In late February, the Obama Justice Department announced that it would no longer defend the Defense of Marriage Act in cases that come up in federal courts.
This is a sharp reversal from what was previously done. The law was passed in 1996 by a Republican Congress and a Democratic president, and has since been defended by the Clinton administration, the Bush administration and, at least until last month, the Obama administration.
Why the change? According to a statement by Attorney General Eric Holder, President Obama has concluded that DOMA “fails to meet [a heightened standard of scrutiny] and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”
“The Department in the past,” continued Holder, “ has declined to defend statutes despite the availability of professionally responsible arguments, in part because — as here — the Department does not consider every such argument to be a ‘reasonable’ one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.”
Let’s set aside the divisive issue of gay marriage. The wisdom of allowing it or prohibiting it is not at the heart of this issue. What’s at issue is that President Obama is abdicating his executive authority in order to play partisan politics.
What President Obama is saying, in effect, is akin to what Andrew Jackson told Chief Justice John Marshall after the Supreme Court decided that a state could not impose its laws upon Indian tribal lands: They [the Congress, past presidents] have made their decision, now let them enforce it!
This is not to say that presidents should have no say in the constitutionality of legislation — all federal officers are bound by an oath to protect and defend the Constitution. All branches of government should consider the constitutionality of legislation.
But that is what the executive veto is for. Once a law is passed, either new legislation must be written, an amendment must be passed or the Supreme Court must strike it down as unconstitutional. For all laws that remain on the books, the Executive Branch must enforce them and defend them.
To say otherwise would be to allow federal anarchy.
Another question that is raised by the administration’s action is this: Why announce this decision now?
Are we really supposed to believe that President Obama just now figured out that DOMA is unconstitutional and has no rational basis for being defended in court?
No. Obama is simply trying to gain politically, disregarding his constitutional obligations and the good of our constitutional system.
On one hand, it’s no secret that the gay community has viewed Obama as a huge disappointment. Here, Obama is trying to shore up this support and get the liberal wing of the Democratic Party back on his side.
On the other, this is a divisive, contentious issue on the Republican side of the aisle. Here, Obama, ever the Machiavellian, is trying to split the party on cultural lines, splintering conservative support just in time for campaigning for the 2012 election to start.
Obama, through his actions during his presidency, has shown himself to be just another crass, opportunistic politician, the very type of political animal he decried when he was the “hope-and-change” candidate in 2008.
America, because of Obama’s opportunism and his abdication of executive authority, is the worse for it.