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  • Obama Drops Pretense, Administration Will Not Defend DOMA

    Today, President Barack Obama concluded, and Attorney General Eric Holder announced, that the administration will not defend the Defense of Marriage Act (DOMA).  DOMA defines marriage as between a man and a woman for the purposes of federal law, and clarifies that no state has to recognize a homosexual marriage from another state.  The President’s announcement is refreshing in its honesty, at least insofar as it drops the farce that the administration has been offering anything even remotely approaching a vigorous (and professional) defense of the federal statute.

    On this count, even supporters of gay marriage have acknowledged that the Justice Department’s non-defense of DOMA to date has bordered on creating collusive litigation, and concluded that the “DOJ’s faint-hearted advocacy is no way to run a legal system.”  So, notwithstanding the President’s desire to undermine DOMA, his non-enforcement may actually bolster its prospect in the courts: by getting out of the way, the Justice Department will make way for competent and vigorous legal defense of the statute.

    But the President’s decision is nonetheless a serious one.  While the President has a duty to interpret the Constitution through his decisions to enforce statutes, it is the well-established  policy of the Justice Department to defend a federal statute unless no reasonable argument may be made in its defense, or unless the statute would infringe on some core presidential constitutional authority (that is, the President doesn’t need to vigorously defend a federal statute that he believes infringes on his Article II power).  Applying this policy, the Executive Branch has traditionally defended federal statutes vigorously, even in cases where it had strong constitutional doubts, and where it had strong policy reservations.

    For example, in his signing statement for the Bipartisan Campaign Reform Act, President Bush expressed his view that certain provisions of the act were likely unconstitutional.  Yet, the President and his Justice Department, through Solicitor General Ted Olson, vigorously defended the entire bill, including those constitutionally deficient provisions.   Olson succeeded in his defense, although he successfully attacked provisions of the same bill as unconstitutional after he left the Justice Department.

    There are reasonable legal arguments to be made in defense of DOMA.  The Justice Department’s failure to make them to date, and the President’s abandonment of the case, appear to be judgments made not based on a determination of the availability of reasonable legal arguments, but based upon the policy preferences of the President.  That has never been the standard used by the Justice Department or any prior administration.

    The President is now required by federal law (28 U.S.C. § 530D) to file a report to Congress within 30 days explaining the decision not to defend the law, “including a complete and detailed statement of the reasons for the policy or determination . . . .”  The courts of appeals will need to appoint counsel to defend the law.

    Members of Congress, consistent with the law of standing, should seek to intervene in the case or file amicus briefs to assure that DOMA gets the vigorous defense that should be afforded to all federal statutes for which reasonable legal arguments may be offered – and which the President is refusing to provide.  Furthermore, the court should give special consideration to such intervening or amicus briefs as statements of the federal government in support of a statute, given the complete failure of the President to carry out his constitutional duty to “take care that the laws be faithfully executed.”

    Posted in Legal [slideshow_deploy]

    20 Responses to Obama Drops Pretense, Administration Will Not Defend DOMA

    1. West Texan says:

      Who made Obama lord and dictator? I didn't know he was authorized to ignore, change or interpret law. We might as well eliminate congress and the court. Given Obama's action, the other two institutions are totally unnecessary and useless when you have Obama and his power grabbing cronies on hand. Sound like national socialism? You bet it does. And far left protesters in Wisconsin have the ignorant nerve to accuse Walker of such leanings.

      • East Pennsylvanian says:

        As chief executive Obama has the power to enforce the laws as well as ignore him. Congress is able to challenge this power through the justice department, but they have not. Most likely due to their lack of argument. The law should have not been passed in the first place due to its un-constitutionality, it violates the Full Faith and Credit Clause by saying that other states have the power to ignore other states laws to allow homosexual marriage. Obama is doing the right thing by ignoring the law and he should take it to court to show that it is un- constitutional.

