Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Does the president have a duty to defend every law?

March 14, 2013 by Lyle Denniston


Protest_against_a_constitutional_amendment_banning_same_sex_marriageLyle Denniston looks at the constitutional argument that a president has to defend in court a law passed by Congress, even if the president thinks the law in unjust.

The statement at issue:

“The Department of Justice’s decision to cease defense of and affirmatively attack DOMA’s constitutionality is unprecedented in Executive Branch history. Although the Executive Branch had successfully defended the law for fifteen years, and ample authority supports DOMA’s constitutionality, the Department of Justice’s attempted nullification of an Act of Congress passed with overwhelming bipartisan support undermines both the Legislative function and the Judiciary’s role as final arbiter of a law’s constitutionality.”

 – Edwin Meese III and John Ashcroft, former U.S. Attorneys General, in a legal brief they have sent to the Supreme Court and that awaits acceptance in the file of the case testing the constitutionality of the Defense of Marriage Act of 1996 (DOMA).

“In the rare event that the President concludes that a federal statute conflicts with the Constitution…, the Executive confronts a dilemma: enforcement of one law will cause it to violate a higher law. ... In both Republican and Democratic administrations, [there have been] infrequent instances where it was determined that a statute should not be defended, where the Executive has concluded that no reasonable argument supports the statute’s constitutionality.”

-- Comments in a legal brief by 13 former White House lawyers and top legal advocates in the Department of Justice, already on file in the DOMA case.

We checked the Constitution, and…

Article II, defining the “executive power” of the national government, says that the president “shall take care that the laws be faithfully executed.” But the Constitution itself is obviously one of the laws undoubtedly within the president’s care, and the presidential oath makes that a binding duty. What does the occupant of that office do if legal advisers claim that a law passed by Congress is unconstitutional? Does it still get “faithfully” enforced?

Those are not abstract constitutional arguments, because the answer to them may determine whether the Supreme Court has the authority to rule on the validity of the 1996 law that denies federal benefits to couples who are already legally married under their own state laws--the Defense of Marriage Act. The court itself raised the issue of whether it could go ahead and decide that case, since the case was appealed by the Obama administration after it stopped defending DOMA, and then its ensuing challenge won in lower courts.

The court has another option, even if it concludes that President Obama’s government had no right to appeal. It can allow the case to go forward by granting the Republican leaders of the U.S. House of Representatives their request to stand in for the White House to defend DOMA against the New York City woman who was allied with the government in the challenge to that law. The court has also told lawyers to argue whether the GOP leaders have a right to be in the case. Without someone on each side of the case, the Constitution’s Article III says there is no case for the courts to decide. DOMA’s legal status would then be in limbo, at least for some time.

But, before all of that gets sorted out, the justices will have to at least ponder the fundamental issue of what Article II means in commanding the president to carry out enacted laws. Behind that question lies another: given the idea of separation of powers, does the court have the authority to tell the president what constitutes “faithful” execution? In other words, can it tell the White House how to interpret the presidential oath? Could it command enforcement of a law that the president has concluded is invalid?

So far, the court has been careful to make clear that it is going to explore only its own jurisdiction to hear the Obama administration’s appeal. That is a question under the judiciary provisions of Article III. But, as the two briefs noted above indicate, there is a full-scale debate going on among lawyers in the case about the scope of the president’s duties under Article II.

One thing on which even those lawyers agree, though, is that in general the president has no choice but to defend laws that Congress has passed through the regular legislative process.  The dispute arises over the exceptions to that obligation, and over what history suggests as an answer.

Former Justice Department leaders Meese and Ashcroft have argued that the current administration is trying to set a new precedent. And they clearly characterize it as illegitimate: “The Department is attempting to use the judiciary to achieve what it cannot achieve through proper legislative channels. The government’s refusal to defend DOMA is fundamentally a policy disagreement with the Congress that passed the law and the President who signed it.” They want the case to go away, if the House GOP leaders are not allowed to carry on the defense--the option they prefer.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The former White House lawyers and top-ranked legal advocates from the Justice Department see what the administration has done as quite legitimate. They do not make light of the challenge that they suggest President Obama had to resolve. “Determining the proper course of action when a statute and the Constitution appear to conflict is among the most serious duties of the president and of the attorneys advising him,” they wrote. In the case of DOMA, that brief contended, the administration “acted appropriately”--that is, continue to enforce DOMA’s ban on benefits to married same-sex couples, while laying out in court why they felt they could not continue to defend it. There is still a dispute between the administration and the New York City woman over her claim to a refund on the federal estate taxes she paid after her same-sex spouse died, so the case should go on, that document suggested.

While much of the public may be focusing on whether same-sex couples will or will not gain a right to marry when the Supreme Court decides that case and another pending lawsuit, some other core issues may add to the constitutional drama along the way.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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