“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 StatesMost 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.
Surprise! Obama like every president before him decided to use the powers he has and Ezzie speaks up against it.
ReplyDeleteBush issued over 1000 signing statements (laws were passed by Congress AND signed into law by Bush, and then Bush instructed all under the purview of the executive branch to ignore it).
Bush's attorney general fired Democrats in the justice department and then his attorney general "forgot" about it while under oath.
These are just some examples of the loose relationship Bush had with the Constitution.
Feel free to condemn any wrong done by any president, but to condemn Obama while remaining silent on Bush doing them same thing shows what's really at play.
Anonymous,
ReplyDeleteTwo wrongs don't make a right. Using the defense that "everyone else is doing it/has done it" does not confer legitimacy on Obama's actions re the Defense of Marriage Act. His job is to enforce/defend the laws passed by Congress until or unless such laws are proven to be unconstitutional by the Supreme Court.
Even a blind person could see that by publically declaring that those under his purview will not defend actions against the Defense of Marriage Act Obama is hoping that someone will raise a challenge in the Court and will win that challenge. What he can't win going through channels he hopes to achieve by making an end-run around established procedure.
That other Presidents have also tried to play with the system is irrelevant to the fact that Obama is doing so now. Presidential precedent of malfeasance in carrying out their required duties does not support and legitimize that malfeasance for our present President.
No one has nor can argue seriously that our last President Bush was a sterling example of what a President should be--his incompetencies are too well documented to make that claim. Stating that Obama is only doing what Bush already did is to point out to readers that Obama is no more competent than Bush was.
For some people sworn to defend it, the Constitution is a nuisance and the oath is a lie.
ReplyDeleteOther Presidents in peacetime may have fuzzed the edges of the Constitution a bit, or done the occasional violation, but Obama way outdoes them, systematically, as sentient beings will attest.
It's a strange Obama supporter who judges him to be no worse than the rest.
How is refusing to defend a law the president believes to be unconstitutional failing his oath of office to "protect and defend the Constitution"? One can argue that he is mistaken about the constitutionality of the act in question, but the constitution is supposed to take preference over statute.
ReplyDeleteTo take an example that shouldn't excite too much emotion since it won't happen and isn't partisan, suppose a Congress passed, and a president signed, a law permitting under some circumstances the quartering of soldiers in private homes in peace time, in plain violation of the Third amendment. Would not everyone agree that if a future president who, unlike his predecessor had read the 3rd refused to either invoke the law if the circumstances arose, or defend the law if it were challenged was doing the right thing?
I don't see any reason why the President can't refuse to defend cases.
ReplyDeleteObviously, this is something that should only be done sparingly, and consequently, it's something the President has to spend a lot of political capital on.
But the President takes an oath to uphold the constitution, not just the "faithfully execute" clause.
Whether this ia good thing or a bad thing, our constitutional government is particularly well suited to inaction and the status quo. This often means that if one party refuses to act, it can severely gum up the works. Sometimes this hurts liberals, sometimes this hurts conservatives. Sunrise, sunset.
Anon - Huh? This isn't an Executive "power", this is a case of the President declining to defend the law in court, something which was accepted practice to do until now. It's a bad precedent for obvious reasons.
ReplyDeleteI don't see the relevance of Bush signing statements; I criticized President Bush and have praised President Obama numerous times on this blog. I've voted for more Democrats than Republicans. Trying to make me out to be some kind of Dem-basher is silly.
Also, since you brought it up: Bush issued about 140 signing statements (not 1,000), regarding a total of about 750 statutes. President Clinton signed more during his term than Bush did during his. Also, signing statements are legal, merely criticized for being used in place of a veto in some instances.
Finally, the argument for signing statements (by Clinton's lawyers) is presented to ignore to enforce laws which are clearly unconstitutional - Bush was criticized for using them in cases where he felt Congress was limiting Executive powers unconstitutionally. This case is much more debatable, but more importantly, the method used is completely unprecedented and sets a bad precedent going forward.
ProfK - Mostly agree, though I disagree on Bush. I think history will reflect far better on Bush than the media did during his Presidency.
ReplyDeleteBob - It's simply a strange argument by Obama supporters to say "well, Bush did X", when the big demand was for change.
Mike S. - I'm not actually going to say it is or is not constitutional; I haven't read it in detail, nor am I a legal scholar. However, the method used is the biggest issue: If the Congress, which is the law-making body in this country, passes a law, then it is the President's job to enforce that law (and as is clear, they are still enforcing it). Until now, this was understood to include defending that law as passed by Congress and signed into law by the President, as this was by President Clinton, until such time that the Judiciary branch deems it to be unconstitutional and that law is removed or rewritten. That has not yet happened here, so it seems to be far more of a political ploy using a new tactic than a normal course of events (hence the coverage). I don't know if he is or isn't allowed to do this (my limited understanding points to a gray area), but it certainly is a bad precedent for the future.
