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Obama Administration Will No Longer Defend DOMA In Court

Huge legal news from the Department of Justice, which has announced that the Obama Administration will no longer defend the Constitutionality of Section Three of the Defense Of Marriage Act In Court:

President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — against lawsuits challenging it as unconstitutional.

Attorney General Eric H. Holder Jr. sent a letter to Congress on Wednesday saying that the Justice Department will now take the position in court that the Defense of Marriage Act should be struck down as a violation of gay couples’ rights to equal protection under the law.

“The President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law,” a crucial provision of the act is unconstitutional, Mr. Holder wrote.

The move is sure to be welcomed by gay-rights advocates, who had often criticized Mr. Obama for moving too slowly in his first two years in office to address issues that concern them. Coming after the administration successfully pushed late last year for repeal of the military’s ban on gay men and women serving openly, the change of policy on the marriage law could intensify the long-running political and ideological clash over gay marriage as the 2012 presidential campaign approaches.

While Mr. Obama has long argued that the Defense of Marriage Act is bad policy and has urged Congress to repeal it, his administration has also sent Justice Department lawyers into court to defend the statute’s constitutionality.

The new position will require the administration to file new briefs in such litigation, including a major case now pending before the United States Court of Appeals for the First Circuit, in Boston.

Congress may decide to appoint its own lawyers to defend the law, or outside groups may attempt to intervene in the cases in order to mount legal arguments in the law’s defense. Mr. Holder said that the administration will continue to enforce the act unless and until Congress repeals it, or a court delivers a “definitive verdict against the law’s constitutionality.”

“Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases,” he wrote. “We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.”

It's important to note that this decision only affects Section Three of  DOMA, which provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

The other relevant provision of the Act is Section Two, which provides that no state will be required to recognize a same-sex marriage from another state. That provision is arguably Constitutional under the provision of the Full Faith And Credit Clause which allows Congress to "by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." While there is a serious question over whether Section Two really falls within Congressional power under this clause, none of the currently pending lawsuits challenge its constitutionality so, regardless of what happens in Court, this part of DOMA will remain in effect.

That doesn't mean this isn't huge news, though, or that this decision doesn't have the potential to impact the legal debate over same-sex marriage, quite the contrary actually. In his letter, which I've embedded below, Attorney General Holder essentially argues that discrimination by governments based on sexual orientation should only be constitutional if they can pass a higher level of scrutiny:

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals "exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group"; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual's "ability to perform or contribute to society." See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).

Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation.

(…)

In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is "substantially related to an important government objective." Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, "a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded." United States v. Virginia , 518 U.S. 515, 535-36 (1996). "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." Id. at 533.

In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress' actual justifications for the law.

Moreover, the legislative record underlying DOMA's passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against. See Cleburne, 473 U.S. at 448 ("mere negative attitudes, or fear" are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by "the liberties of landlords or employers who have personal or religious objections to homosexuality"); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.").

It's worth noting that when Judge Walker struck down California's Proposition 8 last year, he used to lower "rational basis" test. Nonethless, Holder's arguments in the letter are very similar to those Walker used in his opinion, and I won't be surprised to see parts of this letter show up in appellatte briefs down the line as persuasive authority.

Personally, I think the entire act is unconstitutional, an opinion that is also shared by Bob Barr, who introduced the Act when he was a Member of Congress in the 1990s:

I've wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party's presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA's language reflects one-way federalism: It protects only those states that don't want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran's benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, "Decisions about marriage should be left to the states." He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

The other problem with DOMA is that it essentially tells couples living in states where same-sex marriage, or civil unions, are legal that they can only live in states where the law is the same, or where their marriage will be recognized, which at this point constitutes less than 1/4 of the United States. It means a couple married in Iowa cannot move to any state in the American south without giving up all of their legal rights. This is exactly the kind of thing that the Full Faith And Credit Clause was designed to prevent. In fact, under current law, a marriage between a man and a woman that may not be legal in one state — such as a marriage between first cousins — will still be recognized as legal since it was legal under the laws of the state in which it took place. There is no rational reason why the individual liberty of gays and lesbians should be restricted in this manner.

I have no hope that Congress will repeal DOMA any time soon, but, hopefully, the Court challenges will continue and this insult to the Constitution will be sent into the dustbin of history.

Attorney General Holder's Letter to John Boehner on DOMA Appeal

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Wiley Stoner says:

    So, Doug. Do you think it is right for the President of the United States decide which laws, passed by congress and signed by the President at the time, he will enforce? The President took an oath to defend the Constitution, not decide what is and what is not constitutional. I have already contacted my congress critter to ask him to file articles of impeachment.

