Barack Obama

Obama, Gay Marriage, and Executive Power


As Matt Welch noted yesterday, the Obama administration has announced it will no longer defend the Defense of Marriage Act in court. According to Attorney General Eric Holder, "the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA."

At the Volokh Conspiracy, George Washington University law professor Orin Kerr wonders if this action sets a dangerous precedent for the expansion of executive power:

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.

NEXT: Do You Care About Prosecution of Victimless Crimes & The Growing Prison Population?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I actually wouldn’t mind retroactive Presidential veto power.

    1. not the first time the executive branch chose not to defend statutes.

  2. Given that our balance of power swings back and forth between red and blue every couple of years, doesn’t this seem like the obvious result? The opposite team suffers legislation passed while it’s in the minority and then tells the DOJ to take a dive instead of defending it in court.

    Like or hate gay marriage, the Solictor General is kind of the defense lawyer for the establishment. Where there’s a good faith argument to be made for a law’s constitutionality, DOJ should be making it.

  3. Power grab? That’s a bit hysterical. The executive branch has always had the power to reduce legislation to a nullity, simply by not enforcing it. During the early years of the Bush Administration, the Justice Department stopped enforcing the laws designed to punish employers of illegal immigrants. There were no raids, no investigations, and no prosecutions of any employers for violations of these laws.

    1. The law in question deals entirely with federal administrative matters. There is no enforcement issue.

      It would be like the Bush Administration refusing to defend FISA in court. FISA does not involve any sort of executive enforcement; it’s a law restricting what the executive branch can do.

  4. 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.

    Oh no! Less legislation?

    1. You feel that way about FISA and Posse Comitatus?


  5. OT:
    Has Operation Libyan Freedom begun yet?

    1. I expect it will begin soon in the form of establishing no-fly zones.

      1. It looks like Qaddafi may be to fast for that.


        1. You Sugarfreed the link.

      2. looks like Qaddafi may be falling faster than that.

        1. first time trying t embed a link, sorry for the fail

  6. 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.

    Let me be clear.


  7. Where’s my breakfast links?

  8. Does Obama even know why there are three branches of government? It sure doesn’t seem like it.

    1. Let me be clear.

      I am a Constitutional Scholar?.

      1. And what were your grades in these classes?

    2. There is the executive that writes regulation with the power of law, the executive that determines what is Constitutional, and the executive that enforces the law.

      Three equal branches of government.

      1. No, it’s the House, Senate and President you numbskull!

    3. However, members of each branch swear an oath to uphold and defend the Constitution. As such, each branch has a general duty to apply laws in a manner consistent with the Constitution.

      Too often, one branch abdicates its duty to the other rather than taking on its own duty not to enforce unconstitutional laws.

      The question is whether this law really is unconstitutional.

      I have no problem with a president geniunely reaching the conclusion that a particular law is not constitutional and refusing to devote whatever resources would be necessary to enforce it.

      I don’t know that that’s the case here, though. Just talking about the general concept.

  9. While I abhor the number of laws on the books, I think this sets a bad precedent. It essentially keeps laws in limbo, meaning a law that is not enforced can land your ass in prison when a cop or fed feels like they need to make a point or when they just want to show that their dick is bigger.

    It would be like a president saying they weren’t going to go after medical MJ dispensaries in California and then sending the feds in over and over again. It would suck if that actually happened. /sarcasm

    1. This why every federal law should have a sunset provision. I’d also like to see 66% to pass a law, but only 33% to repeal it.

      1. But think of the chaos when the sunset provision’s sunset provision kicks in!

        Seriously, right on.

        1. I’d like a little more chaos. We haven’t had a good Congressional fist-fight in years. Or is it just that I want to see someone punch Pelosi’s dentures out? Or relish the footage of Boehner hiding under a desk weeping?

          1. Sometimes it’s necessary to get out in the aisles and get a little bloody.

      2. Er, you can bet Posse Comitatus and FISA would have been repealed during the Bush years.

        1. Democracy, red in tooth and claw. Maybe if elections had more dire consequences, people would be more serious about them.

