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Wednesday, February 23, 2011

Executive Branch DOMA Power Grab

The decision by the the Department of Justice to refuse to defend the Defense of Marriage Act is a massive power grab by the Executive Branch.

The Justice Department is tasked with representing the "government" is the broad sense in legal matters coming before the courts.  There is no congressional Justice Department.  Whether it likes a law or not, the Justice Department traditionally has fulfilled the role of arguing for the constitutionality of a law if there were any good faith basis for doing so, because someone has to represent the will of the legislative branch in the courts.

For two years the Obama-Holder Justice Department fulfilled this role for DOMA, as challenges worked their way through the courts, despite the Executive Branch being opposed to the law on policy grounds.

But, in a crass political move, Holder in consultation with Obama has decided to stop defending a key section the law in the courts, although the law will be enforced until the courts rule definitively.  The excuse for the reversal is that there is a challenge underway in the Second Circuit.  From the statement issued by Holder:
Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.
This explanation is a flimsy pretext.  DOMA is DOMA, and ultimately -- like the Obamacare mandate -- the Supreme Court someday likely will take up the issue, although it has not done so yet.  It is questionable, however, for DOJ to take the position in some Circuits that DOMA was constitutional but then to switch positions just because there was no definitive Second Circuit authority.

This reversal of legal position raises a host of issues as to who can defend the law.  This is similar to the actions of Jerry Brown (then Attorney General of California) in refusing to defend Prop. 8 in the Courts, which has created a sideshow of litigation over who has standing to represent the voters of California.

As Ed Whelan points out:
Attorney General Holder has the gall to claim to be acting consistent with DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” There are lots of reasonable arguments in defense of DOMA. The Obama administration has abandoned those arguments for purely political reasons.
This is not even a conservative versus liberal political issue.  There is a significant question among conservatives whether the federal government has any business getting involved in the issue of marriage, which traditionally was left to the states.

While opponents of DOMA will be cheering, this is misguided.  As Orin Kerr points out, what goes around comes around, and there may be a host of legislation passed under Obama which a Republican administration could subvert by refusing to defend. 

Similar thoughts at Point of Law Blog:
I'm not a fan of the Defense of Marriage Act, but I do have a large problem with the politicization of the role of the Department of Justice. Strip away the gay-rights issue and consider the question: what would Democrats say if, in 2013, President Sarah Palin announced that her Department of Justice would refuse to defend the constitutionality of Obamacare in court? There is no provision in the Constitution for a retroactive veto. Compare and contrast the Bush administration Department of Justice, which steadfastly (and successfully) defended McCain-Feingold and enforced FACEA.
Is this really how we want our system of justice to work?

The President for whom the words "rule of law" flow so easily from the teleprompter doesn't seem to know what the words actually mean.

Update:  Orin Kerr has a similar take, The Executive Power Grab in the Decision Not to Defend DOMA:
By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.
Update 2-24-2011:  Orin Kerr rethinks his concerns:
In thinking over my reaction from yesterday, some of the feedback I’ve received has me somewhat less concerned than I was yesterday about the Obama Administration’s approach. In particular, it seems that everyone seems to think that, somehow, someone will be available to defend a law when the Administration declines to to do. It’s not entirely clear to me how this happens when an Administration declines to defend a law in the District Court, as opposed to the Supreme Court: The key problem is how to get the case up to the Supreme Court, which isn’t presented when the Administration defends the law in the lower courts. But if everyone agrees that this will happen somehow, then the Administration’s decision is a lot less significant, and therefore less worrisome from a standpoint of long-term impact, than I had thought.

I disagree and I think the DOJ action is all the more disconcerting because DOJ under Holder already staked out a legal position that there were reasonable, good faith arguments in favor of constitutionality.  Otherwise, the DOJ lawyers could not have signed the papers.  DOMA has not changed, only the political winds in the Obama adminsitration have changed, and that is the danger when DOJ becomes politicized.

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  1. Consider what would happen if a Republican president ordered the Soliciter General to file a suit against ObamaCare in order to declare it unconstitutional. Would the Attorney General and the Justice Department have to defend it?

  2. Direct hit. Thank you, professor. DOMA, Obama and Holder, preceded by Brown and Proposition 8 and the abdication of responsibility in office because of their guesses about what might come to be is scandal and betrayal of the public trust.

  3. The pattern of behavior for this administration seems to champion a hierarchy of protected classes; for the benefit of special interests; at the expense of due process.

    A govt. of progressives, by progressives, for progressives... and the rest of us be damned?

  4. Every time, or should I say every news cycle, a vote is lost, they pull one out of the bag somewhere else.

    The manipulation of the Administration is an abomidable crime.

    And Rahm Emmanuel won too, they must think they're invincible today.

  5. Didn't Eric Hold swear to uphold the Constitution and the laws in the United States? Isn't this a dereliction of duty? Is there a way Congress can remove him from office?

