Simon P. Hansen, Whose Defense Is it Anyway? Redefining the Role of the Legislative Branch in the Defense of Federal Statutes

CitationVol. 62 No. 4
Publication year2013



When the Obama Administration announced it would cease defending the Defense of Marriage Act (DOMA) in litigation, it demonstrated the increasing fluidity inherent in the Executive Branch custom of defending federal statutes. After three years of setting aside its opposition to DOMA, the Administration adopted a newfound interpretation of DOMA’s Section Three and abruptly abandoned its defense. While the House Bipartisan Leadership Advisory Group eventually undertook the law’s defense, it met obstacles in finding a litigant on its behalf. Partisan opposition to the Advisory Group’s decision to defend DOMA and a prominent U.S. law firm withdrawing its representation jeopardized the law’s defense.

The circumstances surrounding DOMA show the vulnerability of laws enacted by Congress. While the Executive Branch has often used its enforcement powers to exert control over the effects of certain laws, recent decades have also seen it utilize its status as the primary defender of the interests of the United States to sidestep laws with which it disagrees. As statutes face constitutional legal challenges, the Executive Branch has increasingly refrained from defending statutes.

This Comment argues that the Legislative Branch should undertake the primary role in statutory defense to stop the detrimental effect that the nondefense of statutes has on the separation of powers. This Comment contends that defending federal statutes is not within the President’s Article II powers, and that a growing trend toward departmentalism supports the Legislative Branch’s ability to argue its own interpretation of a law’s constitutionality. As such, this Comment proposes a new Legislative Branch office charged with the primary responsibility of defending federal statutes and describes how such a change could occur.


“After careful consideration . . . the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.”1 Though vowing to continue the enforcement of DOMA,2 this declaration ended the Obama Administration’s begrudging defense3 of the law.4 As pundits debated the political ramifications of President Obama’s decision, the lesser discussed, but arguably most important, issue was the emerging trend of the Executive Branch refusing to defend the constitutionality of federal statutes challenged in


The difficulty in responding to this trend is heightened by the fact that the constitutional parameters of the Executive Branch’s defense of statutes have yet to be firmly established.5 While the practice has existed for over 140 years,6 the evolution of constitutional interpretative theory among the three branches of government has confounded the once-shared understanding of how statutes are to be defended.7 Indeed, the move from a strict adherence to judicial supremacy to a broad acceptance of departmentalism8 has contributed

  1. Letter from Eric H. Holder, Jr., U.S. Attorney Gen., to John A. Boehner, Speaker, U.S. House of Representatives, Litigation Involving the Defense of Marriage Act (Feb. 23, 2011) [hereinafter Attorney General’s Letter] (citation omitted), available at

  2. Defense of Marriage Act, 1 U.S.C. § 7 (2006).

  3. See Lindsey Ellerson, Obama Justice Department Defends Defense of Marriage Act—That Candidate Obama Opposed, ABC NEWS (June 12, 2009, 7:00 PM), justice-department-defends-defense-of-marriage-act-that-candidate-obama-opposed.

  4. Attorney General’s Letter, supra note 1. In addition to the Obama Administration deciding not to defend DOMA in two cases that arose in the Southern District of New York and the District of Connecticut,

    the Attorney General also stated explicitly in this letter that he would “instruct Department attorneys to advise courts in other pending DOMA litigation of the President’s and my conclusions that . . . Section 3 is unconstitutional under [heightened scrutiny] and that the Department will cease defense of Section 3.” Id. (emphasis added).

  5. Compare Note, Executive Discretion and the Congressional Defense of Statutes, 92 YALE L.J. 970,

970 (1983) [hereinafter Executive Discretion] (arguing that the responsibility to defend statutes is inferred from the President’s duty to faithfully execute the laws), with Dalena Marcott, Note, The Duty to Defend: What Is in the Best Interests of the World’s Most Powerful Client?, 92 GEO. L.J. 1309, 1312 (2004) (suggesting that the duty to defend statutes has been voluntarily accepted by the Department of Justice throughout the history of the Office of the Solicitor General).

  1. The practice can be traced back to 1870 and the establishment of the Department of Justice, which

    included the Office of the Solicitor General. See Act of June 22, 1870, ch. 150, §§ 1–2, 16 Stat. 162, 162.

