The Non-Defense of DOMA
I hate to interject in the middle of of the labor roundtable, which I’m enjoying a lot. Still, the Obama Administration’s decision to stop defending DOMA in the courts is important and seems like it should be discussed in this space. Here are a couple of points to get you going.
Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.
The mood is anti-spending, and it’s just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they’d like to be having.
It could be one of the first instances in which gay marriage counts as a wedge issue against Republicans, rather than for them. Opposing same-sex marriage appeals strongly to a smallish base. To the center, the whole subject is distasteful either way, and they don’t mind if Obama drops it. Finally, more and more people just find the conservatives embarrassing here. Obama sees no need to do their dirty work for them, especially when the work really is that dirty.
Orin Kerr is worried about executive power:
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.
Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in the next big school prayer case? Or the next big abortion case? Or on Obamacare itself?
There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. Deciding the latter issue only with a view to the former is just bad governance. The questions we should be asking are — How much power would this really give the president? And are we comfortable with him having it, even if the president has views radically different from our own?
When we look at it that way, there’s a near-perfect parallel to the perennial debate over the filibuster. Everyone hates it when they’re in the majority. Everyone loves it when they’re in the minority. Politics really is the mind-killer.
The arguments for “compulsory appeal” seem to fall into two equally absurd camps:
1. The President’s raison d’etre is to “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.” Again, 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.Report
I’m with you so far, at least tentatively. But to really feel that this argument was conclusive, I would want to know what the Attorney General was statutorily tasked with, and on what constitutional theory. I could see that making a big difference, and I admit I don’t know it.Report
Hell, it wouldn’t surprise me if the majority of laws passed by the Congress are technically unconstitutional.Report
A couple points:
(1) Basically, the Executive Branch has the power to enforce whatever it wants to already. Witness the recent history of marijuana decriminalization at the state level. I think the Obama Administration is overplaying its hand here. Being strongly in favor of allowing gay marriage nationwide simply does not have enough support to make conservatives look bad on this one, whether they’re against gay marriage or against executive power.
(2) Is there any way we can agree on a general, across-the-board repeal of laws by say something like 40%? Is there any support for just having fewer laws period? I know Reason has had a few articles on this topic, but is there any political organization or caucus that has as its raison d’être to sort of set things back and try again?Report
To some extent, everything the President does, and everything Congress does, has at least some political dimension. We can’t condemn politicians holding political office because their actions have political consequences. The genius of the Constitutional system is to try and focus those political impulses towards the common weal.
So it seems to me that if we require, through political expectations rather than structural and procedural requirements built in to the law, that the executive branch explain its reasoning and use this sort of power only rarely, it is less likely to be abused as a political football than Prof. Kerr frets. This is not a perfect safeguard, but one that if abused would carry a negative political consequence, as Christopher suggests might happen in this case.
Nevertheless, it seems to me to be a good thing if the President gives serious consideration to whether laws violate the Constitution. It is the President’s first and paramount job to protect and enforce the Constitution, after all. If the President will inevitably includes political calculation in making that analysis, then the President is no better and no worse than Congress in that respect and both would still have to make their cases to the courts before a binding decision about Constitutionality takes effect.Report
Chris, I think you’re misunderstanding the president’s position on DOMA, and consequently underestimating the potential popularity of his actions (or inactions, i suppose).
Because while the american public is still against gay marriage in the abstract. They’re usually pretty okay with being nice to gay people when it comes to concrete examples. Eliminating section 3 of DOMA won’t create any new gay marriages. It’ll just allow the federal government to recognize gay marriages performed by the states that allow them anyway. So a gay couple in Massachusetts will be able to file a joint tax return, or the foreign same-sex spouse of someone living in Iowa will be able to immigrate and seek citizenship, or the widow of gay soldier killed in Iraq will qualify for survivor’s benefits.Report
Fantastic analysis Jason. I hadn’t thought through the future ramifications of this decision.Report
Thanks, although it does get more complicated the more I think about it.
If the Obama Administration finds no reasonable defense of the law, then shouldn’t it have the courage of that conviction, and shouldn’t it then gladly make unreasonable defenses of it in court, secure in the knowledge that the law will be struck down?
And if supporters of the law can get standing, they should be jumping for joy that the obviously insincere Obama Administration is not defending DOMA. Their guys get to defend it instead, which means a better defense all around.
In fact — this last seems to fit best with the adversarial model of our court system as a whole. Let those who have a sincere interest present their case openly and in person. That should be how American justice works, right?Report
I think it’s certainly a weird stance to no longer defend the law but not take a more active role in lobbying Congress to kill it. It almost represents a complete abdication of responsibility on both ends and takes a completely passive view of the whole issue.Report
I’m not so sure that the DOMA guys will make better arguments I mean look at the terrible job they did in the prop 8 trial.
