Two Cheers For DOJ On DOMA
February 24, 2011 13 Comments
By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration.
I would have thought this was already the case, and am somewhat shocked that Kerr (perhaps correctly, for all I know) thinks it’s novel or radical for the Executive Branch to:
- independently evaluate whether it thinks laws are Constitutional, and
- decide whether or not to defend laws against legal challenge based on the results of that evaluation.
Couldn’t they do this already? Didn’t they do this already? If not, why the hell not?
I. What Does It Mean To Defend The Constitution?
I am not a lawyer so obviously this is all just my opinion. But let me just throw this out for discussion:
I do solemnly swear (or affirm) that I will [...] to the best of my ability, preserve, protect and defend the Constitution of the United States.
If this rings a bell, it’s because it is an excerpt from the Oath Of Office that is required – by the Constitution itself – of every U.S. President upon entering office.
Now, the Department Of Justice is a part of the Executive Branch, therefore answering to the President. Hence, the President is ultimately responsible for its actions or inactions. This means, it seems to me, that if the President orders, or allows by omission/neglect, the Department of Justice to do or defend something that by his lights violates the Constitution, then he is in violation of his Oath Of Office: he has failed to preserve, protect and defend the Constitution of the United States to the best of his ability.
The only question then is what violates the Constitution and what doesn’t. How is a President to know, prior to ordering the DOJ to defend or not-defend laws? Ultimately there is only his judgment, in coordination with and informed by whatever advisors and experts he has amassed around him. Could he be ‘wrong’ in this or that view of what the Constitution requires? Of course. He is a human. So can all the other humans in all the other branches of government. A President nevertheless takes an oath to defend the Constitution “to the best of [his] ability”. If that ability is seriously deficient or error-prone, that is another story altogether. But the activity itself of evaluating laws for their Constitutionality before deciding whether to defend them – it seems to me that not only should fall well within a President’s (thus Executive Branch’s) purview – but is an integral requirement of the office. Indeed, a President who does not do this would strike me as derelict in that regard (and thus, if Kerr’s characterization of precedent is accurate, I suppose all Presidents have been).
Because from what Kerr is saying, it’s a highly radical notion, and the status quo has been for the Executive Branch to blindly “defend the constitutionality of all federal statutes if it has a reasonable basis to do so”, whether or not it actually believes in that basis. Which doesn’t strike me as really defending or protecting the Constitution at all. So what am I missing? One thing’s for sure, clearly I won’t be getting tenure at a law school anytime soon.
II. Let Me Get This Out Of The Way
Now, as the preceding is meant as a discussion of general principles, I haven’t addressed the particulars of this situation in any detail. So let me get that, and my views on DOMA and gay marriage in particular, out of the way:
- First I’ll note in passing that ‘marriage’ means ‘a union of a man and a woman’. Words mean things. That’s the definition of this one. As a general rule, words ought not be redefined by legislatures. Instinctively I greet legislative attempts to radically redefine the word ‘marriage’ with the same disgust as I greet legislative attempts to redefine the number pi.
- That aside, ‘marriage’ as a social institution is one that predates the U.S. and just on general principles probably shouldn’t be messed with or redefined for no good reason.
- There really is no good reason here. The best reasons, are not so good:
- The equal-rights argument – ‘heteros can get married and gays can’t, so gays have less rights’. Not true: gays can get married. Remember: ‘getting married’ means, in part, ‘forming a union with a willing member of the opposite sex’. Nothing prevents homosexually-inclined people from doing this if they wish (and indeed, many have, historically!). What’s that? They mostly don’t wish? You don’t say! Similarly, I don’t wish to go fishing, hence I don’t partake of my right to apply for a fishing license. So what? Doesn’t mean I don’t have that right.
