Gay/Lesbian Issues

Leviathan's Lawyers

The Office of the Solicitor General has traditionally defended the government. But should it?

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In February, Attorney General Eric Holder announced that the Justice Department's Office of the Solicitor General would no longer defend the Defense of Marriage Act (DOMA) in federal court. Although the administration will continue to enforce DOMA, it won't defend the law against constitutional challenges. House Speaker John Boehner (R-Ohio) said a few days later that the House of Representatives will have its own lawyers do so.

President Barack Obama's willingness to repudiate a law he believes is unconstitutional raises some significant 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 the president agrees with them, why not take their side, or at least not rush to defend the prosecution?

In cases that have come before the Supreme Court, the Obama White House, like previous administrations, has routinely sided with police and prosecutors, except for the rare case where it takes no position at all. In March, 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 unfortunate but 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), the Justice Department 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 three cases, Obama's Justice Department has urged the Court to limit Miranda rights, which require police to advise suspects of their rights upon arrest. In Kentucky v. King (2011), Justice Department lawyers argued that exigent circumstances permit police to enter a home without a warrant even if police unknowingly created those circumstances.

In Smith v. Alvarez (2009), the administration defended a provision of Illinois asset forfeiture law that allows police with little evidence to seize property they believe is connected to drug activity, 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 Congress amended in 2000 to address forfeiture abuses. The Illinois law applies only to property valued at less than $20,000, meaning it also 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 advocating on behalf of the government is the solicitor general's job. 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 said we shouldn't draw firm 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 has conventionally been understood in this way. But I'm not convinced it should be. As a client, the federal government is very 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 laws of the land, 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, this idealistic new president would be expected to staff that 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 using the Office of the 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 (rbalko@reason.com) is a senior editor at reason.

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  1. I thought Balko was gallivanting in the Balkans scouting for porno stars.

  2. If it is okay for Obama not to defend DOMA because he believes it is unconstitutional, why wouldn’t be okay for some future President not to defend say the Endangered Species Act because they believed it to be unconstitutional?

    Liberals are pretty stupid and short sighted to go down this road. As they say, you today, me tomorrow.

    1. When I first heard this story, I was opposed to what Obama did. Generally speaking, the Solicitor General’s job is to be the advocate for the status quo. In an advesearial system, it’s the best way to get the issues debated. When the administration throws in the towel, they start to take on a judge and jury role.

      That said, there’s a surprising amount of precedent for what Obama did. I listened to this Federalist society podcast debate on the thing: http://volokh.com/2011/02/24/f…..-thoughts/

      I’m a bit more sympathetic to Obama now, but I think the president should err on the side of litigating rather than abstaining.

    2. It’s going to be funny if the GOP takes back the White House in 2012 and Obamacare is still in the courts on 1/20/2013.

      I have a feeling there are going to be some breakneck-speed position changes on the issue of whether it’s OK for the DOJ to not defend a federal law.

  3. Didn’t Balko defect to the liberals? Where’s his sense of partisan tribalism?

    1. I hope you’re joking.

  4. Great picture of Dumb and Dumber.

  5. Frankly, I don’t see how someone who has taken an oath to defend and protect the Constitution can defend laws they believe are unconstitutional, and I don’t see a big downside in them actually acting like they believe their oath of office.

    Isn’t the worst case scenario that some laws get stricken from the books? These days, its not like nobody will be arguing the pro-government side if the Solicitor General sits out. There’s always a constituency for any given law, and if they think its so damn important, they can hire their own lawyers.

    1. “Under the spreading chestnut tree
      I sold you and you sold me.
      There lie they, and here lie we
      Under the spreading chestnut tree.”

      1. Not that old chestnut.

    2. It’s rare that a law found to be unconstituional had no good faith argument of constitutionality behind it.

      For example, I strongly believe in 2nd amendment rights, but I never thought the other side was being insincere with their “militia only” arguments. Misguided, yes, but sincere.

      1. He has sympathy for the other side! Nay, EMPATHY!
        GET HIM!

  6. Sure, sure, there’s always a good faith argument for constitutionality. But that’s not the question. The question is whether the President believes those arguments are right, or whether he believes the statute is unconstitutional.

