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On the Alleged Tyranny of Obama’s Refusal to Defend the Constitutionality of DOMA

[ 49 ] February 24, 2011 |

The funniest reaction to the Obama administration’s salutary decision to not defend the constitutionality of Section 3 of DOMA comes, needless to say, from Jeff Goldtsein:

Of course, he doesn’t get to determine that – it was passed by the legislature and signed into law by President Clinton, and so it the duty of the government to defend it — but then, Obama is above the law.

As are all dictators.

We live in a country where the President and his cronies decide what laws to follow and what laws to enforce; what companies are supported and what companies are not; who has to follow comprehensive health care reform and who does not.

Which means we live in a fascist country, ruled by an elected dictator who has positioned himself above and outside the laws he demands we follow — and who has granted himself the right to determine who has to follow what laws, how, when, and why.

That is not freedom. It’s tyranny. Simple as that.

The punchline being that Obama’s predecessor really did believe that he could violate valid acts of Congress and constitutional requirements, and Goldstein was strongly in favor of this. OK, but it’s not exactly news that Goldstein is a buffoon whose views of executive power switch from Carl Schmitt to anti-Federalist depending on the partisan identity of the current occupant of the White House. That still doesn’t make Obama’s actions right if they’re procedurally similar to the Yoovian idea that the laws apply only at the pleasure of the president. As you can see from the comments, many liberals seem to share Col. Mustard’s view that this represents some kind of executive “power grab.” The fact that they’re on the same side as the Duke of Dijon should suggest that their probability of being wrong approaches 100%, and in fact these arguments represent a fundamental misunderstanding of what’s going on here:

  • It’s important, first of all, to emphasize what Obama is not doing — namely, claming to be above the law.   He is not claiming that DOMA doesn’t apply, or that the federal courts cannot adjudicate the constitutionality of the act.  He is not, in the manner of Jefferson or Jackson, saying that he would ignore a court ruling upholding DOMA.  (The Reagan and Bush administrations — as was their right — repeatedly argued that Roe v. Wade should be overruled.   The Supreme Court, as you may remember, declined.)   He’s merely unwilling to argue on behalf of the law’s constitutionality.   There’s nothing about this that is in any way inconsistent with our constitutional framework or the rule of law. The judiciary is not the exclusive interpreter of the Constitution.
  • But, the argument seems to go, what if because of this precedent allows President Palin to refuse to defend the constitutionality of the mandate?   Well, first of all, there’s no precedent being established here.  Saint Reagan himself established “tyranny” in the United States at least twice, and if you think that won’t be enough precedent for a future Republican president you must be too distracted by the attempts to put Reagan’s name on every federal institution and face on every unit of federal currency.
  • But even leaving this aside, if you believe that a Republican president would be bound by past norms you really shouldn’t be permitted to leave the house unaccompanied.    To state the obvious, if he wants to President Barbour will refuse to defend the constitutionality of the ACA, and he would still do it if Obama himself defended DOMA before the Supreme Court.
  • This shouldn’t need to be said either, but the idea that presidents merely mechanically execute laws passed by Congress has never been and never will be how our system works.   How the White House interprets and chooses to implement federal law changes substantially depending on who occupies the White House.   The occasional refusal to assert that a federal law is constitutional is just one variant of this.

In short, this is a procedurally unexceptionable and substantively commendable act. It doesn’t reflect a belief that the president isn’t bound by the law. It reflects a judgment about the constitutionality of one particular law, a judgment that the other branches remain free to reject. Obama is doing the right thing here, and his actions are different in kind, not degree, from Yoovian theories of arbitrary executive power.

UPDATE:  Goldstein continues to assert that Reagan was a fascist. What constitutional or statutory provision requires the DOJ to defend the constitutionality of each and every statute remains unspecified.   What constitutional authority gave gave the Bush administration the power to unilaterally replace FISA is also unspecified.

