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Posted at 10:40 AM ET, 02/24/2011

Not defending DOMA a slippery slope?

By Adam Serwer

George Washington University Law Professor Orin Kerr has written the most substantive criticism of the Obama administration's decision to stop defending Section 3 of the Defense of Marriage Act:

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here's what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress's power. Again, it will be a power grab disguised as academic constitutional interpretation.

Kerr alludes to the Bush administration's Office of Legal Counsel memos "legalizing" torture, but former Solicitor General Walter Dellinger explains why the analogy is mistaken. The Obama administration will cease defending the law in court; it won't cease enforcing it. It has publicly informed Congress of its decision, rather than writing a secret memo empowering the executive branch to pretend certain laws don't exist.

But the scenario Kerr worries about largely rests on how Republicans respond to the decision. The Obama administration's decision to cease defending DOMA is hardly unprecedented -- in fact as principal deputy solicitor general, Chief Justice John Roberts urged the first Bush administration to stop defending an affirmative action law that was later upheld by the Supreme Court. In an op-ed for the New York Times last year, Dellinger noted several other instances in which presidents have decided not to defend laws they believed were unconstitutional.

So the question really becomes whether or not the GOP takes at face value and in good faith the administration's arguments that their decision not to defend Section 3 is a rare decision being made because of a limited and unique set of circumstances, namely the overwhelming empirical evidence that "sexual orientation is not a characteristic that generally bears on legitimate policy objectives," and a desire to avoid setting new anti-gay precedents in courts where they have not been established.

If Republicans choose to take yesterday's decision as license to simply stop enforcing laws they don't like when they're in control of the White House -- and, at this point, from child labor laws to Social Security, some Republicans don't make a distinction between laws they don't like and laws they think are unconstitutional -- then the scenario Kerr envisions could come to pass. But that depends on what Republicans decide to do, not on what the Obama administration did yesterday.

By Adam Serwer  | February 24, 2011; 10:40 AM ET
Categories:  gay rights  
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Comments

We are so far ahead, we parsed this issue and Kerr's piece in particular yesterday.

Posted by: shrink2 | February 24, 2011 10:44 AM | Report abuse

Shrink, We are so far ahead that I stated that the uprisings in Tunisia and Egypt were Bin Laden's worst nightmare come true, several days ago. Yet today, you sought to rehash that point, and paint yourself as possible the on maverick that held that view.

Get over yourself.

By the way. You still have not answered my question to you; since you have been carping about the White House not acting urgently enough on Libya; what would you have them do.

Keep in mind; you have also been carping about they not leaving Afghanistan and Iraq immediately; so I am sure you would not want them to do the opposite of that, in Libya. Right?

Posted by: Liam-still | February 24, 2011 10:54 AM | Report abuse

You mean just like Conservatives push their agenda in the courts knowing they have the upper hand in the Supreme Court and rulings will go their way?

Posted by: mikefromArlington | February 24, 2011 10:54 AM | Report abuse

How could the executive branch continue to defend, what Republican Hypocrites keep betraying, over and over, with their frequent affairs, divorces, fresh affairs, and new marriages. What is The Big Fat Pillbilly on now? His Fifth Traditional Marriage?! It is hard to go into court, and with a straight face say that you are there to defend Mr. Limbaugh's First Traditional Marriage, isn't it?

Posted by: Liam-still | February 24, 2011 11:00 AM | Report abuse

Something tells me we'll be seeing lots more arguments about how Obama and Democrats should not go so "fast" on equal rights. Some of the arguments may have some bases in legitimate legal arguments, but many of them will be driven by timidity among Democratic politicians who'd rather those pushy gays would just sit quietly (but with open wallets) in the back of the bus.

Posted by: S1VA | February 24, 2011 11:00 AM | Report abuse

There is nothing NEW, here. Having spent 30 years in the criminal justice system, I experienced prosecutors routinely making the decision not to proceed with a case on both the district and circuit court level. The most salient reason was so not to make bad case law. Other reasons: fairness, lack of funds, workload.

