an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Is Obama's Position on DOMA an Executive Power Grab?
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.