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  1. NonyNony says:

    I still have to say that I don’t get what is so special about the Second Circuit that the DOJ can choose to do this there and they couldn’t do it before now. And why deciding not to defend this in the Second Circuit is somehow the same as deciding not to defend it at all.

    If there are any pointers anyone can share to an explanation of this point for non-lawyers, it would probably do a lot to clear up any nagging feelings about executive overreach, at least for me. Knowing that “Reagan did it too” is not really helpful, since Reagan did a lot of things he shouldn’t have. Knowing that other presidents will do the same thing in the future is also not helpful, because other presidents will do lots of things they shouldn’t. Knowing that there’s some kind of meaningful standard being applied to say when the DOJ is going to defend the law and when they aren’t would, on the other hand, be very helpful. At least to me.

    • Scott Lemieux says:

      nowing that there’s some kind of meaningful standard being applied to say when the DOJ is going to defend the law and when they aren’t would, on the other hand, be very helpful.

      The standard used in this case was whether the administration believed that the law is clearly unconstitutional. And future administrations will use the standards they choose irrespective of what Obama does.

    • nolo says:

      The reason the DOJ’s in a different position in the Second Circuit is because the Second Circuit Court of Appeals has not yet ruled on the issue of the appropriate level of scrutiny that should be directed to federal laws that treat homosexuals differently from heterosexuals. This, in turn, gives Obama’s DOJ latitude in the Second Circuit that it didn’t have in other circuits where the issue had already been decided.

      Court of appeals rulings are binding within their respective circuits. Since there was already binding law in those other circuits, Obama’s DOJ was stuck with having to defend DOMA in those circuits, since it’s not within the DOJ’s power to decide what the law already is in any particular circuit. Those rulings that upheld DOMA, however, are not binding in the Second Circuit, which has never ruled on the question.

      Because the question is an open question in the Second Circuit, the DOJ has latitude to decide what arguments it believes would be appropriate, and to act accordingly.

      • Bobby Thomson says:

        As I wrote in the new thread, this does not explain the administration’s bold and correct decision that going forward, it will argue for heightened scrutiny in all courts, including those that applied rational basis review in the past.

    • AAB says:

      Nolo gets at most of it, but just to clarify: different types of group classifications are judged according to different standards of “scrutiny.” Most laws that classify groups are judged according to a “rational basis” standard that is, in practice, incredibly easy to meet. (that’s simplifying things a bit. In some cases, courts have applied what is essentially a “rational basis with teeth” standard to laws classifying based on sexual orientation.) Under rational basis, a law must be only rationally related to a legitimate government interest to survive. This is the standard that the First Circuit has already ruled applies to classifications based on sexual orientation.

      “Suspect” classifications, such as those based on gender or race, are judged according to a higher standard of scrutiny. Race-based classifications must survive “strict” scrutiny, which means the law must be narrowly tailored to serve a compelling government interest. In practice virtually no laws survive this standard. It’s “strict in theory, fatal in fact.” Gender classifications are judged under “intermediate” scrutiny, which means the law must be substantially related to an important government interest.

      The Obama Administration’s position in their letter, is, essentially, that they believe it is wrong to apply rational basis review to classifications based on sexual orientation, but that they believe DOMA does pass a rational basis test. Because the First Circuit had already decided that rational basis applies to sexual orientation-based classifications, the Obama Administration felt bound to defend the law. The Second Circuit, by contrast, has never ruled on what standard of review applies to sexual orientation classifications. That leaves the Administration free to express its belief that higher scrutiny should apply, that DOMA fails that scrutiny, and thus that they can’t in good faith defend the law.

      • elm says:

        Wow. Excellent summary. Can you do an annotated volume of all constitutional issues so us laypeople can understand them?

      • NonyNony says:

        nolo & AAB -

        Thank you both. This is exactly the thing I’ve been looking for since yesterday. The decision makes a lot more sense with that kind of background explained – it explains why the latitude in making this decision as well as why people were saying that their hands were tied before. So thanks.

