Civil Liberties

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Obama's stand against DOMA raises the question: Why don't presidents stick up for the Constitution more often?


Attorney General Eric Holder's announcement last month that the Justice Department's Office of the Solicitor General would no longer defend the 1996 Defense of Marriage Act (DOMA) in federal court spurred some interesting discussion among legal scholars and commentators about the decision's rationale and significance. What should a president do when he believes his duty to uphold the Constitution conflicts with his duty to enforce the country's laws? DOMA's conservative defenders were for the most part predictably outraged—although, as my colleague Damon Root pointed out last week, conservative darling Robert Bork and current Chief Justice John Roberts made similar decisions while working in the Office of the Solicitor General during the Reagan and George H.W. Bush administrations, respectively.

The Obama administration will continue to enforce DOMA; it just won't defend the law against federal court challenges. (House Speaker John Boehner [R-Ohio] says the House will have its own lawyers do so.) But Obama's willingness to repudiate a law he believes is unconstitutional raises some other questions. What about federal cases that don't involve laws passed by Congress, such as cases where criminal defendants argue that their constitutional rights have been violated? If Obama agrees with them, why not take their side, or at least not rush to defend the prosecution?

In cases that come before the Supreme Court, the Obama administration, like previous administrations, routinely sides with police and prosecutors, except for the rare case where it takes no position. Last week, for example, Acting Solicitor General Neal Katyal argued that the Supreme Court should dismiss a lawsuit against former Attorney General John Ashcroft by Abdullah al-Kidd, a U.S. citizen who was arrested and detained as a material witness for 16 days in 2003. It is now clear that the government was holding al-Kidd because it suspected him of involvement with terrorist groups, although al-Kidd was never charged. (Nor was he ever called as a witness.) Obama's Justice Department is essentially arguing for an exception to the Fourth Amendment in federal terrorism investigations.

In cases like this, which directly affect federal prosecutors, it is not surprising that Obama would defend the powers he deems necessary to fight terrorism, enforce immigration laws, or disrupt the illegal drug trade. But the Obama administration also has advocated limiting the rights of the accused in state cases, even in states that afford less protection to criminal defendants than federal courts do.

In District Attorney's Office for the Third Judicial District v. Osborne (2009), Obama's DOJ urged the Supreme Court not to recognize a constitutional right to post-conviction DNA testing, even though Obama supported such a right, at least as a matter of policy, as a state senator in Illinois (where post-conviction DNA testing exonerated several men who had been condemned to death). In Skinner v. Switzer (2011), a case that poses the question of whether federal civil rights laws require such testing, the Obama administration did not file a brief for either side.

In Pottawattamie County v. McGhee (2010), the Justice Department urged the Court to protect prosecutors from lawsuits even in cases where they have manufactured evidence that helped to convict an innocent person. In Berghius v. Thompkins (2010), Florida v. Powell (2010), and Maryland v. Shatzer (2010), the DOJ urged the Court to limit Miranda rights, which require police to advise suspects of their rights upon arrest. In Kentucky v. King (2011), the DOJ argued that exigent circumstances permit police to enter a home without a warrant even if police unknowingly created those circumstances. In Camreta v. Greene (2011), it asked the Court to expand the circumstances under which police may interview a child about possible abuse without obtaining permission from his parents.

In Smith v. Alvarez (2009), the Obama administration defended a provision of Illinois' asset forfeiture law that allows police to seize property they believe is connected to drug activity with little evidence, then hold it for up to six months before the owner gets an opportunity to win it back in court. This position seems especially hard to defend given that federal civil asset forfeiture laws offer more protections for property owners. The Illinois law was modeled after the old federal forfeiture law, which was amended by Congress in 2000 to address forfeiture abuses. The Illinois law applies only to property valued at less than $20,000, meaning it disproportionately affects the poor people of Illinois for whom Obama advocated during his early years in politics. 

The usual response to criticism of an administration's positions in Supreme Court cases is that the solicitor general's mission is to advocate on behalf of the government. It only makes sense, then, that the office would regularly urge federal appeals courts to limit constitutional rights and expand the powers of police and prosecutors. This was the conventional wisdom during the confirmation hearings for Justice Elena Kagan, whose defenders cautioned against drawing conclusions about her positions on constitutional rights and criminal law based on her work as solicitor general. When Chief Justice John Roberts was asked at his own confirmation hearings about positions he took while working in the Office of the Solicitor General during the Reagan administration, he replied that as a Supreme Court justice he probably would approach those questions differently than he did as a legal advocate whose client was the federal government.