Still it does make sense that they should make the argument since they are the ones who agree with it.Report
True, but it’s seemingly an assumption of our system that if that’s the best they can do, it’s also the best anyone else can do. Perhaps the legal arguments really are that bad, and if so, they deserve to lose. But not before they have gotten a full and careful hearing.Report
I agree.
As far as I can tell DOMA will still get it’s day in court. Am I mistaken?
Would the PPACA get its day in court under President Palin even if she instructed the justice department not to defend it? I ask out of a desire to learn. My intuition is that it would much to her chagrin.Report
You’re not mistaken, I don’t believe.
Congress could have standing to defend it, and individual states are I believe very likely to. I’m not actually a lawyer, though, so I hesitate to call it a certainty.Report
I too think that Jason brings up good questions
“There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. Deciding the latter issue only with a view to the former is just bad governance. The questions we should be asking are — How much power would this really give the president? And are we comfortable with him having it, even if the president has views radically different from our own?”
My question is this: assume that Obama had a hot-tub time machine and used it to not do this before it happens, what keeps the next president from doing it? For that matter what stops this president from doing it?
I ask because I can’t see who or what throws the flag to stop the play here.Report
“I ask because I can’t see who or what throws the flag to stop the play here.”
Here’s what I see happening:
Meet the New Boss. He starts enforcing it again… and it gets to the courts. It’s either upheld or overturned. Meanwhile the New Boss stops enforcing Health Care laws or certain Civil Rights laws. He is limited to 2 terms.
Meet the New New Boss. The grand dance continues. Democracy in action.Report
I see that you and I are in complete agreement about what will actually happen then.Report
I must be thinking about it wrong because I’m not immediately seeing a huge downside.
It’s kicking the can down the road… and it seems likely that the only laws that won’t eventually be taken care of one way or the other are the “Horses shall not wear hats on Sundays” kinda obsolete laws that aren’t likely to ever be used ever again.
What am I missing?Report
I’m not sure what you are missing either.
I think I am missing it too.
I was told by Bush that elections have consequences.Report
I suppose one could argue that Obama is hoping his lack-of-defense speeds up the court challenges and he can get a SCOTUS ruling on it before his administration ends. Going the Congressional route is just signing up for lots of political nonsense.Report
Well. So now domesticated conservatives oppose the power of the “unitary” Executive. It was just neat-o when Bush used similar arguments to wage his war on Islamo-boogeymen, but now an Imperial Presidency is a bad thing.Report
Oooh! Oooh! Do the Libertarians who thought that signing statements were an impeachable offense get a free pass???Report
Nope,
as usual you get to be flogged for things you said you were against at the time and stayed consistent on.
The Koch brothers will probably be mentioned.Report
If you are talking about me, you are very, very mistaken.
Not only am I not a conservative, I was sharply critical of the Bush administration’s executive power abuses. I never supported the Iraq War and indeed wrote so often against it that one of my former co-bloggers quit in protest. I condemned Guantanamo, torture, and rendition very consistently from the moment we knew about them.
So… are you with me? Or are you going to mumble some excuse for the imperial presidency when it’s your guy sweeping the abuses under the rug, and indeed doing a lot of the very same stuff?Report
When it comes to sweeping abuses under the rug, are we to consider the second-class classification of our LGBT citizens as an abuse?Report
I’d say yes, with a qualification.
There is a world of difference between conforming with a traditional policy of very long standing — such as denying same-sex couples a legally valid marriage — and introducing a brand-new abuse, particularly one that involves the violation of the basic norms of civilized life, such as the United States operating camps where it tortures prisoners in secret.
While I support same-sex marriage and oppose torture, I can’t possibly say that the former is more important or egregious.Report
Segregation had also been a traditional policy of very long standing. The civil marriage was government attempting to insert itself into what had always been a people’s right, making a marriage license a necessary element for inheritance.
Napoleon pushed the Church out of the driver’s seat and put the State in its place. Gone was the necessity for a religious marriage. Since the state grants marriage licenses, preventing certain marriages based on age or degrees of consanguinity, we can safely dissect away all this hooey about Traditional Policy. It is a matter of legislation, as was Jim Crow, which prevented marriages across racial lines.
The miscegenation laws were done away with: now nobody would dare oppose them.
