23 February 2011

I wasn't wrong so much as I was ahead of the times.

According to Eric Holder anyway.

Last year I wrote this in regards to US v Stephens:
(2) Maybe somebody can fill me in here, because I get the feeling I don't have the background knowledge to understand this,* but why are there so many cases of administration n continuing to press the arguments of administration n-1? Because these sorts of decisions are made by courts so slowly I feel like I read an awful lot of "the Clinton DOJ argued X, which was continued by the Bush DOJ" or in this case Obama is continuing down the road that Bush put him on.

Is it a sort of gentlemen's agreement that the new Solicitor General won't abandon lines of reasoning laid out by their predecessor, perhaps in the name of continuity? Is it that these cases are about defending government power and administrations of all ideologies have an interest in doing that? Is it a procedural thing? Once a party, such as the entire United states, has made it's case it can't tack in a different direction?

Maybe there are lots of cases where DOJ n+1 does drop an argument but I don't here about those. It just seems to me like I ought to be reading about more appeals in which the Solicitor says "no, we forsake the position of our predecessors, they were mistaken."
It turns out that I resoundingly did not have the proper knowledge about this, and Patrick filled me in in the comments:
DOJ is required to defend the constitutionality of any act of Congress. There may have been a case or two recently in which the Solicitor General equivocated in defending a law that was problematic, but it's almost unheard of. That's why the Obama DOJ defended this law as aggressively as the Bush DOJ. It's their job.
That settled that.

Until this happened:
National Journal | Marc Ambinder | Obama Won't Go to Court Over Defense of Marriage Act

President Obama now believes that the Defense of Marriage Act is unconstitutional and will no longer defend the 15-year-old law in federal court, the Justice Department announced today. [...]

In a statement, Attorney General Eric Holder said, “After careful consideration, including a review of my recommendation, the president has concluded that, given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.”

This means that the administration will withdraw its defense of ongoing suits in two federal Appeals Courts and will leave it to Congress to defend the law, known as DOMA, against those challenges. It will remain a party to the lawsuits as the law itself remains in effect.

DOMA, signed by President Clinton in 1996, allows states not to recognize same-sex marriages preformed in other states and provides a federal definition for “marriage” that excludes same-sex couples.
Orin Kerr comments:
The Volokh Conspiracy | Orin Kerr | The Executive Power Grab in the Decision Not to Defend DOMA

If you look at AG Holder’s reasons for why DOJ won’t defend DOMA, it is premised on DOJ’s adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that “the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA.” This theory is not compelled by caselaw. Rather, it’s a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.

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. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.
I agree that it would be pretty destabilizing to have any existing legislation existing only at the discretion of the President. No regime certainty there.

But on the other hand, if the executive is going to get a new power at least this is a power to strike legislation off the books. There are worse things we've let presidents start doing.

1 comment:

  1. Ah, but it doesn't actually strike it off the books. It would still be on the books, but unenforced. Until some new jerk occupies the White House and then it's enforced again. It's a recipe for perpetual legal regime uncertainty!