Obama Won’t Enforce Ban On VA Benefits For Same-Sex Couples

President Obama has decided not to enforce a law. This is most unusual and somewhat disturbing.

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In the wake of the Supreme Court’s decision in United States v. Windsor, various Federal Government agencies have been tackling the issue of how to deal with the Court’s decision that Section Three of the Defense Of Marriage Act, which defined marriage as only being between a man and a woman, was unconstitutional. In most cases, the decision was rather easy since the statutes that controlled many benefits do not contain their own definition of marriage. Instead, such benefits were denied to same-sex couples based solely on DOMA. In other cases, though, the answer wasn’t so clear. This is especially true of the provision of certain benefits available to veterans and their spouses from the Department of Veterans Affairs, where the law in question specifically defines marriage as between persons of opposite genders. Because of this, the department had initially concluded that it didn’t have the authority to ignore this law or grant the benefits in question to same-sex spouses.  Last week, a Federal District Judge in California ruled that the statute in question was unconstitutional, based largely on the Supreme Court’s holding in Windsor.  Then, today, the Obama Administration announced that it will no longer be enforcing this provision of the law:

The Obama administration said Wednesday it will stop enforcing a law that blocks benefits to partners of military veterans in same-sex marriages.

In a letter to congressional leaders, Attorney General Eric Holder said that a provision in federal law on benefits to veterans and their families defines “spouse” to mean a person of the opposite sex. He says that definition leaves out legally married same-sex couples, and runs afoul of a June Supreme Court ruling.

The court declared unconstitutional a provision in the Defense of Marriage Act restricting the words marriage and spouse to apply only to heterosexual unions. Holder says that like the Defense of Marriage Act, the provision in the veterans benefits law has the effect of placing lawfully married same-sex couples in a second-tier marriage.

“Decisions by the Executive not to enforce federal laws are appropriately rare,” Holder told Congress. “Nevertheless, the unique circumstances presented here warrant non-enforcement.”

He said the Supreme Court’s conclusion that DOMA imposes a stigma on everyone in same-sex marriages “would seem to apply equally” to the veterans benefits law. Holder noted that after the Supreme Court’s decision, the Bipartisan Legal Advisory Group of the House of Representatives withdrew from a pending lawsuit challenging the constitutionality of the veterans benefits provisions.

This goes far beyond the Administration saying, as it did in the case of DOMA, that it would not be appealing a court decision finding the law unconstitutional. As I’ve noted in the past, see here and here for example, this is not an uncommon practice by Presidential Administrations and is fully within the scope of prosecutorial discretion that Executives and their deputies such as the Attorney General have. Instead, the Administration here is saying that they won’t enforce the law.  This is a step above what the Administration has previously done. Indeed, when it was announced that the Justice Department would not be defending DOMA in Court, they made it clear that they would continue to enforce the law until the matter was ruled on by the nation’s highest court. Granted, we have a decision by a Federal Judge that the law is unconstitutional, a ruling that would seem to be absolutely correct in light of the Windsor decision. However, that’s just one decision by one Federal Judge in a specific case in California. Legally, that ruling has no legal effect beyond the specific issue before him and has no territorial impact outside the judicial district in which he sits. It strikes me as dangerous for an Administration to say that it won’t enforce a law under those kind of circumstances.

For one thing, if we accept the idea that a President can decide not to enforce a law then where does it end? Would a Republican President have the authority to order the agencies under him to refuse to implement Obamacare or spend any money allocated by Congress for that purpose? What if such a President told the IRS to stop enforcing the penalty provisions against people who don’t comply with the individual mandate? To make the issue relevant to this specific case, what if such a President ordered his Secretary of Veterans Affairs to strictly enforce the law in question, including the limitation of spousal benefits to opposite sex couples? All of these actions would likely be struck down by a Court at some point, but in the meantime there would be legal chaos created solely by Presidential whim.

As much as I agree with the effect of the Obama Administration’s decision in this case, I have serious doubts about the way they’re going about doing it. The Constitution requires the President to “take care that the laws be faithfully executed,” I’m not sure that a world where President’s have the power to decide on their own not to enforce a law is the kind of world we really want to live in. For as much as such a power can be used for good, it also has the potential to be used for evil.

FILED UNDER: Barack Obama, Law and the Courts, Politicians, US Politics
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    The solution is simple…Republicans need to take their role in Governing seriously.
    In the absence of that…the Executive will simply have to take it upon itself to do what is right.

