As I noted yesterday, the Obama administration's decision to stop defending the Defense of Marriage Act (DOMA) in court prompted George Washington law professor Orin Kerr to wonder if this move will set a dangerous precedent in terms of expansive executive power. In other words, what's to stop a future Republican president from following Obama's example and refusing to defend something like the Patient Protection and Affordable Care Act in federal court? Is that a presidential standard liberals want to embrace?
In a follow-up post, Kerr highlights some of the critical feedback he has received, particularly a dissenting email from Walter Dellinger, a former acting solicitor general under President Bill Clinton, who thinks Kerr has vastly overstated the risks. Here's part of Dellinger's argument:
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 of 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.
Meanwhile, Kerr's fellow Volokh Conspiracy blogger Ilya Somin, who teaches law at George Mason University and occasionally contributes here at Reason, argues that "if a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it." As Somin observes, "the president takes an oath to 'preserve, protect, and defend" the Constitution." That oath supercedes federal law.
Finally, it's also worth noting that John Yoo, the former Justice Department lawyer whose sweeping theories of untrammeled executive authority were used to justify many of the worst abuses of the Bush years, thinks Obama's decision is "justified under the Constitution's original allocation of authority to the President."