By Cameron Smith
On February 23, President Obama, in consultation with Attorney General Eric Holder, determined that the Justice Department would no longer defend Section 3 of the Defense of Marriage Act (DOMA) which defines marriage as only between a man and a woman.
The DOMA decision has unleashed a seemingly endless cavalcade of commentary regarding the constitutionality of DOMA and the merits of the traditional definition of marriage. Once again, the culture wars seem to be back in full swing as part of American politics.
Unfortunately, the most concerning aspect of the President’s decision has been conspicuously absent from the public debate. Rather than providing clarity on the executive branch’s perspective on the constitutionality of DOMA, the President has muddied the waters and acted in a manner offensive to any reasonable interpretation of the Constitution.
The President derives executive authority from Article II of the U.S. Constitution and is required to “take care that the laws [of the United States] be faithfully executed.” Article I clearly outlines that “[a]ll legislative [p]owers…shall be vested in [the] Congress of the United States….” Powers of the judicial branch are found in Article III and further clarified by Marbury v. Madison, 5 U.S.137 (1803) which established the power of the Court to review the constitutionality of laws. These clearly defined functions provide a unique separation of powers that has served our country well for over 200 hundred years.
On November 2, 1994, Assistant Attorney General Walter Dellinger issued a memorandum entitled “Presidential Authority to Decline to Execute Unconstitutional Statutes” (Dellinger Memorandum). Some have suggested the Dellinger Memorandum should be instructive when considering the President’s recent actions regarding DOMA.
The Dellinger Memorandum clearly and effectively articulates that the President has ample authority to decline enforcement of legislation that encroaches on the constitutional charge of the executive branch. A number of cases including Myers v. United States, 272 U.S. 52 (1926), INS v. Chadha, 462 U.S. 919 (1983), and United States v. Lovett, 328 U.S. 303 (1946) convincingly reinforce that assertion.
Unfortunately, the Dellinger Memorandum does not effectively speak to the President’s decision on DOMA. At no point has the President or the Attorney General argued that DOMA encroaches on the President’s Article II powers. Rather, the President has made a political decision that DOMA is unconstitutional according to his interpretation of the Fourteenth Amendment which has been interpreted to apply to the federal government.
To make matters more confusing, President Obama has informed the Attorney General that the executive branch will continue to enforce the law even though it will not defend it in court. Essentially, this means that DOMA will be considered law but anyone challenging the constitutionality of DOMA in court will not find the U.S. Department of Justice opposing them.
This decision begs the question why the President who has sworn to “preserve, protect and defend the Constitution” would continue to enforce that which he believes to be unconstitutional.
By declining to defend DOMA while continuing to “enforce” it, the President is trying to have his cake and eat it, too. The President is attempting to heavily prejudice the judicial branch’s constitutional disposition of DOMA without declaring the law unconstitutional from the White House.
If the President has the power to unilaterally declare a statute unconstitutional, then the office wields even more power than previously recognized, subject to the volatility of the election cycle. That power would radically shift the modern understanding of constitutional interpretation which has generally deferred to the Supreme Court as the arbiter of constitutionality in most cases. The President also recognizes that such a shift would mean many other potentially unconstitutional laws such as the individual mandate in the Patient Protection and Affordable Care Act could be dispatched by subsequent administrations.
In any event, the President’s decision on DOMA rests on shaky constitutional ground regardless of the ultimate constitutionality of DOMA itself. If President Obama finds DOMA unconstitutional, then he is failing to execute his constitutional Oath of Office to “preserve, protect and defend the Constitution of the United States.” On the other hand, if he continues to enforce the law, thereby supporting its constitutionality, he must also defend it to ensure that the law is faithfully executed.
While the President may have shrewdly made the most politically expedient decision, the responsibility to uphold the Constitution supercedes politics. President Obama should be called to account by Democrats and Republicans alike, regardless of their views on DOMA.
Cameron Smith is General Counsel and Legislative Liaison for the Alabama Policy Institute, a non-partisan, non-profit research and education organization dedicated to the preservation of free markets, limited government and strong families, which are indispensable to a prosperous society.