Is It Proper For President Obama To Decline To Appeal The DOMA Cases?

President Obama's decision to decline to defend Section Three of the Defense Of Marriage Act on appeal was a proper and appropriate exercise of his authority as President Of The United States.

There has been much debate in the blogosphere about the Obama Administration’s decision to cease defending Section Three of the Defense of Marriage Act. In some cases, there seems to be some confusion as to what was actually announced on Wednesday, with many people seeming to believe that the Administration had announced that it was going to cease enforcing DOMA. This is not that case and, in fact, Attorney General Holder specifically states in his letter that the Obama Administration will continue enforcing the law unless and until it is declared unconstitutional:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter ofthe constitutional claims raised.

Gabriel Malor is one of those people on the right who recognizes this distinction. but calls it indefensible:

This split-the-baby approach is unjustifiable. The President has no obligation to enforce unconstitutional laws under the Take Care clause; in fact, I’d say he’s obligated not to enforce unconstitutional laws and that’s exactly what prior Presidents concluded. President Obama’s waffling—enforce it, but don’t defend it—leads to the same eventual outcome, but only by needless delay and wasteful litigation.

For example, if a gay federal employee who is lawfully married to another dude were to apply tomorrow to add his spouse to his health insurance or seek to file their federal income taxes jointly, OPM and IRS would reject those filings under DOMA section 3. To get relief, the employee would have to hail these federal agencies into court, wherein the DOJ would promptly turn against its own client agencies and tell the court that their actions were indefensible.

How is that a good plan? Well, it’s a good plan if one wants to finally see the courts extend heightened scrutiny to cases of discrimination against gays and lesbians. To date the Supreme Court has been mum about just how much justification the federal government needs to have to discriminate against gays.

Orin Kerr worries that it constitutes an Executive power grab that could have consequences further down the line:

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.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.

Now, maybe you think that’s a good thing; maybe you think, as I do, that it’s a bad one.

Malor and Kerr are joined by other legal scholars such as  Richard Epstein and Curt Levey, and their concerns are well-placed. After all, the same liberals who are cheering the President’s decision to essentially punt on DOMA defense will likely feel very differently if, say, President Huckabee decided two years from now to decline to defend a school prayer or abortion case, or if a Republican Administration declined to defend the Affordable Care Act, and instead argued the other side of the issue. From a policy point of view,  allowing DOMA to die isn’t necessarily a bad thing, and the idea of subjecting discrimination by the state against gays and lesbians to a heightened standard of scrutiny makes sense. However, whether we want to give this and future President’s this kind of power is a valid question. Especially since it is generally the case that once the Executive Branch asserts a new power, that power never goes away.

However, it isn’t necessarily the case that what the President has done here is really all that novel. In a 1996 Letter to Orrin Hatch, the Clinton Justice Department identified thirteen major cases over the previous 50 years where the Executive Branch explicitly declined to defend a Federal statute it believed to be unconstitutional. Additionally, in 1994 White House Counsel Abner Mikva wrote an opinion letter for President Clinton on this issue and concluded that the President does indeed have the authority to decline to defend, or even enforce, a statute he reasonably believes to be unconstitutional. Walter Dellinger, who headed the Office of Legal Counsel at the Department of Justice during the Clinton Administration noted back in October that there is a long history of President’s declining to defend unconstitutional laws in Court:

In 1943, Congress passed a law prohibiting the payment of salaries to three particular government employees. Arguing that the law was unconstitutional, the employees sued and won in claims court. The solicitor general asked the Supreme Court to review the lower court’s decision, but he also told the justices that the administration agreed with the original ruling; the court ultimately struck down the law.

That case and others like it provided a precedent for President Bill Clinton in 1996 both to comply with a law requiring the military to discharge service members who had H.I.V., and at the same time inform the courts that he found it to be unconstitutional. Thanks in part to support from the military, Congress repealed the law before litigation ensued.

Telling the courts that a federal law should be struck down is not a position to be taken lightly by a president wary of overstepping his bounds. But if he concludes that the law restricts important liberties without advancing a government purpose, he has the right to say so. After all, while courts usually defer to Congress on such questions, the president is under no such obligation: he is a constitutional officer entitled to his own views on governmental necessity, particularly on matters of national defense.

So contra Malor, Kerr, Epstein et al, this is not a new power or right being claimed by the Executive Branch but one that has long-standing roots and. when you consider the fact that the President is a co-equal Constitutional officer with the Members of Congress and the Justices of the Supreme Court, it’s a practice that makes sense. Applied in a different way, the argument against what the Obama Administration is doing here would also say that a President should decline to consider his own opinion about the Constitutionality of a proposed piece of legislation that is presented to him by Congress and that he should, basically, sign into law a bill he believes to be unconstitutional and let the Courts handle it.

In fact, George W. Bush did exactly that when he signed the McCain-Feingold Bill into law:

In his Presidential signing statement issued last Wednesday, Mr. Bush declared that the McCain-Feingold bill contains “provisions [that] present serious constitutional concerns” and “questions [that will] arise under the First Amendment.” In particular, the President expressed his “reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election.” The President differentiated these constitutional objections from other shortcomings he described “as a policy matter.”

