Is There Any Precedent For Obama’s Big Decision To Stop Defending A Law He Deems Unconstitutional?

Powered by article was written by Michael Tomasky, for on Thursday 24th February 2011 12.47 UTC

This one is a little bit deep in the legal weeds, but I think this provides fascinating background into Obama and the Justice Department’s decision announced yesterday about the constitutionality of the Defense of Marriage Act.

You’ll recall from yesterday’s post that Eric Holder announced that the DOMA law’s Section 3, holding that marriage is only between a man and a woman, is unconstitutional. Holder’s letter went on to say that the administration would enforce the law when it had to, but if and when the question of that provision’s constitutionality came up in a court of law, it would not defend same.

I began wondering, is there precedent for this? And it turns out there is. There isn’t very much precedent, but there’s precedent, and the precedent that exists is really interesting, which is why I thought I’d share it with you.

It’s all summed up in this post by Marty Lederman from a legal blog written in 2005. Lederman was then at Georgetown law. He’s now a deputy assistant attorney general.

Lederman writes that back in 1990, the acting solicitor general of the US (the president’s and executive branch’s lawyer) urged President G.H.W. Bush to declare unconstitutional a provision of a big telecommunications law. The provision in question held that companies with a certain percentage of minority employees and board members would be given preferences in the awarding of broadcast licenses. These are what we call in the US minority set-asides, and conservatives have fought them for a long time.

Why was Lederman writing about it 15 years later? Because the acting SG in question was John Roberts, then up for chief justice of the US Supreme Court.

The really interesting wrinkle in this case was that Bush 41 himself had signed the law! What’s more, he (a Republican president) had appointed three members to the Federal Communications Commission who supported minority set-asides (those were different times, as Lou Reed sang, eh?).

But Roberts persuaded the administration to latch on to a case that might end with the set-asides being declared unconstitutional. It did so, but Roberts lost at the Supreme Court, 5-4.

Lederman concludes:

I should make clear that I although I do not agree with the substantive equal protection argument that John Roberts made in Metro Broadcasting, I do not think it was plainly inappropriate for the Acting SG to file a brief attacking the statutes, assuming the President had concluded that they were unconstitutional and that it was in the best interests of the United States that the Court apply strict scrutiny to federal affirmative action plans. [italics his]

I’m a non-lawyer, but this makes sense to me. This is part of the Crackerjack prize that comes with winning elections. You’re the president – you get to decide, up to a point, what’s in the best interests of the United States. That obviously doesn’t mean you get to wake up one day and decide the First Amendment isn’t in the best interests of the United States. But it does mean that your lawyers, the country’s lawyers (in the DoJ), can make reasonable findings on matters that aren’t truly settled, which gay marriage obviously is not.

And yes, this means that President Pawlenty’s DoJ in 2015 or 2019 could find that the individual mandate (assuming for the sake of argument that it lasts that long) is unconstitutional. Again, it’s part of the Crackerjack prize. It’s part of why the two sides fight so hard over who gets to be president.

All that said, I am aware that this is a sort of side-door way for Obama to come out in support of gay marriage. But apparently the department’s hand was forced by two lawsuits coming up on which it had to deliver opinions by March 11. From today’s NYT story:

For technical reasons, it would have been far more difficult — both legally and politically — for the administration to keep arguing that the marriage law is constitutional in these new lawsuits. To assert that gay people do not qualify for extra legal protection against official discrimination, legal specialists say, the Justice Department would most likely have had to conclude that they have not been historically stigmatized and can change their orientation.

Can you imagine a Democratic president’s lawyers arguing that?

Finally, conservatives will inveigh against what Obama has done here in this fashion, also from today’s Times piece:

“It is a transparent attempt to shirk the department’s duty to defend the laws passed by Congress,” Representative Lamar Smith, the Texas Republican who is chairman of the House Judiciary Committee, said in a statement. “This is the real politicization of the Justice Department — when the personal views of the president override the government’s duty to defend the law of the land.”