  6. Re Rahm, we, you and I and everyone outside Chicago, will now get to pay for corruption in Chicago, courtesy of Rahm's access to the federal treasury.

  7. I remember how the left sqawked that Bush had torn up the Constitution. Now it seems that Obama has never bothered to read it.

    It is the position of the legislative branch to create laws. It is the position of the DoJ to enforce those laws no matter the personal opinion of the POTUS or the Attorney General. But it seems that Obama, and his puppet, Eric Holder, will only defend the laws they like and agree with, not the laws as enacted by Congress.

    Is there any doubt left that this Administration believes that it does not have to carry out its Constitutional duties, if they don't agree with them?

  8. DOMA may be just an opening wedge, whereby they are planning to effectively strike down some other law that they are really after. In the meantime they get us used to the idea of the abuse as SOP. The way they have routinized the abuse of Executive Orders.

  9. The new Presidential V- for victory-eto that Congresses can't override.

  10. Everybody is missing the point here. Asking the reaction to such a proclamation by President Palin is irrelevant because to progressives the only principles are outcomes--does anyone doubt that they have no procedural principles, as it were?

    How they would react to such an act by President Palin? Obviously, with frenzied opposition because the issue is not whether the DoJ should do this or that, but is the outcome that which they want?

  11. I agree with the Administration's precedent. Also, public defenders' offices should not be required to defend people they suspect may be guilty, nor those the defense of whom might somehow interfere with the office's public popularity. Constitution? What's that?

  12. Reagan's Justice Department declined to defend the Independent Counsel law. This is nothing new.

  13. Considering that the DOJ apparently has in place a "we don't prosecute crimes by black people against white people policy" (NBPP voter intimidation and subsequent protest resignation of DOJ lawyer), that the DOJ only enforces immigration laws it likes (bash AZ, ignore sanctuary cities--the latter goes for Bush, too, btw), and that it sues states with which it disagrees, this is completely unsurprising.

    I had high hopes for Darrell Issa, but honestly, it looks like he's going for low-hanging fruit to declare "victories" and letting this traitorous crime syndicate run loose. I won't forget.

  14. @nestorma, it is really whether it is "new", but whether it is going to be done sparingly or daily. This was also true with Executive Orders, which this administration has abused.

  15. This move is very smart on Obama's part, because it:

    1) makes him look morally and constitutionally "principled" (I said "look")

    2) shores up his leftist base on account of the gays and for resisting any Republican-Blue Dog law

    3) possibly gives hope to American Muslims who'll eventually sue for their civil rights to have their traditional marriage arrangements recognized

    4) riles a lot of social cons, which could alienate their fellow fiscal con Pubs and libertarians and weaken the Tea Party

    5) sets a clear precedent of power takings by this Exec which Obama, imo, will resort to unapologetically in more instances to come to advance his agenda and own re-election prospects

    6) shows us that Holder being made AG was no inept, inapt accident but an intentional, deeply political appointment. My fear is that a Holder DOJ won't be just about ideology, but about elections and selective prosecution of campaign law, donors and "irregularities," as the Obama team needs.

  16. This is indeed a power grab. We paleocons were condemned for not supporting W's assertions of a unitary ("imperial") Executive during the glory days of the War on Terror.

    Now Obama is using similar justification for imposing his agenda, and it's a bad thing all of a sudden.

  17. Old Rebel, here's the diff: 9-11 terrorism and domestic security versus the gay movement and domestic civility.

    We have the luxury of looking in the rearview mirror ten years after the attack on our airlines/ WTC/ DC and seeing there were no successful (major) others... so far, and probably because of W's wars and preventive, heightened Exec security measures taken. Plots were foiled. Perhaps it is time to rollback the extra authority Bush exerted-- and which the Obama administration has actually increased-- if we're not so threatened, anymore, (except, apparently, by Bob Barr bumper stickers, Tea Party bluehairs, and people with hip replacements trying to get on planes.)

    Are the US and world facing a melt-down from the dangers of DOMA? Of course not, it's a social-political issue which doesn't pose a security threat. Obama's "bad thing" was to grab extra authority for crass politics, unless you believe he actually is motivated by principled humanitarianism, and then it would be a matter of proportionality and hypocritically not deferring to Congress, as he would have us do wrt Obamacare.

    BTW, I'm a fiscal and defense con who has favored SSM for a couple of decades, and yet am less sanguine about another kind of marriage that may be sanctioned in the name of civil rights.

  18. The godling is desperate...he's losing the "gay vote." It must've been scary for Obama when he saw gay people showing up at Tea Party protests, too. Blacks, Hispanics, now gays?

    Especially conservative young gay folks like two young gay Tea Partyers, who say they're more welcomed at conservative political events than amongst their Leftist, bigoted, gay friends.