The Obama DOJ's Position on DOMA: Constitutional Crisis or Constitutional Opportunity?

The Obama DOJ's announcement that it will no longer defend the constitutionality of the Defense of Marriage Act has provoked a range of reactions.

New Gingrinch, in the video below (via) states that the president "is not a one-person Supreme Court" and that

the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job."

Gingrich continues:

“I don’t think these guys set out to create a constitutional crisis. I think they set out to pay off their allies in the gay community and to do something that they thought was clever. I think they didn’t understand the implication that having a president personally suspend a law is clearly unconstitutional.”

 

 

Attorney General Holder anticipates such arguments in his original letter to Congress:

the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.   However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one.   “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.”   Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).   This is the rare case where the proper course is to forgo the defense of this statute.   Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here.   Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).

Steve Sanders on the U Chicago Law School Faculty Blog supports the DOJ analysis; Tony Infanti discusses the tax consequences and Sheila Velez Martinez discusses the immigration aspects over at Feminist Law Professors. 

RR