    Attorneys, of course, are required to advance good faith arguments that advance their client’s interest. The chain of command for the Solicitor General runs up to the President, who is sworn to the Constitution, not the government, and not the status quo.

    Reflexive defense of the government/status quo is not consistent with the oath of office when you believe that the status quo/what the government is doing is unconstitutional. The President has a duty, IMO, to order the AG and the SG not to defend statutes that the President believes are unconstitutional.

    1. “The President has a duty, IMO, to order the AG and the SG not to defend statutes that the President believes are unconstitutional.”

      Which is just another way of saying they don’t have to defend laws they don’t like. You can make a good faith argument for virtually any law being unconstitutional. The President does have a duty to defend the institution that is the government.

      Suppose a President thought a law was unconstitutional but both the Congress and the Courts disagreed. Would you think it would be okay for him to refuse to enforce the law? If as you say the President has no duty to defend laws he feels are unconstitutional, he certainly wouldnt’ have a duty to enforce them. I don’t see how this is any different. The President has a duty to enforce and the defend the laws as written until they are repealed or overruled by the courts.

      If one goes by your interpretation, the President, by virtue of deciding which laws get defended and enforced, gets the final word on the constutionality of a law. And that is just nonsense.

      1. And that is just nonsense.

        Well, it would be nonsense if not for the fact that this is exactly what the current administration is doing.

    2. The oath of office only says the President is to preserve, protect, and defend the Constitution itself. There’s no commitment to rooting out unconstitutional laws wherever they may be found.

      At some level you have to trust the legislative and judicial branches to do their jobs rooting out unconstitutional laws that you didn’t sign. As an analogy, public defenders have to defend defendants even if they have reason to believe they’re guilty — that doesn’t mean they can be blamed for putting murderers and rapists back on the streets. The prosecutors and courts have to do their job to ensure that the guilty are punished.

      1. How does not having your SG advocate for a law you believe to be unconstitutional = rooting out unconstitutional laws wherever they may be found?

        “As an analogy, public defenders have to defend defendants even if they have reason to believe they’re guilty — that doesn’t mean they can be blamed for putting murderers and rapists back on the streets.”

        Their oath was to defend their client. The president’s oath was to protect the constitution.

        1. IOW, in your analogy, the client the president is sworn to defend(right or wrong) is the constitution.

        2. The Oath also says that you will faithfully execute the office. That means you enforce the laws as written. It says you should “defend the constitution”.

          By you and RC’s logic, the President is under no obligation to enforce any law he doesn’t like regardless of what the Congress or the Courts have to say about it. That strikes me as making the President more of a king than a President. He has to enforce and defend the law as written until it is repealed or overturned.

          1. He should have to enforce it but not defend it. If the law is unconstitutional, his oath requires him to obey and enforce the law but it also requires him to do anything he can legally do to try and help the law get repealed. He’s trying to do neither and I don’t agree with that.

            1. How do you enforce a law without defending it in court? “Your honor I know we arrested or fined the defendent for this law but we feel the law is unconstitutional and will make no argument in response to the defendent’s motion to dismiss”. I don’t see how that is enforcing the law. Enforcing the law means going to court and defending it.

              1. The fact that there is a defendant sitting in court means that the executive branch enforced the law. The president is not the legislature’s solicitor general, he is the head of an entirely different branch. The purpose of different branches is to check/balance eachother. Not just advocate for eachother out of loyalty. If the branches always had to back eachother up no matter what, there would be no point to having separate branches of government. They could be one big happy branch.

                1. The fact that there is a lawsuit means that someone has standing — in other words, someone wants to violate the law. US courts don’t issue advisory opinions.

  7. If one goes by your interpretation, the President, by virtue of deciding which laws get defended and enforced, gets the final word on the constutionality of a law. And that is just nonsense.

    I wasn’t aware that the President actually decided the cases, or could bar anyone else from taking up the defense.

    The President has a duty to enforce and the defend the laws as written until they are repealed or overruled by the courts.

