The decision by the the Department of Justice to refuse to defend the Defense of Marriage Act is a massive power grab by the Executive Branch.
The Justice Department is tasked with representing the “government” is the broad sense in legal matters coming before the courts. There is no congressional Justice Department. Whether it likes a law or not, the Justice Department traditionally has fulfilled the role of arguing for the constitutionality of a law if there were any good faith basis for doing so, because someone has to represent the will of the legislative branch in the courts.
For two years the Obama-Holder Justice Department fulfilled this role for DOMA, as challenges worked their way through the courts, despite the Executive Branch being opposed to the law on policy grounds.
But, in a crass political move, Holder in consultation with Obama has decided to stop defending a key section the law in the courts, although the law will be enforced until the courts rule definitively. The excuse for the reversal is that there is a challenge underway in the Second Circuit. From the statement issued by Holder:
Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.
This explanation is a flimsy pretext. DOMA is DOMA, and ultimately — like the Obamacare mandate — the Supreme Court someday likely will take up the issue, although it has not done so yet. It is questionable, however, for DOJ to take the position in some Circuits that DOMA was constitutional but then to switch positions just because there was no definitive Second Circuit authority.
This reversal of legal position raises a host of issues as to who can defend the law. This is similar to the actions of Jerry Brown (then Attorney General of California) in refusing to defend Prop. 8 in the Courts, which has created a sideshow of litigation over who has standing to represent the voters of California.
As Ed Whelan points out:
Attorney General Holder has the gall to claim to be acting consistent with DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” There are lots of reasonable arguments in defense of DOMA. The Obama administration has abandoned those arguments for purely political reasons.
This is not even a conservative versus liberal political issue. There is a significant question among conservatives whether the federal government has any business getting involved in the issue of marriage, which traditionally was left to the states.
While opponents of DOMA will be cheering, this is misguided. As Orin Kerr points out, what goes around comes around, and there may be a host of legislation passed under Obama which a Republican administration could subvert by refusing to defend.
Similar thoughts at Point of Law Blog:
I’m not a fan of the Defense of Marriage Act, but I do have a large problem with the politicization of the role of the Department of Justice. Strip away the gay-rights issue and consider the question: what would Democrats say if, in 2013, President Sarah Palin announced that her Department of Justice would refuse to defend the constitutionality of Obamacare in court? There is no provision in the Constitution for a retroactive veto. Compare and contrast the Bush administration Department of Justice, which steadfastly (and successfully) defended McCain-Feingold and enforced FACEA.
Is this really how we want our system of justice to work?
The President for whom the words “rule of law” flow so easily from the teleprompter doesn’t seem to know what the words actually mean.
Update: Orin Kerr has a similar take, The Executive Power Grab in the Decision Not to Defend DOMA:
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.
Update 2-24-2011: Orin Kerr rethinks his concerns:
In thinking over my reaction from yesterday, some of the feedback I’ve received has me somewhat less concerned than I was yesterday about the Obama Administration’s approach. In particular, it seems that everyone seems to think that, somehow, someone will be available to defend a law when the Administration declines to to do. It’s not entirely clear to me how this happens when an Administration declines to defend a law in the District Court, as opposed to the Supreme Court: The key problem is how to get the case up to the Supreme Court, which isn’t presented when the Administration defends the law in the lower courts. But if everyone agrees that this will happen somehow, then the Administration’s decision is a lot less significant, and therefore less worrisome from a standpoint of long-term impact, than I had thought.
I disagree and I think the DOJ action is all the more disconcerting because DOJ under Holder already staked out a legal position that there were reasonable, good faith arguments in favor of constitutionality. Otherwise, the DOJ lawyers could not have signed the papers. DOMA has not changed, only the political winds in the Obama adminsitration have changed, and that is the danger when DOJ becomes politicized.