Take care that the laws be faithfully litigated.

• Author: Rider-Longmaid, Parker
• Position: Introduction through II. The Discretionary Framework in the Nondefense Context, p. 291-312

INTRODUCTION I. THE DELLINGER/JOHNSEN FRAMEWORK AND THE NONDEFENSE CONTEXT A. Can the President Decline to Enforce or Defend a Statute? B. Dellinger's Discretionary Framework II. THE DISCRETIONARY FRAMEWORK IN THE NONDEFENSE CONTEXT A. Applicability of the Dellinger/Johnsen Framework to Nondefense Decisions B. Separation-of-Powers Principles C. Forward- vs. Backward-Looking: The Need to Consider Changed Circumstances D. The Heightened Need for Judicial Review, and How Nondefense Facilitates It III. AN ARGUMENT FOR HEIGHTENED AUTHORITY IN THE EQUAL PROTECTION CONTEXT A. The Case for Greater Authority Where Equal Protection Demands Heightened Scrutiny 1. The President's Enhanced Responsibility to Ensure the Protection of Underenforced Rights a. The Court's Underenforcement of the Constitution b. The Onus Falls on the President: A Carolene Products Perspective 2. The President's Responsibility to Alert the Court When Conditions Warrant Heightened Scrutiny a. Historical Influence of the Elected Branches on Litigation b. The Executive as Litigator c. Bringing Democratic Legitimacy to Litigation d. The President's Accountability Outside the Courtroom B. A New Model for Nondefense Why a New Model is Necessary 2. The Modified Model 3. Nondefense Outside the Equal Protection Context IV. APPLYING THE NEW MODEL TO PRESIDENT OBAMA'S NONDEFENSE OF DOMA A. The Take Care Clause and Repeal Efforts B. Evaluating the Statute's Constitutionality Actual Contemporaneous Rationality 2. Have Circumstances Changed? 3. Has the Law Changed? 4. Magnitude of the Ongoing Harm C. What Would the Court Do? President Obama Seeks Judicial Resolution CONCLUSION INTRODUCTION

On February 23, 2011, Attorney General Eric H. Holder, Jr., pursuant to 28 U.S.C. [section] 530D, (1) sent a letter to Speaker of the House John A. Boehner to advise Congress that President Obama had instructed the Department of Justice (DOJ) to cease defending Section 3 of the Defense of Marriage Act (DOMA) in litigation challenging its constitutionality. (2) According to the letter, the federal definition of "marriage" as the "legal union between one man and one woman as husband and wife" (3) "violates the equal protection component of the Fifth Amendment" by discriminating on the basis of sexual orientation. (4) Attorney General Holder asserted that classifications based on sexual orientation--the standard for which has not yet been set by the Supreme Court--should receive heightened scrutiny, not rational basis review, as some courts have already held. (5) Noting the rarity of such a nondefense decision, Holder explained that the executive branch would continue to enforce DOMA until congressional repeal or "the judicial branch renders a definitive verdict against the law's constitutionality." (6)

In a press release, Speaker Boehner declared that "[t]he constitutionality of this law should be determined by the courts--not by the President unilaterally." (7) The Speaker's retort ignored the Attorney General's explanation that "[e]xecutive agencies [would] continue to comply with Section 3 of DOMA," because "[t]his course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised." (8)

In this Comment, I assess and suggest modifications for the framework under which Presidents decide not to defend statutes they view as unconstitutional under the equal protection component of the Fifth Amendment. (9) I argue that nondefense decisions based on equal protection principles should be treated differently than those based on other considerations. (10) Specifically, when the President believes that the courts should apply heightened scrutiny where they currently do not, he has a duty not only to decline to defend the statute, but also to instruct the DOJ to argue this position before the courts. The modified framework that I ultimately offer for nondefense decisions incorporates considerations that target equal protection cases.

Throughout my argument, I seek to contribute to the nondefense dialogue by addressing two issues in particular. First, scholars and members of Congress have expressed concerns that President Obama's decision not to defend DOMA sets us on a slippery slope to further Executive power grabs. But my focus on equal protection, and later careful analysis of President Obama's decision, proves that these concerns are unfounded. The additional authority for deciding not to defend a statute like DOMA finds support in countermajoritarian principles and the balance of harm to individuals weighed against the value of respecting the separation of powers. The modifications I offer to Walter Dellinger's nonenforcement decisionmaking framework (11) adapt it from facilitating presidential nonenforcement decisions to informing presidential nondefense decisions; these modifications also help to cabin presidential nondefense decisions to equal protection violations or similarly weighty concerns by forcing the President to ask a series of questions, the answers to which should be provided to the courts and the public. Under--or at least influenced by--this framework, for instance, a President who disagreed with Congress about the constitutionality of the Affordable Care Act under the Commerce Clause would have little room to refuse to defend it. (12) The framework I suggest is grounded in reasons why equal protection nondefense decisions deserve greater solicitude, and adds to Dellinger's considerations the important idea that the President's nondefense might actually influence the Supreme Court in its ultimate judgment--not constitute that judgment itself. The model accounts for important separation-of-powers principles by recognizing both the primacy of judicial review, but also the influence of the Executive in going beyond mere prediction and instead helping guide the path of the case law.

Second, nondefense decisions should not be considered the same as nonenforcement decisions, regardless of whether scholars think that equal treatment of the two decisions is justified as a matter of theory or principle. (13) In this Comment, I offer some observations on the existence of the distinction and why it matters: it can both influence the President's initial decision and also be leveraged by the President and DOJ in important ways. Splitting the difference by deciding to enforce a law while refusing to defend it can help to balance important equal protection values with significant separation-of-powers concerns. As the ongoing DOMA litigation demonstrates, such a course of action might actually increase interbranch dialogue.

I begin in...