- Equal treatment under the law – i.e. ‘this denies homosexuals equal access to certain societal privileges, at least without marrying someone they don’t love, hence they’re not getting equal treatment under the law.’ This argument is slightly better, but only slightly. The privileges/conveniences alluded to here, as far as I can tell, consist of stuff like: 1. filing joint tax returns, 2. ‘hospital visitation rights’, 3. spouse benefits from someone’s employment, 4. um, probably some other conveniences, involving paperwork and stuff (mortgage applications? drawing a blank). These all strike me as highly petty and minor (when not cravenly materialistic), not to mention easily resolvable – in fact, in most places they are probably solved under current law already – by means other than redefining marriage (do hospitals really actively not let homosexual lovers visit each other? Even if they don’t, is gay marriage the only or even best remedy to that?). Also,
- There’s probably no good reason for most of those governmentally-allocated ‘benefits of marriage’ to exist in the first place. If I had my druthers I’d probably just do away with the benefits themselves & equalize things that way. Actually let me go one further,
- There’s probably no good reason the law needs to recognize ‘marriage’ at all per se. That said,
- Perhaps it’s true that (if only out of convenience/continuity) most of those legal recognitions of marriage, or of some union anyway, ought to stay in place. In which case,
- I have no problem extending those to homosexual couples as well. Big deal.
- Which is a long-winded way of saying I support civil unions, I guess. (Or, the ‘garriage’ solution, which I find cute.) I mean, if the government needs to be in the business of Officially Acknowledging With Whose Genitalia In Particular Its Citizens Like Their Own Genitalia To Primarily Come In Contact at all.
- But if civil unions must be done, that seems like a state thing. I mean, really.
- The DOMA says, in part, that one state need not recognize another state’s ‘marriage’/union definition. This doesn’t seem unconstitutional to me – indeed, the Constitution explicitly gives Congress the power to define the parameters of ‘full faith and credit’.
- It also defines marriage on a federal level as a union of a man and woman. I can buy the arguments for this part being unconstitutional. (I also don’t know why it was even necessary to throw in there.)
- I am not a lawyer.
III. Here’s A Radical Idea: Everyone Should Defend The Constitution
Anyhow, regardless of what you or I might think about DOMA, or gay marriage in general, one thing is pretty hard to dispute: President Obama, and the people who work for him, probably all do think the DOMA is unconstitutional. They may have good reasons or bad reasons for thinking this (I suspect mostly bad if not downright dumb), but that they think it, is not really in doubt. Given that this is what they think, then, what are they supposed to do when the law is challenged? Vigorously, legally defend a law they find unconstitutional?
Of course not. Were it up to me, I would have Executive Branches evaluating constitutionality on everything, not just on hot-button issues. The fact that they (I gather) don’t, is the real scandal here. It’s an integral part of their job for crying out loud!
Now keep in mind, just because DOJ isn’t defending the law, doesn’t mean the courts should knee-jerkily find it unconstitutional. The definition of ‘unconstitutional’ isn’t ‘whatever DOJ decides not to defend’. People are talking as if this move by DOJ settles the deal and the constitutionality challenge can now be rubber-stamped. I don’t understand why. Maybe indeed Obama/Executive/DOJ are wrong. The courts, too, have a responsibility to uphold the Constitution, by their lights. Obviously the more realpolitik analysis is that the courts here are ideological and this gives them political cover to do what they wanted to do all along. If so, that actually puts the courts more in the wrong than DOJ.
More broadly, if you take in the big-picture thrust of my comments, what I’m advocating for is a world in which all branches of government share the responsibility of defending the Constitution. Current doctrine believes this responsibility rests entirely with Judicial. If that’s what you think too, then I guess I can understand disapproving of this move by DOJ. But if you want a world in which the Executive Branch has just as much responsibility to defend the Constitution as the Judicial Branch does – a world in which President Bush would not have signed the McCain-Feingold Act despite having “reservations about the constitutionality” and believing that somehow only the Supreme Court could declare it unconstitutional – then you should be welcoming this decision by Obama’s DOJ. All things considered, for this administration, at least this has the surface appearance of a belief in actual principles worth defending and actual, legitimate deference to constitutional duties – even if it’s ultimately being done for insincere and ideological reasons.
Which is why, two cheers.
UPDATE: I probably have to take it down to one cheer, at most. In this column where he makes many of the same points I did above (i.e. that it’s not Only The Supreme Court that should concern itself with constitutionality), Jonah Goldberg informed me what I hadn’t known before – that Obama still intends to enforce this DOMA that he (purportedly) finds so unconstitutional. That, of course, is unconscionable and a violation of his Oath of Office – unless Obama is simply being disingenuous in claiming to find DOMA unconstitutional. It’s one or the other, really.