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 defend 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.
In reaching this position, Attorneys General - like Presidents - have to take into account two different provisions of the Constitution. One is the "Take Care Clause" mentioned by Professor Winkler. The central purpose of that clause is to prohibit the executive suspension of statutes, a key protection for the integrity of the legislative process going back to the 1688 Declaration of Rights in England.
The other provision, however, is the presidential oath, which requires Presidents to "preserve, protect, and defend the Constitution" - presumably, all of it. In carrying out laws that the President regards as unconstitutional, he might seem to be in violation of this straightforward vow. But, regarding unconstitutional laws, the courts are available to protect the public from their operation. The danger to constitutional checks and balances of allowing Presidents simply to ignore laws they disagree with is too obvious and too grave to be ignored. Presidents simply have to strike a balance. And, with regard to legal implementation, the right balance is, almost always, to carry out the laws Congress enacts.
Defending laws in court is a different matter for three obvious reasons. First, the executive is not claiming to have the final say on legal implementation - or even interpretation. The challenged law will remain on the books - and enforced - unless the courts rule otherwise.
Second, the executive stance does not deprive the law of defenders. In the case of DOMA, for example, courts are likely to allow Congress to intervene and offer a defense. This is exactly what happened when the executive branch declined to defend the constitutionality of the legislative veto in the 1983 Chadha case.
Third, government attorneys are officers of the court. As advocates, they are bound by professional and ethical norms. An important question, then, for the Justice Department is how far to go in pressing arguments in a judicial forum if the Department does not think the arguments are valid.
President Reagan's first attorney general, William French Smith, articulated a very restrictive stance on this question: "In my view, the Department has the duty to defend the constitutionality of an Act of Congress whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining the case conclude that the argument may ultimately be unsuccessful in the courts."
His immediate predecessor, however, Benjamin Civiletti, staked out a position that left more room for discretionary judgment. In a letter to a Senate committee, he wrote: "The Attorney General has a duty to defend and enforce the Acts of Congress. He also has a duty to defend and enforce the Constitution. If he is to perform these duties faithfully, he must exercise conscientious judgment. He must examine the Acts of Congress and the Constitution and determine what they require of him; and if he finds in a given case that there is conflict between the requirements of the one and the requirements of the other, he must acknowledge his dilemma and decide how to deal with it. That task is inescapably his."
Attorney General Holder's letter explaining the decision not to defend DOMA represents a rigorous and conscientious implementation of the Civiletti view. It does not deny, as Civiletti went on to say, that "when the Attorney General is confronted with . . . a choice, it is almost always the case that he can best discharge the responsibilities of his office by defending and enforcing the Act of Congress." But it also does not portend any executive branch power grab. Taking this careful, highly deliberate step in defense of what the President and the Attorney General take to be the right view of the Constitution is consistent with the best interpretation of the executive's obligations towards the Constitution and the rule of law.
In short, one may debate the Attorney General's legal analysis - although, for the record, I agree with it. In taking their stance, however, President Obama and the Attorney General have acted well within the institutional norms long followed, to good effect, by their predecessors.