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?
See, this is why I have nothing to say about the matter. I am, of course, delighted by the DOJ’s about-face, but haven’t anything like your legal analytic ability. Thanks very much for this excellent post.
There was a time when libertarians hated the fiction of “compulsory appeal” precisely because its sotto voce purpose was to maximize federal power, regardless of how it was divided between the legislative and executive branches.
I suppose next there will be insistence by some that libertarians must — duh — oppose “activist judges.”
However, the trend is quite the opposite — libertarians are realizing that “activist judges” can be a very good thing.
“Activist judge” means one who makes decisions you dislike. How can that be a good thing?
The issue is not whether a President can decline to defend a law passed by a previous administration that it considers unconstitutional. Clearly, you’d end up with a bunch of half-hearted, lazy arguments.
The issue here is standing, as it was when non-state parties took up the Prop. 8 case (the CA supremes are going to tackle this soon). Some say that members of Congress could sue, but there is some disagreement on this. If nobody can show standing to defend the statute, SCOTUS can appoint someone to brief and argue it.
Then again, if you can’t cite the kind of particularized harm needed to get in court, there may not be any. That speaks volumes.
No, no, no. He is not saying that he is not going to enforce DOMA. That has the ring of a zombie meme taking hold though. Holder said they are not going to defend the constitutionality of part of it.
. . . it is something that signals that the President is (for once) taking his obligation to protect and defend the Constitution seriously.
But Obama is not taking the Constitution seriously. He is claiming that a law is unconstitutional and yet he will keep enforcing the unconstitutional law. That is a direct violation of his oath.
“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.”
To appropriate some of your phrasing–wouldn’t this reduce the “override veto” ability of Congress to meaningless verbiage? How can it be Constitutional for the Executive Branch to refuse to enforce laws which Congress has put into effect via due process?
“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.”
He can say so all he likes. He’s still required to defend and execute that law by the document which he swore an oath to follow.
Executing the law seems like a function of, y’know, the executive branch, but I’m not sure I see why defending the laws in court is a necessary part of presidential obligations. It’s rare, but there is precedent for presidents declining to defend laws they believe to be unconstitutional. It seems to me that while executing laws that are duly passed is not an optional part of the President’s job, getting involved in the legal disputes around them is not obligatory.
Congress once passed a law that criminalized the burning of the American flag as a form of political protest. That law violated the First Amendment to the Constitution. United States v. Eichman (1990) 496 U.S. 310. But because such a law is obviously politically popular, Congress could easily choose to simply ignore Eichman and pass the law again and several attempts to do so have happened since the Supreme Court made this aspect of the law clear. Let us assume that such an attempt were to succeed, after Congress observed all appropriate procedures specified by the Constitution, its own rules, and existing statutory laws in re-enacting the Flag Protection Act.
In such a circumstance, the President could determine for himself, without consulting either Congress or the Courts, that the law is contrary to the Constitution. Inherent within the “executive power” vested in him, the President has authority to a) order Federal law enforcement and prosecutorial authorities acting under his control to not execute that law (“enforcing” the law), and b) to tell the Justice Department not to defend that law in the event it is made the subject of a Constitutional challenge (“defending” the law).
To take the example suggested by Gorgias below, I see no violation of either the Constitution or the Presidential oath of office were the President to determine in good faith that the drug war violates the Constitution and then order the FBI to stop enforcing drug laws. I do not think such a good faith reading of the law is possible, given the holding of Gonzales v. Raich (2005) 545 U.S. 1, but in Gorgias’ hypo that’s the conclusion the President comes to, and given that, the President ought to neither enforce nor defend a law he believes to violate the Constitution. I think the flag-burning hypo is a better and simpler illustration of the point, but Gorgias’ hypo does better illustrate the stakes of what we’re talking about.
The President does not violate his oath of office in doing so because the Constitution is the highest law of the United States, and therefore trumps the Act of Congress. The President should not compound the Constitutional violation by enforcing a law he believes in good faith to be contrary to the First Amendment. It can’t be the case that the President is obligated to knowingly violate the Constitution in order to obey it. But that’s what you seem to think he should do.
What do you make of Obama’s decision to not defend, but still enforce, DOMA?
The decision is internally inconsistent and unprincipled.
Either DOMA is defensibly Constitutional, or it is not. Having concluded that DOMA is not Constitutional, Obama should stop enforcing it.
Re: your assertion that Obama’s position is nonsensical, claiming the president must knowingly violate the constitution to serve it.