        2. Who was going to sue to have those laws overturned? And on what basis. The thing about DOMA is that it is obviously unconstitutional and everyone knows it.

          1. I was responding to SugarFee’s 33% to repeal plan above.

            But there’s no shortage of weird constiutional interpretations to use against any law you don’t like.

            And if DOMA is so obviously unconstitutional, then the executive defending it will not prevent it from being overturned.

  10. Anything that results in the federal government enforcing fewer stupid laws seems like an unequivocally good thing to me.

    I appreciate the argument that this enables capricious/selective enforcement of laws, but we already have that through prosecutorial discretion so it isn’t like this is a new problem.

    1. This. Certain people had better lighten up, or face selective enforcement if you catch my drift.

    2. Even if that thing further concentrates power in the hands of the president and making a mockery of the separation of powers?

      1. Separation of powers? How quaint.

  11. Social libertarians, in their haste to embrace the homosexual political agenda, have ironically put themselves on the side of the imperial presidency.

    Smooth, Welch, et al. Real smooth.

    1. The end justifies the means.

    2. the homosexual political agenda

      Define, please.

  12. I don’t know why we have three branches of government.

    We have a legislative branch to write laws, but the executive branch writes regulation with the power of law. Why not just scrap the legislative branch. It’s not needed.

    We have a judicial branch to decide if legislation is valid under the Constitution, but the executive does this by cherry picking which laws it will uphold (while upholding all regulation that it writes). Why not just scrap the judiciary, it’s not needed.

    We have an executive that writes laws, interprets laws, and executes laws.

    Let’s just get it over with and declare the president to be dictator.

    1. Let’s just get it over with and declare the president to be dictator.

      All in good time, Son. Be patient.

    2. No, let’s have congress impeach president Zippy

      1. You mean President Urkel?

    3. Sounds right to me.

  13. Hasn’t it always been the executive’s prerogative not to expend energy on certain classes of prosecutions, i.e reducing them to nullity? All I thought was new here was that the President explained why the DOJ wasn’t going to support prosecutions. I actually thought that was a nice change of pace.

  14. The executive branch has always had the power to do this. I doubt this is the first time a president has gonje so far as to not defend a law he dislikes. That said, I’m sure because it has to do with gay marriage, the socons are gonna be wetting themselves over it and a huge shitstorm is gonna rain down on the current admin from their media outlets like brietbart and fox.

    As I said upthread, the selective enforcement is bullshit and will lead to trouble. SF is right on with putting sunset provisions in every law. These things need to be black and white otherwise corruption will be rampant.

    Also, with the SC basically giving the executive branch the ability to pass regulations with the force of law, we now have one branch of government that has significantly more power than the other two. Just ask any farmer, doctor, oilman or construction supervisor.

  15. Does the President not take an oath to uphold and defend the Constitution? Maybe I am old-fashioned and think that oath-taking should be something besides ritual, but the fact that the oath is to support the Constitution not to support the output of the Legislature is deliberate, methinks.

    One of the biggest problems in our political system currently is that an unelected, unaccountable court that is confirmed through a joke of a process that includes key roles by Senators like Lindsey Graham and Al Franken, is given the last word on every issue, including issues that are clearly not Constitutional matters. The political class loves being able to essentially pass laws and write policy through the courts (Anyone remember Kelo?), but representative government is not well-served.

    The founders intended the Court to be the weakest branch of government and yet it has, in some ways, become so powerful that it cannot be touched by public will while forcing its political whims on the country.

    Political radicals love having a powerful court system because it allows their agenda to be promoted by the placement, by hook or by crook, of a handful of unscrupulous activists in a few key positions.

    Although Obama may be abusing his power in the case of the DOMA, which is clearly not a Constitutional issue except in regard to the recognition of marriages across State lines, he won’t be in office in a few years. Maybe he will decide that all drug laws are unconstitutional and libertarians can rejoice until the backlash hits when he leaves office.

    1. How, exactly, does refusing to appeal a federal law struck down by an Article III court under the Article III judicial power constitute “failing to uphold and defend the Constitution”?