It is true that the solicitor general's role conventionally has been understood in this way. But I'm not convinced that it ought to be. As a client, the federal government is quite different from an accused murderer or a patient in a medical malpractice case, because it is supposed to represent the interests of all Americans. And while it's true that one of the president's main responsibilities is to enforce the country's laws, he also has a duty to uphold and defend the Constitution, which is not the same as latching onto whatever interpretation of the Constitution favors the government.

Imagine a president who is elected on a platform that stresses the Bill of Rights, arguing that the government routinely flouts the Fourth Amendment and disregards the rights of criminal defendants. (Bear with me here.) According to the conventional view of the solicitor general's role, the idealistic new president would be expected to staff the office with the country's brightest legal minds and task them with convincing the Supreme Court to interpret these constitutional protections as narrowly as possible.

To be fair, Obama is only using the Office of Solicitor General the way it has always been used, to defend and expand government power in general, federal power over state power, and executive power over the powers of the other branches. Despite the lasting ramifications of Supreme Court decisions, and despite the weight given to the government's position in Supreme Court cases (the Justice Department nearly always gets time in oral arguments if it asks), the Office of the Solicitor General has never really been seen as a place for a president to express his policy preferences. But perhaps it's time to start seeing it that way, and to start holding presidents accountable for the positions they instruct the office to defend.

Radley Balko is a senior editor at Reason magazine.

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  1. President Obama’s decision not to defend the Defense of Marriage Act in court shows that presidents can decide to side with the Constitution over government power

    Idiot remark of the day. Obama is not fighting this one because it is a win-win. He can tell his Christian base that the courts have decided the issue, and tell his liberal base the courts have decided this issue. He never has to ‘reveal’ his own position.

    1. Yeah I agree, I’m not really buying this argument. A bigger concern to me though is the hypothetical “congress overrides a presidential veto, the president still refuses to enforce said law”.

      1. He is not refusing to enforce the law. He is refusing to fight for it in court – there’s clearly a difference.

    2. It has been amusing watching Obama dance around the issue.

      He expects us to believe we are watching the heartfelt, introspective evolution of a president’s policy position in action? A cosmopolitan liberal like Obama?

      It’s sort of a distillation of his governing style. Never get too far ahead of the political winds. Seems to work for him.


  2. Obama is merely stealing a page from the Republican’s playbook: when his policies are failing, popularity is plummeting, and he’s being taken to task for not living up to campaign promises, he just starts screaming: “ZOMG! Gay people!!!!!!”

  3. You’re making 2 different arguments here:

    1. Policy makers in the Executive Branch should have more regard for their own policy preferences and instruct counsel to so advocate in court.

    2. The Solicitor General should do something other than zealously represent his client within the bounds of legal ethics.

    The first is true; the second is not. And the second isn’t even necessary if you get the first. No reason to muck about in legal ethics when the issue is entirely answered by policy changes.

  4. Who needs reason when you have false dilemmas? Are you gay or straight? Are you a bigot or open minded? Are you a truther or a liar? Are you a conservative or a liberal? Are you black or white? Are you a man or a mouse?

  5. This action sets an interesting precedent. A future president could use it as his own Marbury v. Madison to nullify entire government entities that are not among the specifically powers granted in article 1. I called this idea “executive review” when I thought of it last Summer.…..eview.html

    1. This is not at all the same thing; DOMA actually going away still requires the involvement of the court.

  6. it’s a tough issue either way. if executive branch officials decide not to enforce legislation, they think is unconstitutional, it is essentially a violation of seperation of powers. they are not supposed to be “the deciders” so to speak. judicial review is up to the judicial branch. we would all support it (at least reflexively) when it’s an issue we support, but then not when it’s an issue we don’t.

    recall when mayor newsom in SF did a variation of this by ordering his city employees to perform gay marriages contrary to state law because he thought the state law was unconstitutional.

    personally, i think my state’s cyberstalking statute is unconstitutional (overbroad and a violation of the 1st amendment). the way I would handle it is to not make a custodial arrest, but simply send a case to the prosecutor’s office and let THEM decide. without making the custodial arrest, any restraint of liberty would only last 15 minutes or so at most, and wouldn’t have the same constitutional implications.

    i once had a police chief who told us he did not want marijuana laws enforced against users. this wasn’t because he thought they were unconstitutional. just bad law. i agreed and in my entire time there, we never arrested a single person for simple possession.

    this REALLY pissed the state police off, and of course they could come into our town and enforce the law.

    there are a lot of problems and ramifications when the executive branch starts making decisions about this stuff. realistically speaking, when it;’s a “victimless crime” a la drug possession, etc. it’s not that problematic as compared to crimes with a victim (assault, etc)

    1. Except that they are still *enforcing* the law; they just won’t defend it should a case be brought before the SCOTUS. It’s a pretty clear distinction to me.