ReplyDeleteYour case is an interesting one, and I'll note that it's hard to come up with good examples here, but for that to happen would require a major amendment to the Constitution - and should that happen, a President would simply veto. If a President did sign it into law and if it was still pending in the courts, it would be an interesting case, but presumably yes, they would have to defend the law until the Courts deemed it unconstitutional.
In fact, I'd guess that almost every case is exactly like that, just less obvious - laws are passed, there's some debate as to their constitutionality, and until it's determined, the President and the DOJ defend the law as passed.
Vox Populi - I agree on the government being well suited to inaction; that's probably overall a good thing, as they don't do a great job when they act. :)
ReplyDeleteIf it were accepted practice for the President to consistently choose whether or not to defend a case, I would likely agree; however, as established practice is for the President to defend until such time as the Courts determine, not doing so is a bad precedent which will lead to serious partisan approaches to defending laws (as Kerr notes well).
I'm actually curious to see if Congress will defend it.
RWers should be thrilled with this. The Executive branch can finally stop wasting millions of tax dollars defending a law that is certain to be eventually overturned.
ReplyDeleteTea Party For the Win!
That's completely missing the point, and the bigger issue would be that it takes millions of tax dollars.
ReplyDelete>If it were accepted practice for the President to consistently choose whether or not to defend a case, I would likely agree; however, as established practice is for the President to defend until such time as the Courts determine, not doing so is a bad precedent which will lead to serious partisan approaches to defending laws (as Kerr notes well).
ReplyDeleteTo me, it seems like the filibuster. It's one of those things which is there that historically is not taken advantage of in a partisan matter. Until it is.
Used to be, you only needed a majority of Senators to pass legislation through the Senate; now you need 60. Technically, this isn't a new development, as filibusters were always possible, but it was taken for granted that a bare partisan minority of 41 would not use it over a hundred times per legislative session to prevent even routine measures from coming to a vote. It was assumed, until someone figured out, "hey, nothing is stopping us." And it's not realistic to have thought that no one would take advantage of the loaded gun, either. In a two party system with highly ideologically coherent political parties, it makes no sense to rely on the goodwill or laziness of your opponents to pass legislation. That's not a structurally sound method of governance.
Ditto with this. Structurally, it makes very little sense to charge an administration with enforcing a law it dislikes, much less defending it in court. Therefore, it doesn't make sense to assume that such an unnatural state of affairs will continue indefinitely.
In parliamentary systems, where the executive and legislative branches are combined, this problem doesn't really arise. If you have enough votes to be PM, you probably have enough votes to redo legislation you don't like.
...and the strategy of using a filibuster in such a way is relatively recent. And I think that's horrible precedent, too.
ReplyDeleteAnd it's not realistic to have thought that no one would take advantage of the loaded gun, either. In a two party system with highly ideologically coherent political parties, it makes no sense to rely on the goodwill or laziness of your opponents to pass legislation. That's not a structurally sound method of governance.
It basically worked until Clinton. My wife's uncle tells a story from when he worked for Sen. Moynihan, who was appalled at Clinton's approach and how he did things like this. And I think that unless we start moving back in that direction, we're going to have a larger and larger mess on our hands as a country. He also feels strongly that divided government is best, partly because it keeps government from moving too fast in any direction.
Structurally, it makes very little sense to charge an administration with enforcing a law it dislikes, much less defending it in court. Therefore, it doesn't make sense to assume that such an unnatural state of affairs will continue indefinitely.
Actually, it makes perfect sense, and it's exactly how the country was set up. It's not about party over country, it's about country over all. And until yesterday, that's exactly how it was approached. This is really horrible precedent, and will now change over yet another important aspect of government into partisan warfare. Laws will constantly be placed on and off the books at the whims of politics. All in all, it'll just lead to chaotic battles over elections to quickly change all the laws, and elections will swing based on the least popular law of the day. It's stupid and incredibly short-sighted.
Parliamentary systems like that simply don't have the same stability for that reason, though because they're broken up into more parties there's a bit more agreement all around and screwing each other has greater repercussions.
>And I think that unless we start moving back in that direction, we're going to have a larger and larger mess on our hands as a country.
ReplyDeleteI don't think so. Even the 90s was a different time, compared to now. The problem in Washington is not that our leaders are too mean to each other, or too willing to bend the rules, it's that our parties are too coherent. Used to be the Democratic party consisted of liberals and southern conservatives. There used to be moderate, rock-ribbed pro-choice New England Republicans. I think political scientists say that the 110th Congress was the first where every Democratic Senator was more to the left than any Republican. The New Deal coalition began slowly fracturing during the Johnson Administration, as conservatives flocked to the Republican Party, and liberals to the Democratic Party. A process that is now complete, at least in the Senate.
When the parties were more diverse, it made sense to get more bipartisan support for bills, but that doesn't work anymore.
It doesn't make sense really to yearn for a time when the parties were less coherent - why would I want an ostensibly liberal Democratic party to have a Strom Thurmond in it? Parties stand for things, and national parties should have the same ideologies nationwide.
>He also feels strongly that divided government is best, partly because it keeps government from moving too fast in any direction.