Posted by: dozas | February 24, 2011 11:03 AM | Report abuse

Liam: "since you have been carping about the White House not acting urgently enough on Libya; what would you have them do."

We have 600 Americans sitting on a ferry waiting to leave Libya when the seas calm. They are potentially sitting ducks, and Kaddafi is a wacko. I think you ask a good question.

"Rough Waters Strand Americans in Libya"

http://www.nytimes.com/2011/02/25/world/africa/25evacuate.html

Posted by: suekzoo1 | February 24, 2011 11:04 AM | Report abuse

It would be fun to see President Donald Trump going to court to defend Traditional Marriage, wouldn't it?

Posted by: Liam-still | February 24, 2011 11:05 AM | Report abuse

Sue,

I know. I just want to pin down the guy, who has been carping about Obama not doing something about Libya, while also carping about Obama staying in Afghanistan and Iraq, instead of getting out of there immediately.

Posted by: Liam-still | February 24, 2011 11:08 AM | Report abuse

So it's still a slippery slope, just not as slippery as Republicans are claiming and one that the Republicans have stepped down, too. Adam brings up some good points, but I'm not sure responding to slippery slope arguments is worth too much effort.

I'm don't practice Constitutional law, but there are procedureal motions in civil cases where both parties agree on something and the judge still rules against them. I think a judge could still find a law Constitutional even if neither party is arguing that the law is Constitutional. People should feel free to correct me if I'm wrong, but there are plenty of opinions out there where courts find independent grounds for their opinions.

Posted by: ashotinthedark | February 24, 2011 11:10 AM | Report abuse

"So the question really becomes whether or not the GOP takes at face value and in good faith the administration's arguments that their decision not to defend Section 3 is a rare decision being made because of a limited and unique set of circumstances, namely the overwhelming empirical evidence that "sexual orientation is not a characteristic that generally bears on legitimate policy objectives," and a desire to avoid setting new anti-gay precedents in courts where they have not been established."

Answer: No.

"some Republicans don't make a distinction between laws they don't like and laws they think are unconstitutional"

"Unconstitutional" is used now interchangeably with "bad policy" or "things I disagree with" by both parties. I don't see matters improving. See the partisan breakdown of the judicial decisions on the constitutionality of the Heath Care Law.

The Obama administration's approach just kicks it up another notch, but I'm sure the Republicans will adopt this tactic as well.

Best constitutional argument against the DOMA was always the "Full Faith and Credit" clause, but that didn't really effect the issue of eligibility for Federal benefits and Federal inheritance laws.

http://en.wikipedia.org/wiki/Full_Faith_and_Credit_Clause

Posted by: jnc4p | February 24, 2011 11:12 AM | Report abuse

I think Kerr raises a valid concern, but the danger rests on the actors of that particular play. See Bush and torture.

Interesting viewpoints. Thanks.

Posted by: Alex3 | February 24, 2011 11:13 AM | Report abuse

Serwer writes
"If Republicans choose to take yesterday's decision as license to simply stop enforcing laws they don't like when they're in control of the White House ... then the scenario Kerr envisions could come to pass."

This situation already exists, throughout government. We pick and choose which laws to enforce, and how to enforce them. For instance, the Bush administration chose to enforce immigration laws with stepped-up border patrols, but largely ignored the employers who hire illegal immigrants/ undocumented workers.

Posted by: bsimon1 | February 24, 2011 11:13 AM | Report abuse

Ah yes, that dreaded slippery slope. You knew that once the government decided to stop going into court to defend slavery, and segregation, it would lead to the government eventually deciding to stop defending the oppression and denial of equal rights of other groups.

Posted by: Liam-still | February 24, 2011 11:16 AM | Report abuse

""If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here's what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended.""

Reasonable, but . . . why shouldn't the administration (Republican or Democrat) get to decide what it's going to devote resources to defending in court, and that it's not? Certainly, the DOMA has a lot of defenders out there--why can't they foot the legal bills for defending DOMA in court? Why can't any administration say, "Look, I want to stop criminals and save children, not defend something I think is constitutionally questionable, anyway. You want to defend the law as it stands? You pay for it."

Posted by: Kevin_Willis | February 24, 2011 11:16 AM | Report abuse

@kevin: "Certainly, the DOMA has a lot of defenders out there--why can't they foot the legal bills for defending DOMA in court."

Apparently there is a real question about who would have the legal standing to defend the law. Congress might not.

Posted by: sbj3 | February 24, 2011 11:18 AM | Report abuse

@Liam-still: "Get over yourself."

Guys, we have to find out who it is that keeps p*ssing in Liam's oatmeal and get him to stop it.

Or encourage him to stop partaking of the bitters. I just got out my curmudgeon meter, and Liam is off the charts! The needle is firmly in the red. If he gets much more curmudgeonly . . .

|red:. . . he'll collapse into a irascible singularity known as The Curmudgeon Syndrome.|

• * * ducking * * •

Posted by: Kevin_Willis | February 24, 2011 11:19 AM | Report abuse

So, the answer to Adam's question: "[Is] not defending DOMA a slippery slope?"

Is yes - yes it is a slippery slope.

There's a lot more interesting analysis at Volokh today:

"In particular, it seems that everyone seems to think that, somehow, someone will be available to defend a law when the Administration declines to to do. It’s not entirely clear to me how this happens when an Administration declines to defend a law in the District Court, as opposed to the Supreme Court: The key problem is how to get the case up to the Supreme Court, which isn’t presented when the Administration defends the law in the lower courts. But if everyone agrees that this will happen somehow, then the Administration’s decision is a lot less significant, and therefore less worrisome from a standpoint of long-term impact, than I had thought."

http://volokh.com/

Posted by: sbj3 | February 24, 2011 11:26 AM | Report abuse

Poor Kevin,

He gets so upset when a Progressive speaks the plain truth, but yet he consumes hours of Rush Limbaugh's hate speech on a regular basis.

Kevin Willis, you are just another Right Wing Tool, who want Progressives to remain passive,while you kiss the Arse of Hate Mongers, such as Rush Limbaugh.

Like Harry Truman said: I do not give them hell. I just tell the truth about Republicans, and they just think that they are in hell.

Posted by: Liam-still | February 24, 2011 11:32 AM | Report abuse

@liam: "Not to worry. Once Republicans destroy the unions"

That's not going to happen. I'm not even sure they'll have a great deal of success with the public sector unions.

"there will be a lot more working class people having their homes foreclosed on"

This is going to happen, either way.

"and property values will drop in currently stable neighborhoods across the country."

This is going to happen in either case. Be prepared!

Posted by: Kevin_Willis | February 24, 2011 11:09 AM |
..........................
Well, we sure need to find out which Kevin we are dealing with. One minute he decides to engage me in debate. The next minute he decides that he will play the "ageism" hate card against me.

Still:

Kevin,

You are very naive. I guess that is what makes you A Ditto Head. Republicans are out to eliminate all Unions. Walker pretty much admitted as much on that tape, and they will succeed, because the Gang of Five Right Wing Supreme Court activists handed the Oligarchs the weapon, which with to do it.

The Oligarchs have won. There will be a few pitch battles here and there, for a few years, but when the dust settles, America will end up being ruled by The Oligarchs, and the vast majority of the working class will be sinking into third world living conditions.

Here come the Neo-Plantation Owners. Like those of old, they will provide only starvation level wages, and import all the luxury items, that only they can afford.

American Exceptionalism is now becoming a sick joke, thanks to all those stupid Tea Party idiots.


Posted by: Liam-still | February 24, 2011 11:36 AM | Report abuse

Since the Onion can not cover every story;

Palin announces trip to India.

When asked, what her itinerary would be.

She replied; we have not completed the schedule plans yet, but I expect that I will spent the bulk of my visit in Indianapolis.

Posted by: Liam-still | February 24, 2011 11:50 AM | Report abuse

@Liam: ""Poor Kevin,

He gets so upset when a Progressive speaks the plain truth, but yet he consumes hours of Rush Limbaugh's hate speech on a regular basis.""