      Be specific, and be sure to address the pesky fact that the Constitution does not require that there even be a Department of Justice, let alone that it do anything.

      1. If the Congress passed a law requiring all children born in the US to have a unique barcode number tatooed on their forehead and the SCOTUS upheld the Constitutionality of the law, would the President be obligated to enforce the law? The oath of office is the oath of office. Getting into the weeds of Bureaucratic process and forms misses the point. Such a law and ruling is a clear violation of the authority of the US government to make law and the President is obligated by his oath to combat such a legislative overreach. In fact, one could argue that such a barcode law would be so outrageous that the President would be justified in declaring martial law to rectify the situation.

        1. You just got asked a substantive question, and evaded it with a digression into an unrelated hypothetical.

          How does that feel?

          1. Another way to look at it is that KipEsquire avoided my initial point by delving into a business-as-usual scenario which seemed designed to justify the current, unacceptable state-of-affairs.

  16. Remember that I came here ready to RULE on day one.

    The law is what I say it is because I am your ruler.

  17. So it is perfectly acceptable, if not noble, for a president to veto a bill he deems unconstitutional, but refusing to defend on appeal a law that he deems unconstitutional is a “power grab”?

    Sorry, but that dog won’t hunt.

    1. The veto power is specifically afforded the president. But does taking care to see that the laws are faithfully executed also require defending them? I do not think that it does.

      1. How does filing an appeal fall under the rubric of “executing”?

        1. I was agreeing with you, I think, that it cannot be a power grab, because nothing in the Constitution appears to require that the U.S. defend a statute (as opposed to the Constitution).

  18. It seems more like a cop choosing not to give you a speeding ticket. It might be because he likes your tits, or he might just realize that you have the wherewithal to get out of it, so why bother?

    I think Holder and co. realize that precedent has shifted to the point where DOMA — the ideal that the federal government can tell states what is and isn’t a marriage — is a patent absurdity. Or maybe that’s just wishful thinking.

    1. DOMA actually prevents states from being told what is and isn’t marriage. Without an act of Congress to the contrary, the Full Faith and Credit clause requires states which do not allow gay marriage to recognize those performed in other states.

      1. I disagree. DOMA defines marriage at the federal level, which is not within the powers delegated by the Constitution.

        Also, the FF&C bit is tricky, because FF&C cannot be construed to create a legislative obligation on another state. I cannot say for certain that recognizing a gay marriage would create such an obligation (e.g. by requiring a change to gender-specific terms in a statute), but the argument could be easily made in court I think.

        1. The whole point of getting marriage redefined in one of the States was to use FF&C to impose the redefinition on the country as a whole, thereby letting a tiny minority impose its will on the majority.

        2. The federal government certainly has the authority to decide what arrangements it will treat as marriage while engaged in activity covered by enumerated powers. That would fall under the necessary and proper clause.

          Of course, most of the stuff the federal government does that cares about marriage is not covered by the enumerated powers, but that’s another issue.

  19. One of the many things that I hold against Bush 43 is his campaign’s behavior during the vote-counting conflict of the 2000 election. If one were to gather together the 10,000 most creative writers in Hollywood and lock them in a room for 50 years, they could not have devised a more perfect scenario for reigning in the overreach of the Judiciary and reestablishing the idea that the SCOTUS doesn’t get to decide everything.

    When the Florida SC issued its proclamation that Kathleen Harris must ignore the statutory deadline for turning-in precinct vote counts, the right thing would have been for Harris to hold a press conference declaring that the court had no authority to write law and especially no authority to rewrite election law in the middle of a vote count and that she was going to ignore the court. Since a Presidential election hinged on what happened in Florida, the Media, both old and new, would (and did) give events maximum attention, insuring that the public would be exposed to all the arguments about the authority of the courts to write law. Furthermore, the public would have seen the proper assertion of the Executive over the Judiciary with regard to the enforcement of law.

    The consequence of ignoring the court’s proclamation would probably have been that the vote count in Florida would have been incomplete, Harris could not have presented a final count and the election would have been decided by a vote in the Republican majority in the House.

