Barack Obama

More on Obama, Gay Marriage, and Executive Power


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."

For more on DOMA and the gay marriage debate, see here, here, and here.

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  1. I have religion-based views on homosexuality that I learned in the Rev Wright’s church. I have extra-constitutional political power based on what I learned from studying Pres Nixon.

  2. As Somin observes, “the president takes an oath to ‘preserve, protect, and defend” the Constitution.” That oath supercedes federal law.


    Is that before or after the secret Masonic ceremony in which the true Oath, L’etat est Moi is sworn in blood?

  3. I had Rush on for five minutes yesterday. He was hyperventilating about this, solely because it was a win for teh gaiz. SoCons. Sheesh.

    1. Bullshit. He’s hardly a social con in the sense you mean it.

      He was railing on the soft tyranny that seems to suit you just fine. Either that or your partisanship blinds you to the lawlessness of this President.

      If Bush had done this, there would be calls for impeachment from the MSM…and rightly so.

      1. How exactly is deciding not to expend finite legal resources defending an unjust law “soft tyranny”?

        Also, you haven’t spent much time here if you’re inferring a pro-Obama “partisanship”.

      2. Bush didn’t refuse to enforce unconstitutional laws, he went out of his way to create and enforce them (like Obama on other issues).

      3. My impression was that he was only concerned about “soft tyranny” because it was used in a way he didn’t like.

        If you think I am an Obama partisan blind to his lawlessness, then you are indeed new around here.

        But, I don’t think the President’s duty to execute the laws includes a duty to defend them when he believes they are unconstitutional.

        Indeed, he has an overriding oath to defend the Constitution. Fighting to keep a law on the books that he believes is unconstitutional is a violation of that oath.

        In fact, I think the President has a duty to challenge, in court, laws that he thinks are unconstitutional, just as he has a duty to veto bills that he thinks are unconstitutional. How can he not, after undertaking to defend the Constitution?

  4. This is insane.

    Obama says that he will continue to enforce a law that he claims to know is not merely unconstitutional, but also claims to be utterly indefensible in a court of law. In other words, he is knowingly violating what he claims to be the constitutional rights of those who are subject to the law he will continue to enforce.

    And that idiot Dellinger thinks that this is “respectful” of other branches of government? How about respect for the individuals who’s rights — according to Obama — are being violated?

    And there is absolutely no difference in my mind between “refusing to obey a law (which the Bush administration did ? and secretly!)” and “obeying” a law which you have publicly declared to be an indefensible violation of constitutional rights. At least Bush did what he did (and secretly!) in the belief that he was right, as opposed to Obama enforcing a law (and openly!) that he knows (or so he claims) to wrong.

    1. The final three words should have been. “…to be wrong.”

    2. He can’t just singlehandedly repeal the law though. Given the option between the DOJ vigorously defending this piece of shit or leaving it in the hands of others, I’ll take the latter.

      1. What are you talking about, Rhyander? What he should do is to say, “I find this law to be unconstitutional, and pending a final decision by the courts, I will suspend enforcement.”

        I repeat: to declare a law to be indefensibly unconstitutional, but to continue to enforce it — as Obama claims he will do — is preposterous.

        1. If the effect of DOMA was mitigate states having to recognize gay marriages from other states. As such, I don’t see what it would mean to “suspend enforcement”, other than not defending a state being sued for not recognizing a gay marriage from another state.

          1. s/If the/The

            1. You are referring to a section of DOMA is not covered by Obama’s declaration of unconstitutionality. He has targeted only Section 3, which declares marriage to be only between a man and a woman for purposes of federal law. The section dealing with non-gay-marriage states not honoring gay marriages from other states is in a different section.

              The irony is that the section you are discussing is clearly a violation of the Full Faith and Credit Clause, which requires states to honor the legal decrees of other states. Which further illustrates the insanity of what Obama is doing here.

        2. What are you talking about, Rhyander? What he should do is to say, “I find this law to be unconstitutional, and pending a final decision by the courts, I will suspend enforcement.”

          Not quite far enough. If you are the president, and you feel a law blatantly violates the Constitution, you have a duty to continue to refuse to implement it even if SCOTUS says in a 5-4 decision it is OK. You should only back down if SCOTUS convinces you that you were wrong.

          SCOTUS is not the final arbiter of what is or is not Constitutional. ANY of the three branches of government has the power and duty to try to torpedo something that is unconstitutional, because that is the oath of office they all took.

    3. What is “separation of powers,” Alex?

      1. What is “Are you serious?”, Alex?

  5. Jesus Fucking Christ, do some reading–this is not a novel question; it has happened before.…..OJ1996.pdf…../Defending Congress.pdf

    Meanwhile, Jonah Goldberg is doing his usual fine job of making an idiot out of himself on this issue over at NRO.

    1. Good stuff (the letter to the DOJ, that is; not Goldberg obviously).

  6. 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.”

    This. I’d go further — if the executive branch feels a law is unconstitutional, they have a duty to inform Congress that is the case when they veto the law, and inform Congress that if the veto is overriden, they will not implement the law because so doing will violate their oath of office to uphold and defend the Constitution.

    If Congress disagrees, they can move for impeachment.

  7. Doesn’t the President’s authority/responsibility to execute Federal laws include the right to not enforce a law? Say Congress passes a law stating all citizens must exercise for 30 minutes every day. Doesn’t the President have the right/responsibility to not enforce such a law? Isn’t that part of the checks and balances?

  8. Roosevelt Vs. Obama

    What did President Teddy Roosevelt say?
    “Speak softly and carry a big stick.”
    What does Barack Hussein Obama say?
    “Jigaboo for Jihad and not for Jesus!”
    Also “Fight for Allah and not for America!”
    Want facts re our lawless Hypocrite-in-Chief?
    Just Google “Obama Fulfilling the Bible” !

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