It’s a question of epistemology. Obama can believe that the law is unconstitutional all he wants, but the only body that can make that determination is the judicial branch, as outlined in the constitution. Until the court rules on the issue, he can’t know for sure whether it’s constitutional. He can voice his opinion, and he’s not obligated to put the power of the executive behind a position he believes to be false, but he’s not being hypocritical for following his constitutionally obligated duties in one case while exercising his constitutionally enabled prerogatives in another.
More broadly, I don’t believe that your contention that there is no good faith interpretation that makes the drug war unconstitutional is relevant. There’s no check on this power in the government, as it is currently set up. If the executive says the law is unconstitutional, it’s unconstitutional. I suppose maybe a court order could get the executive to start enforcing the law again, but I don’t think the court’s ever done such a thing before.
“It can’t be the case that the President is obligated to knowingly violate the Constitution in order to obey it.”
But what you want is for him to, well, knowingly violate the Constitution in order to obey it.
And my way, at least, can point to actual sections of the document to back it up, rather than needing vague appeals to ill-defined “rights”.
If the persons charged with enforcing the laws can unilaterally decide not to enforce laws they think are invalid, then where does that end? What if the cops think that urban black males have had a bad time and so it doesn’t matter that they knocked over a liquor store?
Now, you could make the case that laws like DOMA shouldn’t have existed in the first place. And I’m not going to argue against that case. I’d argue for it. But if we’re going to declare that we should only have a minimal set of fully-valid laws, then we have the responsibility to actually apply the laws we do have.
What if the cops think that urban black males have had a bad time and so it doesn’t matter that they knocked over a liquor store?
Bad news, DD: you already live in such a world.
It is well within a police officer’s discretion to determine which alleged crimes to investigate and which ones to ignore. Similarly, it is well within a prosecutor’s discretion to not file charges on a case presented to her by the police.
The chances of that happening with a liquor store robbery are admittedly, low; but then again, you’ve picked a dramatic example and imputed a racial motive to it to add emotional punch to your bid to reductio ad absurdum. But it’s a lot easier to see a cop blow off a completed auto vandalism or a petty drug deal. That sort of thing happens every day.
It’s a matter of the cop prioritizing how the limited resources available to him, resources of time, effort, and material, will be allocated. In fact, he’s supposed to prioritize that way; we’d be mad at him if he spent all his time writing tickets for auto equipment violations and unregistered bicycles and not enough time tracking down rapists and fences.
If I were to sue the police for failing to enforce the law, that lawsuit would be thrown out of court. The very first argument that the police officers’ attorney would use would be that the cops — both as individuals and collectively as a police force — have discretion about what laws will and won’t be enforced, and that discretion is a legal privilege shielding them from civil liability.
Literally hundreds of times in my career, I’ve had of people call up my office who said they had been victims of crimes but who were told by the police, “That’s a civil matter,” or “You need a civil attorney for that,” which is cop-speak for “We’ve unilaterally decided that your problem is not worth our time.” The complaining victims then call my office and ask me if I’m a “civil attorney,” and I then have to explain to them that I can’t make the district attorney prosecute anyone, but I can sue the bad guy privately for my regular hourly rate, and once they look at the economics of the situation they walk out muttering that there is no such thing as justice anymore, which in such cases may very well be a correct assessment of the situation.
Point is, if the police don’t want to enforce the law, then they aren’t going to enforce it, and you and I can sputter in frustration about their unilateral decision on the sidelines all we like. That is already reality, and reality has been that way for a long, long time.
The President, I submit, is no different than the cop. He has discretion, and I will be so bold as to say the duty, to prioritize what he does when he enforces the laws. And while it is rare that such an instance should come up (you’ll remember that in the original post I tried to underline the point that this sort of thing should happen only very rarely), one of the things he should consider in setting those priorities is whether the law in question is Constitutional.
What do you mean by, “enforce,” here?
You say that, “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.”
I’m inclined to read this as, “the president can stop placing the armed force of the government behind laws he deems to be unconstitutional.” If the drug war is unconstitutional, the President can tell the FBI to stop prosecuting drug crimes.
Later you say, “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. ”
It seems to me that if I interpreted the above instance of “enforce” correctly, the President doesn’t have to wait for the courts to decide. He can stop the enforcement of the law unilaterally. A court decision could probably force him to start enforcing it again, but until it does he’s free to pick and choose.
If by “enforce” you at least include defending the laws in court, well, that seems like an odd definition to me but I guess we don’t have any problems.
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