Having his oath and eating it too

A few people have asked me what I think about the current situation with DOMA, and because it's a little complicated and it requires some issue separating, I thought it merited a post. 

While I have reservations about same sex marriage because (as explained here) I don't like the invasive statism of the family law/divorce system, so I think it is a mistake to frame the issue solely as a "right," my opinion on gay marriage is utterly irrelevant to whether DOMA is constitutional.

I think DOMA is violative of federalism, so I agree with its erstwhile author Bob Barr that it is unconstitutional for that reason. IMO, the enumerated federal powers do not include either the power to define marriage or the power to tell states to ignore the full faith and credit rule whenever they dislike another state's marriage laws. 

In an abrupt 180 reversal of his previous position, President Obama has decided that he no longer believes DOMA is constitutional, and he has therefore refused to defend it. Unlike Bob Barr, he does not object on the grounds of federalism, but because he believes the law is discriminatory.

A lot of people are annoyed with Obama. I got an email earlier angrily accusing Obama of violating what was called "his oath to uphold the laws of the United States."

Except that is not in his oath.

"I, name, do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and I will to the best of my ability, preserve, protect, and defend the Constitution of the United States."

So, preserving, protecting, and defending the Constitution would come before any duty to uphold the laws. 

The president's job is described thusly:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

So, while he is to take care that the laws be faithfully executed, he must first and foremost preserve, protect, and defend the Constitution. To my mind, that would mean that if Congress passed an unconstitutional law, he would be duty bound not to execute that law. Nor could he "uphold" it. 

I agree with Jonah Goldberg and others that this means Obama is violating his oath of office.

Either way, what Obama is doing is flatly outrageous. Carney says that "the president is constitutionally bound to enforce the laws and enforcement of the DOMA will continue."

No, he is not.

There's a myth out there that only the Supreme Court determines what is, or is not, constitutional. It's a bipartisan myth. "We can't have presidents deciding what laws are constitutional and what laws are not," Sen. Scott Brown (R., Mass.) said in a statement. "That is a function of the judicial branch, not the executive."

President Bush made a similar, indefensible error when he signed the McCain-Feingold campaign-finance bill, even though he believed portions of it were unconstitutional (and he was right; the Supreme Court overturned it in Citizens United v. Federal Election Commission last year).

The problem is that the Constitution doesn't say any such thing (and, no, it's not in Marbury v. Madison either). The president doesn't take an oath to "preserve, protect and defend" the Supreme Court. He takes an oath to defend the Constitution.

Imagine if Congress passed -- hopefully over a presidential veto -- a law that brought back slavery. Such a law would be plainly unconstitutional, and no president worthy of the job would wait for the Supreme Court to tell him as much. More to the point, once the president concluded that the law was unconstitutional, he would be bound by his oath to ignore it, and challenge it in every way possible.

President Obama says DOMA is unconstitutional, and yet the "law professor" says he will continue to enforce it.

In a properly ordered constitutional republic, this would be a scandal. But in America today, it's cause for eye-rolling, shrugs, and platitudes about the demands of politics.

David Bernstein makes a similar argument:

If the Executive Branch is asserting the authority to engage in independent constitutional review of an existing law, and the president decides that the law is unconstitutional, it strikes me that the Executive Branch has no business enforcing this unconstitutional law.

So I take the Obama Administration to task not for asserting executive review here, which is at least arguably proper, but for trying to split the baby in half, and declaring that it won't defend an unconstitutional law, but will enforce it. And not just any unconstitutional law, but one regarding which the Administration claims there are no "reasonable" supporting arguments.

Either Barack Obama believes DOMA is unconstitutional or he does not. If he does, then he violates his oath of office by enforcing it. 

Regardless of what side anyone is on, he cannot have it both ways. 

Some constitutional scholar he has turned out to be.

posted by Eric on 03.01.11 at 03:37 PM


I disagree.

Actually the media's found a few other examples of Presidents who decided not to defend a law because they felt it was unconstitutional. President Ford declined to defend a campaign finance law. Reagan declined to defend the independent counsel law. There was one that Bush I also declined to defend but I forgot what it was. What was interesting about all those examples was that while the President felt the law was unconstitutional, it later survived challenge and the courts deemed them constitutional. So it's not the first time a President has come to a legal conclusion that a law he didn't like politically is also suspect Constitutionally..

