defend this

Actually, Mr. President, The DoJ Does Choose Not to Defend Discriminatory Laws


Despite what Barack Obama wants you to believe, the Department of Justice has a clear history in picking and choosing which laws it will uphold and defend in court, and those it will not — on the basis of discrimination. So while the DoJ’s latest DOMA brief was “applauded” for not, say, arguing gays getting married is the equivalent of letting humans marry oxen, it’s still a giant crock of shit. And a cop out. And not, in any way shape or form, a necessary position for the government to take.

With a second chance to appeal to the gay community with Smelt v. United States, the DoJ is hanging on to the argument that it must defend the Defense of Marriage Act because it’s a law that’s on the books. This, even though Team Obama acknowledges the law sucks! Actually, a DoJ spokeswoman said the law is actually “discriminatory.” Discriminatory! As in, it violates the 14th Amendment’s Equal Protection clause!

And yet, because Congress passed DOMA, DoJ must defend it. Or so his minions like Eric Holder argue.

Then how come the Justice Department’s history is riddled with examples of this “defend laws at all costs” mantra … not being true?


In fact, the very man who argued DoJ doesn’t have to defend every law on the books is a man named John Roberts. You might know him, now, as the chief justice of the Supreme Court. But back in 1990, when he was a DoJ attorney, Roberts “was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing,” wrote former Clinton administration DoJ counsel Marty Lederman in 2005; Lederman is now a deputy assistant attorney general to President Obama. Continues Lederman (read this):

As a general matter, the Department has traditionally adhered to a policy of defending the constitutionality of federal enactments whenever “reasonable” arguments can be made in support of such statutes — i.e., whenever the constitutionality of the law is not fairly precluded by clear constitutional language or governing Supreme Court case law. This practice has been predicated on the notion that because the political branches — the Congress that voted for the law and the President who signed it — have already concluded that the statute was constitutional, it would be inappropriate for DOJ lawyers to take it upon themselves to reject the constitutional judgment shared by the President and the legislature.

There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn’t really an “exception” to the “rule” as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute’s defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ’s view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the “must-carry” provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.)

So why is Obama trying to rewrite history and say the DoJ must, under all circumstances, defend DOMA? Good question. John Cloud thinks it’s just politics, and he’s almost certainly right. Time‘s Cloud writes, “As Eugene Volokh of UCLA told me Aug. 18, there is nothing in the constitution or the law that would have prevented the Department of Justice from sitting on the sidelines in the DOMA case.”

And while the case can be made that Obama doesn’t want to follow in George H.W. Bush’s footsteps, allegedly cherry-picking which laws to defend, the president’s historical accuracy is a giant FAIL.

Meanwhile, the DoJ’s history not only includes the mere choosing certain laws not to defend, but in the Roberts instance with minority-owned licensing agreements, Lederman says (emphasis ours) “the Department of Justice not only did not defend the federal statutes — it urged the Court to declare them unconstitutional. Acting Solicitor General Roberts, appearing on behalf of the United States as amicus curiae, argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional.” AND: Roberts made this argument even though the case didn’t fit into his original three-pronged explanation of how and when DoJ can choose not to defend a law. “”Acting SG Roberts took this position attacking the federal enactments even though (i) there were more-than-reasonable grounds for defending them; (ii) they did not implicate the President’s constitutional powers; and (iii) the President had not (publicly) indicated any constitutional objection to the provisions. (Not only had President Bush signed one of the laws — he had also appointed three new FCC commissioners who each had expressly supported the diversity preferences in their confirmation hearings.)”

We get it: Obama doesn’t want to appear to abuse his authority — as some claim his predecessors did — by letting DoJ choose which laws it will defend. But his office has a distinct history of choosing not to uphold laws deemed discriminatory.

At the very least, couldn’t their DOMA briefs be riddled with spelling and grammatical errors to make they nearly impossible to interpret? Throw us a bone, prez.

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  • bystander

    Watching Queerty butcher historical legal precedent is about as painful as watching Rachel Maddow smirk through her entire broadcast.

    There is a big difference between the historical prerogative giving the Solicitor General, and the Department of Justice as a whole. The SG only argues cases before the supreme court and is the singular exception to the requirement that lawyers present their client’s case without respect to their own legal opinions. The Solicitor General can, and at times does, forgo legal arguments he feels are without merit. The department of justice does not have such leeway, although it does have some leeway in limited circumstances.