    No, he has a duty to the Constitution. Its right there in his oath of office. You can look it up. Where an unconstitutional law is on the books, defending that law is a violation of his duties.

    At some level you have to trust the legislative and judicial branches to do their jobs rooting out unconstitutional laws that you didn’t sign.

    Of course. I don’t see how the President declining to defend unconstitutional laws interferes with the duties of the other branches.

    1. He also has a duty to faithfully exectute the office. That is in the oath too. You can look it up, if you haven’t scratched that part out.

      Again, if he has a duty not to defend laws he feels are unconstitutional, why doesn’t he also have a duty not to enforce those laws? What is the difference? If anything he has more of a duty not to enforce unconstitutional laws than to not defend them since actually enforcing an unconstitutional laws does more damage to the Constitution than defending them in court.

      Explain to me RC how your logic if applied doens’t allow the President to ignore whatever laws he doesn’t like and can make a good faith argument are not Constitutional?

    2. But the point is that the executive doesn’t get to make the final call on whether or not a law is constitutional. That’s for SCOTUS to decide.

      If Obama is refusing to enforce the laws that SCOTUS has determined are constitutional I don’t see how you can say he is doing his job correctly.

      I understand that he may “think” a law is unconstitutional, but it’s not his job to make that ultimate decision.

  8. The President is the client, not an advocate acting on behalf of a client.

    We aren’t looking here at the duties of the lawyers, so analogies to the roles lawyers play are inapt.

    We are looking at the President’s duties, and I don’t see how trying to keep an unconstitutional law on the books is consistent with his duties.

    1. The Solicitor General is not the president’s personal lawyer.

      If the law is truly unconstitutional, the SCOTUS will rule it so regardless of whether the SG defends it. Yes, that’s a bit of a fiction, but our legal system depends on it.

  9. OT: SWAT gets their man and no pets were harmed in this raid.

    http://www.kgun9.com/story/146…..ays-family

  10. By you and RC’s logic, the President is under no obligation to enforce any law he doesn’t like regardless of what the Congress or the Courts have to say about it.

    That’s a separate issue. I think you can distinguish between complying with a law that is on the books, and advocating for that law. I think it makes sense to say that the President is subject to the law, but is under no legal obligation to defend that law against constitutional challenge.

    1. Stop pulling the bait and switch RC. You are turning into MNG. We are not talking about compling with the law. We are talking about enforcing the law, which the President as the chief exectutive has a duty to do.

    2. Right. And I would even say that he is obligated to abstain from defending unconstitutional laws. He is the head of the executive branch and he is obligated to execute all laws passed by congress. But he is sworn to protect and defend but not enforce the constitution. This isn’t a contradiction. He is not supposed to protect and defend any law that gets passed unless it is constitutional but he is sworn to obey and execute them all. Just like he isn’t allowed to enforce the constitution directly by his own interpretation but must protect and defend it according to his interpretation.

  11. Nice pro-Bill of Rights President pipe dream. I dream of it, too.

  12. We are talking about enforcing the law, which the President as the chief exectutive has a duty to do.

    I couldn’t agree more. But enforcing and/or obeying the law is not the same thing at all as defending it in court against a Constitutional challenge.

    I see the problem here: If he has a duty to make an independent judgment on whether a law is constitutional or not in order to defend it (or not), doesn’t he have the same duty in deciding whether to enforce or obey it?

    I just think there is a real distinction between undertaking a defense of a law, and obeying/enforcing it.

    You could say that the issue of whether a law is Constitional or not isn’t presented unless/until the law has been Constitutionally challenged.

    You could say that the President’s default mode is to defer to the judgment of his predecessors that the law is Constitutional, until it is challenged and he has to make his own determination.

    I don’t see how you square the oath of office with a President who cannot, institutionally, ever question the Constitutionality of a law, even when it has been challenged, and is obligated to defend to the death those laws that are, in his judgment, blatantly unconstitutional.

    1. I don’t see how you square the oath of office with a President who cannot, institutionally, ever question the Constitutionality of a law, even when it has been challenged, and is obligated to defend to the death those laws that are, in his judgment, blatantly unconstitutional.

