DOMA – Getting One Right

Even the most casual reader of this site would know that I am less than impressed with the Obama Administration. In fact, I hope I can count on you to pick up my book, Spending Recklessly and Treating the Bill of Rights as a Suggestion: The Bush-Obama Decade, when it becomes available in paperback in June of 2021 (we need some historical breathing room).

But in the spirit of the broken clock, there’s another positive development to add to the repeal of DADT – the DOJ will no longer defend the constitutionality of the Defense of Marriage Act (DOMA). At first glance, this seemed to be a face-off between something I love (liberty) and something I abhor (the ever-expanding executive branch) – the case that this was an “end-run” around normal judicial/legislative change was made by many people (and who can blame the skepticism, what with this administration’s propensity for czar-appointing?). But in the end, it’s not actually undoing anything. DOMA can be defended, it just won’t be by the DOJ. It’s essentially the same right any of us have to believe that a piece of legislation is unconstitutional and not enforce it (if, of course, we have the ability to enforce it). And when someone asks “Who is the President to be deciding what is constitutional and what isn’t?” I would say he’s exactly the guy to be making decisions about such things, considering he swears an oath to preserve, protect and defend the Constitution. Now, it’s true, actually ruling on a law’s constitutionality is the job of the judiciary – but exercising judgment on the limits of the Constitution is absolutely something the President should be thinking about, if not acting on. Ilya Somin says it better than me (bold is mine):

His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.


Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.


Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court, and possibly a duty not to take actions to enforce it either, as part of his exercise of prosecutorial discretion (a traditional executive power). Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not. It would have been perfectly legitimate for the Obama Administration to conclude that they are not sure whether DOMA is constitutional, and therefore will defer to the considered judgment of Congress until such time as the Supreme Court definitively decides the issue. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.

I’d hope that this portends future discussions about the various unconstitutional practices that have become commonplace (such as no longer feeling the need to declare a war, for instance), but I’m not optimistic.


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