        So another question that then comes up is – if another case comes up in the First Circuit, where the rational basis rule applies, then will the Obama DOJ feel compelled to continue to defend the law in that circuit? And either way can this all be trumped by the Supreme Court if a case makes its way there (perhaps because someone other than the DOJ decides to push it, or if another case from another circuit made its way to the Court)? I would assume that the Supreme Court could decide that the right standard to apply is “rational basis” for all circuits and that then the Obama DOJ would be compelled to defend the law under that standard if it came up. Is that correct?

        • nolo says:

          You’re correct. However, from a practical perspective, it’s really unlikely to come up again in the First Circuit because the First Circuit’s already decided it, so the DOJ’s not going to have to deal with that question. That being said, if it goes to the Supreme Court, the Supremes certainly could adopt the “rational basis” standard, in which case the DOJ and the rest of us would all be stuck with it and the DOJ would have to defend it. Which would suck.

          • Glenn says:

            The only thing I would add here is that just because, say, the First Circuit has decided rational basis applies, doesn’t mean the First Circuit can’t change its mind (i.e., by going en banc if they have to). And nothing prevents the DOJ from arguing to the First Circuit that it should do so.

            • nolo says:

              Oh, I definitely agree from a procedural perspective. From a practical perspective, though, new test cases are not gonna come from the First Circuit. They’ll come from other circuits where there isn’t already a track record.

      • timb says:

        Awesome job. That essay answer would have earned you an A in my Con Law class

  2. JeffG says:

    Obama refuses to defend a duly signed law that has withstood challenge for 16 years. Bush believed the law his administration crafted did not violate the Constitution — a debatable point that took us into the legislative record with respect to FISA and its intent.

    Your argument is that because I criticize Obama for NOT doing what is clearly the job of his Justice Dept, I should have been criticizing Bush for what he thought WAS the job of his administration?

    Really?

    And yet, I’m the buffoon.

    • Walt says:

      Yes, yes you are.

    • DocAmazing says:

      And yet, I’m the buffoon

      This is the most cogent thing you’ve written in years.

    • dave says:

      The law has not withstood challenge for 16 years. It was just challenged and lost. The Bush administration did not craft a law. It concluded that it need not follow a law.

      In addition to these errors, in the excerpted portion of your original post you state that Obama is refusing to enforce DOMA (false) that Obama decides who has to follow comprehensive health care and who doesn’t (false), and that it is the exclusive duty of the executive branch to defend all federal laws in court (false).

      After that many errors in such a short time, an honest person would seriously rethink their original position. Why do I doubt that you will?

    • Scott Lemieux says:

      Obama refuses to defend a duly signed law that has withstood challenge for 16 years.

      ?

      the law his administration crafted

      ?

      The White House can’t create a law; last I looked, that required the majority vote in both houses of Congress. The law that governed the relevant types of surveillance was FISA, and the (lawless) actions of the Bush White House unquestionably violated FISA requirements. Certainly, the Bush administration’s declaration that Article II gave the White House had the authority to ignore acts of Congress based on explicit Article I powers is far closer to “tyranny” than simply declining to defend the constitutionality of a law, just as his predecessors have done.

      While we’re here, could you please cite the constitutional or statutory provision that requires the DOJ to defend the constitutionality of each and every statute? Thanks!

    • PhoenixRising says:

      Yep, you’re the buffoon. The tricky thing you don’t seem to have grasped is, having “withstood challenge for 16 years” is quite a different thing from “having lasted 14 years before being challenged in court”.

      A challenge, BTW, which was successful despite the Obama administration strongly defending the law on the basis that DOJ was required to argue in the 1st CA–rational basis.

      The question here is different. In the cases at hand, the DOJ is not going to defend the notion that the Constitution permits the IRS to seize the spousal inheritance of an 81 year old widow, due to the fact that she picked the wrong gender to marry.

      I’d expect libertarians and buffoons alike to be celebrating the Obama administration getting on the right side of this argument using a particularized, limited tactic…but no.

