Gestures In Futility, 112th Congress Edition

This is a post about separation of powers and the proper scope and exercise of Presidential authority, Congress’ ability to attempt to direct the exercise of that authority, and a strange attempt by Congress to use its power of the pursestrings to arrogate judicial powers for itself. It is not, or at least does not have to be, about same sex marriage. Article II, section 3 of the Constitution states that the President “…shall take care that the laws be faithfully executed,” and when he (or, within our lifetimes, she) assumes office, the Constitution mandates that the President of the United States recite 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.

Consider now the “Huelskamp Amendment,” named after its author. This is a rider on a completely unrelated piece of legislation that if ultimately passed, would bar the use of appropriated government funds in the Department of Justice for uses in contravention of the Defense of Marriage Act, such as the fifteen-month-old decision of the Obama Administration to decline the opportunity defend DOMA’s constitutionality in court. This is among the most bizarre political gambits I’ve ever heard of.

Returning briefly to the issue of the Constitutional duties imposed on the President, presumably the manner of execution of the laws must be consistent with the President’s oath of office. This much is not in any sort of dispute; but what happens when Congress tries to tell the President how to go about doing that? And what happens when these duties are apparently in contradiction — as would be the case when a law which the President must faithfully execute is inconsistent with the Constitution? In fact, I’ve visited this territory before. My conclusion was then, and it remains now, described in three parts.

First, laws passed by Congress (like DOMA) enjoy a powerful presumption of Constitutionality and absent a very compelling showing to the contrary, the President should faithfully execute, enforce, and defend those laws against challenges in the court. When Congress passes a law, that must mean something; the President is not a king to decide for and by himself alone what is or is not the law.

Second, given the immense complexity of the law and the ways it can be enforced, the President is all but forced to give direction to those under his command about priorities and how they are to exercise their discretion. Giving such direction and exercising such discretion is inherent in being the executive. There is a reason we consider the President to be as powerful as he is, and this is a big part of that.

Third, in the highly unusual circumstance of a law being unconstitutional on its face, and after significant consideration, research, and seeking the opinion and counsel of his advisors, a President can legitimately decline to enforce or defend the laws. This is not lawless behavior because the Constitution is itself the highest law of the land. There is a hierarchy to which laws prevail over others, and the Constitution is on top of that list. It’s been that way for a long time here in these United States.

This issue of the executive’s purported affirmative duty, resident in the Constitutional clauses I’ve referred to above, to defend legislation from Constitutional attack has in recent memory only come up with any prominence in recent memory with respect to the issue of same-sex marriage. (It came up in California, too, when the Governor and Attorney General decided they would decline to defend Proposition 8.) In the past, Presidents of both parties have exercised discretion to not defend the law in cases involving immigration laws, discrimination, transportation, advertisements, and firearms, with the resulting challenges producing about a 50-50 track record of affirmation of the statutory laws at issue.

But as it plays out in terms of the Huelskamp Amendment, it would get stranger than this. Now, I haven’t found the text of the Huelskamp Amendment yet, but you can read the floor debate on the amendment here and that describes what the law would do. If it becomes law, this bill would reach in to the workings of the Justice Department and prevent its attorneys from filing particular briefs containing particular arguments with particular courts in particular cases.

Those particular cases are those cases in which there are Constitutional challenges to DOMA. In several of those cases, most notably Gill v. OPM and Golinski v. OPM, DOMA has already been ruled unconstitutional, in the Gill case after having been defended by the Department of Justice. Now, the Obama Administration has reached the opinion that those rulings are correct, that DOMA is unconstitutional. It has directed its attorneys to not defend DOMA and to indicate the Government’s assent to the prior rulings finding the law unconstitutional.

The Huelskamp Amendment implies the unchallenged postulate that the Federal courts are the appropriate forum in which to review DOMA’s constitutional. Congressman Huelskamp’s concern is not that; it is that the Obama Administration’s Justice Department has given up the fight, after losing the Gill case:

President Obama and the entire Executive Branch are supposed to enforce the laws, not write or erase them. It is not President Obama’s prerogative to decide which laws matter and which do not, nor his right to challenge constitutional amendments duly passed by the various States. The Justice Department is duty-bound to enforce DOMA and to not do so is a flagrant disregard for the Constitution and for the rule of law. The Justice Department does not exist to fulfill campaign promises – nor promote a radical agenda. Most importantly, Congress showed tonight it will not stand idly by while the Executive Branch picks and chooses which laws it wants to enforce and which ones it wants to ignore.

I wonder who Congressman Huelskamp endorsed in the Republican caucuses — for consistency’s sake, hopefully not Newt Gingrich, who seems to think that the President may defy the Supreme Court when he disagrees with what the Supreme Court says about the constitutionality of a law.