    The current marriage cases are not within the domain of the Solicitor General as they haven’t reached the supreme court. Currently they are being argued by career lawyers who have very little to no discretion in choosing what laws to defend. In defending these laws the Department of Justice is performing its legally mandated duty. Although once the case reached the supreme court the SG may forgo some legal arguments, and may even abandon the case altogether (although that’s highly unlikely), it would be a massive breach of precedent for the Dept of Justice to forgo defense of a statue at the TRIAL level.

  • bystander

    damn it statue>>> Statute, of course, i can’t believe i did that

  • Dennis

    Queerty, sorry but your credibility on legal issues is very inconsistent…it’s kinda like taking healthcare reform advice from republicans. How about some more commentary from non-Obama hating gay attorneys?

    The headline functions nicely to fulfil your daily dose of ‘bama bashing, though…so I guess the ends justify the means.

  • Antonio

    Yet another day, yet another Obama bashing piece! You know, I am OK with calling Obama out for his slow hand in LGBT issues, but when day in day out it’s about bashing him? we start sounding a little like our friend over at the right wing. The sad part is that 2 years from now most of us will be used to this kinds of article that they won’t produce hits for you anymore. I love this site coz I love feasting my eyes on the models but the anti-Obama rhetoric is deafening.

  • JD

    @bystander: You are correct: The current case is not the purview of the solicitor general, but the Department of Justice.

    Which is why it’s important to note, as explained by Lederman (a man much smarter man than I, whose current job is deputy assistant attorney general to President Obama), the DoJ has a history of choosing not to defend certain laws when it deems them to fall into one of the three above mentioned categorical exceptions.

    If the Obama administration so felt, it could determine DOMA to fall into Category 1, where “intervening Supreme Court decisions have rendered the defense of the statute untenable.” That is: If Obama concluded previous Supreme Court rulings made DOMA unconstitutional, then he could follow DoJ history and not defend the law.

    Then there’s Category 3: If Obama himself felt DOMA was “unconstitutional,” he could follow DoJ history and not defend the law.

    DoJ is currently defending DOMA in federal court. As Lederman explains, DoJ has a history of not doing so when it sees laws that fit into one of those three categories.

  • Shelby

    bla bla bla bla bla. same story each day, expecting the same reaction from us. From what I see, some people are beginning to see through your BS. It’s getting boring queerty. Look for someone else to make your punching ball. It can’t be Obama daily. Who was your punching ball before Obama?

  • Cam

    Whatever your views on whether or not it is within the DOJ’s purvew to decide when to defend and not defend, the fact is, it has done so before, and it is an established precedent.

  • No Homophobama

    Obamabots. Gotta luv em. Blinded by beliefs based on what was P.C. twenty years ago.


  • M Shane

    @No. 1 · bystander Thanks for the clarification. Queerty has been a little better about baiting people with confused legal arguements. If you are their , of the three categorical exceptions in # (3) what does it mean,” follow DoJ history “: regarding the particular law or in general?

  • bystander


    Well of course Obama COULD say that there is intervening caselaw which would invalidate the constitutionality of Doma, however i don’t think anyone would argue that is in fact the true. It would be incredibility irresponsible to make use of such a precedent when there is in fact no caselaw.

    As for (3) to my knowledge there is no record of Obama saying that Doma is unconstitutional. I suppose he could speak up now, but I doubt he will.

    Both of these circumstances require established facts in order to be used within current precedent. Obama COULD out of nowhere say he thinks Doma is unconstitutional, or that there is some magic new precedent which invalidates Doma which only he knows about.

    But do you really want such a precedent in place? Where a president can unilaterally decide which statutes (got it right that time) he wants to follow and which are constitutional and which are not? Thats an awful lot of power.

    Also i don’t think it matter very much what the President Decides, to my knowledge it is the legal responcibilty of the Justice Department to defend the statutes of the United States, even if Obama ordered the dept to stand down, it is very possible the Courts would order the department to defend the law, as is there job.

    There are many cases of Judges ordering Prosecutors to continue a prosecution when there is no enough evidence to warrant a withdraw of charges, there is no enough evidence presented to warrant a summary judgment finding Doma unconstitutional, and it is the job of the Justice Department to defend it.

  • ugh

    Dear Japhy:
    Please just stop talking about legal issues.
    The Gays.

  • Quack

    @ugh: Japhy Grant left this site ages ago.

  • M Shane

    No. 10 · bystander Thanks again. The matter often boils down to queerty wanting to push readers here to be antagonistic to Obama, when he has no power . I think that the ignorance with which the country let Bush abuse Presidential power has led people to be confused more than they already were about the separation of powers.
    Especially on such a touchy issue, I think he has to play it absolutely by the books. Any ‘victories’ that would come to the gay causes here are minor and temporary next to the cost they would have for Obama.

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