    2. West Texan says:

      PS: the combined affronts of Obama's order are demonstratively moral nihilism.

    3. Jackson H. says:

      Hi Hans,

      I was just wondering: You say that Congress should seek to intervene to defend DOMA in these cases. Could you point me in the direction of some statute or precedent that might give Congress such standing? I just can't seem to find any!



    4. Bobbie says:

      Of course Obama won't defend anything that's common knowledge. He pretends and then his truth comes through. That's why his "words" are untrustworthy as his actions confirm it.

      Marriage consists of one of each gender that no other institute does. If people don't want to accept the definition, it's their ignorance and lack of reasoning the President is proud to defend. .

    5. Wildcat from Dallast says:

      Since when does a President get to decide which laws he will defend or enforce and those which he will order his Attorney General to ignore?

      How about if we the people ignore him and his entire administration and simply refuse to follow everything he has enacted by executive order or signed into law as apparently the rule of law does not pertain to him so why should we be concerned with it as well?

      Can’t we send this jack-wagon to rule and ruin some banana republic rather than creating one here?

    6. Charlie Barrett, Flo says:

      What if some future president decided that he didn't like the racial discrimination laws – Or privacy laws. Or child labor laws – could he refuse to defend those too, allowing them to die in court, even though it was obviously the will of Congress to pass those laws? I think not.

      I don't really care about this particular law one way or another, but the precedent of the Executive deciding whether to enforce laws or not is absolutely horrifying. It's always amateur hour with Obama and Holder. They both may be lawyers, but I don't think they ever took a civics class, and certainly never consider unintentional consequences.

      I think this is intentional "Malfeasance in Office", an impeachable offense. It reminds me of their refusal to enforce immigration laws too – Another thing that they should be impeached for.

      They are OBLIGATED to enforce and defend laws, whether they like them or not. Only the Courts and Legislature can decide whether a law should be enforced or not. It's the President's and Attorney General's responsibility to carry that out.

    7. Melissa, Indiana says:

      "There are reasonable legal arguments to be made in defense of DOMA."

      Ah, but see, there really are not "reasonable" legal arguments to be made in favor of DOMA. There's only arguments with an increasingly flimsy illusion of "reason," "rationality," and "logic." They're all just a mask to disguise imposed religious preference, fear, paranoia, and social control.

      But you say, "Marriage has always been between a man and a woman." So what? Marriage also used to mean the man owned his woman, or women, as property and in many places of the world still do. But do we adhere to that standard here anymore? No, we changed what marriage meant in that regard long ago.

      "Marriage is a religious institution."

      Well, legally, a man and a woman in our country can go to almost any courthouse and have a totally secular ceremony with no religious context in order to gain all the government recognition as any couple married in any church or synagogue.

      "Marriage is for raising children." Tell that to any elderly couple whose life partners have already passed on, and who later met one another and decided to live out the rest of their days together long after their child-bearing days are gone.

      Alternately, tell that to any number of young couples who have children and never marry each other. "Oh, sorry, we're going to take these kids only because you don't have a husband. Nothing to do with your skills as a parent, only marriage is for raising children. Good day!"

      "It was Adam and Eve, not Adam and Steve!" Grow up.

      The only reason to defend something like DOMA, as much as I'm sure following commenters will foam and spittle all over their keyboards and monitors to do, is heartlessness. Pure heartlessness. The desire to deny something to someone else simply because you think they deserve to suffer for not being like you. That's it. There is no reasonable cause, heartlessness is the only one. If you insist on denying marriage rights to same-sex couples, then at the very least, man up and admit to yourself that you do so purely out of heartlessness, and then carry on. It might not be right of you, but it will at least be honest. Don't kid yourself that it's anything else otherwise. Own your truth.

    8. Kevin says:

      I am really uncomfortable with the government poking around it's citizens private affairs. I am unsure if it is possible to vigorously defend a law that, for the first time in US history, codified discrimination. Who's next? What happened to focusing on jobs, economy, etc?