Yes, I'm •upset•. By all this •plain truth•. BTW, I don't actually listen to Rush much at all any more. But, thanks for playing.

""Kevin Willis, you are just another Right Wing Tool, who want Progressives to remain passive,while you kiss the Arse of Hate Mongers, such as Rush Limbaugh.""

Wow. Really? And where am I supposed to be trying to engage you in "debate" about that? Seriously?

""Like Harry Truman said: I do not give them hell. I just tell the truth about Republicans, and they just think that they are in hell.""

Well, actually, I think you're funny. And interesting. I wouldn't call that "hell", myself, but YMMV.

""Well, we sure need to find out which Kevin we are dealing with.""

Oh, I'll never tell.

""One minute he decides to engage me in debate.""

Yes, a nice rational debate about how I'm a naive right wing tool, playing hate cards, kissing Rush Limbaugh's arse, and a Koch sucker. I'm so totally up for that civil debate you propose, Liam. Let's go!

""The next minute he decides that he will play the 'ageism' hate card against me.""

Show of hands: who finds my comment, re: Liam's recent, kinda curmudgeonly posts, an example of hateful ageism? If I went over the line, and that's the consensus, I will apologize. In fact, I apologize, anyway, as you obviously took offense. I meant it in good humor.

But, jeeze, you sure jumped on shrink2. I thought it merited a comment about your curmudgeonly nature.

Next time, I could refer to your constant insistence on waking up on the wrong side of the bed. Would that be some form of bed-ism or mattress-ism, or especially hateful?

Posted by: Kevin_Willis | February 24, 2011 11:52 AM | Report abuse

The BBC's Adam Mynott says that "the tone of the Gaddafi speech "was much more submissive than the two recent public statements he has given." Also, Libya's state TV, for the first time is doing its crawl line and captions in English.

Hmmm, sounds like someone is trying to reach out to the West, you know, loyal partners in the war against terror.

Posted by: shrink2 | February 24, 2011 12:01 PM | Report abuse

All, the police chief in Madison WI demands explanation for Walker's remarks about protestors:

http://wapo.st/g3PwKH

Posted by: Greg Sargent | February 24, 2011 12:02 PM | Report abuse

Kevin, the last time you spoke of Rush, you said you listened to him a lot. You said you enjoyed him. You also not too long ago tried to make the case that his hate speech was just him being funny.

Now; you suddenly tell us, that you really do not listen to him much at all anymore.

Of course you don't. Since when did they open a center to deprogram Ditto Heads, and how long did you stay there?

Posted by: Liam-still | February 24, 2011 12:02 PM | Report abuse

Repubs have already not enforced laws based on their theory of the "unitary executive".

Rove and other refused to testify before congress based on that theory. And then the DOJ refused to act on a Contempt of Congress claim against Rove and others because of that theory!

Posted by: mikediaz1 | February 24, 2011 12:05 PM | Report abuse

But, jeeze, you sure jumped on shrink2. I thought it merited a comment about your curmudgeonly nature.

Next time, I could refer to your constant insistence on waking up on the wrong side of the bed. Would that be some form of bed-ism or mattress-ism, or especially hateful?

Posted by: Kevin_Willis | February 24, 2011 11:52 AM |

..................

Shrink jumped on Adam. Get your facts straight. He also has been jumping on President Obama for not getting out of Afghanistan and Iraq immediately, but has also started jumping on him for not doing more about Libya immediatly. I have asked him, several times, what he would suggest that President Obama do about Libya, that would not involve us going in there, and he has never answered the question, so I felt it was time to hit him with a verbal two by four to see if he would explain his seemingly contradictory complaints against President Obama.

Posted by: Liam-still | February 24, 2011 12:11 PM | Report abuse

Serwer's argument reduces to:

The Obama administration made a political decision I agree with - IT IS GOOD!

If a Republican administration makes a poltical decision I disagree with - THAT WOULD BE BAD!

Well DUH!

Posted by: pilsener | February 24, 2011 12:21 PM | Report abuse

@Liam-still: "Kevin, the last time you spoke of Rush, you said you listened to him a lot."