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  2. mantis says:

     

    So, Doug. Do you think it is right for the President of the United States decide which laws, passed by congress and signed by the President at the time, he will enforce?
     
    This is not an enforcement issue, genius.
     
    Why do wingnuts know so little about, well, everything?
     
     

    I have already contacted my congress critter to ask him to file articles of impeachment.
     
    Good luck with that.

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  3. James Joyner says:

    I'm genuinely torn on these issues.
    On the issue of the Constitutionality of DOMA itself, I think it probably violates the Full Faith and Credit Clause and, arguably, the Equal Protection Clause. OTOH, I think the premise of the law — that some state judge somewhere declaring a right to gay marriage shouldn't trump the will of the voters in the rest of the country — was sound. 
    On the issue of enforcing a law the president thinks unconstitutional, it's a slippery slope. He's sworn to protect the Constitution and uphold the laws. But he's not entitled to simply declare Acts of Congress unconstitutional and disregard them. 
    Then again, I'm not sure there's any enforcement for him to carry out here. He's just refusing to have DOJ defend this before SCOTUS?

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  4. Axel Edgren says:

    Between this and refusing to pretend Walker's urination on public union members is an innocent spring shower, Obama deserves progressive props.

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  5. Dave says:

    Do you think it is right for the President of the United States decide which laws, passed by congress and signed by the President at the time, he will enforce?
     
    That's not what's happening here; the law will still be enforced the Obama DOJ simply won't be defending it against court challenges.

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  6. Dave says:

    So this isn't an enforcement issue, and laws against gay marriage are blatant unconstitutional bigotry that'll look embarrassing in a few years (not they don't already.) That said, this is a dangerous precedent to set/continue. POTUSes should defend the laws that are on the books until those laws are no longer on the books, no matter how horrible and unconstitutional he or she may find them to be.

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  7. Hello World! says:

    I bet if we did some research we could find a whole host of laws that POTUS does not defend – and from multiple administrations. Props to the President for this move.

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  8. Wiley Stoner says:

    Hello World, I am sure you are correct about laws not enforced. Many of them have to do with border issues. It is one thing not to focus on certain laws. It is another to make an announcement you do not intend to enforce laws on the books. Obama is not a king, as chief executive, it is his job to make sure our laws are followed.
    Doug, when did it become a class of person when you decide who you prefer to have sex with? I did not know sex was a right. Marriage is a privilege that is licensed by the various States. Societies have always had the RIGHT and the authority to decides who gets to marry. There is no historical evidence marriage has ever been anything but a privilege granted to those who society deemed fit.

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  9. Ben says:

    Wiley, you don’t know the law from a hole in the ground. Marriage is not a privilege. Check out Loving v. Virginia. “Marriage is one of the basic civil rights of man.”

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  10. sam says:

    “It is another to make an announcement you do not intend to enforce laws on the books. Obama is not a king, as chief executive, it is his job to make sure our laws are followed.”

    Did you miss the part that this is not an enforcement issue, but only a decision not to defend the law in a court?

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  11. Bleev K says:

    Wiley Stoner, son’t waste your time with your “congress critter”, call god and ask him to file articles of armageddon. Or just accept you’re probably a self hater gay.

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  12. William Teach says:

    Regardless of what Obama, Holder, and you feel, don’t they take an oath to uphold the laws passed by congress? They can’t simply pick and choose because they don’t like the law. It’s the law.

    And yeah, I don’t like DOMA either: it is a law that not only has no place in federal Govt, it is against the premise of freedom this country was founded on.

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  13. Gustopher says:

    Wiley Stoner: “when did it become a class of person when you decide who you prefer to have sex with?”

    It’s been my experience that the only people who decide to have sex with one gender or another are bisexuals and sexually conflicted, closeted gays. For everyone else, it isn’t a choice, it’s hardwired.

    Also, you’re wrong on the legal issues.

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  14. Brummagem Joe says:

    It his huge news and like DADT repeal gives the lie to those who said Obama has thrown gays under a bus.

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  15. jb says:

    Actually, William Teach, they take an oath to preserve, protect, and defend the Constitution of the United States. Congress merits zero mentions in the oath of office.

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  16. Neil Hudelson says:

    I did not know sex was a right

    Considering it is a primal urge, and is hardwired in to us biologically, I can’t really think of anything that isn’t MORE of a right.

    Let’s substitute out other biological urges.