Yet he still signed the bill.

As Law Professors Akhil and Vikram Amar wrote in 2002,  there is no way that these statements by Bush, followed by the fact that he signed the bill anyway can be squared with the Presidential duty to “preserve, protect, and defend the Constitution of the United States.” If President Bush believed McCain-Feingold was, in whole or in part, unconstitutional, then it was his duty to veto the bill instead of acting in the cowardly and craven manner that he did. Similarly, President Obama has determined that Section Three of DOMA is unconstitutional. He still has a duty to enforce the law, but he is under no Constitutional duty to defend it in Court and, arguably, his oath requires that he order his deputies to do otherwise. Despite the concerns about Executive Branch power noted above, therefore, it is clear that the Obama Administration’s decision here was both appropriate and correct.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held 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 contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. PD Shaw says:

    No, it’s not proper for Obama to deline.

  2. PD Shaw says:

    Hit return too early. Two things stand out to me. First, the law involving same-sex orientation is not clear. The federal courts that have ruled in this area are just trying to predict what tomorrow will bring. Second, in cases involving a fight between the legislature and the executive, in such areas as the legislature trying to limit the executive’s power to prosecute war, the executive is an institutionally interested party, who should step aside or work with Congress in appointing counsel to defend the law. That’s not the case here.

    And yes, this will forward rounds of payback that are detrimental to union.

  3. Eric Florack says:

    PD’s got it right.
    Consider further, the reax to a Nixon or Bush declining to appeal, say, abortion. This it would be nearly as forgiving as what Obama gets here?

  4. sam says:

    ” the reax to a Nixon or Bush declining to appeal, say, abortion. This it would be nearly as forgiving as what Obama gets here?”

    So what?

  5. KipEsquire says:

    The arguments for “compulsory appeal” seem to fall into two equally absurd camps:

    1. The Take Care Clause requires the President to “faithfully execute” federal laws. But there is no basis, none, to insist or even suggest that “appealing” is part of “executing.” So long as the Executive Branch is enforcing the law, its constitutional obligations are fulfilled. The appellate process has nothing to do with it.

    2. The presidential oath requires to President to “uphold and defend the Constitution.” A duly enacted federal law is properly declared unconstitutional by an Article III court under the Article III judicial power, but is not appealed. Again: How, exactly, has the Constitution not been “upheld and defended”?

    Let’s recall that the Attorney General is not a constitutional officer and that, to approach the asymptote, the Constitution does not require that there even be a Department of Justice, let alone that it do anything.

  6. Alex Knapp says:

    Oh, I’m glad to see another defense of Obama on this one. I thought I was taking crazy pills for awhile thinking I’d missed something because I was almost positive that this was a rare, but standard operating procedure for Presidents.

  7. anjin-san says:

    bit, guess you are done standing shoulder to shoulder with Murbarek. Ready to move on to grinding some gays under the heel of the government boot, eh?

  8. legion says:

    No, it’s completely proper. If the administration doesn’t think it will eventually pass muster in the courts, then defending it to the heavens is an absolute waste of resources. If you don’t agree with the President’s opinion, you’re welcome to go run for the office yourself, but to say he’s overstepping his boundaries is flat wrong. And as Kip notes, despite what the thundering idiots on Fox keep chanting, this is NOT the same as refusing to enforce a law.

  9. PD Shaw says:

    I believe Clinton solicitor general Seth Waxman had it correct:

    In the unique context of a constitutional challenge to legislation,
    the interests of the Congress and the Executive are generally pretty
    clear: they have spoken. And as a result, at least when those
    interests do not conflict with the Solicitor General’s duty to the
    courts, the Department of Justice defends Acts of Congress in all but
    the rarest of cases. Except in two well-recognized circumstances,
    which I will discuss momentarily, the Solicitor General generally
    defends a law whenever professionally respectable arguments can be
    made in support of its constitutionality.

    Those two exceptions do not apply her: (1) where there are separation of powers concerns and (2) when a contrary constitutional ruling is directly on point.

  10. legion says:

    I see what you’re saying, but it’s still just based on the opinions of other lawyers, not on actual rules. I’m sure the current AG and SG could write just as compelling a statement supporting Obama’s decision. While I agree that it should be rare, I think the only time an administration should feel compelled to defend something like this is if it’s the administration that signed it into law in the first place. Let’s face it, this is not an issue of public safety here, it’s a political football. The previous admin was strongly against gay marriage, this one is, if not in favor of it, at least not actively opposed. Like I said, enforcement is a whole ‘nother ball game, but one administration shouldn’t be compelled to support the agenda of an earlier one in court.

  11. PD Shaw says:

    legion, my link is to Waxman’s attempt to synthesize past practices and professional ethics in this area from a vareity of administrations. Obama is exceeding past practices, making the DOJ’s role more political, and it’s decision to abandon it’s traditional responsibility less rare and less solemn.

