Maybe I’m Wrong But I’ve Good Company In My Wrongness (UPDATED)

Last week, I advanced the position here, which was called “bipolar” in another forum, that while the President ought to only very rarely determine a law to be unconstitutional, should he do so, he should not only decline to defend the law against a Constitutional challenge in court, but until and unless a court determines the President to be incorrect, he should not enforce that law, either.

This position caused some heartburn on the part of those who said that no, the President also has a Constitutional duty to enforce the laws and he must be neutral in doing so. I can see the argument — Congress passes a law and an appropriate deference to the authority of both Congress and the Courts requires that the President enforce all the laws on the books and  let the courts decide what is Constitutional and what is not. That is a credible argument, but one which in my opinion renders the separation of powers between the branches too simple; the checks and balances between the branches are and should be more complex than that. Equally important in my mind is the Presidential oath of office:

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.

The idea is that the President must enforce all laws in order to “faithfully execute the Office,” while declining to defend an unconstitutional law faced with judicial review is the appropriate manner of discharging the duty to “preserve, protect and defend the Constitution.” But since the Constitution itself creates the office of the President, the President’s paramount and overriding duty is to preserve, protect, and defend the Constitution. I cannot square the circle of the President enforcing a law he knows (or at least believes) to be unconstitutional, in order to comply with the constitution. At least one sitting U.S. District Court judge seems to believe my position is the superior one.

Specifically, I refer to United States District Judge Jeffrey White, who has issued an order to show cause asking the Justice Department to explain itself in the pending case of Golinski v. Office of Personnel Management. Karen Golinski, longtime readers of this blog will recall, is a research attorney employed by the Ninth Circuit Court of Appeals, who got married during the five-month “hammock” between the California Supreme Court’s decision in the Marriage Cases and the California voters’ enactment of Proposition 8. She tried to enroll her new wife, Amy Cunninghis, in the Ninth Circuit’s employee benefits program as a spouse and was refused, on the  basis of section 3 of the Defense Of Marriage Act. As we are all now aware, last week the Obama Administration announced that it had reached the opinion that section 3 of DOMA was unconstitutional and therefore would not defend the Constitutionality of that portion of DOMA.

This was hardly an unprecedented decision; the President has, on at least eleven instances in the post-war period of our history, exercised independent judgment about the Constitutionality of a law and told a court that it thought the law in question was unconstitutional. Interestingly, in five of those eleven cases, the courts disagreed and said that the laws were constitutional, which seems to vindicate another point I made (perhaps in a clumsy or over-subtle fashion) that just because the President declines to defend a law does not end the game; the courts must still independently agree and now we see that roughly half the time, they do not.

In the Golinski case, Judge White has asked, inter alia,

How does the Executive reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend? … On what basis can OPM defend its position to decline to extend benefits in a case in which such declination was based on the defense of unconstitutional legislation?

These seem like excellent questions to me, on a big-picture, theoretical level, as well as at the small-picture, case-in-controversy level. The only intellectually valid position I can see is the “Enforce to execute the office, decline to defend to protect the Constitution” position outlined above. Nevertheless, this puts the President in the position of violating the Constitution in order to enforce it, which seems like a variation of the Bến Tre defense to a violation of the most fundamental law of our land. I can feel vindicated that at least one sitting U.S. District Court judge — almost none of whom are known to me to be intellectual slouches — seems to think that such an argument is, to put it mildly, sub-optimal.

If DOMA § 3 is unconstitutional, then it seems that Golinski must win the case, and her wife must be enrolled for benefits. Now, as I see it, Judge White must still independently evaluate Golinski’s challenge to the law in order to strike it down, and determine if the new position adopted by the government is correct. He should probably solicit amicus briefs, or look to existing amici, given the government’s refusal to defend the law, to defend the law as best it can be defended. The adversarial process requires that the proponent of a proposition prevail over a meaningful opposition; upon the foundation of argument is our entire system of justice built. The government’s failure to defend the law ought to factor in to that decision, but as referred to in the link above, it is not necessarily decisive.

Upon switching gears from a legal to a moral analysis, it sure looks like everyone involved wants to get Amy Cunninghis enrolled in her wife’s benefits plan. These women have a son, who by now would be about seven years old. Everyone involved seems to have compassion for the situation and seems to recognize the fundamental humanity of the situation and they all want to reach the same result. Doesn’t this, more powerfully than anything else, demonstrate that whether or not DOMA is something Congress has the Constitutional power to enact, make actually enacting it a bad thing to do — a bad policy decision with a bad moral result when enacted? I realize that the chances of this Congress repealing DOMA and sidestepping the whole fight are effectively zero, but that would be the best of all possible events in this fight.

Since that simply isn’t going to happen, I’ll instead await the government’s articulation of its position here — bearing in mind that the separation of powers issue is distinct from the substantive policy issue that underlies it, and urging my readers to do the same.

UPDATE: The government’s response to Judge White’s order may be read here. In response to the trenchant questions, the U.S. Attorney’s office essentially adopted the position articulated on these pages, with the addition that Congress is expected to hire its own lawyers to intervene and defend the case. Indeed, Speaker Boehner has indicated that this will likely happen soon. Also of interest is the number of cases currently pending in which such intervention will be necessary. All are important, but the lion’s share of the oxygen in the room is going to Commonwealth of Massachusetts v. U.S. Dep’t of Health and Human Services, et al. c/w Gill, et al. v. Office of Personnel Management, et al. I think the Golinski case is at least as clear as the Commonwealth/Gill case, its procedural origins are the most interesting, and of course it’s closer to home for me, so that’s the one I’ve chosen to follow more closely.

Hat tip to Lyle Denniston of SCOTUSblog.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.