Thursday, February 24, 2011

Does The President Have the Courage of His (Purported) Constitutional Convictions?

Had the Courage of His Constitutional Convictions

Earlier today, Attorney General Eric Holder announced that the Obama Administration will no longer defend Section 3 of the Defense of Marriage Act. Here is a portion of his statement.

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur in the President's determination."

In other words, both President Obama and Attorney General Holder In other words, both President Obama and Attorney General Holder believe that DOMA's discrimination against gays and lesbians is more analogous to discrimination based on race or religion and thus subject to heightened constitutional scrutiny than, say, discrimination based on age, which is subject only to minimal scrutiny. Because the President and Attorney General cannot imagine a strong government interest justifying such discrimination, they will refuse to defend the law they have enforced and then defended for the past two years.

At the same time, Attorney General Holder's memo states that the Executive Branch will continue to enforce DOMA, that is, will continue to enage in the very discrimination that the President says violates the Constitution. As Holder put it: "Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President informs me that the Executive Branch will continue to enforce the law."

While some are praising his decision, others are criticizing the President for declining to defend a statute passed by Congress, particularly a statute that the President has enforced and defended for the first half of his Administration. For instance, Orin Kerr at the Volokh Conspiracy has suggested that the failure to enforce the statute is an "Executive Power Grab." He also also noted that, if the current President can refuse to defend DOMA, then a future President, perhaps a Republican, could decline to defend the coercive individual mandate contained in the recent health reform legislation, if that President believes there are no reasonable constitutional arguments in defense of that mandate. (See Kerr's post making this point here.)

My own take is a little different from that of Professor Kerr and other critics of President Obama's action. That is, unlike Professor Kerr, who believes the President has gone too far in using his office to further his constitutional vision, my own view is that he has not gone far enough.

As previously explained on this Blog, Presidents may decline to enforce statutes they believe to be unconstitutional, without waiting for a court to pass on the enactment. Indeed, at the Pennsylvania Ratifying Convention, James Wilson, a prominent founder, justified judicial review by arguing that the President could decline to enforce an unconstitutional statute and that, by analogy, judges could also review statutes to determine their constitutionality. James Madison explained that each Department or Branch of government had to interpret the Constitution for itself when carrying out the duties that the Constitution assigns to them, including, for instance, the execution of statutes. Moreover, students of Constitutional Law will remember Myers v. United States, which arose because President Woodrow Wilson fired and stopped paying a postmaster, contrary to a statute that required Advice and Consent of the Senate, which Wilson did not even attempt to obtain. (The Supreme Court upheld Wilson's view that the requirement of Senatorial consent was unconstitutional, without questioning his decision to fire the postmaster.) And, of course, in his first innaugural address, President Lincoln, pictured above, famously announced, as he had argued in the Lincoln-Douglas debates, that he did not consider himself bound by the Supreme Court's decision in Dred Scott v. Sanford, except with respect to the actual parties in the case. Thus, Lincoln ordered the Executive Branch to grant patents and passports to qualified African-Americans, even though Dred Scott had held that African-Americans were not citizens and thus, by implication, not entitled to such statutory benefits, because he (Lincoln) believed that Dred Scott was simply wrong.

Thus, President Obama's approach seems internally incoherent. On the one hand, he claims that he will not defend DOMA because it is unconstitutional, indeed, so unconstitutional that there are no reasonable arguments in support of the statute. At the same time, the President and his Attorney General both assert that they will continue to enforce what they believe to be a blatantly unconstitutional law. Huh? If DOMA really is so blatantly unconstitutional, because it works unconstitutional discrimination, analogous to discrimination based on race or religion, should not the President simply refuse to enforce DOMA altogether? Imagine if, instead of classifying individuals based upon their sexual orientation, DOMA classified individuals based on race or religion and, for instance, denied federal benefits to Catholics or Asian-Americans lawfully married in their state of residence. Would President Obama and Attorney General Holder enforce such a statute, forcing affected indiviuals to challenge it in court? Certainly President Lincoln would not have enforced an enactment he believed to be unconstitutional, and I hope President Obama and Attorney General Holder would follow Lincoln's lead in such a situation. Why President Obama nonetheless continues to enforce DOMA, given his purported belief that the statute is plainly unconstitutional, is perplexing and causes this blogger to wonder whether President Obama is as certain about his constitutional views on the subject as Attorney General Holder's statement suggests.