It’s not every day that the Obama administration borrows a page from the conservative legal playbook. But that’s what happened last week when Attorney General Eric Holder announced that the Justice Department would no longer defend the 1996 Defense of Marriage Act (DOMA) in federal court.
According to a letter Holder sent to Congress, DOMA’s requirement that the federal government recognize only heterosexual marriage “violates the equal protection component of the Fifth Amendment” and should therefore be struck down. “This is the rare case where the proper course is to forgo the defense of this statute,” Holder wrote, though he noted that the administration will continue to enforce the law and will provide Congress “a full and fair opportunity” to assume DOMA’s legal defense.
Despite the angry protestations of leading conservatives—former House Speaker Newt Gingrich fumedthat “the president is replacing the rule of law with the rule of Obama” while the Capital Research Center’s Matthew Vadum argued that Obama could be impeached for failing to defend DOMA—the president’s decision actually follows in the footsteps of two significant conservative precedents.
First, there was Solicitor General (and future Supreme Court nominee) Robert Bork’s approach to the 1976 Supreme Court case Buckley v. Valeo. Bork’s job as solicitor general was to give the government's position in defense of the 1971 Federal Election Campaign Act (FECA). The only problem was that Bork believed one of FECA’s provisions, which allowed Congress to appoint members to the Federal Election Commission (FEC), violated the Constitution’s separation of powers. In Bork’s view, the power to make FEC appointments fell exclusively within the executive branch.
So instead of submitting one brief to the Supreme Court, Bork submitted two, one challenging the constitutionality of the appointments provision and the other strongly defending the rest of FECA. Bork also ensured that the FEC would be filing its own brief defending the provision he had attacked. In its ruling, the Court largely sided with Bork, striking the appointments provision while upholding other aspects of the law. As Bork later explained of his approach, “it would seem to me not only institutionally unnecessary but a betrayal of profound obligations to the Court and to Constitutional processes to take the simplistic position that whatever Congress enacts we will defend, entirely as advocates for the client and without an attempt to present the issues in the round.”
That’s what Obama and Holder did last week. Keep in mind that while the Constitution requires the executive branch to “take care that the laws be faithfully executed,” the president also swears an oath to “preserve, protect, and defend” the Constitution. The question is what happens when the executive is charged with executing a law he deems unconstitutional. Should a contested congressional statute trump an oath to the Constitution?
Deputy Solicitor General (and current Supreme Court Chief Justice) John Roberts faced that dilemma in 1990. At issue that year in Metro Broadcasting, Inc. v. Federal Communications Commission was a government policy giving preferential treatment to minority-owned stations seeking a broadcast license from the FCC. According to the George H.W. Bush administration this racial preference was unconstitutional. Roberts therefore filed a brief with the Supreme Court describing the policy as “precisely the type of racial stereotyping that is anathema to basic constitutional principles” while permitting the FCC to mount its own defense of the minority preference. The Court sided with the FCC.
So unless Gingrich and other conservative critics are also willing to denounce Bork and Roberts for violating the rule of law, they have no coherent argument against Holder and Obama. In fact, conservatives might even want to thank the administration. While Obama’s decision was probably unnecessary to secure DOMA’s eventual legal defeat, it has given the GOP a powerful campaign issue. It may also have set the stage for some political payback. As the liberal UCLA law professor Adam Winkler worried last week in response to Holder’s announcement, “Think of the laws that might be undermined by the next Republican president.”