Thursday, February 24, 2011

Is Obama's Position on DOMA an Executive Power Grab?

Guest Blogger

Walter Dellinger

Orin Kerr's post on Volokh Conspiracy comparing what the Justice Department has announced it will do in DOMA cases to some of John Yoo's theories of presidential power doesn't give proper weight to the enormous difference between refusing to obey a law (which the Bush administration did -- and secretly!) and obeying the law which the Obama administration will continue to do with DOMA. Informing the courts of the administration's view that a law is unconstitutional, while facilitating the participation of amicus who will argue in defense of the law, is respectful of the role of the other branches, both Congress and the judiciary. This October 2010 article in the New York Times discusses the differences:

[T]he government has an obligation to comply with the nation’s laws, regardless of whether the president agrees with a particular statute. Doing otherwise would also set a precedent justifying similar nullifications by future administrations. The next president might, for example, decide not to enforce the recent health care reform law; all he would need would be a single ruling against the law by a single district court judge, which he would then refuse to appeal.

Presidents in rare instances can determine that a law is unconstitutional and decline to comply with it. But a 1994 opinion by the Office of Legal Counsel (where I was the head) concluded that a president can do so only under very special circumstances, including a conclusion on his part that it is “probable” that the Supreme Court would agree with him . . .

[Presidents, however] have another option: while appealing the lower court’s decision, [the President] could have the Justice Department tell the appellate court that the executive branch believes the law is unconstitutional.

In other words, the Justice Department would take the formal steps necessary to defend the law, but it would also make substantive arguments about why the law should be struck down. The Supreme Court could still vote to uphold the law, but the president’s position could significantly influence how the court rules.

Doing so wouldn’t unfairly strip the law of adequate defense: if the administration took a stand against the law, the appellate courts would very likely allow lawyers for Congress or outside groups to appear and argue on its behalf.

This approach is not unprecedented. In 1943, Congress passed a law prohibiting the payment of salaries to three particular government employees. Arguing that the law was unconstitutional, the employees sued and won in claims court. The solicitor general asked the Supreme Court to review the lower court’s decision, but he also told the justices that the administration agreed with the original ruling; the court ultimately struck down the law.

That case and others like it provided a precedent for President Bill Clinton in 1996 both to comply with a law requiring the military to discharge service members who had H.I.V., and at the same time inform the courts that he found it to be unconstitutional. Thanks in part to support from the military, Congress repealed the law before litigation ensued.

Telling the courts that a federal law should be struck down is not a position to be taken lightly by a president wary of overstepping his bounds. But if he concludes that the law restricts important liberties without advancing a government purpose, he has the right to say so. After all, while courts usually defer to Congress on such questions, the president is under no such obligation: he is a constitutional officer entitled to his own views on governmental necessity, particularly on matters of national defense.

Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke University. You can reach him by e-mail at wdellinger at

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