Meet the New Boss. Same as the Old Boss. (A Continuing Series.)

by Pejman Yousefzadeh on February 24, 2011

I utterly dislike the Defense of Marriage Act. I think that it is a lousy law, that it is lousy policy, and that it should go the way of the dinosaur very soon. But that doesn’t mean that in its decision not to defend the law, the Obama Administration did not show a touch of the Imperial Presidency it spent so much time denouncing when George W. Bush was President. Orin Kerr explains:

In my view, the basic problem with the Obama Administration’s position on the DOMA litigation is the same problem we had in the Bush Administration with its adoption of John Yoo’s theories of Article II. Recall that John Yoo’s theories of Article II power rested on a highly contested set of views about Article II power. By adopting a contested constitutional theory inside the Executive Branch, the Bush Administration could pursue its agenda without the restrictions that Congress had imposed. In effect, the simple act of picking a contested constitutional theory within the Executive branch gave power to the Executive Branch that none of the other branches thought the Exeutive Branch had (and which laws like FISA had been premised on the Administration not having). It was a power grab disguised as academic constitutional interpretation.

Now, I wouldn’t in a million years compare torture and wiretapping with gay rights. Obviously, the subject matter is totally and completely different. But there’s an interesting analytical similarity between the DOJ’s position on DOMA and the Bush Administration’s reliance on its Article II theories. If you look at AG Holder’s reasons for why DOJ won’t defend DOMA, it is premised on DOJ’s adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that “the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA.” This theory is not compelled by caselaw. Rather, it’s a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.

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.

As Professor Kerr notes, this could set a dangerous precedent. “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.” He’s right to point this out as a concern. If one wishes to get rid of bad laws, one has to go through Congress. Deciding to selectively employ executive overreach simply because one may like the policy result in the aftermath just won’t do.

  • gh

    You seem to be confused between declining to defend legislation (which is not new, btw) and declining to enforce legislation. DOMA is still on the books and has not been gotten “rid of,” as you claim. Moreover, Kerr is well on his way to recanting.

    • Anonymous

      Please point out where I wrote that DOMA has been gotten rid of. I discussed the Obama Administration’s “decision not to defend the law,” as mentioned in my first paragraph.

  • gh

    “If one wishes to get rid of bad laws, one has to go through Congress.”

    Seeing as no law has been gotten rid of, what’s your point?

    • Anonymous

      1. Hit “Reply” to my comment, instead of starting a new thread.
      2. My point, as stated by Kerr, is that if “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,” then that “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.” And that’s a bad thing. Additionally–and I am sure that this did not escape your notice–the Obama Administration has adopted this stance because it wants to get rid of DOMA.

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