    “I did not know eating was a right.”
    “I did not know being able to sleep was a right.”
    “I did not know breathing was a right.”

    Actually considering the Republicans approach to the EPA, I wouldn’t be surprise if you agree to that last statement.

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  17. Wiley Stoner says:

    Gustopher, then you are saying those who are attracted to children, and appear to be hard wired, have the right to be pediphiles? Whether or not one is attracted to a member of the same sex does not give one the right to have sex with that individual. There is no consitutional protection of sex. Nor is there a guarantee If a State can say you cannot marry you sister, they can also say you cannot marry my brother.

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  18. Wiley Stoner says:

    Neil, fortunately for the rest of us, your inability to think of anything more of a right than sex is just you. To be accurate, you do, Neil have a right to have sex, just not with anyone else. Are you right or left handed?

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  19. george says:

    >Did you miss the part that this is not an enforcement issue, but only a decision not to defend the law in a court?<

    Maybe you need to put this in bold, capital letters, and underline it … it doesn't seem to have been picked up.

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  20. sam says:

    Orin Kerr has an interesting piece over at Volokh, The Executive Power Grab in the Decision Not to Defend DOMA. Interesting because:

    [In Kerr's view] the basic problem with the Obama Administration’s position on the DOMA litigation is the same problem we had in the Bush Administration with its adoption of John Yoo’s theories of Article II. Recall that John Yoo’s theories of Article II power rested on a highly contested set of views about Article II power. By adopting a contested constitutional theory inside the Executive Branch, the Bush Administration could pursue its agenda without the restrictions that Congress had imposed. In effect, the simple act of picking a contested constitutional theory within the Executive branch gave power to the Executive Branch that none of the other branches thought the Exeutive Branch had (and which laws like FISA had been premised on the Administration not having). It was a power grab disguised as academic constitutional interpretation.

    Now, I wouldn’t in a million years compare torture and wiretapping with gay rights. Obviously, the subject matter is totally and completely different. But there’s an interesting analytical similarity between the DOJ’s position on DOMA and the Bush Administration’s reliance on its Article II theories. If you look at AG Holder’s reasons for why DOJ won’t defend DOMA, it is premised on DOJ’s adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that “the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA.” This theory is not compelled by caselaw. Rather, it’s a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.

    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.

    Something to think about.

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  21. Matt B says:

    From Sam’s quote of Kerr

    Now, I wouldn’t in a million years compare torture and wiretapping with gay rights. Obviously, the subject matter is totally and completely different. But there’s an interesting analytical similarity between the DOJ’s position on DOMA and the Bush Administration’s reliance on its Article II theories.

    This is something that Steven and James (in particular) have been pointing out since the early days of the Obama administration (actually, I believe during the campaign). People who campaign on reducing the powers of the office of Presidency have historically switch positions upon entering that office.

    I think that history will remember Bush, and in particular Cheney’s influence on the first term, for aggressively establishing/extending the powers of the office. Beyond the radical extensions of signing statements, the “War on Terror” (in particular the “War” part of that) played a crucial role in this.

    I’d be interested if anyone can see anything that might reverse that trend in the near future (other than perhaps, *perhaps* a second term for Obama).

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  22. sam says:

    “People who campaign on reducing the powers of the office of Presidency have historically switch positions upon entering that office.”

    Alas, Matt, this is as old as the nation — see, Jefferson, Louisiana Purchase…

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  23. michael reynolds says:

    Wiley Stoner once again proving to be less wiley than stoner.

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  24. Matt B says:

    Sam… no question.

    That said, Cheney explicitly entered office with the desire to return a perceived loss of power to the office.

    I hope after all of this waxing, it will wane sometime in the future. Sadly, the waning of powers rarely happens during Wartime. One spectacular act of violence, and our never able to be ended war with terrorism will continue.

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  25. Tlaloc says:

    “That’s not what’s happening here; the law will still be enforced the Obama DOJ simply won’t be defending it against court challenges.”

    That’s too fine a hair to split. By running the DoJ the Executive is tasked with precisely the court room defense of the law, this is part and parcel of enforcing the law, indeed depending on the specific law it may be the totality of enforcement. To claim that the administration can surrender to any and all legal cases on this issue but is still enforcing it, is simply not tenable.

    And I say that as someone who thinks the DOMA is horrendous, and gay rights are one of the two the major civil rights issue of this generation.

