Thursday, February 24, 2011

Setting Bad Precedents

I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States. - Oath of the President of the United States
Most of us learned in elementary school that there are three branches of government in the United States: The Congress makes the laws; the President and the Executive Branch enforces those laws; and the Judiciary, led by the Supreme Court, determines if those laws are Constitutional. Within reason, each branch is supposed to respect the ideals of one another, as there are gray areas all over and there are often disagreements, depending on one's point of view. For example, members of Congress are not supposed to put forth bills without demonstrating their need and why they fall under the Constitutional rights of Congress to enact a law about, a point which the new Republican majority has tried to impress; and the Courts will often try to retain portions of a law even if other portions are found to be unconstitutional out of respect for the Congress.

Yesterday, the Obama administration made a very interesting and unprecedented decision: It decided that it would no longer defend the Defense of Marriage Act, which was passed into law by overwhelming majorities in both houses of Congress in 1996, from constitutional challenges in the Courts. [Note: I don't believe the subject matter is particularly important for the legal discussion, on which (hat tip: Nephtuli) there are two very interesting posts with many interesting comments on Volokh Conspiracy (a top legal blog).] One of the most interesting parts of the administration's decision is that while they will not defend the law, they will however still enforce the law. This seems to be quite a split - some have argued that this makes sense, from the standpoint of the Executive Branch is required to enforce the laws of this country, and therefore even if they don't like a law, they can't simply not enforce it. Others have argued the reverse: The Executive Branch should be required to defend the law so long as it is on the books, but can choose to selectively enforce or not enforce a law as it sees fit. Still others have argued that they must do neither, that to enforce or defend but not the other is an inherent contradiction.

But Orin Kerr's piece points out the stickiest issue here: By the Executive Branch choosing to not defend a law passed by Congress, it essentially becomes an Executive power grab:
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.
The simplest example is perhaps coming up rather soon. If a Republican wins the Presidency in 2012, is there any doubt that they would exercise this new technique to not defend the health care bill should it come to the Supreme Court? The Department of Justice has a longstanding practice of defending all federal laws which are challenged in court, regardless of the President's views on the subject. To stop appears to be a horrible precedent to set, allowing the President in his capacity as Chief Executive to unilaterally determine which laws it will or will not defend (or enforce, though again that does not seem to be at issue here).

As an aside, Kerr makes an interesting analogy to President Bush's administration's defense of approaches that were certainly against the mainstream interpretation of law; however, at least those cases were regarding the powers of the Executive Branch and how far reaching those powers were (such as could they wiretap without a warrant people who had been in contact with foreign terrorists), and it is reasonable to allow the Executive Branch to attempt to determine the limits of its own powers. Here, President Obama's administration is applying its opinion to laws passed by the Congress and signed into law by President Clinton - without waiting for the Courts to decide the Constitutionality of the law, but making their own judgment and acting accordingly. This is essentially spitting in the face of Congress and precedent, that laws remain as such until such time that the Congress repeals or amends the law or the Courts determine it to be unconstitutional.

This is also not the first time President Obama has seemed to overstep his boundaries a bit. In last year's State of the Union address, he openly criticized a decision by the Supreme Court, prompting a reaction from Justice Alito and a bit of a negative backlash from all over, as no President had ever done such a thing before. For a President to almost interfere with another branch like that was shockingly bad precedent; yesterday's decision likely is as well. It appears that President Obama's administration is either unaware of the precedents it may be setting; uncaring due to the policies it feels are worth promoting despite the costs; or specifically creating such precedents to redesign the way the United States government functions and to transfer greater powers to the Executive Branch. None of those choices are particularly comforting, and we can only hope that the precedent is stopped and reversed as time passes.

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