  2. al-Ameda says:

    Well, this should make people somewhat nervous, but the reality is, across the country, do not law enforcement officials make decisions all the time as to which laws they will actively enforce and which they will ignore?

    Also, where do Signing Statements fit in in this continuum? After all, recent presidents have used Signing Statements to communicate their intentions with respect to provisions of legislation, or even stating an intention to ignore all or part of a law based on constitutional grounds.

  3. Raider says:

    Obama is lawless. This characteristic of his nature will become much more clearer as time goes on. Obama is the lawless one which is spoken about here:

    “7 For the mystery of lawlessness doth already work: only there is one that restraineth now, until he be taken out of the way. 8 And then shall be revealed the lawless one, whom the Lord Jesus shall slay with the breath of his mouth, and bring to nought by the manifestation of his coming; 9 even he , whose coming is according to the working of Satan with all power and signs and lying wonders, 10 and with all deceit of unrighteousness for them that perish; because they received not the love of the truth, that they might be saved. 11 And for this cause God sendeth them a working of error, that they should believe a lie: 12 that they all might be judged who believed not the truth, but had pleasure in unrighteousness.” (2 Thessalonians 2:7-12)

  4. OzarkHillbilly says:

    This goes far beyond the Administration saying,

    Dog bites man, Doug. I well remember when W decided that environmental laws were un-American and chose which ones he would not enforce and the rest he would just ignore.

    Really, this is nothing new, it is as old as the Republic, and your outrage is just as old and just as misplaced.

  5. OzarkHillbilly says:

    @Raider:

    Obama is lawless.

    Let me guess: You supported George W. Bush and Dick Cheney the war criminals? (and here is a test: will they ever leave the friendly shores of the good old USA????)(you know as well as I, the answer is, “No.”)

  6. Tyrell says:

    Police around here are still enforcing laws about burning rubber (squawling tires) , glass pack mufflers and hanging feet out the car window.

  7. Raider says:

    @Ozark

    No, I didn’t support them. They are all criminals who have paved the way for Obama. Obama is the worst of the worst, the viper of vipers. Obama is going to bring destruction upon this earth that will be beyond your imagination. This is going to happen very soon.

    Even though you probably don’t believe what I’m saying, try and prepare yourself anyway.

    As the times we live in get darker, and love and the light of life grow dimmer, keep in mind that God loves you all, and his hands are still reaching out toward us in love with a great willingness to still save us from our sins should we desire that.

  8. Surreal American says:

    @Raider:

    Obama is going to bring destruction upon this earth that will be beyond your imagination.

    I don’t know, I can imagine quite a bit.

  9. wr says:

    Doug, didn’t you just say that the last Federal judge to rule on this said it was unconstitutional? Doesn’t that give Obama the ability to say that he won’t eforce a law that’s been struck down by the court?

  10. Jenos Idanian #13 says:

    President Obama has decided not to enforce a law. This is most unusual growing more common and somewhat disturbing.

    Do we need a list of laws Obama has just up and decided that don’t apply any more because he doesn’t like them?

  11. As I addressed in the post, this was a ruling by a Federal District Court Judge that had limited impact only to the facts of the case before him.

    And if what you’re saying is justification for the Administration’s actions, then they could have said back in February 2011 that they were going to instruct Executive Branch departments and agencies to ignore DOMA’s definition of marriage. They didn’t do that, and I think that was the right thing to do. Because of the precedent it sets, this is a different situation altogether

  12. bill says:

    @C. Clavin: sure, it’s ok if you agree with him but what happens in a few years when your man is not in office and someone else starts this bs?

  13. Jenos,

    I’m sure you have a list in your head you think is true, but that doesn’t make it so.

  14. grumpy realist says:

    Doug, this will turn out to be one of those questions about competing duties–Obama could retort that he has also sworn to “uphold the Constitution” and he thinks such bans (when a case finally winds its way through the courts) will be found to be unconstitutional. He is jumping the gun from a legal viewpoint, but I think the average American will think: “This is unconstitutional, Obama won’t enforce an unconstitutional law, GOOD.” They don’t know the persnickity mechanisms by which our laws evolve and how lawyers expect the process to move.

