Presidential Decisions Not To Defend The Constitutionality Of Federal Law: A Brief History

A look at history reveals that President Obama's decision to decline to defend Section Three of DOMA is hardly unprecedented.

As I noted yesterday, President Obama’s decision not to defend the Constitutionality of Section Three of the Defense Of Marriage Act in Court has aroused no small degree of controversy, as well as the absurd suggestion by Newt Gingrich that it is potentially an impeachable offense. The truth of the matter is that this is something that Presidents have done frequently in the past.

Here’s a list of some of the more prominent cases, borrowed from a 1995 letter to Orrin Hatch by the Clinton Justice Department:

This case concerned the constitutionality of § 304 of the Urgent Deficiency Appropriation Act of 1943, providing that, after November 15, 1943, no salary or other compensation shall be paid to certain employees of the Government. The employees in question filed suit against the government. On appeal, the Solicitor General joined the claimants in arguing that the statute was an unconstitutional Bill of Attainder. The Attorney General at the time suggested Congress employ its own counsel to defend the statute and, when they did, the courts gave that special counsel leave to appear and defend the law.

Under the relevant immigration laws that were in effect at the time of this case, the INS had the authority to suspend deportation of a someone in the country illegally for at least seven years if the Attorney General deportation would result in extreme hardship. The House of Representatives, acting on its own, could then reverse the INS’s decision. Chadha was a qualifying alien under the law, and the Attorney General had suspended his deportation based on the “extreme hardship” standard but Congress acted to reverse that decision. Chadha appealed, arguing that the “one-house veto” was unconstitutional and the Department of Justice agreed. Defense of the statute was handled by the Senate Legal Counsel.

This case involved a challenge to the constitutionality of Independent Counsel Act. Although the Independent Counsel was technically an arm of the Department of Justice, the Solicitor General appeared amicus curaie to argue that the statute was unconstitutional.

This case involved a challenged to the practice of the Federal Communications Commission to give preference in the granting of broadcast licenses to organizations which met a certain level of minority ownership. The Acting Solicitor General appeared amicus curaie to argue that the law was unconstitutional. The FCC used i’s own counsel’s office to defend the policy,

A federal statute permitted the Surgeon General to make an exception in the award of grants for hospitals that discriminated on the basis of race if there was a “separate but equal” hospital facility for all races immediately available. The Department of Justice joined a group of black doctors and patients in a class action arguing that the law was unconstitutional.

  • Garrett v. Alexander 477 F. Supp 1035 (D., D.C, 1979)

A federal law permitted the army to sell surplus rifles to the public, but only to members of the National Rifle Association. The Department of Justice took the position that the requirement for NRA membership was a violation of the Equal Protection Clause of the Fifth Amendment and made this argument in Court. The District Court gave Congress the opportunity to appear to defend the statute, but Congress declined to do so.

Federal law prohibited non-commercial radio or television stations from editorializing or endorsing a political candidate. The Solicitor General appeared to argue that the law violated the First Amendment. Senate Legal Counsel appeared to defend the law in the District Court. The case went to appeal after the Reagan Administration came to office, at that time the new Solicitor General determined that he could defend he law and did so in the Court of Appeals and the Supreme Court, where the law was eventually upheld.

This case concerned the constitutionality of the “must carry” rules imposed on cable television providers by Federal Law. In the District Court, the Department of Justice took the position that the rules were unconstitutional. On appeal, after the Clinton Administration took power, the Department of Justice decided it could defend the constitutionality of the statute on appeal.

So, as you can see, this is a rare, though not uncommon, occurrence, and it is worth noting that there is no suggestion in the record of any of these cases that the Executive Branch’s decision not to defend a Federal Law in court was in any way unconstitutional, or a breach of the President’s duties under the Constitution.

UPDATE (Dodd): I’m going to interpose myself here to add two items to your list:

After a federal law that cut off funds to local mass-transit operators if they accepted marijuana reform ads was struck down on First Amendment grounds, Bush II Solicitor General Paul Clement decided he could not defend a law that was viewpoint-based on its face.

18 U.S.C. § 3501, enacted in 1968 (shortly after Miranda v. Arizona), was intended to overrule Miranda‘s requirement that the famous warnings be given to establish voluntariness of statements by criminal defendants. Every administration (including Reagan and Bush I) took the position that the statute was unconstitutional and therefore did not employ it when opportunities to do so arose. The Fourth Circuit applied it sua sponte in Dickerson and the Clinton DOJ declined to defend it. Chief Justice Rhenquist’s opinion struck down the law.

