In February of 2011, the Obama administration made the decision to stop defending the constitutionality of the 1996 Defense of Marriage Act (DOMA). While marriage-equality advocates celebrated this pronouncement, many pundits staunchly opposed this action, calling it both a dereliction of duty and an unprecedented expansion of executive power.
This week, the debate was propelled to the national stage as the Supreme Court began oral arguments on the landmark United States v. Windsor case, which calls into question the legality of DOMA. The Obama administration’s refusal to defend the case drew heavy criticism from conservative Justice Antonin Scalia and Chief Justice John Roberts.
This criticism poses an important question: Should presidents be responsible for defending the legality of laws that they believe to be unconstitutional?
The role of the executive branch is to enforce and uphold the laws enacted by Congress. In the vast majority of cases, the laws passed by Congress appear to be constitutional, and thus the executive branch’s Department of Justice is responsible for defending these federal laws from court challenges.
However, it is important to note that the president also takes an independent oath to preserve, protect, and defend the Constitution of the United States. Arguably, the president’s obligation to uphold the Constitution takes priority over his duty to defend laws. As Duke University Constitutional Law Professor Dawn Johnsen points out, “Congress and the president … are obliged to uphold, and thus by necessity to interpret, the Constitution.” In questioning the constitutionality of DOMA and subsequently refusing to defend the law, President Obama is simply carrying out his duties as the leader of a co-equal branch of government.
While some critics claim that President Obama’s refusal to defend DOMA is an unwarranted expanse of executive power, the Obama administration is not the first to refuse to defend a law for constitutional reasons. In fact, there is in fact significant historical precedent for the executive branch to take such action.
In a report complied by National Public Radio, we see that over the past 60 years both Republican and Democratic administrations have refused to defend various laws that they believe to be unconstitutional. Presidents Eisenhower, Kennedy, and Truman all refused to defend separate-but-equal laws in schools and hospitals. The Clinton administration did not defend a federal law requiring HIV-positive military personnel to be dismissed from duty. And interestingly enough, President George H.W. Bush did not defend a case regarding affirmative action at broadcast news stations, based on the recommendation made by his Acting Solicitor General who was none other than current Chief Justice John Roberts.
Furthermore, history shows us that an administration’s refusal to defend a law does not necessarily reflect the outcome of a particular Supreme Court ruling. President Ford refused to defend a campaign finance law that was ultimately upheld by the Supreme Court. President Reagan did not defend an independent council law that later won by an overwhelming 7-1 margin in the Supreme Court, thanks to the Senate Legal Counsel (SLC) who assumed responsibility for defending the law. Even the 1990 affirmative action law, deemed unconstitutional by then-Solicitor General John Roberts, was eventually upheld by a slim 5-4 margin.
These examples help to put the Obama administration’s refusal to defend DOMA in an appropriate context. While the Supreme Court will ultimately determine the legality of DOMA, the president still has a responsibility to preserve, protect, and defend the Constitution of the United States. The Obama administration thus has the power to question the constitutionality of DOMA and then decide whether or not to defend the law. While it is important to exercise restraint, this form of executive action has been utilized by countless administrations and does not appear to hinder the right to a fair trial.
It may be impossible to predict how to the Supreme Court will rule on United States v. Windsor, but it is clear that the Obama administration is justified in refusing to defend the Defense of Marriage Act.