When May a President Refuse to Defend a Statute? The Obama Administration and DOMA

Carlos A. Ball[*]

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Presidents sometimes make the controversial decision not to defend a federal statute they believe is unconstitutional.[1]  It may be tempting, when assessing the appropriateness of these decisions, to adopt one of two categorical positions: either that the President should never refuse to defend a law based on his view that it is unconstitutional, or that the President has unlimited constitutional authority to refuse to defend laws on that basis.[2]

I do not believe that either of these categorical approaches is warranted.[3]  The former view insufficiently accounts for the fact that the Executive Branch, as a co-equal branch of government, has an independent duty to “interpret and implement the Constitution.”[4]  As Professor Dawn Johnsen has explained, “Congress and the President . . . are obligated to uphold, and thus by necessity to interpret, the Constitution, and the process of constitutional interpretation benefits from the thoughtful participation of the elected representatives of the people in the public dialogue about the meaning of the Constitution.”[5]

The Obama Administration’s Decisions to Enforce, but Not Defend, DOMA § 3

Robert J. Delahunty[*]

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On February 23, 2011, Attorney General Eric Holder advised Congress that the Department of Justice (DOJ) would no longer defend § 3 of the Defense of Marriage Act (DOMA)[1]—the Act of Congress that defines "marriage" for federal purposes as "a legal union between one man and one woman as husband and wife."[2]  The Attorney General stated: "[T]he President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional."[3]  The Attorney General noted that "there is substantial circuit court authority applying rational basis review to sexual-orientation classifications."[4]  Furthermore, he acknowledged that the DOJ previously defended § 3 in circuits that ultimately applied rational basis review to classifications by sexual orientation.[5]  Nonetheless, in two pending challenges to § 3 in the Second Circuit—which had not ruled on the controlling standard of review—the President instructed the DOJ not to defend the challenged section.  The Attorney General added:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.  To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality.  This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.[6]

Obviously, the Obama Administration's decisions not to defend the constitutionality of DOMA—but at the same time, to enforce it—raise significant constitutional questions.