    As it worked-out, the Bush campaign appealed the ruling by the Florida SC, implicitly reinforcing the idea that the Judiciary is the ultimate authority on everything and subjecting the results of the election to the crap shoot of a SCOTUS ruling. The Bushes are, if nothing else, emblematic of the political class.

  20. Come on. This is Obama saying that the constitution places a limit on some aspect of federal power. I’m not seeing the downside.

    1. Of course not, because you oppose this particular law. What about the next time, when a law you support gets this treatment?

      Like the man says: you today, me tomorrow.

      1. “What about the next time, when a law you support gets this treatment?”

        Then you vote that Prez out of office.

        1. … or impeach and remove him if he is being particularly outrageous.

        2. Not an acceptable reason.

          I mean if that’s acceptable, then why bother even having a Bill of Rights or anything? We can just vote him out of office in 3 years.

          1. One of the great triumphs of the radical left has been its success in convincing most people that impeachment and removal of Presidents and Judges is only allowed in such restricted circumstances that it is basically never used and politicians and judges are, therefore, rarely held accountable for their more outrageous deeds.

            Our country would be a much better place if the next time a SC Justice referenced foreign law in one of his decisions or a President obstructed an investigation into serious foreign espionage they are quickly impeached and removed from office.

  21. On the flip side, what if courts rule a piece of legislation to be in violation of the Constitution, take Obamacare for instance, and the Community Organizer decides to implement it anyway?

    If the president can choose not to enforce laws that have passed through the process, why the heck can’t he choose to enforce laws that have not passed through the process?

    Thinking about it, he can. If he can’t get a law pushed through the process (cap and trade for example), he can have one of the regulatory agencies (EPA) write it instead.

    Seriously, what’s the point of having three branches of government when the executive can write the law, interpret the law and enforce the law?

    1. Enforcement is the application of executive resources to ensure a law is followed. Without the judiciary, he has no basis to prosecute violations of PPACA.

      This story is about defending that law before the judiciary.

      Apples and oranges.

  22. Would you people who are defending PrezBo on this support his rewriting DOMA to prohibit states from defining marriage as a man and a woman?

    1. No, and that’s not what’s happening here.

      What if Congress enacted a law saying that every individual above the age of 21 must purchase a new television set every two years? And let’s say a Dem president signed the legislation.

      Then a Repub president wins the next election (in part due to outrage over the stupid legislation). And people mount a legal challenge to the law, and win in federal district court. Let’s say the district court says the law is unconstitutional and strikes it down.

      The Repub president might agree that the law is unconstitutional and decide not to appeal the lower court’s ruling.

      End of story.

      The president does not have any constitutional duty to appeal a court ruling.

      A different president might decide to appeal the ruling all the way to the SCOTUS. But there is no duty to do so.

      Too often, Congress-critters will vote for legislation they either know or believe to likely be unconstitutional. There have been instances in which some have said during floor debates words to the effect of “I have serious doubts as to the constitutionality of this legislation, but I’m going to vote for it” – essentially counting on someone bringing a legal challenge and letting the courts work it out, rather than living up to his or her own sworn duty to uphold and defend the Constitution.

      1. I misunderstood the issue. Thanks for the clarification.

  23. Although there are exceptions, this will work mostly as a ratchet to remove legislation from the books, which doesn’t alarm me unduly.

    Further, its hard for me to say that this isn’t a straightforward application of the executive’s duty to comply with the Constitution. If they don’t believe a statute is Constitutional, I don’t see why they should have to defend it in court.

    Without an act of Congress to the contrary, the Full Faith and Credit clause requires states which do not allow gay marriage to recognize those performed in other states.

    If a state doesn’t have to recognize my concealed carry license, why would it have to recognize my marriage license?

    1. “If a state doesn’t have to recognize my concealed carry license, why would it have to recognize my marriage license?”

      There are big implications wrt taxes and inheritance inherent in the state of marriage. Long ago, some states decided that the 2nd amendment doesn’t really count in the era of modern weapons.

    2. Concealed carry is a public safety issue, marriage is not.

      1. one could argue that driver’s licences are very much a public safety issue.