As for Gitmo and other abuses of executive powers, these are germane to the laws of war. The Geneva Convention only protects identifiable soldiers. The FBI, curiously, successfully resisted orders to torture and it was the FBI who leaked the form and substance of what was going on.Report
As with the Civil Rights Act, which began in fits and starts after the Civil War, leading to the era of Jim Crow, then Brown and finally the practical application of the Civil Rights Act for women with the Pittsburgh Press case, it was first a matter of Executive decision making. When Eisenhower sent in federal troops to enforce Brown, the end of segregation was apparent.
And it took Executive powers to force the hand of the bigots in every single civil rights issue.Report
Well, for one, I supported ending the filibuster back in ’05 when there was the threat of it by the GOP over judicial nominees. The filibuster is one of the most anti-progressive things about politics in this nation (ranking second only to the Senate in general), so getting rid of it would be a plus in the long-term for us on the left.
On your overall point, I have no doubt that President Romney, Palin, or Pawlently will do what you said above about a gay marriage or school prayer case if they get in office, so what’s the point of Obama standing on principle? Especially when there is no Constitutional duty for him to do so. For once, Obama isn’t taking the high road and that’s a good thing.Report
“Especially when there is no Constitutional duty for him to do so.”
This point must be kept in mind. The Constitution does not provide for the Executive, or Judaical branch, to determine constitutionality. I’m happy courts assumed this duty. It seems to have provided for stability. The courts will deal with DOMA regardless of DoJ input.Report
“Deciding the latter issue only with a view to the former is just bad governance. ”
Worse than trying to use legislation to discriminate against a minority? Methinks your concept of “good governance” is a bit too, um, process-oriented.
(PS….I think you just found a form of coercion you’re comfortable with.)Report
You’re confusing two very different aspects of law.
One aspect concerns how laws are adopted and then checked for constitutionality. It’s important to get this aspect right, because if we do, it will tend to weed out bad laws over time. If we get it wrong, it will tend to encourage and protect bad laws.
The other aspect of law concerns how the law treats individuals. There are important questions here, and when we ask them of DOMA, I’d say we also find that DOMA is a grossly unfair law.
That said, I would not want to oppose DOMA in ways that would make it easier for other bad laws to survive or be enacted later on. Process is important, not just results.
So what, again, was the form of coercion I’m comfortable with? I’m not sure I see one here.Report
“Process is important, not just results.”
Yes, but where do you think “bad” laws come from? They don’t just bubble up from the ether. Every single bad law ever signed made it through the process.
So yes, the process is important. But rarely –if ever– is it more important than the result.
As for the coercion issue, do you think the administration should be compelled to defend legislation they don’t support out of concern for “process?” Or can they have some leeway in how they should expend their resources?Report
Process isn’t a perfect guarantee, of course, but it is valuable and worth preserving.
The administration should be held to it, in part at least because they signed up for the job and knew what it entailed beforehand. Arguably, this does not include defending laws that they cannot reasonably defend, but that still doesn’t mean coercion comes into play. Agreements are to be kept, as are oaths of office.Report
So we can agree that process is important and worth preserving, but it’s not the only thing? Or even the most important? Sweeet!
(I mean, I don’t think either of us would defend Obamacare based on the process of its passage, would we?)
As for agreements or oaths, the administration is still obligated to enforce DOMA. But which agreement or oath says they have to defend it in court?Report
So we can agree that process is important and worth preserving, but it’s not the only thing? Or even the most important? Sweeet!
No, we can’t agree. Not if you’re willing to establish a bad process simply to stop a bad law.
I am not saying that process “is not the only thing” or that it’s not “the most important.” I’m saying that we should keep questions of process carefully separated from questions of policy whenever it’s at all possible. They shouldn’t be competing with one another at all, ideally, because we don’t want to be settling process questions based on short-term considerations that are likely to change with the next Congress or the next presidency.Report
“I’m saying that we should keep questions of process carefully separated from questions of policy whenever it’s at all possible. ”
How do you square that with what you’ve written on the Constitutionality of the individual mandate?Report
I don’t see a conflict here. The Constitution contains nothing authorizing the individual mandate as well as some strong suggestions that it is inappropriate.
The right outcome, then, is that the law is not constitutional. The right process to reach that outcome is for the courts to declare it as such — a power no one at the founding seriously doubted that they had, and that has since been confirmed by very solid judicial reasoning.
Another right process would have been for Congress to vote against it, on the grounds that it was unconstitutional, or for the president to veto it, again on the same grounds. Procedurally, both of these would have been proper.Report
I think the concerns are overblown for a few reasons:
1. There’s probably standing for Congressional supporters and even others to defend the law. If they hire bad lawyers who fumble the arguments, well Bush demonstrated nicely that it’s equally possible to have a Justice Dept. run by an idiot. A real lawyer might provide more here….