I'm also agnostic on this point. The beauty of a system where the majority rules is that if the legislation it produces is bad, it can be corrected. For all I care, let the government institute as many stupid programs as it wants. If it has majority legislative support, go right ahead. If it really sucks, we can always repeal it.
All this talk about wanting to slow the government down makes a lot less sense in an era of instant communication, or where a President can instantly wipe out the planet without any legislative oversight.
>It's not about party over country, it's about country over all.
Meh, this statement is too much like a truism to be meaningful. It's not as if Obama's doing this to line the coffers of the Democratic Party with money. Obviously, he thinks this is both (a) good policy and that (b) supporting the law in court would be to support an unconstitutional law. That's about putting country over all, too.
>Laws will constantly be placed on and off the books at the whims of politics.
First, in theory, yes, and that does not strike me as a bad thing. If rov ha'am doesn't like a law, it's not entitled to be there any longer than they suffer to allow it.
However, in practice, it's unlikely there will be that much legislative overhaul with established interest group politics and all.
>Parliamentary systems like that simply don't have the same stability for that reason
Depends on your system. The Canadians have a very stable system. As do the British, Danes, Norwegians, etc. Not everybody is as incompetent as the Italians and the Israelis.
Interesting analysis of the parties, though I do think that there simply was a different approach to politics as a whole. Personally, I'd love to see someone start an economically conservative/socially moderate or liberal party. I think it would bite a huge chunk out of the middle of this country's politics and really be a game-changer going forward.
ReplyDeleteI personally don't love his split-government suggestion, I was merely noting it as I thought it interesting/relevant.
I don't know that Obama had to do this in this fashion to accomplish the same, particularly in light of the bad precedent. It stinks too much of a political move to solidify an upset base and there won't be much of an outcry elsewhere because everyone recognizes it was headed to a likely death anyway.
Overall, I understand and yet disagree with your outlook on this; I think you have a valid set of arguments, but still believe it's a bad precedent overall and that it contributes to a further slide in the functioning of government.
>I don't know that Obama had to do this in this fashion to accomplish the same, particularly in light of the bad precedent.
ReplyDeleteJust to make a point I didn't really make forcefully, this is not the first time an administration has done this. This is a rare move, but not unprecedented.
http://www.law.com/jsp/article.jsp?id=1202473959808&slreturn=1&hbxlogin=1
I just saw a similar piece that quotes the same Kerr piece I did (along with a number of others), saying that it is extremely rare but has been done before. Some of the cases are ones where it infringes on executive power, which I believe is different, but I was considering posting the other piece as a follow-up with the other side. (No need now, I guess.)
ReplyDeleteI still think it's a bad precedent, particularly on such a large issue (even if ultimately it would have gone this way), for the reasons stated, and the other piece I saw noted that it was a very valid concern: Even if Obama could do this (and I'm not that too many if any said he can't), he probably should not have. He could have as your link notes simply defended with a footnote stating they disagree with the law and Congress should repeal, as he's done elsewhere. That he didn't do so here but did elsewhere also strengthens the idea that it is a political maneuver more than a constitutional stand.
>He could have as your link notes simply defended with a footnote stating they disagree with the law and Congress should repeal, as he's done elsewhere.
ReplyDeleteI think we're talking about two different things. Writing a footnote saying the administration disagrees with the law and wants it repealed, but will continue to enforce it makes sense if you believe the law is unwise, but constitutional, which appears to have been the case cited in the link, with DADT.
Here, Holder isn't saying the law is just unwise; he's saying it's unconstitutional. Logically, Congress repealing it or not doesn't matter; it remains unconstitutional, and he won't defend it.
That being said, obviously there's a political component to this. If Obama thought he could repeal DOMA easily, I'm sure he would. Likewise, if the President thought DADT was not repealable, he may have decided to declare it unconstitutional, and not defend it (in fact, a federal court had already ruled it unconstitutional). Politics definitely enters into it.
But I really don't see a problem with a President occasionally doing this. It does take a considerable amount of political capital, and requires a high bar to pass, and thus will be relatively uncommon. Also, I think most scholars think that other parties retain standing to defend DOMA, and from a policy perspective, I think it makes more sense for people who actually support a law to defend it, rather than have someone forced to defend it in a half-hearted way. Andy McCarthy, a supporter of DOMA, has been accusing the Obama administration of sabotaging DOMA litigation in the past for this very reason.
I don't think so - the example cited from Speechnow.org vs. FEC is one about constitutionality.
ReplyDeleteI hear your points again, but I still believe it to be unwise, and I'm afraid that after the media coverage of this it is now going to turn into accepted practice as opposed to the very rare occurrence it was until now.
>I don't think so - the example cited from Speechnow.org vs. FEC is one about constitutionality.
ReplyDeleteYeah, and, Holder told Congress he wouldn't appeal (i.e. defend the law on appeal), same as here. It's only in the DADT case that he defended, but said he wants it repealed.
>I hear your points again, but I still believe it to be unwise, and I'm afraid that after the media coverage of this it is now going to turn into accepted practice as opposed to the very rare occurrence it was until now.
An unintended irony, to be sure. ;)