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New York Daily News


Obama's Dangerous Divorce From DOMA: The Executive Can't Pick and Choose Which Laws To Defend

February 24, 2011

By Ted Frank

One of the supposed great crimes of the Bush administration was the “politicization” of the Justice Department, a drumbeat we heard repeatedly, even after a politically motivated criminal investigation eventually found no wrongdoing. But nothing the Bush administration did compares with what the Obama administration is doing openly.

In a case pending in federal court, plaintiffs are suing over the constitutionality of the Defense of Marriage Act (DOMA). The statute defines “marriage” for purposes of federal law to exclude gay marriages and civil unions. DOMA is both a burden and a benefit to gay couples: On the one hand, they’re excluded from a variety of important government benefits that spouses are otherwise entitled to; on the other, a two-income gay couple will save thousands of dollars a year in federal taxes because they are required to file separately, and thus avoid the marriage penalty that many heterosexual married couples face.

Personally, I’m not a fan of the statute, and I know a lot of Democrats feel the same way - although President Obama insisted during his run for President that he opposed gay marriage. Nevertheless, it is accepted that the executive branch will defend the constitutionality of laws previously passed if those laws are defensible, even if the executive branch does not like a given law.

Yet that is exactly what the Obama administration has announced it will no longer do. Yesterday, the administration said that it did not believe DOMA was constitutional, and that the Justice Department would therefore no longer defend the statute in court.

The President is probably under no duty to defend a statute that is flatly unconstitutional. And Obama is probably correct that there are five votes on the Supreme Court (and perhaps even a sixth) for the proposition that classifications based on sexual orientation should be subject to a more heightened standard of scrutiny by the courts, which would result in DOMA and other laws against gay marriage being ruled unconstitutional. But the Supreme Court has not yet reached that result. If it did, it would not be unanimous; it would be a break from precedent.

Until then, the Constitution requires the President to “take Care that the Laws be faithfully executed,” and that is traditionally understood to attempt to defend in court the laws that can be defended, rather than taking sides.

One can quickly see the problem if the executive branch is allowed to take sides on a reasonably controversial constitutional question involving an enacted law. A President could retroactively veto laws passed by previous Congresses and administrations by coordinating with a plaintiff who would challenge the constitutionality of the law, and then asking the court to agree with the plaintiff and strike the law down. Imagine the reaction of Democrats if, in 2013, President Sarah Palin or Tim Pawlenty orders the Justice Department not to defend the constitutionality of Obamacare.

In George W. Bush’s eight years in office, he was regularly rapped for issuing “signing statements” about his administration’s opinion of the constitutionality of statutes. But when push came to shove, and those laws were challenged, the administration did not shirk its duty. Then-Deputy Solicitor General Paul Clement defended the McCain-Feingold campaign finance law before the Supreme Court, rather than taking the position that the First Amendment prohibited it. Then-Attorney General John Ashcroft enforced laws protecting abortion clinics despite his opposition to abortion.

Democrats should think twice before cheering Obama’s decision to abandon DOMA. They may be happy with the short-term victory here, but the precedent is dangerous for our constitutional structure of government.

Original Source:



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