    And I think you confuse the roles here. Congress passes the laws, and it’s up to Congress to vacate them. The Waxman law review article is called Defending Congress; that’s the role the DOJ is shirking.

  12. Ever notice how so many defenses of Obama come down to, “but somebody did it too!”

    Does Obama have any constant principles or just ad hoc interests?

  13. Matt B says:

    Ever notice how so many defenses of Obama come down to, “but somebody did it too!”

    Does Obama have any constant principles or just ad hoc interests?

    @Charles … not to suggest that you’re a Republican … but isn’t that the defense that just about every president/politician has taken for quite a while?

  14. Many no doubt have, but that doesn’t make it right. Perhaps that helps explain why politicians are held in such contempt generally.

  15. Alex Knapp says:


    When the law isn’t clear, you look to past precedent to see what other have done in similar situations.

    In this case, it’s not clear whether the President’s duty to execute the law extends to defending said law against a Constitutional challenge.

    President Obama made the decision that the law will continue to be enforced, but that his Administration will decline to defend the law.

    This decision is, in part, justified by referring to the acitons of past Presidents, who made a similar distinction in the past (execute but not defend).

    What is your particular issue with this line of reasoning?

  16. DOMA § 3 is either constitutional or it is not. That’s black or white, albeit uncertain. The cat in the box is either dead or alive, not both.

    If DOMA § 3 is constitutional, then Obama should enforce it and defend it in court. Period. Indeed, even though I despise DOMA with a passion I normally reserve for pederasts and spirochetes, I say Obama should enforce and defend DOMA § 3 if it is even debatably constitutional.

    But if DOMA § 3 is not constitutional, Obama should both cease enforcing it, and not defend it in court. Obama’s first and overriding obligation is to “preserve, protect, and defend the Constitution of the United States.” Ordering Federal employees to violate the Constitution violates the Constitution. It cannot be the case that Obama (or any other President) is compelled to violate the constitution in order to simultaneously obey it.

    Obama believes DOMA § 3 is not constitutional and apparently has come to the belief that no credible argument can be advanced that it is constitutional. Therefore, if he is acting in good faith, Obama should not defend it in court and he should stop enforcing it. Splitting the baby is not an acceptable compromise; it is a political dodge and nothing more.

    Prof. Kerr’s concern is intellectually sound, but would only rarely even be an issue in practice.

  17. PD Shaw says:

    Transplanted lawywer, the DOJ states in the above link that there is no direct precedent, so why the bi-polar analysis? Can you truly conceptualize the uncertain?

    The adversarial process requires players; players with more credibility and scope than Orly Taitz. Most lawyers worth their salt can make the best case possible, why preclude the DOJ from making that case if the outcome is uncertain, unless the DOJ is subject to policis, not the law?

    When did Obama reach his decision, a weak ago?

  18. My analysis is, as you put it, “bipolar” because there are no “de minimis” violations of the Constitution. Where Doug sees an appropriate nuance in not defending the law but still enforcing it while it is on the books, I see a contradiction between violating the constitution and complying with it. That is a tension I cannot intellectually reconcile, so I interpret it not as a nuance but as an unprincipled (if debatably savvy from a political positioning perspective) baby-split.

    I readily confess that I may be guilty of allowing my distaste for DOMA to color my opinion of this particular case. My general idea is that if a reasonable claim to Constitutional legitimacy could be made for the legitimacy of the law, then neither the DOJ memo nor the decision to not defend the law are correct and Obama should, as he did with DADT, continue to enforce and defend the law even if it is clear that he does not particularly like it and even as he lobbies for its repeal.

    Despite my distaste for DOMA, I can formulate a credible Constitutional defense of it. It is not one that I think would prevail, but it is also not one that would get laughed out of court. So if I were President, I would request that Congress repeal DOMA at the same time I instructed the Justice Department to defend it. That’s a nuance I can reconcile — something might be permissible Constitutionally but nevertheless a bad policy. Deficit spending is bad policy, too, but I do not question the Constitutional authority of Congress to do it.

    The whole point of the “no-defense-of-DOMA” memo is that the Justice Department, acting at the direction of Obama, has come to a different conclusion — it cannot be credibly defended. If that’s your decision, Mr. President, then so be it — now go and govern consistent with what you’ve decided the law is.

  19. Dave Schuler says:

    That past presidents have refused to enforce different acts of Congress is a weak argument. Presidents had refused to spend what Congress had appropriated or spend it on what the Congress had appropriated it for before Nixon. Nixon got taken to court, lost, and the results tied the hands of future presidents.

    What’s past is prologue.

  20. Dave,

    There’s a difference between “enforce” and “defend on appeal.” The first is a President’s constitutional duty. The second is not required of the President or the Executive Branch under any provision of the Constitution

  21. Dave Schuler says:

    Re-check the presidential oath of office.

  22. I would argue that not defending an unconstitutional law in Court is exactly what the President’s oath requires