Note the sentence I bolded below. It’s a point we’ve raised before. Other legal experts have agreed that when the President believes a law to be clearly unconstitutional, he does not have to defend it in court. So President Obama, the constitutional law professor, thinks discrimination against gays and lesbians is unconstitutional? How does he feel about discrimination against other minorities – is that constitutional? This was written in the wake of the DOMA brief debacle last summer, but is especially relevant after the DADT brief:
The closest I came to an authoritative source in the popular press is a 2005 analysis by former DOJ attorney and Georgetown law professor Marty Lederman. Lederman’s contribution is more organizational than substantive; he maps historical exceptions to the Justice Department’s “general policy” of defending the constitutionality of federal statutes and then groups them. Lederman identifies three categories of exceptions. First, the Justice Department will not defend a law if one or more intervening Supreme Court rulings rule out a plausible legal defense. This strikes me as obvious: The Justice Department has no business writing briefs in support of a law the Supreme Court has authoritatively deemed unconstitutional, but this is his list, not mine. Second, the Justice Department may balk at defending a law if it believes the law infringes on the proper authority of the executive branch. This is less obvious but hardly surprising when one considers the Justice Department’s interests in a powerful executive branch. It’s also the most commonly invoked exception, although it has yet to surface in the Obama Justice Department. Third, the Justice Department won’t defend statutes that the president has publicly declared unconstitutional.
With respect to the DoMA, this third exception invites the question: Why doesn’t Obama come out and call the law unconstitutional? As I see it, there are only two possible answers. The first and less plausible answer is that Obama sincerely believes the law is constitutional. I say less plausible because the president tipped his hand by calling for the DoMA’s reversal. To be sure, one can find fault with a law without questioning its constitutionality, but Obama has made a point of elevating his rhetoric when addressing the DoMA, and has publicly criticized the law as discriminatory.
The second possibility is that Obama won’t declare the law unconstitutional because the fallout would be messy. Not only would he create new enemies in Congress, but he would risk a small-scale turf war within the executive branch by forcing the Justice Department’s hand. If that’s the real hold-up, the White House has brought its argument full circle: The Justice Department won’t yield unless the President declares the law unconstitutional, but the president won’t declare the law unconstitutional because it would require the Justice Department to yield. It’s an unfortunate, if dizzying, line of reasoning, but perhaps one we should come to expect.