I used to.

"You said you enjoyed him."

I did, during the Bush admin. ;) And I made a good try during the 1st year of the Obama admin. If there's something particular going on, I might start listening again, but I'm tired of hyperbole, and that's a very large component of his show.

"You also not too long ago tried to make the case that his hate speech was just him being funny."

I did indeed try to clarify with a more likely explanation than what was being offered. I know accuracy isn't all that exciting. Doesn't rouse the rabble. I just like it.

"Of course you don't. Since when did they open a center to deprogram Ditto Heads, and how long did you stay there?"

Is that what you tell yourself about everybody who disagrees with you on something: that they're de facto cultists or mind-numbed robots?

Seems awfully convenient.

Posted by: Kevin_Willis | February 24, 2011 12:55 PM | Report abuse

I know for certain that you have admitted to listening to Rush and enjoying him for all those years, that he was calling Women Nazis.

He did not just turn into a hate mongering pig in the past few months.

Posted by: Liam-still | February 24, 2011 1:12 PM | Report abuse

It seems very black and white to me:

* Congress makes laws.

* The Supreme Court decides whether laws are Constitutional.

* The President enforces laws.

It's clear that the President is overstepping his authority and role.

For example's sake, what if congress tried to order air strikes on Libya? Wouldn't they be overstepping their authority? The President has a duty to defend the laws of the land, not arbitrarily pick and choose which ones he wishes to uphold.

The same goes for the legislators in Wisconsin. I think it's despicable how they are trying to ostensibly rewrite the rules just because they don't like being in the minority. Republicans didn't like the health care bill, but they employed "procedural" methods, which are a part of the rules of congress, to try and stop it. They weren't successful stopping the legislation, so now they must rely on the vote of the people to get it accomplished through the election process. That is how it was intended to work. These Wisconsin legislators should be ousted. I hope their bosses, the People, fire every one of them.

Posted by: Opinionated777 | February 24, 2011 1:48 PM | Report abuse

And I bet you were one of those Stupid Tea Party Koch Suckers who tried to stop the Democrats from passing their bills, when they were in charge of all branches of the government.

Hypocrite.

Posted by: Liam-still | February 24, 2011 4:07 PM | Report abuse

My problem with these arguments is that everyone seems to be leaving out one crucial aspect of this issue. Our Judicial branch.
It is no surprise that now and again, our president should disagree with the decisions or will of congress. We also understand that it is the presidents duty to protect and defend the constitution.
But what happens when the president disagrees with congress on constitutional principles?
Resultant is not a shift of power to the executive branch. At least not necessarily.
In these cases, it is our judicial branch who must ultimately interpret our constitution, and how it should be applied to existing or proposed law.
This will be the case with DOMA, as with the health care legislation, and likely a host of other issues that are so prominent, and which have so bitterly divided our nation.
Let us not forget that the judicial branch still has a very large role to play in this issue. It is within the confines of this branch that these issues will at last be settled.

Posted by: DanielMcGary | February 24, 2011 4:48 PM | Report abuse

Article 2, section 3 of the Constitution says the President "shall take Care that the Laws be faithfully executed." While it does not empower him to decide the constitutionality of any law, I think we all generally agree that "faithfully" executing the law means that if a law is quite obviously unconstitutional (such as reinstituting slavery), he could delay implementation, ask for summary judgment, and refuse to act until the courts have spoken. However, making that decision when constitutionality is a given, or is still in question, as it is with DOMA, is significantly different, and it would be gravely misguided to empower the Executive branch with such judicial authority.

And of course, failing to defend a law challenged in court amounts to a de facto unilateral repeal, since an undefended statute almost certainly will not remain on the books if so challenged (if that were not true, then gay rights activists would not be so jubilant at this position). The administration, in picking and choosing what laws it executes, is wrong. Destroying the system to get the result you want is short-sighted and dangerous. And if you truly believe this would not be used as a precedent to eliminate Obamacare, then you are woefully mistaken.

Posted by: INTJ | February 25, 2011 11:31 AM | Report abuse

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