I think DOMA is violative of federalism, so I agree with its erstwhile author Bob Barr that it is unconstitutional for that reason. IMO, the enumerated federal powers do not include either the power to define marriage or the power to tell states to ignore the full faith and credit rule whenever they dislike another state's marriage laws.

I agree with you here, although I think it's unsettled whether or not full faith and credit would apply to marriages. It would seem as if it doesn't at least when we look at cases that entailed interracial marriages being recognized by states that banned them before the SC struck down interracial marriage bans.

So the issue is whether a President is following his oath to defend the Constitution if he feels a law is unconstitutional, his AG doesn't defend it in court but his administration still follows the law unless and until the courts actually decide the law is in fact unconstitutional. I think the answer is clearly yes for the following reasons:

1. The Constitution does not give the President the power to declare laws unconstitutional. While that power is only implied to be given to the SC, that's the way we've been operating for 200+ years now.

2. The Founders almost certainly would have been troubled by an Executive that could uniformly void laws by declaring them unconstitutional. The previous President demonstrated the danger in this. Not only did his administration decide that some laws were unconstitutional so they wouldn't follow them, they decided that this decision in itself could be kept secret so the American people themselves and Congress may not even know some of the laws they believed were 'on the books' had in fact been secretly taken off the books!

Clearly treating suspect laws with respect until a court actually agrees with the legal opinion of the President that the law is unconstitutional is more respectful of the Constitution's seperation of powers. While the President is under oath to defend the Constitution, clearly the President has an inherent conflict of interest where laws he will be more sympathetic to claims of unconstitutionality will be ones he dislikes politically. This ties in with another respected Constitutional doctrine that calls for the branches of gov't to be seperate. (For example, while the Constitution doesn't explicitly state it, it is understood that no person can have a job in more than one branch at the same time. A person can't be President AND sit on the SC or be a Senator and a President).

Being a defender of the Constitution doesn't mean you have the last word on judging the Constitution. There is, in fact, little purpose for even have a SC if the President's 'duty to defend' the Constitution means he will simply implement his reading of the Constitution...the Courts be dammed.

3. If the President feels law A is unconstitutional, then why should it be defended in court by the President? If the President feels the law is unconstitutional then defending the Constitution means arguing against the law, not for it! Likewise if the President feels that law A is unconstitutional AND you hold that his oath means he should not enforce the law then what difference does it make if he defends it in court? Simply pretending to believe a law is Constitutional doesn't magically make it so.

Boonton   ·  March 2, 2011 11:18 AM

Something I don't see mentioned much - it's not all of DOMA, just Section 3 of DOMA, which is the part that defines marriage. I think there is reason to fight the constitutionality of that (and leave it to the states). He's not doing anything about the 'ignore the full faith and credit rule'.

Kathy Kinsley   ·  March 2, 2011 5:06 PM

Actually, the criticism of Obama seems like a total disrespect for freedom of speech.

What is basically being asserted is that a President must either:

a. Not enforce the laws of the land, which seems a real violation of his oath.


b. Argue that all passed laws are Constitutional.

B sounds like compelling speech to me, which would violate the first amendment....the President is entitled to his opinion on how the Constitution should be read just as much as anyone else is. Lots of people take oaths to support the Constitution.....does this mean that, say, cops who take such an oath who think Roe.v.Wade was wrongly decided have a right to shut down abortion clinics? Why not? How about military officers who thought Bush.v.Gore was wrongly decided? It sounds like your position is that they must shut up and pay lip service to the wisdom of that decision or they must attempt a coup least they violate their oaths.

Boonton   ·  March 3, 2011 10:42 AM

IMO, the enumerated federal powers do not include either the power to define marriage or the power to tell states to ignore the full faith and credit rule whenever they dislike another state's marriage laws.

So, do you believe that Loving vs Virginia, in which the federal government told a state how it could and could not define marriage, was wrong should be overturned?

flenser   ·  March 4, 2011 5:27 PM

Loving did no such thing. The SC ruled the Constitution did not allow either a state or the Fed. gov't to deny marriage to couples on account of race. The Fed. gov't has no say in that. If Congress wanted to ban interracial marriages it would be just as prohibited from doing so by Loving.

Boonton   ·  March 6, 2011 8:22 AM

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