2. “Friend of the Court” briefs are filed all the time in important Constitutional cases. Whether the law is defended by the administration or a bumbling lawyer hired by conservative Congressmen, plenty of other lawyers can and will chime in with what they think are the best legal arguments for and against the law.
3. Judges themselves are not bound to the arguments they hear. Just because Justice Thomas or Scalia do not hear anyone on the law’s side doesn’t mean they must accept the plantiff’s theory that gay rights should be subject to strict scrutiny and DOMA declared unconstitutional. Court cases are not trials by fire. It’s not about which side puts up a better fight, it’s about which arguments work. Just because one side doesn’t make a good argument doesn’t mean that judges are excused from considering it.
This all leads to the question of so what? Whether your talking the health care mandate, school prayer or DOMA are judges really ignorant of the various arguments and need the input from DoJ lawyers? This doesn’t seem like a trick to do an end run around Congress by having allies outside the Exec. mount a court challenge to a law and then have the Exec. decline to defend the law. In such a case the judges probably wouldn’t be hampered by the lack of a defense in protecting a Constitutional law from unfair attack. I suppose this may be a factor if you had a very obscure law with some technical details that maybe only a few DoJ lawyers have bothered enough to give it a really good defense, but I can’t really imagine a plausible hypothetical example. When you’re talking about high profile cases like gay rights, abortion, the health care bill, etc. it’s really hard to see how the DoJ getting on or off board in defending a law would make a material difference in the outcome.Report
This says exactly what I was thinking regarding the thrust of Kerr’s argument – there are plenty of other people beside the DOJ and the Solicitor General that are always arguing in some court or another about the constitutionality or lack thereof of this or that.Report
Kerr has and update.
http://volokh.com/2011/02/24/federalist-society-podcast-on-the-governments-duty-to-defend-the-law-and-a-few-more-thoughts/Report
You mean as they’ve done on many occasions in the past? If that happens and the case has no precedent in the circuit, and neither Congress nor SCOTUS decide to participate in the lawsuit, then I would concede that the none of the three branches have the capacity to continue the appeal … even if it’s a law I really really like.
Your larger point about not overturning bad laws using bad process is noble, but is that really the case here?Report
Your larger point about not overturning bad laws using bad process is noble, but is that really the case here?
It might not be. Kerr himself has walked back a bit since the post I quoted.Report
At risk of getting slightly law-nerdy, I think the comparison between the signing statements and this action is illustrative. I don’t (and didn’t) think there is anything wrong with a sitting President issuing a signing statement clarifying its position on the meaning of more or less ambiguous portions of a law or bill. Where Bush ran into trouble, at times, was that he both read ambiguity into laws where none really existed and that he used signing statements as a sort of line-item veto by not only deeming certain portions of laws to be unconstitutional (using some shall we say “radical” views of executive power) but also saying that he was not going to abide by those laws. I think the instance of Obama (through Holder) saying that he doesn’t think a certain section of DOMA is defensible constitutionally is different in kind than him going the next step and saying “therefore, in the absence of court action on this law, I refuse to enforce it”.
In reality, I don’t think Obama’s decision alters the legal landscape one iota, as SCOTUS will almost certainly hear the case, and the law’s defenders will be well represented. The announcement has far more political than legal effect.Report
SCOTUS will almost certainly hear the case
Probably so.
and the law’s defenders will be well represented.
You mean, it won’t be the same dufuses that defended Prop. 8?Report
Saying it will get the best possible defense doesn’t compel there to be a possible defense existing…Report
I think there’s a useful parallel to DADT. DADT wasn’t “struck down by court action”. It was repealed by a legislative act. Which is how the system is supposed to work.Report
It’s one way the system was supposed to work. Checks and balances require checks and, er, balances.Report
All the people who harmed by the end of DOMA have standing to argue in its favor. Or would, if there were any.Report
The problem with that is that DOMA will not be ending.
It will still be on the books but not enforced.
I think that we’d be better off in the long run if we let those who claim to be harmed SSM argued for DOMA to last in court even as the gummint refuses to.
If it comes out that they’re full of crap, awesome! Hurray!
If it comes out that DOMA is upheld and has to go to the next level of courts, boo!!! BOOOOOOOO!
And let the congress overturn it through legislation. Or let the courts overturn it.
I’m not crazy about laws that are not enforced staying on the books.
Enforce them or take them off the books. I would prefer the latter… and I suspect that the former would lead to the latter, in time.Report
Jay I agree.
I don’t think that will be a problem in this specific case though.Report