By Peter Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University. This analysis was originally posted on Shane Reactions.
A distinguished fellow law professor, Adam Winkler, has recently argued that the Obama Administration's decision not to def
end the constitutionality of the federal Defense of Marriage Act (DOMA) is an abdication of the responsibilities of the presidential office. He wrote: "For decades, presidents, Democrats and Republicans alike, have taken the position that it's the executive's obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution's command that the president ‘shall take Care that the Laws be faithfully executed.'"
This position, however, is wrong on history and reflects an incomplete reading of the Constitution.
In analyzing this question, it's important to distinguish two very different things: the executive duty to carry out the law and the President's duty to defend statutes challenged in court. On the first matter, Attorneys General have long set a very high bar before opining that the executive branch can decline to carry out the law. In 1919, Attorney General A. Mitchell Palmer, justly infamous on other grounds, penned a line that Attorneys General have consistently followed on the issue of whether questionable laws should be enforced: "Ordinarily, . . .it is not within the province of the Attorney General to declare an Act of Congress unconstitutional-at least, where it does not involve any conflict between the prerogatives of the legislative department and those of the executive department."
The only likely defensible exception to this stance would occur if Congress were to enact law plainly violating well-established constitutional rights. Thus, for example, if Congress purported to reestablish racial segregation in D.C. public schools, the executive branch could rightly decline implementation.