterly, 1/26/05, via Nexis]
Under Acting Solicitor General John Roberts, DOJ Declined To Defend Federal Statute Encouraging Minority Ownership Of Broadcast Stations. According to a post written by former Deputy Assistant Attorney General and Georgetown University professor Marty Lederman:
The Washington Post reports today that John Roberts was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing. (In fact, Roberts was the Acting Solicitor General for purposes of the case, because SG Starr had a conflict.) The case in question was Metro Broadcasting v. FCC, and it raised very interesting questions about the circumstances under which the Department of Justice will refrain from defending the constitutionality of federal statutes.
The FCC Commissioners and General Counsel unanimously urged the Department to defend the statutes as well, emphasizing that the U.S. Court of Appeals had upheld the central policy and that “there is a solid foundation in the Supreme Court's precedents for the government to argue that the FCC's policies are constitutional.” But, as the Post story today reports, a memo in the files of Associate White House Counsel Fred Nelson (see the back page of this) reveals that Roberts was "[r]eluctant to defend [the] commission's position." In the Supreme Court, the Department of Justice not only did not defend the federal statutes -- it urged the Court to declare them unconstitutional. Acting Solicitor General Roberts, appearing on behalf of the United States as amicus curiae, argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. The Acting SG's amicus brief went further still: It urged the court to reject the deference to Congress suggested in Fullilove, and to apply strict scrutiny to federal affirmative action programs (a position that would, of course, restrict Congress's future legislative prerogatives -- i.e., that would substantially limit federal power). [Balkinization, 9/8/05]