The defenseless marriage act: the legitimacy of President Obama's refusal to defend DOMA s. 3.

• Author: Pepper, Stacy
• Position: Defense of Marriage Act of 1996

TABLE OF CONTENTS INTRODUCTION A. President Obama's Approach to DOMA B. Questions Raised by a President's Decision to Enforce, but Not Defend, a Law I. WHETHER THE PRESIDENT HAS THE RIGHT TO INTERPRET THE CONSTITUTION II. WHETHER THE PRESIDENT HAS THE RIGHT TO ACT ON HIS INTERPRETATIONS OF THE CONSTITUTION III. WHETHER THE PRESIDENT HAS THE DISCRETION TO DECLINE TO DEFEND AN UNCONSTITUTIONAL LAW A. Whether Declining to Defend a Law, but Continuing to Enforce It, Is Constitutional 1. Unenforcement in the Form of Refusing to Impose the Law or Punish Transgressions 2. Unenforcement in the Form of Declining to Defend the Law Against Challenge in Court B. Whether the President Should Decline to Defend Laws 1. The Consequences of Declining to Defend a Law Absent Congressional Intervention in Court a. Repercussions at the Trial Stage b. Repercussions at the Appellate Stage i. Government Prevails at Trial, but Declines to Defend Its Victory Below aa.Vacatur and Remand bb. Ruling for the Appellant cc. Ruling for the Govermnent-Appellee ii. Government Loses at Trial, but Initially Pursues an Appeal 2. The Redeeming Effect of Congressional Intervention in Court CONCLUSION INTRODUCTION

President Obama's refusal to defend against constitutional challenge the Defense of Marriage Act (hereinafter "DOMA") revives concerns about the scope and application of executive power--when confronted with a law he views as unconstitutional, what action may a President take against the law without exceeding the bounds of his authority, and what action must he take to fulfill his Article II obligations? To the extent that law reviews and academic journals have endeavored to solve these questions, three potential answers have emerged: (1) the President must take no action against a law he thinks is unconstitutional because the Take Care Clause exhorts him to enforce Congress's law until the Supreme Court overrules it or Congress repeals it; (2) the President must refuse to enforce the law altogether because Article II forbids him from imposing upon citizens an unconstitutional law; and (3) the President must take some action against the law, but Article II grants him the discretion to decline to defend the law against challenge in court in lieu of outright unenforcement. In this article, I critique the assumptions giving rise to these divergent views on the President's executive authority and the aims of Article II's Take Care Clause. In doing so, I evaluate whether a President's decision not to defend a law against constitutional challenge (1) satisfies his Article II obligations, or (2) constitutes a normatively desirable exercise of his Article II powers. I answer both questions negatively. I conclude that a President must reject an unconstitutional law, but may not constitutionally decline to defend it without also refusing to enforce it. Moreover, I suggest that declining to defend a law, without more, discourages a vigorous system of checks and balances among the three branches of government and allows the President to circumvent the other branches under the pretense of deference to them.

1. President Obama's Approach to DOMA

   DOMA allows states to reject or disregard "any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same sex that is treated as marriage under the laws of such other State ... [as well as] a right or claim arising from such relationship." (1) Section 3 of DOMA (hereinafter "Section 3") clarifies that, for purposes of federal law, the word "marriage" means "only a legal union between one man and one woman." (2) The word "spouse" "refers only to a person of the opposite sex who is a husband or wife." (3) In effect, Section 3 denies to same-sex partners, married under state law, those federal benefits and exemptions that are available for married couples because, as a matter of definition, homosexual couples cannot be "married." The law affects the amount a homosexual couple pays in taxes, one partner's ability to take medical leave to care for the other, the amount a couple receives in social security benefits, a couple's ability to bequeath their estate, a couple's ability to obtain a spousal visa, and a couple's financial and legal entitlements under any other federal law that recognizes or rewards spouses.

   On February 23, 2011, Attorney General Eric Holder announced that the Department of Justice would decline to defend Section 3 against challenges filed in district courts within the Second Circuit. (4) He explained that while other circuits applied rational basis review to laws pertaining to sexual orientation, the Second Circuit had no precedent on the issue. (5) Accordingly, defending DOMA in this forum required the Department of Justice and the President "to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3." (6) They concluded that DOMA's classifications on the basis of sexual orientation merited a more rigorous standard of review than rational basis. (7) Applying intermediate scrutiny, President Obama concluded that Section 3 was unconstitutional because it violated the right to equal protection under the Fifth Amendment. (8) President Obama, in turn, instructed the Department of Justice not to defend Section 3 in Second Circuit litigation, and Holder's announcement indicated that the Department of Justice would refuse to defend DOMA against any future constitutional challenges as well. (9) Notably, the President and his Justice Department explicitly stated that he would continue to enforce DOMA and Section 3 until Congress repealed the statute or the Supreme Court struck it down, meaning that same-sex couples are still denied federal benefits and exemptions available to similarly situated heterosexual couples and will be so until one of those scenarios transpires. (10) By declining to defend Section 3, the President committed only to withhold from the Court any arguments in support of the provision's constitutionality. The President's refusal to defend Section 3 while continuing to enforce it implicates fundamental concerns about the scope of executive power. To be constitutional, his decision to enforce but not defend the law must derive from and uphold his oath to "preserve, protect and defend the Constitution of the United States," (11) as well as his charge to "take Care that the Laws be faithfully executed" (hereinafter referenced as the "Take Care Clause"). (12) Thus, I endeavor to answer this question: does the President's approach to Section 3 fulfill his Article II obligations? I argue that it does not. Refusing to defend a law, without also refusing to enforce it, is not a constitutional or optimal exercise of executive power.

2. Questions Raised by a President's Decision to Enforce, but Not Defend, a Law

   President Obama's decision not to defend a law is not unprecedented. (13) The Executive Branch has consistently declined to defend enacted congressional statutes since it first asserted that power in 1926. (14) President Ford, for example, declined to defend against constitutional challenge a provision in the Federal Election Campaign Act that granted Congress the power to appoint members to the Federal Election Commission. (15) President George H.W. Bush similarly declined to defend a law that allowed the Federal Communications Commission to prefer minority-owned broadcasting stations with respect to granting broadcasting licenses. (16) President Clinton followed suit in 1996 when his Justice Department continued to enforce--but refused to defend against challenge--a law that required the military to discharge personnel infected by HIV. (17) In short, President Obama's decision not to defend Section 3, but to continue to enforce it, is not novel when viewed against the behavior of his predecessors. (18)

   While his refusal to defend a law in court is not a revolutionary executive practice, prior use does not mean the tactic is, itself, constitutional or normatively desirable. In fact, this tactic warrants scrutiny precisely because of the increased willingness of Presidents, throughout administrations, to refuse to defend laws they deem unconstitutional. (19)

   At least three major premises each must be sound for the President's approach to Section 3 to fulfill his Article II obligations. First, the President must enjoy a right of independent executive review: he must possess a right to interpret laws distinct from any other branch of government and to decide whether or not a law violates the Constitution. Second, this interpretive power must be tied to the President's executive authority. When he finds a law unconstitutional, he is entitled--if not compelled--to act on that decision by refusing to enforce the law or defend it against challenge in court. Third, the means by which he executes his decision must be discretionary. In particular, refusing to defend a law, as opposed to refusing to enforce it altogether, must be an acceptable response to his finding it unconstitutional. While I find the first two premises constitutionally sound, I argue that this final premise--refusing to defend a law, without more, is an acceptable application of executive power--is neither constitutionally sound nor desirable from a separation of powers perspective.

   1. WHETHER THE PRESIDENT HAS THE RIGHT TO INTERPRET THE CONSTITUTION

      The scholarship on the first two premises is extensive and, on balance, suggests that the President has a right both to independent executive review and to implement his constitutional conclusions. The debate over the first premise--whether the President is entitled to examine a law's constitutionality at all--centers on the primacy of judicial supremacy with respect to constitutional interpretation. Those scholars who agree with former Chief Justice John Marshall that "it is emphatically the province and duty of the judicial department to say what the law is," (20)...