Justice Department won’t defend the constitutionality of DOMA

[Crossposted at Family Scholars Blog.]

Eric Holder, the Attorney General of the US, yesterday released a letter declining to defend the constitutionality of DOMA, the Defense of Marriage Act, in court.

Well, sort of.

DOMA has two parts: One part, which presumably the Obama administration will continue defending, says states don’t have to recognize same-sex marriages performed in other states. The other part — called “Section 3” — says the Federal government won’t recognize same-sex marriages performed in states where same-sex marriage is legal. (This has practical effects in a bunch of areas: social security benefits, federal taxes, immigration, etc…)

Holder’s letter says the Obama administration will no longer defend the constitutionality of Section 3 of DOMA in court, although they will continue enforcing the law.

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, as 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 have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. […]

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 has informed me that the Executive Branch will continue to enforce the law.

This is a big deal.

But not as big a deal as many conservatives believe.

Jack Balkin, Yale professor of Constitutional law, explains why the decision matters:

Under these conditions, it becomes much more likely that DOMA will be struck down by at least one federal Court of Appeals– possibly the Second Circuit, where the latest cases are being brought–and therefore even more likely that DOMA will be struck down when it finally gets to the Supreme Court. All of my previous predictions as to how constitutional challenges to DOMA will go forward must be revised.

Why is that? Why does a change in the official position of the Administration matter to federal judges? The answer is that when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. […]

The Obama Justice Department’s move will give political legitimacy to judges in the Second Circuit to hold that sexual orientation discrimination deserves heightened scrutiny and to hold DOMA unconstitutional; similarly, it will give political legitimacy if Justice Kennedy someday joins a Supreme Court decision announcing that times have indeed changed and that “[a]s the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.“[…]

When big constitutional changes come, it is usually the result of a series of events that cumulatively change America’s constitutional culture. This is one of those events, and it is quite an important one.

So it is a big deal, and anyone who favors marriage equality has reason to be pleased with the Obama Administration today.

Nonetheless, our friends at NOM have been exaggerating the importance of this. Maggie Gallagher said, “this is a truly shocking extra-constitutional power grab in declaring gay people are a protected class.”

Maggie is mistaken. President Obama stated his opinion that “classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” which is what Maggie means by “protected class”; but the courts are free to ignore his opinion. If anything, far from a power grab, the administration has given up a little power in this case, since defense of DOMA will now almost certainly be taken up by members of the House of Representatives.

The “power grab” language was also used in a blog post by legal scholar Orin Kerr, which was quoted by the NOM blog. In his post, Kerr writes:

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.

Kerr makes an interesting point. But his argument assumes that “challenges to the legislation will go undefended.” Historically, that hasn’t been the case; according to a 1996 memo by the Justice Department (pdf link), Presidents have declined to defend laws they believe to be unconstitutional since at least 1946. In many of those cases, other parties — most often lawyers representing Congress — have defended the legislation in court.

Clearly, that’s what the Obama Administration expects to happen in the case (in his letter, Holder said the Justice Department will “notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation.”). Kerr apparently missed this when he initially read Holder’s letter.

(In a followup post, Kerr admits that it makes a “big difference… if there is a way that others might defend the law if the Administration bows out.” Kerr worries that the process may be difficult; but the fact that it’s been done multiple times in the past suggests that the difficulties will be overcome this time, too.) (For more on this subject, see Ilya Somin’s post.)

Hans von Spakovsky, a Bush administration Justice Department official, is quoted by TPM:

“Congress has granted the Senate the right to intervene or appear as amicus curiae in litigation ‘in which the powers and responsibilities of Congress under the Constitution of the United States are placed in issue,'” von Spakovsky wrote.

“And the Supreme Court has been liberal in allowing legislators to intervene where houses of Congress are defending a statute against constitutional attack,” von Spakovsky said. “There are prior instances of Congress successfully intervening such as INS v. Chadha, where Congress defended the constitutionality of a portion of the Immigration and Naturalization Act.”

There’s virtually no chance DOMA will go undefended. And Maggie Gallagher clearly understands that, writing: “The good news is this now clears the way for the House to intervene and to get lawyers in the court room who actually want to defend the law…”

Kerr’s “power grab” language was based on his mistaken belief that DOMA would be left undefended. But Maggie doesn’t share that belief. So I don’t understand how is her extreme accusation of an “extra-constitutional power grab” can be logically justified. Maggie, if you read this, I hope you’ll leave a comment either supporting or withdrawing that language.