    This is the problem of our system: we can have a law based by a bunch of clueless legislators which is completely, and blatently unconstitutional, but until an actual case comes before the court involving the exact question under law, there’s no way that the Supreme Court will get their mitts on it and there’s no way the regulatory bodies can avoid implementing it. And sometimes the Supreme Court will get their mitts on it and decide according to an entirely different set of legal arguments, much to everyone’s frustration.

    (There’s a lot of unsettled questions in patent law where the Supreme Court has sat on its thumbs, or done nothing but strike down proposed bright-line tests the Federal Circuit has attempted to formalize. So we’re still in the fog and the best we can tell our clients is that the law is “unsettled”. Look at the en banc decision for CLS Bank. Ten judges and five decisions. Ai-yi-yi. )

  15. al-Ameda says:

    @Jenos Idanian #13:

    Do we need a list of laws Obama has just up and decided that don’t apply any more because he doesn’t like them?

    Not that it matters much to Republicans these days, but both presidents Bush and Clinton issued far more signing statements than President Obama, and as you know those Signing Statements signal an intent by the executive regarding their opinion of the law and their desire to enforce it (or not).

  16. Steve V says:

    @Doug Mataconis: The decision might have had limited impact by virtue of only being a district court decision, but to the extent you’re saying Judge Marshall’s ruling was narrow, that isn’t true. She ruled that section 38 didn’t satisfy rational basis review, period.

    From the article you link to, the VA was uncertain of the scope of the ruling:

    However, while the couple will be able to apply for benefits, the VA has not explained how the decision fits into its national policy on benefits for same-sex couples. Peters said that he believed the decision would mean that legally married veterans under the court’s jurisdiction – much of the Los Angeles area – should be eligible for benefits, but he admitted that the lack of clarity was “frustrating.”

    “I really just don’t know how this is going to play out and I think we are really going to have to wait to see how the Department of Justice and the VA interprets the decision,” he said.

    I would argue that if this is the only challenge to the statute that is pending, the decision’s possible impact could reach much further than just the LA area. The decision was just handed two a few days ago and the time to appeal hasn’t even run yet, and you’re already declaring the administration to be lawless?

  17. C. Clavin says:

    @ bill…
    As long as it is based on equal rights for all…I don’t see a problem.
    If its based on right wing bigotry…that’s another question.
    At the end of the day the failure of Republicans to do their jobs is the issue.
    Do I envision Democrats abdicating their responsibility to govern ? No.

  18. C. Clavin says:

    Do we need a list of laws Obama has just up and decided that don’t apply any more because he doesn’t like them?

    Actually the SCOTUS didn’t like it.
    You can’t make a coherent argument defending it.
    Ipso facto…
    BENGHAZiiiiiii!!!!!!!

  19. Jenos Idanian says:

    @al-Ameda: Not that it matters much to Republicans these days, but both presidents Bush and Clinton issued far more signing statements than President Obama, and as you know those Signing Statements signal an intent by the executive regarding their opinion of the law and their desire to enforce it (or not).

    No, a signing statement lays the groundwork for a future fight over the law. I don’t recall Bush or Clinton ever following up on those signing statements. Obama, however, doesn’t even always bother with those signing statements; he just up and ignores the laws he doesn’t like.

    It’s all part of a pattern: Obama takes a Bush-era bad idea, cranks Teh Stoopid up to 11, and then runs with it. Fast & Furious is a good example.

  20. C. Clavin says:

    Fast and Furious…BENGHAZiiiii!!!!!!….IRS.

    Oops…mentioning Jenos’s obsessions is now trolling…sorry.
    If Jenos brings up his obsessions is he trolling himself?
    These rules confuse me.

  21. Rafer Janders says:

    For one thing, if we accept the idea that a President can decide not to enforce a law then where does it end?

    Where does it end? God only knows. We might even actually wind up with a president who claims the ability to torture helpless prisoners, all law and legal precedent aside, and even to run a secret worldwide network of kidnap and torture camps!

    Oh, no, wait, that’s not where it ends, since Bush already did that…..

  22. Tyrell says:

    @C. Clavin: Maybe the president might just decide not to enforce the IRS laws. Hope springs eternal.
    “I’m going to Jackson…look out Jackson town” (Cash)

  23. superdestroyer says:

    Progressives and especially conservatives need to realize that no law is worth the paper it is written on unless the law contains citizen lawsuit provisions. The environmental activist are smart enough to know that politicians will ignore environmental laws when they can, so the activist know to always include citizen lawsuits.

