“Nothing in the Constitution or any other law requires the U.S. government to defend a law in court or to appeal an adverse ruling. Executive officials at all levels of government have discretion as to how, if at all, to proceed in court. All government officials take an oath to uphold the Constitution, and it would be inconsistent with that oath to require them to defend a law that they believe is unconstitutional..."
Former PJP Faculty Member Erwin Chemerinsky, dean of the University of California Irvine School of Law, in a piece in The Los Angeles Times,in which he asks why the Obama administration feels it necessary to defend “Don’t Ask, Don’t Tell,” the Pentagon’s policy on gays in the military, after a federal judge ruled it an unconstitutional restriction on freedom of speech. To read Dean Chemerinsky’s entire piece, follow this link.