    9. Pingback: Obama Drops Pretense, Administration Will Not Defend DOMA « South Capitol Street

    10. Pingback: Tweets that mention Obama Drops Pretense, Administration Will Not Defend DOMA | The Foundry: Conservative Policy News. -- Topsy.com

    11. Merlin Cavallin, Chi says:

      Hi – thanks for your article. It is very well written. I think you should reconsider your assertion that the decision not to defend the constitutionality of a federal statute is unprecedented to this. While it is rare, it has happened before. One such example is with Wilson and the Myers vs. US case. Like the DOMA matter, and like other examples where the executive branch has declined defense of a federal statute, Wilson declined defense because he thought the matter was not constitutional. (With regard to the Myers vs. US – it was later struck down by the Supreme Court.)

      I am also curious as to whom you think will provide the rigorous defense of DOMA now that the Justice department is not involved? Is there precedent for private action on such a matter? What private citizen would be wronged and by what measure to warrant private defense of this matter?

    12. Frank Provase, Fort says:

      The Republicans have demanded that Obama not enforce "Obamacare" because they feel it's unconstitutional. A few Republican governors have stated that they intend to deliberately refuse to follow the new health care law. But here is the case of Obama simply refusing to CHALLENGE a law that is most likely unconstitutional, and the Republicans are going NUTS.,..

    13. Bobbie says:

      You're absolutely ridiculous and intolerant of a definition, Melissa. Homosexuality was around since the beginning of man's self gratifications. Marriage is an institute of one of each gender. You grow up now, girl.

    14. John Frei, Washingto says:

      It is the President's right to disagree with a law, but it is also his DUTY to uphold the current laws, and this is yet one more piece of evidence showing Obama's contempt for the American people, the Constitution and the rule of law.

    15. To the one who posted about the Tea Party agenda, as if everybody agreed it was a problem, please consider this viewpoint. And about 10 more from different angles.

    16. Mark Simmons, San Jo says:

      Let's cut to the chase, this is just more proof that this President is totally unqualified and in dereliction of his duties as President.

      We did not elect a king, we elect a president. He is head of the Executive Branch. He is not the head of the Judicial Branch. It is not his job to rule on the constitutionality of federal law.

      He is not the head of Congress, which is empowered to enact laws. It is not his job to change law.

      It is his job to enforce and defend the laws of the land.

      But these fundamentals of our Constitutional Republic elude him, or he chooses to ignore them. Either way, he is derelict in his duties and therefore unfit for office.

    17. Manuel Little says:

      This article brings up the distinction between what Obama has done in refusing to DEFEND a law passed by Congress (DOMA, Defense of Marriage Act), and what other USA Presidents have done in refusing to defend another law passed by Congress. It has to do with:

      "appear to be judgments made not based on a determination of the availability of reasonable legal arguments, but based upon the policy preferences of the President. That has never been the standard used by the Justice Department or any prior administration."

      In other words, from a legal point of view, this refusal by a President and staff, to defend a law is unique, it has a novel angle, and is different than the previous instances. Opponents of DOMA will avoid mentioning this distinction, as you can easily verify by a google search.

    18. rearl says:

      First They came… – Pastor Martin Niemoller …

      "First they came for the communists,

      and I didn't speak out because I wasn't a communist.

      Then they came for the trade unionists,

      and I didn't speak out because I wasn't a trade unionist.

      Then they came for the Jews,

      and I didn't speak out because I wasn't a Jew.

      Then they came for me

      and there was no one left to speak out for me."

      What will this administration come for next?

    19. Brandon Cannon says:

      1th of all the law is not fair to gay people, as a gay person i am glad mr obama is not defend DOMA. The only reson people are calling socialism is because they dont like what he's doing. Get over it, its 2012, gays are no longer going to satnd by and be treated like dirt

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