Presidential constitutionalism and civil rights.

• Author: Landau, Joseph
• Position: Abstract through II. Presidential Constitutionalism as Civil Rights Enforcement E. Abortion, p. 1719-1752

ABSTRACT

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President's exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HTV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons--most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President's refusal to defend DOMA from numerous perspectives but have not considered how the President's DOMA policy fits within a principled commitment to LGBT equality that includes supporting and signing legislation, pursuing regulatory initiatives, filing complaints and other court papers, making formal and informal choices in law enforcement, and using the bully pulpit to sway public opinion. The President's nondefense of DOMA not only derives normative force from his larger vision regarding substantive equality and individual rights, but it also demonstrates how certain features of the presidency--including accountability and expertise--can be instrumental in promoting equality-based claims. In this way, presidential constitutionalism can engage coordinate institutions--including the Supreme Court--in the development of constitutional law.

TABLE OF CONTENTS INTRODUCTION I. WHAT IS PRESIDENTIAL CONSTITUTIONALISM? A. The Features of Presidential Constitutionalism B. The Scholarly Debate Regarding Presidential Constitutionalism II. PRESIDENTIAL CONSTITUTIONALISM AS CIVIL RIGHTS ENFORCEMENT A. Race B. Gender C. HIV D. Self-Incrimination E. Abortion F. Guns III. PRESIDENTIAL CONSTITUTIONALISM AND GAY RIGHTS A. Gay Rights and Administrative Law B. Gay Rights Litigation C. Law Enforcement Discretion D. Support for the Freedom to Marry IV. PRESIDENTIAL CONSTITUTIONALISM AND THE ACTIVE VIRTUES A. Nondefense of DOMA and the Scholarly Debate B. The Normative Case for Undermining DOMA C. Presidential Constitutionalism and Judicial Doctrine D. Presidential Constitutionalism and the "Zone of Twilight" E. Presidential Constitutionalism and Vertical Separation of Powers CONCLUSION: PRESIDENTIAL CONSTITUTIONALISM AND THE NEXT FRONTIER INTRODUCTION

Over the years, the Supreme Court has left undecided large questions at the intersection of individual liberty and governmental power, (1) leaving many constitutional doctrines--in particular those regarding civil rights--to develop outside the context of litigation. (2) As the Court has failed to "pronounce the law of the Constitution" where civil rights are concerned, (3) commentators have focused on ways that Congress can enforce the Constitution through its powers under the Commerce Clause (4) and the Fourteenth Amendment. (5) Lately, however, Congress has been unable to exercise its lawmaking power over much of anything, much less constitutional implementation or civil rights enforcement. (6) In the absence of a strong judicial or legislative role in enforcing civil rights, (7) attention has shifted to ways the executive can place constitutional interpretation in the service of civil rights enforcement. (8)

This Article explores the President's role in employing his own interpretation of the Constitution to promote individual rights, a practice that enjoys a long and storied pedigree dating back to President Jefferson's resistance to the Alien and Sedition Acts. (9) In more modern times, U.S. presidents have advanced civil rights through constitutional interpretations bearing on race, (10) gender, (11) HIV-status, (12) self-incrimination, (13) reproductive liberty, (14) gun rights, (15) and--most recently--sexual orientation. (16) Although there can be profound disagreements about what, precisely, constitutes "civil rights"--and while the differing constitutional arguments across presidential administrations, and the efforts behind them, are not all normatively equivalent--the President's capacity as national representative and barometer on broader legal, social, and cultural ideas can make him an ideal figure to place his faculty of interpretation, and his bully pulpit, in the service of civil rights.

While constitutional scholars have posited an important role for the President as an initiator of constitutional change in general, (17) this Article considers how certain features of presidential administrations--including the President's accountability, access to information, and expertise (18)--can be instrumental in promoting liberty- and equality-based claims in particular. Just as electoral accountability supports presidential decisions to advance reasonable interpretations of statutes where Congress leaves a gap in delegating authority to the executive, (19) presidential constitutionalism can articulate and help define the contours of constitutional rights the Court has yet to clarify. This is especially so when a President declares his positions openly and transparently, including campaigning on civil rights issues he plans to help implement upon taking office. Inasmuch as congressional-executive bilateral agreements can bring added legitimacy to various policy initiatives, (20) a joint executive-judicial dialogue on constitutional meaning can provide new opportunities for the political branches--and especially the President, as constitutional actor--to help break stalemates in Supreme Court doctrine.

If "[m]ost Americans expect modern Presidents to provide solutions for every significant political, military, social, and economic problem," (21) the President--the only democratically elected official accountable to the entire U.S. populace--can bring a unique authority to the interpretation of laws, including the Constitution, through a variety of different means. On such matters, the President's commitment to deep principles can be said to properly reflect "the contemporary legal culture, which inevitably includes its constitutional law." (22) In some cases, owing to the coordinate branches' built-in limitations, presidential constitutionalism may be the only way to channel widely held beliefs that no court or legislature will vindicate or champion.

United States u. Windsor provides an important case study in presidential constitutionalism. (23) President Obama's refusal to defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), (24) coupled with his Administration's broader strategy to keep the case in court, (25) helped produce an important substantive outcome for same-sex couples. The move sparked great controversy: some accused the Administration of abusing its power, (26) while others argued that the Administration shirked its responsibility to stop enforcing a law it believed unconstitutional. (27) Yet the significance of the Obama Administration's legal position regarding DOMA stretches well beyond the pure separation of powers question regarding the branch of government best suited to resolve the law's enforceability. (28) The President's nondefense of DOMA was consistent with a broader set of executive branch policies that implemented prior Supreme Court rulings regarding the rights of lesbian, gay, bisexual, and transgender (LGBT) persons. Additionally, the President's Windsor strategy championed a new constitutional rule (namely, heightened scrutiny for LGBT-based classifications) that the federal courts had yet to adopt. (29) The Obama Administration's commitment to LGBT equality, which spanned both constitutional implementation and constructions of operative meaning, (30) derived additional normative force from the President's public airing and assertion of those constitutional values during campaigns and after taking office.

This Article proceeds in four parts. Part I explores the concept of presidential constitutionalism by laying out its basic attributes and the surrounding literature. Part II discusses the broader historical practice of presidential constitutionalism and how modern presidential administrations have placed constitutional interpretation in the service of individual rights. Part III situates the Obama Administration's nondefense of DOMA within President Obama's broader constitutional vision for LGBT people and same-sex couples--which spans statutory interpretation, rulemaking, and formal and informal policy decisions in labor and employment, immigration, health care, fair housing, and a...