    Any conservative that proposes a law that depends on the executive branch actually following the law without outside influences is a fool.

  24. C. Clavin says:

    IRS regs are based on right wing bigotry???

  25. Jenos Idanian #13 says:

    @C. Clavin: Oops…mentioning Jenos’s obsessions is now trolling…sorry.
    If Jenos brings up his obsessions is he trolling himself?

    I’m trying to remember the last time I brought up Benghazi before you did, and I’m drawing a blank. But if you find humor and entertainment in the slaughter of four Americans, you really are one sick fsck.

  26. MarkedMan says:

    Maybe I’m missing something, but doesn’t this really fall into the category of two nearly identical laws on the books, one of which has been ruled unconstitutional? So the administration applying the ruling to the other law seems like common sense rather than running wild through the constitutional fields. After all, if there are 50 separate state laws concerning some corporate tax rule, and the Supremes rule in one case that it is unconstitutional, we don’t expect to have 50 separate rulings to get rid of them all.

  27. G.A.Phillips says:

    Raider, The Bible says that the anti Christ come out of the pit of Hell. I don’t think it means liberal collages. It seems very clear that it means the pit of Hell.

  28. pylon says:

    @Raider: Obama had better get a move on with theis world destruction thing. He’s had 5 years.

  29. JohnMcC says:

    @Doug Mataconis: Thank you for bringing to our attention this interesting small controversy that reminds us of the cumbersome-ness of a written constitutional system, rather than the constantly evolving ‘unwritten constitution’ in use by most of the world. It’s helpful and thought-provoking to see in the comments how our tradition of case-law and ‘common-law’ lets us avoid the pitfalls of a too-literal constitutionalism.

    Your concern is that the ruling of a Federal District Court is insufficient weight to support the administration’s stated policy. Some of the commenters above have expressed how the law is as settled as it will soon be. So have to act on the District Court since it’s apparently not being appealed. (I bet there’s an index of cases where I could go to fact-check myself here and I just don’t know how to access it. Anyone?)

    So I started to comment on your question in the Original Post: “…where does it end? Would a Republican President have the authority to order the agencies under him to refuse to impliment Obamacare…” Because it seemed to me that ‘refusing to prosecute’ or ‘execute’ really means ‘refusing to fund the execution of the law’ which spills over into the Line-Item Veto which is of course previously decided. No line-item-veto allowed in the American system. So the hypothetical Republican President could not defund Obamacare for the very same reason the present administration cannot refuse to fund the execution of the VA’s version of the definition of marriage. The question is who has ‘standing’ to be the suit? My bet would be on plaintiffs if any can be found (goes back to the issue at the heart of SSMarriage – who is harmed?).

    But in looking into this I discovered that the decision that rendered the Line-Item Veto that Pres Clintion briefly weilded unconstitutional was in fact made by a Federal District Court. And that no higher court has ruled on the subject. And that it has been pretty settled law ever since the ruling.

    So what exactly is wrong with the VA decision? If someone with ‘standing’ comes forward, I s’pose they’ll find an attorney and bring suit. And in the meantime, the Supremes DOMA decision and this District Court’s decision give a pretty good direction for federal policy makers.

  30. al-Ameda says:

    @Jenos Idanian:

    It’s all part of a pattern: Obama takes a Bush-era bad idea, cranks Teh Stoopid up to 11, and then runs with it. Fast & Furious is a good example.

    Yeah, a lot like when he took another conservative Republican idea – a health insurance mandate – and utilized it too.

    Kind of begs the question: Why bother with Republican ideas? After all, Republicans renounce their own ideas constantly.

  31. Mike Pickering says:

    @Doug Mataconis:Doug-

    In most articles I’ve read on this site, looking for Conservative ideals and statements, I’ve been sadly disappointed. You appear to be a Cino, if that. To say that Nobama hasn’t been passing on enforcing laws he disagrees with is the height of ignorance. For example, voter intimidation in election #1 in Philly (at least). The list is endless, and you should go back to chasing ambulances rather than being another political hack for the scumbag.

  32. Mike Pickering says:

    @G.A.Phillips: Actually, the Bible says he’s a created being. And you need a lesson on “spell check”, along with a course on Biblical literacy.

  33. Craigo says:

    @JohnMcC: I don’t disagree with you overall, but Clinton v. New York ( 524 U.S. 417) was a Supreme Court opinion that upheld a directly appealed District Court decision.