Searching For Presidential Courage

 

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In today's oral arguments regarding the Defense of Marriage Act ("DOMA"), Chief Justice John Roberts leveled a powerful critique of President Obama's incoherent approach to the statute.  In particular, the Chief Justice questioned the President's continued enforcement of the Act, despite his simultaneous determination that there are no plausible arguments in favor of the statute's constitutionality.  Questioning an advocate appointed to contend that the Court lacked jurisdiction, the Chief Justice suggested that the President should not enforce a statute that he believed to be unconstitutional.

“I would have thought that your answer would be that the Executive’s obligation to execute the law includes the obligation to execute the law consistent with the Constitution.  And, if he has made a determination that executing the law by enforcing the terms in unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait [un]til the Supreme Court tells us we have no choice.”

Readers of this blog may find the Chief's argument that the President must decline to enforce unconstitutional statutes familiar.  Over two years ago, a post on this blog asked whether "the President has the Courage of his (Purported) Constitutional Convictions," after the Obama Administration announced it would continue to enforce DOMA despite its conclusion that there are no plausible arguments in favor of the statute's constitutionality.  As that post pointed out,  Article II of the Constitution, which requires the President to take care that the laws are faithfully executed, imposes upon the President an independent duty to decline to execute laws the President believes contravene the Supreme Law of the Law, namely, the Constitution itself.  Indeed, President Obama has himself asserted the authority to decline to enforce statutes he believes to be unconstitutional.  A previous post on this blog defended President Obama's exercise of this power of Presidential Review, demonstrating that arguments to the contrary contradict the text, structure and history of the Constitution. 

Applying these principles over a year ago, this blog explained:

"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 refuse to enforce DOMA altogether?   . . . . 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."

This blogger is happy to see that the Chief Justice agrees, whether or not he is a reader of this blog!