      • timb says:

        No, every “classical liberal” knows that the government’s power should be limited, except in public decisions like who should get to whom. Then, the Feds need to step in and defend Alabama from all those decorators and theater people from Vermont! Oh, the invading hordes

    • Xenocrates says:

      Yes, yes you are. As to this word “tyranny” you keep throwing around? I do not think this word means what you think it means.

    • timb says:

      This is news? You’re an asshole too.

      Further, you’ve learned your understanding of the law from Mark Levin, who doesn’t know anything that happened in the law since Griswold and Loving made him angry.

      Stick with the faux outrage, so the pathetic white engineers who scream outlaw with you can respond to your blegging.

  3. [...] This post was mentioned on Twitter by LG&M, Scott Lemieux. Scott Lemieux said: Obama's refusal to defend DOMA: the right thing, and not an "executive power grab": http://bit.ly/gZlky9 [...]

  4. [...] let’s see: Obama refuses to defend a duly signed law that has withstood legal challenge for 16 years. Bush [...]

  5. booferama says:

    Just to briefly defend lefties who initially thought Obama was violating the law: a lot of headlines (I’m looking your way, HuffPo) claimed that Obama declared DOMA unconstitutional. Most of the people I know who were initially confused had only seen headlines or skimmed over summaries and missed the substance.

    • Joe says:

      He basically did so declare, but like if I did, it isn’t the end of the matter, particularly since he is still enforcing the law until the courts conclusively agree with him.

    • NonyNony says:

      Believing the Huffington Post really isn’t what I’d call a “valid defense”. It’s like saying “In defense of those folks who think Bat Boy is helping our troops in Afghanistan, the headlines in the Weekly World News claims just that”.

      Sure it’s a true statement, but it really isn’t a defense that people believe things uncritically from a source that freely publishes nonsense every day. It’s just as bad as using “well, Politico had a headline” as an excuse and almost as bad as “Fox News keeps saying”.

      (On the other hand I’m very sympathetic to folks who could not find a decent explanation for Holder and Obama’s rationale on why this act at this time was within the law when previously they’d said their hands were tied and they had to defend it. But then, I’m in that camp and didn’t get a good explanation until upthread myself, so I would be sympathetic I suppose).

  6. nate says:

    Look, I’m no psychologist, but it seems to me the best way to deal with someone like Goldstein is to ignore him until he goes away.

  7. Dan Nexon says:

    I thought I’d summarize.

    Scott L: The DOJ does not have to defend the constitutionality of federal laws in court. It can even argue against them, as did past Republicans. If future Republican Presidents don’t want to defend the ACA, that’s their right.

    JeffG: Yeah! And what would you say if a Republican President didn’t defend the ACA?! Who’s the buffoon now! Gotcha? Zing! You’re pwned!!!

  8. Needless to say, it would be awkward for JeffG to claim he’s over a barrel and can do nothing to stop this invasion.

  9. [...] is something that binds little people, not Republicans. As for Kerr, as Lawyers, Guns and Money details, this isn’t even remotely comparable to Bush’s torture, eavesdropping and detention [...]

  10. [...] Lawyers, Guns & Money |  “This shouldn’t need to be said either, but the idea that presidents merely mechanically execute laws passed by Congress has never been and never will be how our system works.   How the White House interprets and chooses to implement federal law changes substantially depending on who occupies the White House.   The occasional refusal to assert that a federal law is constitutional is just one variant of this. In short, this is a procedurally unexceptionable and substantively commendable act. It doesn’t reflect a belief that the president isn’t bound by the law. It reflects a judgment about the constitutionality of one particular law, a judgment that the other branches remain free to reject.” [...]

  11. [...] course, other thoughtful people have already said as much; I just wanted to add my voice to Incomprehensible [...]

  12. [...] administration is acting consistently with the values of the Constitution.  Or, as Jeff Goldstein would call it since it’s not Reagan doing it, [...]

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