  24. If he can’t get a law pushed through the process (cap and trade for example), he can have one of the regulatory agencies (EPA) write it instead.

    Which is, of course unconstitutional. I know there are cases upholding the delegation of authority to regulatory agencies, but those cases are wrong.

    Seriously, what’s the point of having three branches of government when the executive can write the law, interpret the law and enforce the law?

    Well, the executive has to enforce the law. In the course of enforcing, they will have to interpret the law. I think those are pretty much inherent in the executive.

    Allowing the executive to write the law, via agency rulemaking, is unconstitutional.

    1. Allowing the executive to write the law, via agency rulemaking, is unconstitutional.

      Well yeah, if what an agency is doing is actually writing the LAW. I can see the need to delegate the establishing of administrative procedures to an executive agency to implement congressional intent.

      The SCOTUS has ruled on this several times, notably in the context of Clean Air Act regulations. SCOTUS says that it’s not an unconstitutional delegation of power if Congress has established an articulable standard, and the agency’s regulations are simply implementing that standard and putting it into effect.

      Essentially, the question is how much did Congress leave up to the agency. If Congress leaves too much up to the agency to decide, it can be an unconstitutional delegation of legislative power. But if Congress sets forth what the goals are, what the enforceable standards and limits are, what the punishments are, etc., and then tells the agency “go make all that happen”, and the just agency establishes regulations as necessary to put the legislative requirements into effect, then the agency is not establishing the law.

      It’s yet another one of those nearly standardless standards, unfortunately – there is no bright-line definition.

  25. I’m all for this. Less enforcement. Less laws. And without having them handy to cite the reference, I’m pretty sure the Federalist Papers address this very ability of the Executive Branch as actually being a good check on the Legislative Branch.

    1. I take it you don’t want FISA and Posse Comitatus to have the force of law, then.

      1. I’m not really stating here WHICH laws the I MYSELF want enforced – and clearly the rule of law is necessary. I’m only stating that I consider this to be a legit check on the legislators, and I see anything that slows them down as a good thing.

  26. This seems like a reasonable exercise of a power to enforce the laws. This is exercised every day at the state and local level by prosecutors that choose not to pursue defendants, even when there is enough evidence to make some sort of case.

    1. DOMA is not a law that is enforced in criminal cases against citizens. It is a law restricting executive branch activity.

  27. Keep in mind that Congress has the power to up the ante with the president. Up to and including impeachment if they take the position he’s willfully violating the Constitution.

  28. I think this has far less impact than Kerr makes it out to. In Dickerson v. United States, a situation like this came up and the court appointed someone to defend the law.

  29. This is hardly unprecedented. Current Chief Justice John Roberts, when he was solicitor general, declined to defend federal statutes giving preference for minority ownership in granting broadcast licenses.

  30. I am not too concerned about this particular case since Congress has the standing to defend the law they written.

    I am more concerned about the Prop. 8 case which appears to be an end run around the initiative process. In that case, an initiative was passed by the voters, the state AG refused to defend it when it was challenged, and the courts ruled that only the state has the standing to defend the law in court.

    This gives the AG veto power over any initiative.

  31. I have no problem with any AG, federal or state, not expending resources defending an unconstitutional law. In fact, it would be a violation of a government official’s oath of office to defend an unconstitutional law.

    Part of the separation of powers is that the executive should refuse to implement or enforce unconstitutional laws. If the legislative branch disagrees and thinks the law is unconstitutional, they should impeach the executive for violating their oath of office.

    WAAAAY too much deference going on in all three branches of government to blatantly unconstitutional laws — this is a step in the right direction.

    1. Whoops, second sentence, second paragraph should read: “If the legislative branch disagrees and thinks the law IS constitutional …”

  32. Kerr does some rethinking here:…../mainfeed+(The+Volokh+Conspiracy)&utm_content=Google+Reader

  33. In the news about administration no longer defending DOMA it seems to be missed that couples who might benefit from joint return status need to file refund claims before statute of limitations expires. 2007 is looming.…..-what.html

Please to post comments

Comments are closed.