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  26. Tlaloc says:

    On the contrary what Obama could do, and what I advocated he do on DADT, is to simply make DOMA the last priority after everything else. That’s perfectly within his rights, and if the DOMA cases get lost due to a lack of resources while the EPA cases get won handily, well, que sera sera…

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  27. William Teach says:

    jb, that oath requires them to uphold the constitution, specifically the President, per Article II Section 3: “…..he shall take Care that the Laws be faithfully executed..”. Nothing in there about deciding which laws he can choose to follow on his own.

    The law is passed. Failure to follow the laws is a dereliction of duty. As I said, I don’t like the law, but, he must follow it until either the Congress repeals it or SCOTUS finds it unconstitutional.

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  28. mantis says:

    By running the DoJ the Executive is tasked with precisely the court room defense of the law, this is part and parcel of enforcing the law, indeed depending on the specific law it may be the totality of enforcement.

    No, it is not the same as enforcement at all. And no, defending it in court is not effectively enforcement when a law doesn’t require any real enforcement. Enforcement in this case would be the feds taking others (states, presumably) to court. They aren’t doing that (and there’s no reason to).

    On the contrary what Obama could do, and what I advocated he do on DADT, is to simply make DOMA the last priority after everything else. That’s perfectly within his rights, and if the DOMA cases get lost due to a lack of resources while the EPA cases get won handily, well, que sera sera…

    But that’s back to enforcement. We’re talking about defending the law in court when sued. They can’t just move that to the back of the line. There’s no enforcement to deprioritize here.

    Even if there were, wouldn’t you agree that what the administration is doing is a more honest, aboveboard approach?

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  29. Tlaloc says:

    No, it is not the same as enforcement at all. And no, defending it in court is not effectively enforcement when a law doesn’t require any real enforcement. Enforcement in this case would be the feds taking others (states, presumably) to court. They aren’t doing that (and there’s no reason to).

    Oh well if you say it like that then your total lack of persuasion and evidence becomes very compelling. No, really. Maybe try something other than “nyuh-uh” as an argument next time.

    But that’s back to enforcement. We’re talking about defending the law in court when sued. They can’t just move that to the back of the line. There’s no enforcement to deprioritize here.

    Of course they can. You assign one lawyer, to handle all such cases. Oh and he has a few other duties too. You’re still in there but you’ve made it a very low priority. Managers do this all the time to kill projects they don’t like but are required to make a token effort on.

    Even if there were, wouldn’t you agree that what the administration is doing is a more honest, aboveboard approach?

    It’s certainly more honest, the problem is it’s also shockingly unconstitutional. You may not like that fact, but it remains, no matter how much you scream “No!”

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  30. mantis says:

    You’re still in there but you’ve made it a very low priority.

    In where? Court?

    Managers do this all the time to kill projects they don’t like but are required to make a token effort on.

    Court cases are not projects. Why can you not understand this?

    It’s certainly more honest, the problem is it’s also shockingly unconstitutional.

    I wouldn’t exactly characterize it as shockingly unconstitutional, since it is debatable that DOMA is even an appropriate use of legislative authority, something the SCOTUS hasn’t ruled on, but it is certainly problematic.

    You may not like that fact, but it remains, no matter how much you scream “No!”

    I haven’t screamed that, or said it, at all. I only disputed your contentions about what is and isn’t enforcement, and why that matters.

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  31. sam says:

    Ilya Somin has a reply to Kerr, Do Presidents Have a Duty to Defend the Constitutionality of Laws they Believe to be Unconstitutional?:

    Let’s start with first principles. The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.

    Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.

    Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court, and possibly a duty not to take actions to enforce it either, as part of his exercise of prosecutorial discretion (a traditional executive power). Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not. It would have been perfectly legitimate for the Obama Administration to conclude that they are not sure whether DOMA is constitutional, and therefore will defer to the considered judgment of Congress until such time as the Supreme Court definitively decides the issue. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.

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  32. Squeegie says:

    Of course this is not an enforcement thing, but when you openly state that you will not direct the DOJ to defend something in court, is that not just throwing chum into the waters near attorneys for GLAD and its ilk? And we know which way the courts will likely go when the case questioning constitutionality comes before them, so Obama is encouraging the repeal of the law through inaction. He uses inaction, presidential fiat, and other such maneuvers to cause things to go his way, thereby circumventing the process by which such things are intended to be hammered out as delineated by that increasingly irrelavent entity we call the constitution.

    Hey, he’s losing the unions so he has to come up with some group willing to fund his 2012 attempt to not become a humorous footnote in presidential history, so he’s jumping into bed with the alternative lifestyle crowd. Hm.. that didn’t sound quite right, did it?

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