In February 2011, the Obama/Holder DOJ abruptly announced it would refuse to continue defending the Defense of Marriage Act after years of arguing in Court that DOMA was constitutional.

In defending DOMA for years, the DOJ was upholding an important principle, that DOJ should defend existing laws in court so long as there was any reasonable basis for doing so.

The role of DOJ was vital because there is a question whether Congress or individual members of Congress would have ‘standing’ in court (a legally protected interest that would permit it to be a litigant); Congress also does not have its own equivalent of DOJ to protect its interests in court. Once a bill became law, the President had a duty to faithfully execute that law, and such faithful execution arguably included using DOJ to litigate in defense of existing laws.

Again, provided there was a reasonable legal argument to support the law.

Obama-Holder threw that all away to gain political points since DOMA was unpopular with the Democratic base (and views on gay marriage were shifting more generally across party lines).

I cautioned against what Obama-Holder were doing, and warned that it would come back to bite Democrats if and when a Republican were elected president, Executive Branch DOMA Power Grab:

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….

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?

Now what went around for the Obama-Holder DOJ is coming around as the Trump DOJ just announced it is siding with States arguing in a lawsuit that the Obamacare mandate is unconstitutional. This is being portrayed, falsely, in the media as DOJ refusing to defend the pre-existing conditions part of Obamacare, but that’s not the legal issue. The legal issue is the mandate; other parts of the law may fall if they are inseverable from the mandate.

The Hill reports:

The Department of Justice (DOJ) argued in court Thursday that key parts of ObamaCare are now unconstitutional, siding in large part with a conservative challenge to the law.

The move is a break from the norm of the DOJ to defend federal laws when they are challenged in court. Under President Trump, the department has opted not to defend a law that it strongly opposes.

Attorney General Jeff Sessions acknowledged in a letter to Speaker Paul Ryan (R-Wis.) that the DOJ has a “longstanding tradition” of defending federal laws, but argued that this is “a rare case where the proper course is to forgo defense” of the law.

The lawsuit in question was filed in February by Texas and 19 other GOP-led states, arguing that ObamaCare is unconstitutional and should be overturned….

Previous administrations have made their own break from precedent. In 2011, for example, President Obama’s Justice Department broke precedent by declining to defend the Defense of Marriage Act, which defined marriage as being between a man and a woman.

Here is the letter:

Here is a link to the DOJ Brief filed:

In the Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010), Congress fundamentally altered the American health-insurance system by imposing a “[r]equirement” for most Americans “to maintain minimum essential coverage.” 26 U.S.C. § 5000A(a). In light of the basis on which the Supreme Court previously held that this “individual mandate” survived constitutional scrutiny, the United States agrees with the Plaintiffs that Section 5000A(a) must now be struck down as unconstitutional in light of the amendments that were made to it in the Tax Cuts and Jobs Act (TCJA), Pub. L. No. 115-97, 131 Stat. 2054 (2017)….

Critically, however, the Supreme Court’s saving construction of the individual mandate as a tax is no longer available. The TCJA eliminated the penalty for failing to purchase minimum essential coverage (starting in 2019), but left untouched the statutory “[r]equirement to maintain minimum essential coverage” in Section 5000A(a). See Pub. L. No. 115-97, § 11081, 131 Stat. at 2092. The individual mandate thus still exists, but it will no longer be fairly possible to describe it as a tax because it will no longer generate any revenue.

As of 2019, therefore, the individual mandate will be unconstitutional under controlling Supreme Court precedent holding that “[t]he Federal Government does not have the power to order people to buy health insurance.” NFIB, 567 U.S. at 574‒75 (opinion of Roberts, C.J.); accord id. at 547‒561; id. at 649‒60 (opinion of Scalia, Kennedy, Thomas, Alito, JJ. (“joint dissent”)). Because the TCJA eliminated the basis for the Court’s saving construction in NFIB, the individual mandate is untethered to any source of constitutional authority. Furthermore, as the United States explained to the Court in NFIB, Congress’s own “findings establish that the guaranteed-issue and community-rating provisions are inseverable from the minimum coverage provision.” Br. for Resp’t (Severability) at 45, NFIB, No. 11-393 (citing 42 U.S.C. § 18091(2)(I)). The remainder of the ACA, however, can stand despite the invalidation of those provisions. See id. at 26‒44.

As is obvious, the Trump-Sessions DOJ position has as its legal basis a shift in the legislation which it argues renders Supreme Court precedent on the individual mandate no longer applicable.

That’s much more in good faith than the Obama-Holder DOJ shift on DOMA, which was simply a change of mind for political reasons.


Donations tax deductible
to the full extent allowed by law.