  2. See infra Part II.

  3. See infra Part II.A. While discussed later in this Comment, the term departmentalism refers to the idea that each of the three branches of government possesses the authority to render constitutional interpretations.

    to the increasingly common occurrence of one branch declaring the actions of the others to be unconstitutional.9 Simultaneously, the general electorate and media’s understanding of each branch’s functions imposes political pressure and impedes the responses of each branch to such declarations.10 The result has been an ad hoc system of statutory defense that has muddled the question of whether and how a statute receives a defense.11 Within this context, the need to examine alternative methods of statutory defense becomes necessary to maintain a proper separation of powers.

    This Comment puts forth the argument that the duty to defend federal statutes in litigation should rest predominantly with the Legislative Branch. While many have addressed the practice as it has developed and persisted within the Executive Branch,12 the belief that the Legislative Branch should

    replace the Executive Branch as the primary defender in such litigation has received minimal attention.13 Admittedly, it would be very difficult for this idea to overcome and replace the existing practices and customs that have become entrenched throughout recent decades. However, the objective of expressing the argument is to serve as an impetus for creating more effective

    and efficient statutory defenses. This Comment recognizes the increasing frequency with which the Executive Branch refuses to defend statutes based on its belief that the statutes are unconstitutional,14 and it offers a potential solution that meets the political and institutional prerogatives of each branch.

  4. Seth P. Waxman, Essay, Defending Congress, 79 N.C. L. REV. 1073, 1073–74 (2001).

  5. See Chrysanthe Gussis, Note, The Constitution, the White House, and the Military HIV Ban: A New Threshold for Presidential Non-Defense of Statutes, 30 U. MICH. J.L. REFORM 591 (1997) (describing the effect of public opinion in support of President Clinton’s nondefense of the HIV provision, leading Congress to quickly repeal the law).

  6. Currently, federal law permits the Office of Legal Counsel for either the Senate or House of Representatives to intervene or appear as amicus curiae only in legal actions or proceedings in which the powers and responsibilities of Congress are placed in issue, and only after being directed to do so. See Ethics in Government Act of 1978 § 706, 2 U.S.C. § 288e (2006). The law does not require that they intervene, however, and whether they do so remains unpredictable and is determined on a case-by-case basis. See id.

  7. See, e.g., Drew S. Days III, Lecture, In Search of the Solicitor General’s Clients: A Drama with Many

    Characters, 83 KY. L.J. 485, 499 (1994–1995); Waxman, supra note 9, at 1073; Executive Discretion, supra

    note 5; Marcott, supra note 5, at 1309.

  8. See Amanda Frost, Congress in Court, 59 UCLA L. REV. 914 (2012); see also James W. Cobb, Note, By “Complicated and Indirect” Means: Congressional Defense of Statutes and the Separation of Powers, 73 GEO. WASH. L. REV. 205, 224 (2004) (arguing against the Office of Senate Legal Council intervening to defend statutes).

  9. See Tony Mauro, Duty to Defend? Not Always, NAT’L L.J. (Oct. 25, 2010), nlj/PubArticleNLJ.jsp?id=1202473803028 (indicating that, since 2006, the Executive Branch has declined to defend a statute based on its perceived unconstitutionality at least thirteen times).

    Part I shows that the defense of statutes is not encompassed by the President’s executive powers. Part I distinguishes the enforcement and defense of laws by explaining how the act of defending statutes arose within the Executive Branch out of tradition rather than constitutional authority. Accordingly, Part I illustrates that Congress may undertake the defense of statutes without intruding on executive powers.

    Part II describes the evolution of constitutional theory from its former adherence to judicial supremacy to its current acceptance of departmentalism. Part II examines the effect this shift has had on the defense of statutes and compares past examples of Executive Branch nondefense to President Obama’s recent decision not to defend DOMA. Part II illustrates how the Obama Administration’s DOMA decision differed from previous presidential decisions to not defend federal statutes, and it explains how departmentalism further justifies the abandonment of the current tradition of Executive Branch defense of statutes in favor of Legislative Branch statutory defense.

    Part III addresses the primary objection that the Legislative Branch defense of statutes would violate the anti-aggrandizement principle upheld in Bowsher

    v. Synar.15 Anticipating the counterargument that calling for...

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