Orin Kerr worries that the Obama administration's decision not to defend the Defense of Marriage Act may have far-reaching implications:
Now, I wouldn't in a million years compare torture and wiretapping with gay rights. Obviously, the subject matter is totally and completely different. But there's an interesting analytical similarity between the DOJ's position on DOMA and the Bush Administration's reliance on its Article II theories. If you look at AG Holder's reasons for why DOJ won't defend DOMA, it is premised on DOJ's adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that "the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA." This theory is not compelled by caselaw. Rather, it's a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.Maybe it was always thus, but it seems to me that both parties are increasingly resorting to procedural tricks rather than politics, and it worries me. Maybe this means that our political system is broken, maybe it means that the parties are getting increasingly ruthless--or maybe I'm overestimating the extent of the change. But as I say, it worries me. I think it would be disastrous on a whole lot of levels if the GOP managed to undo ObamaCare with this sort of thing. But if the precedent stands, I think you can expect them to try it the next time they have the presidency.
By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case -- in this case, the degree of scrutiny for gay rights issues -- and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.
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.
This article available online at: