Leviathan's lawyers: the Office of the Solicitor General has traditionally defended the government. But should it?

• Author: Balko, Radley
• Position: Column

IN FEBRUARY, Attorney General Eric Holder announced that the Justice Department's Office of the Solicitor General would no longer defend the Defense of Marriage Act (DOMA) in federal court. Although the administration will continue to enforce DOMA, it won't defend the law against constitutional challenges. House Speaker John Boehner (R-Ohio) said a few days later that the House of Representatives will have its own lawyers do so.

President Barack Obama's willingness to repudiate a law he believes is unconstitutional raises some significant questions. What about federal cases that don't involve laws passed by Congress, such as cases where criminal defendants argue that their constitutional fights have been violated? If the president agrees with them, why not take their side, or at least not rush to defend the prosecution?

In cases that have come before the Supreme Court, the Obama White House, like previous administrations, has routinely sided with police and prosecutors, except for the rare case where it takes no position at all. In March, for example, Acting Solicitor General Neal Katyal argued that the Supreme Court should dismiss a lawsuit against former Attorney General John Ashcroft by Abdullah al-Kidd, a U.S. citizen who was arrested and detained as a material witness for 16 days in 2003. It is now clear that the government was holding al-Kidd because it suspected him of involvement with terrorist groups, although al-Kidd was never charged. (Nor was he ever called as a witness.) Obama's Justice Department is essentially arguing for an exception to the Fourth Amendment in federal terrorism investigations.

In cases like this, which directly affect federal prosecutors, it is unfortunate but not surprising that Obama would defend the powers he deems necessary to fight terrorism, enforce immigration laws, or disrupt the illegal drug trade. But the Obama administration also has advocated limiting the rights of the accused in state cases, even in states that afford less protection to criminal defendants than federal courts do.

In District Attorney's Office for the Third Judicial District v. Osborne (2009), the Justice Department urged the Supreme Court not to recognize a constitutional right to post-conviction DNA testing, even though Obama supported such a right, at least as a matter of policy, as a state senator in Illinois (where post-conviction DNA testing exonerated several men who had been condemned to death). In Skinner v. Switzer...