In an even more extreme statement, NOM’s Brian Brown writes:

In a statement released this morning, Attorney General Eric Holder explained that President Obama has decided that the definition of marriage contained in DOMA is unconstitutional…

Nowhere in Holder’s letter does Holder say that the definition of marriage is itself unconstitutional, and it’s frankly ridiculous to suggest that’s what Obama intended. (For one thing, if Obama believed that any definition of marriage excluding same-sex couples is unconstitutional, then logically all of DOMA is unconstitutional, not just Section 3).

A more reasonable interpretation is that Obama believes it’s unconstitutional for the Federal government to response Alabama’s right to define marriage in Alabama, while refusing to acknowledge Massachusett’s equal right to define marriage in Massachusetts.

and has ordered that the Department of Justice should abdicate its constitutional duty and no longer defend DOMA against constitutional challenges.

Since at least the 1940s, American presidents have occasionally declined to defend laws. If this is unconstitutional, where are the court rulings saying so?

And in any case, Brown misleads his readers — the Justice Department presumably still intends to defend DOMA against constitutional challenges. It’s only the final part of DOMA — Section 3 — that Justice will cease defending.

This is it. The whole ball game. If we back down here, it will be all over.

Huh? This is Section 3 of DOMA. It’s about how the IRS is going to calculate taxes owed by same-sex married couples in five states and Washington, D.C.. Brown can’t possibly believe that if my side wins this case, that means “the whole ball game” is over. I wish that were so, but it’s obviously not.

It’s a constitutional outrage. Why do we even have courts if the President himself gets to decide which laws are constitutional?

Again, this is ridiculous. Obama isn’t claiming that his opinion has the authority to decide the cases at issue, nor is he claiming that his opinion overrides the courts. All he’s doing, in effect, is forcing the folks who oppose SSM to switch lawyers — and virtually everyone on the anti-SSM side, including NOM’s own Maggie, seems to believe that their side will be better represented as a result. So what is the basis of their complaint?

I know, I know: It’s only political rhetoric. It’s a get-the-base-excited letter. Everyone does it, including liberals. But I hate that so much of our political rhetoric is essentially trying to scare people with stupid exaggerations. I’m sure Brian Brown is a smart guy; isn’t he embarrassed to attach his name to this stuff?

At the National Review Online, Ed Whelan writes:

Holder says that the Obama administration “will continue to enforce” DOMA. But it is logically incoherent for the Obama administration to refuse to defend DOMA and to continue to enforce it.

In comments at Volokh, “Stash” rebuts this view very effectively:

One justification might be that this is plausibly reconciling two possibly conflicting duties of office: “to protect and defend the constitution” and to “faithfully execute” the laws of the United States. The argument could be that far from being an expansion of power, it is a recognition of the separation of powers, i.e. that until invalidated by the judicial branch, the law should be treated as presumptively constitutional regardless of the administration’s view of the merits. The possibly dangerous expansion of executive power is the non-execution and refusal to enforce laws the administration, rather than the Supreme Court, deems unconstitutional.

On the other hand, the executive branch is nowhere expressly required to “defend the Acts of Congress against judicial review,” and I see no real separation of powers issue here.

The comment that: “If the Executive Branch is asserting the authority to engage in independent constitutional review of an existing law, and the president decides that the law is unconstitutional, it strikes me that the Executive Branch has no business enforcing this unconstitutional law” is mixing two different notions.

First, the President does not have the power to declare laws unconstitutional and failing to faithfully execute the laws of the United States is arguably an impeachable offense–whatever the President’s opinion of its constitutionality is, if the Supreme Court disagrees.

Second, it seems to me that the only appropriate forum where a President may assert that a statute is unconstitutional is in the courts. This is not claiming authority for “executive review.” Rather, it seems to me, it is an arguably legitimate way to “protect and defend the constitution” without offending the separation of powers. (Now, if Congress passed a law requiring all gun owners to be interned in FEMA camps, I would hope that no president would enforce it, but even then, I think the constitution would require the president to get an emergency injunction from the courts, which one would hope would be quickly granted.) Rather than “splitting the baby” I think it reflects the constitutional role of the president.

Third, as any litigator will tell you, it is not wise to assume a court’s decision is a foregone conclusion, regardless of one’s confidence. One can confidently believe a law is unconstitutional, yet still prudentially refuse to act at one’s peril.