There couldn’t be anything to worry about in President Obama’s ordering the Justice Department to stop defending the Defense of Marriage Act, could there be? After all, this is a recognition of the essential truth that there is no legally justifiable reason to reserve marriage just for opposite-sex couples, right?
First, it’s not a complete reversal of position. It’s an order to not defense section three of the federal DOMA, which states that for purposes of federal law, marriage is defined as only one man and one woman. It leaves open the question of whether the Full Faith and Credit Clause compels a state to recognize a same-sex marriage from another jurisdiction, or whether Congress appropriately exercised its powers under the Full Faith and Credit Clause to allow states the latitude to recognize or disregard such a marriage.
Second, Orin Kerr at the Volokh Conspiracy notes that by simply doing this — exercising an independent review of whether a law is Constitutional or not and acting appropriately in response to that review — the executive branch is advancing and maintaining a claim that it possesses a right of independent constitutional review, and advancing the claim it may disregard a law that it finds to be unconstitutional based on theories and reasoning which are in dispute at the time they are adopted. Prof. Kerr claims that this is the very position articulated by John Yoo in his infamous “torture memos.”
I think this is something of a stretch, a scare about what might be over there where there is really no “there” there. We should want the President and the Attorney General to independently consider whether a law passed by Congress is Constitutional, and I want the President to use his discretion and inherent authority — in fulfillment of his oath of office — to prevent unconstitutional laws from being enforced and to strike them from the books. The opposite result — the President enforcing and implementing all laws by rote without considering their Constitutionality — reduces the Presidential oath of office to vacuous verbiage.
Prof. Kerr worries that this could become abused and result in future Presidents using this power to simply ignore laws which they dislike by calling them unconstitutional. I tend to agree that this is a risk — but I do not think it is a significant one. It is no small thing to say that an Act of Congress violates the Constitution, and not very many of them do. While it is a danger that including this sort of discretion within the “executive power” of Article II could lead to this power being abused, the executive power can be and has been abused in contravention to the Constitution and in contravention to majority preference in the past. The Republic has survived, our Constitution has not been laid low even by overreaching Presidents.
One of the reasons for this is the safeguard of independent judicial review. Prof. Kerr’s concern would be much more weighty if we were to shackle the federal courts to the vicissitudes of public opinion and political dynamics — for instance, by having them be elected, or diminishing their power of judicial review.
Because, at the end of the day, it doesn’t much matter what position the Administration takes about the Constitutionality of a given law. In order to strike that law from the books, there must be a challenge to it in the courts, and the challenger must convince the courts that the law in question really does violate the Constitution. The President is not only permitted but expected to take a position on such a question.
To do so, the President (acting through the Justice Department) is expected to research the law, and carefully and soberly consider not only whether the law is good policy but whether it conforms to the Constitution. Doing that research will mean examining the research and reasoning of the challengers, it will mean doing independent research and deriving independent reasoning, it will mean, in many cases, adopting disputed positions (which may happen to favor the Government’s exercise of power and the Constitutionality of the questioned law in most cases) which were previously adopted by other parties in other litigation or by other scholars. This is the thing that concerns Prof. Kerr, and it ought not to be a concern.
Indeed, Attorney General Holder’s letter of explanation reflects sober consideration of those concerns and while the theories it adopts are indeed presently being contested, they are also well within the mainstream of legal thought and acceptable reasoning and argument. I have little doubt that political considerations factored into the decision, but the Executive Branch is supposed to be susceptible to political pressure, as is Congress.
By default, the President ought to defend the Constitutionality of a law. Note that “by default” does not mean “in each and every instance.” If after thorough good-faith research and careful consideration of the issue, the President should conclude that the challenged law does exceed the scope of power given to Congress by the Constitution, then the President ought to say so. The President’s interests, and the Justice Department’s clients, must always be in harmony with the Constitution. A result not congruent with the Constitution is unacceptable in all cases, even if it’s “just advocacy.”
Now bear in mind that I have an expansive vision of who ought to be given standing to defend the Constitutionality of a law. It ought not to be just the government. And a law ought not to be stricken down by default. This applies to, for instance, the Prop. 8 challenge which parallels the challenge to DOMA. Governor Schwarzenegger, and presumably Governor Brown after him, declined to defend the law. The Governor has discretion to do that; it is not discretion that ought to be exercised lightly but there is a time and a place for that. But that is not the end of the story. Prop. 8 doesn’t, or at least ought not, get thrown out simply because the relevant state official agrees with the challenge to it. The challengers must still meet their burden of demonstrating that a questioned law violates the Constitution — and the Court should consider all reasonable arguments advanced in favor of the law before striking it down.
In the case of DOMA, then, I do not see a dangerous overreach in the President instructing the Justice Department to decline to defend the law. Previous Administrations have done the same thing, and it is something that signals that the President is (for once) taking his obligation to protect and defend the Constitution seriously. I do wonder, however, why it took more than two years for the Obama Administration to adopt this eminently reasonable position?