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.