      1. that distinction is relevant. i agree.

  7. I there’s another interesting point to be made. Can/should a president refuse to defend government policies he doesn’t agree with (regardless of constitutionality)?

    Hypothetical example: Lets say that the next president thinks that the united states postal system is unconstitutional. And lets say someone filed a lawsuit claiming the same. Then lets say that the president decided to not defended resulting in the elimination of the postal system. Would this be a good thing?

    I’m all for getting rid of useless agencies, not that I consider the post office one of them but the point i’m trying to get at is, “is it a good thing or bad thing to allow the president so much power as to eliminate entire laws/government agencies simply because he/she didn’t agree with them?”

    1. It would be a bad thing potentially, but I don’t see that that’s what’s happening here. In essence, the law still stands, but the federal government doesn’t defend suits over the law. Unless the courts actually nullify the law, although each plaintiff wins his/her case, the law itself is still on the books and anyone who wishes to go against it must bring his or her own lawsuit. In fact, that would be much like the Framers actually designed things to work, before the Marbury v. Madison power-grab.

      1. well I was thinking in the case of a constitutional challenge. If the prosecutor is told to sit on his/her hands then it’s possible for constitutional laws to be improperly ruled unconstitutional.

        that might not be exactly the case in this situation but it raises concerns that a future president could more or less nullify a law simply because they didn’t agree with it.

        1. It’s still left to the judgement of the court. This would be a strong position by the executive and a weak (or stronger) position by the court overriding the position of congress. I don’t think that’s disastrous – it may even be appropriate.

  8. Since a President exercising his duty to uphold the Constitution by refusing to defend laws that are, in his opinion, indefensible, will only result in the removal of laws, it strikes me as a ratchet in the direction of smaller government.

    Which is a good thing. I’m not too worried about some hypothetical future President waving through court challenges to ObamaCare, TSA searches, and the like. I don’t see much potential for “abuse” that would result in a larger more intrusive government.

    There is also a distinction between refusing to defend a law in court, and refusing to implement/enforce a law that is still on the books.

    While I don’t think the President has any duty to defend any given law in court, there is at least an argument that he has to implement/enforce laws that are on the books. I think the countervailing argument, that the President’s oath to uphold the Constitution means he is not required to engage in any unconstitutional action, is the better argument, but still.

  9. The Defense of Marriage act is a homophobic law that I equate to legalized bigotry. Why are people so threatened by the thought of gay marriage? I don’t feel my marriage is threatened by two consenting adults wanting to legally marry. They’re going to be together legal or not. Why not give them the legal rights and responsibility? We all need a support system. Let them have a formal commitment.

  10. The President has as much, if not more, Constitutional authority to determine constitutionality of laws as the Supreme Court. Judicial review is not found in the Constitution but was instead invented by John Marshall. The same justice also wrote in Gibbons v. Ogden that only economic or political considerations should ever effectuate the demise of a law, not the judiciary, so go figure.

  11. Obama’s stand against DOMA raises the question: Why don’t presidents stick up for the Constitution more often?

    Because they’re power-hungry cockmanglers who aren’t in the game for such trivial shit as “The Constitution”?

  12. Slight correction: Miranda v. Arizona just requires that suspects to be read their rights before being interrogated, not necessarily right after being arrested. The only reason most police departments do it upon arrest is because it’s easier and prevents the possibility someone will forget.

  13. Thanks for taking note of the Administration’s wrongheaded position in Camreta v. Greene. Anyone interested in more about this case may want to check out our website (My groups’ volunteer Vice President represented the family, pro bono, before the Supreme Court in this case).

    Richard Wexler
    Executive Director
    National Coalition for Child Protection Reform,

  14. Whoa…since when did you guys start doing game commentary?

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