Update (Doug Mataconis): This post by Ilya Somin reminds me of another case where the President declined to defend Federal law:

In this case, the IRS had denied Bob Jones University tax-exempt status based on its history of racial segregation and discrimination, which it claimed was religiously based. The Reagan Justice Department declined to defend the decision in Court and filed an amicus curiae brief on behalf of the University.

Additionally, Somin’s post also links to this informative piece by Tony Mauro in The National Law Journal.

Finally, it’s worth noting that a decision by a President not to defend a law in Court doesn’t always result in that law being found unconstitutional. Of the eleven cases listed above, the position the government took was adopted by the Court six times, and rejected five times.

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , , , , , ,
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. Not to mention (and yes, it is a somewhat different issue) that any given presidential administration is going to have different priorities in terms of law enforcement anyway, given that there are more laws to enforce and crimes to deal with than there are resources to deal with them. For example, IIRC, the Bush II DoJ was more focused on child pornography/obscenity issues than was the Clinton DoJ, which focused more heavily on white collar crime, etc.

    As such, the notion that all laws give identical treatment (whether in terms of enforcement, of defense in court) is nonsense.

  2. PD Shaw says:

    The decision is unprecedented since it is based upon a lack of controlling authority on the issue to be decided, not the presence of clearly controlling authority that would make the law unconstitutional.

    Not impeachable; irresponsible. The lawyer’s job is to defend the institution and serve the necessary adversarial role.

  3. sam says:


    “The decision is unprecedented since it is based upon a lack of controlling authority on the issue to be decided”

    Can you explain that a bit?

  4. Wiley Stoner says:

    So, Doug, what you are saying is when President Palin tells her DOJ not to defend RoweVWade, you won’t throw a hissy fit?
    One must wonder who knows more about what is and what is not an impeachable act. A lawyer who has a case load which allows him to blog endlessly or a former Speaker of the House who’s agenda so benefitted Pres. Clinton to the level his proclivity toward rape has been forgotten. (Ask Juanita Broderick)

  5. Wiley,

    Not sure if you checked a calender but today is Saturday. Also, it took me all of 15 minutes to do the research necessary to write this post,

    Also, you seem disturbed by actual facts. But, of course, facts are stubborn things.

  6. Tano says:

    “One must wonder who knows more about what is and what is not an impeachable act. ”

    Well it sure as hell isn’t someone who doesn’t even know how to spell “Roe”.

    Doug gave you 9 prededents for this. These are not matters of opinion, they are historical facts.

  7. PD Shaw says:


    Clinton’s Solicitor General for most of the second term wrote a law review article, explaining the circumstances in which the DOJ had historically declined to defend Congress. It analyzes the court decisions up to the Dickerson case, and explains why they did what they did in Dickerson, and concluded there are two situations when the DOJ has declined to defend: (1) where there are separation of powers concerns and (2) when a contrary constitutional ruling is directly on point.

    A.G. Holder’s letter explaining the decision states the issue is arising “in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny.” Also, the “Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation.”

    A.G. Holder’s action is unprecedented if you believe Waxman accurately described the history.

  8. sam says:


    What do you make, then, of Jason Mazzone’s characterization of the letter at Balkinization:

    Refusing to defend DOMA because it is unconstitutional would be a dramatic development. But a close reading of Holder’s letter suggests that what the DOJ is actually doing is considerably more modest.

    The key paragraph in Holder’s letter is this one:

    In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. 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. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

    In other words, the actual position of the DOJ (which will remain in the case) is that if the courts agree with the government that heightened scrutiny is the appropriate standard, then the plaintiffs should prevail because section 3 of DOMA does not satisfy the heightened scrutiny test.

    Whether the district courts (and the Second Circuit) will apply heightened scrutiny is an open question. Following the lead of other courts, they might conclude that rational review applies. If so, the government’s position is that section 3 is constitutional under the rational standard.

  9. PD Shaw says:

    sam, the first part underscrores what I wrote. The law is not cleary unconstitutional, it’s only unconstitutional if the courts frame the issues in the way the A.G. predicts/desires and answers them in the way the A.G. predicts/desires.

    The second part disregards the concluding paragraph of the letter, stating that they are refusing to defend all other cases. I believe the A.G. is bound as the chief legal officer for the federal government to defend the lawful acts of government, absent the two professional exceptions that aren’t present here.