So — the Obama Administration defended DOMA in Gill, and then gave up for Golinski, and has declined to appeal. I suggest that even according to Congressman Huelskamp’s standard, having defended and for a time enforced DOMA, the President has discharged his duties, and then deferred to the ruling of the Courts. The Flag Protection Act of 1989 was declared unconstitutional, too, and law enforcement officials no longer attempt to enforce it. I wonder if Congressman Huelskamp thinks that is wrong of them. Or for that matter we might revive the Alien and Sedition Acts, which if enforced today would prove most inconvenient for many members of the Tea Party.

Now, here’s the interesting thing. Congressman Huelskamp would defund efforts of the Justice Department to argue that Gill and Golinksi were decided correctly. So no lawyer in the Justice Department could file any brief containing argument to that effect in the ongoing appeals by the Bipartisan Legal Advisory Group challenging those rulings, because no Federal money could go to support such a filing, including not only the lawyer’s salary but if you got right down to it, even the cost of the electricity used to run the computers that were used for the electronic filing of the brief written by volunteer lawyers would be excluded from the use of Federal funds.

But President Obama has instructed those same lawyers that he will not authorize nor allow them to argue that DOMA is constitutional. If a Justice Department lawyer were to file a brief argue that Gill and Golinski were decided incorrectly, she would be defying and contradicting instructions from the Attorney General and the President, imperiling her career, and likely subject to having her argument withdrawn by her superiors to her tremendous professional embarrassment.

So what should that lawyer do when served with the appellate documents and the deadline for filing briefs comes? She can do nothing — she’s trapped, because she can neither advocate for nor against the constitutionality of DOMA. Which leaves the Department of Justice paralyzed. The lawyer can file a brief advising the Court that the government takes no position whatsoever on the issue. This silence in the face of a challenge to the law would be interpreted by any judge as the government allowing itself to fall into default.

Now, that would not mean that the plaintiffs necessarily win automatically — as I mentioned above, the law is presumed Constitutional until proven otherwise. As a matter of law, the plaintiffs (Ms. Gill and Ms. Golinski, respectively) would still need to offer their legal and evidentiary arguments against DOMA, and the appellate courts would have to agree. The confluence of the Obama order and the Huelskamp amendment would necessarily leave the government silent in the face of such a challenge.

Fear not, DOMA fans, for there would still be a full-throated defense of DOMA offered to the courts. The House of Representatives is in fact actively defending DOMA in these cases. I’ve no objection to this; I favor a more expansive interpretation of the requirement for standing, at least in Constitutional cases where the validity of the law itself is at issue, because I see a testing and examination of the statutory law as a core function of the courts and a critical check on the power of the legislature in our tripartate Constitutional system — a check that I would argue was always intended to be there.

But under the prevailing application of the doctrine of Article III standing, I don’t think the House has a material interest in DOMA’s constitutionality. What legal (not political) interest does the House of Representatives of the United States have in the enforcement of DOMA (or any other law it passes)? The Constitution explicitly gives the duty to enforce the laws to the President, not to Congress. Whatever interest Congress might have in DOMA, how is that different from its interest in having had the obviously unconstitutional Flag Protection Act of 1989 declared valid, or its purported injury in having it struck down? Bear in mind that unlike literally any other litigant that would come before a Federal Court, Congress can pass a new law whenever it chooses to. And I’d further submit that Congress has no valid legal interest whatsoever in the passage of unconstitutional laws since as a matter of legal theory, it lacks authority to enact such laws in the first place.

Inherent in the notion of what a “judicial power” means, a court can issue something called an injunction: a command that the executive branch of government do something, that it take some kind of affirmative action. In common parlance, this is called a “court order,” in historical legal parlance, it would have been a “mandamus.” Congress cannot do this; it lacks the power to issue injunctions. Congress can pass laws instead.

By taking away the Justice Department’s funding to fail to defend DOMA in the Gill and Golinski cases, Congressman Huelskamp seems to be trying to order the Justice Department to file briefs defending DOMA. But when you don’t pay someone to do something, they tend not to do it, and that’s true in this situation too.

If he’d really wanted to reach the result of compelling a full-throated defense of DOMA, he’d have done something different. Threatened to defund the entire Justice Department. Offered a law mandating that the Justice Department defend all Constitutional challenges to all procedurally-valid pieces of legislation through all levels of the appeals process. But those would not be very good ideas, of course they would be politically futile, and they would almost certainly come back to be used to humiliate and embarrass Republican Presidents in the future.

Taking away the ability of the government to do nothing will result in the government… still doing nothing. Just in a different way. This is a recipe for paralysis, not a Congressional mandamus, which means the side of the dispute that favors inactivity wins. In this case, that would be the Administration. Why Congressman Huelskamp would serve up such a slow-pitch softball is beyond me, it’s not even particularly good political theater. Enjoy the ride, Congressman, but this trip doesn’t look to me like it ends anywhere you want to be.