Just remember when you hear that over the coming days and weeks that it was a Republican administration that laid the groundwork for this. And that the solicitor general who instigated it was not just any conservative, but a revered member of the flock, Mr. Umpire himself, the man who says that judges are just supposed to call balls and strikes. © Guardian News and Media Limited 2010

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  • Cam

    Obama and the DOJ kept claiming that they HAD to defend any law…people kept pointing out that this was a lie…

    Bush refused to defend ACLU et al., v. Norman Y. Mineta,
    Clinton refused to defend Dickerson v. United States.,
    George HW Bush refused to defend Metro Broadcasti­­ng v. Federal Communicat­­ions Commission­­.,
    Ronald Reagan refused to defend INS v./ Chadha – “Chadha.,

    Additional­­ly, all joined in lawsuits opposing federal laws that they didn’t like, laws that they felt were unconstitu­­tional. It is an outright lie to suggest that the DOJ had no choice.

    So traditiona­­lly the President only defends these cases when he wants to and is perfectly within his rights to oppose them.

  • David Gervais

    Thank-you Cam.

    Recently, Gov. Schwarzenegger and A.G. Jerry Brown did the same thing to prop. 8.

    “unconstitutional and that it was in the best interests of the United States that the Court apply strict scrutiny to federal affirmative action plans” Judge walker said much the same thing in his decision.

  • reason

    @Cam: In the end it is executive overreach no matter who did it, and moves the country towards a executive that is a dictatorial overlord. The fact that drug dealing Reagan and Bush II did it doesn’t exude me with confidence, when did they become the gold standard for holding up the spirit of the constitution? The president is not the legislative or judicial branch, when he interjects his powers into those realms he is eroding their power and degrading the checks and balance put into place to prevent us from a tyrannical executive who may wind up in the oval office one day. Change is slow, but it is slow for a reason; the people need a chance to examine what the government is doing to prevent a situation where they turn into the bosses of the people. I will be pleased if DOMA ends and am grateful for the presidents love for this community, but a spade is a spade. Bush tortured people in his term now should a future president be able to look back and say that regardless of the spirit of the law Bush did it and got away so then I get to do it to in the name of “tradition”? So Bush gets to legislate the legality of torture merely by his actions, with no debate and not one paper circulated through congress? Is that the new standard of legislation?

  • DavyJones

    @reason: Obama isn’t striking down the law. He is saying his office will no longer defend it in court; which he does *not* have an constitutional requirement to do. He has said (through the AG) that the law is still in effect, and he will still carry it out until either Congress or the Courts strike it down.

    He is well within his powers to do what he’s doing; His job is to “take care that the laws be faithfully executed”. He doesn’t have to defend their constitutionality in court.

  • justiceontherocks

    @DavyJones: you won’t get anywhere confusing uneducated people with the facts. Especially when they throw around words like tyrannical. Very typical of a teabagger.

  • Scott

    @Cam & @Reason

    Thank you for thoughtful and reasoned posts.

  • Samuel

    @Reason also fails to understand that Congress, who passed the law, can defend it in Court. They can appoint special counsel to defend it if they choose.

    If the Constitution is THE law of the land, and the President believes DOMA and the Constitution cannot be reconciled, then there is little logic to an idea that he is constitutionally bound to defend DOMA.

  • TwlightoftheDogs

    @reason: Enforcement does not require that the President defend it in court. He can still enforce the law (as Obama is doing) and still ask the court to find a law unconstitutional, which is also what he’s doing. You and other conservatives are quite stupid on this subject. And, yes, I just got through reading your argument on right wing web sites so don’t try to pretend its not from them that derive your weak argument. Ultimately, the the problem with your argument is that it leads to an absurdity. Congress passes a law that says the President should discriminate against blacks based on race. Should the president defend that law in the S.Ct. if he believes that its unconstitutional? The answer is not yet he must. What he can do, and rightly do, is to ask for an injunction against enforcement immediately so that he will not have to do so, and that he doesn’t want to defend it on those grounds. Your definition of the separation of powers would render the Presidency as serving the Congress and the COurts. These balancing test, which is what we are seeing here, are attempts to protect the co-equalb ranch status. Your argument ironically would result in an overreach. Something you won’t hear from conservatives. Compare this to Bush, which was overreach, in which Bush did not ask a co equal branch to decide.

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