      Whoa, are those regulation goalposts? They need blinking red lights to keep planes from crashing into them.

      No one is saying Obama has to “defend to the death” or “never question” a law. Just have your SG defend it in court and if they rule against you, oh well.

  13. I think the most important question is whether the Justice Department has to appeal a ruling against the Government. I seem to remember that when a lower court ruled the Pentagon’s ‘Don’t Ask, Don’t Tell’ policy unconstitutional, that the Justice Department immediately filed an appeal against the ruling, even though Obama had said before that he was opposed to the policy.
    Appealing a verdict is NOT a standard part of a lawyer’s job. It’s only done when the client asks for it and even then I’m not sure the lawyer is required to argue for the appeal himself. I know some defendants get new lawyers to handle appeals.
    But in any case, an appeal is something that is at the discretion of the client.
    So under no circumstances should government attorneys appeal decisions if the President or equivalent authority (such as a state governor for a state’s case) does not specifically authorise it. It should never be seen as standard practice for prosecutors.

  14. I think what you’re all missing is that all the “analogies” are wrong. DOMA is not a “criminal” law — it stops no crime, it prevents no crime, it penalizes no crime. Nor is it a law which affects everyone, as say, the Endangered Species Act does, or the forfeiture laws, or Miranda, affect everyone in the nation who might wind up afoul of its provisions. Nor is DOMA some situation between two citizens over the meaning of a law as it affects individuals. Nor is DOMA somehow an expansion or limitation on prosecutors’ powers and privileges, or duties to enforce laws broken. Indeed, it’s quite impossible to “break” DOMA for it doesn’t create anything to be broken. Nor is it really even a law which protects anything whatsoever; and if anything, damages people. Certainly it hasn’t “Defended” marriage, nor preserved it, or done anything whatsoever to affect marriages such as they exist between guy & gal.

    Nor are their “adversaries” to the law. Unless you want to conclude that the law and it’s defense is really one big law case called “Hetero citizens and the Federal and State Governments v. gay citizens.”

    No, DOMA is a law that tells gay people we are not allowed to use a word, nor to have any synonym used, to recognize the reality of gay unions. It tells gay people that we’re not welcome under “family law,” but doesn’t stop us whatsoever from using commercial and contract law to effect the same purpose, which is deal with the financial and legal reality of families. Indeed, since gay couples must use commercial law, and we do, to do all things necessary for our unions and property within them, the government already recognizes the couples. But not romantically, just business partners. The law in effect criminalizes that which is done, but without penalty, by levying a “penalty” on word usage by forbidding the use of a word in the English language to a small group of people. There’s not even a penalty for using the word “marriage” by a gay couple — it’s only the recognition of the use of the word. The law in a sense, simply states that what is real will not be recognized.

    The law does nothing more than what a bill of attainder does — it singles out a group of people, it levies a penalty, and it does so without any judicial proceedings. For it is a “crime” I guess, for a gay couple to say we’re “married.” The penalty is the higher taxes and the more legal expenses incurred to effect our families such as we have them within commercial law. And no gay person was ever brought to court under the law and told not to be a couple; it’s not even possible. Indeed, the law goes so far as to say, even if not actually spelling it out, that there’s no such thing as gay couples.

    And it is a law that is only applicable to a tiny group of people and not the nation as a whole.

    It is a very weird law. And it is indefensible on so many grounds it’s not funny. Not to mention that gay folks are actually paying for the defense of the law against us. And while anyone deserves a lawyer, and I suppose the government does too, sometimes a lawyer has to say to the client, “I’m sorry, but you have no case.” And in this case, the People of the US v. Gay people (For no individual can be sued or arrested under DOMA it must be against all of us as a class) — there is no case.

    Pick on the solicitor general or Obama all you want; DOMA is the “no gays exist” law. And it’s repugnant and intellectually dishonest. What will someone defend it as? Their only “defense” is that somehow, with any judicial proceedings whatsoever, gay people as a whole but not individually are “attacking” someone or something. Yep, weird.

    But find better analogies.

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