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President Obama’s decision to no longer enforce the Defense of Marriage Act is a mistake for the over-arching reason, explained by Richard Epstein, that it uses the legal system to short-circuit the normal political process. As someone who favors gay marriage as a matter of policy, I trust that the American people over time will repeal the bans on gay marriage state-by-state. Seeking to encourage the courts to enact a nationwide ban will lead to an unstable settlement that will only lead to further politicization of family issues best left to the states. For proof, one only need look to abortion and the effects of Roe v. Wade.
Obama’s decision is also an expansive use of presidential power, one that is of a very different dimension from that invoked by President Bush (and by me, when I once worked in the Justice Department). President Obama claims the right here to interpret the laws and the Constitution, and to refuse to defend laws that he believes conflict with his own interpretation of the Constitution. This is substantially the same claim made by President Bush – though I suspect that the Left will not be out in force again to accuse the current president of raising himself above the laws – and flows from his ultimate duty to observe the Constitution as the highest form of law.
But there is an important difference. Obama is interpreting the Constitution at odds with the Supreme Court on a matter of individual rights. Obama claims that laws affecting gays should be tested under the heightened scrutiny standard, which is short of that used to examine laws that classify on the basis of race, but is basically the same as that used to examine laws that discriminate on gender. In the few cases that the Supreme Court has heard gay rights cases, it has never adopted this standard. Instead, it has applied the rational basis test, which is the most lenient standard of review applied to most laws, in striking down Texas’s anti-sodomy law in Lawrence v. Texas.
This is very different than the Bush administration’s invocation of the right to decline to enforce federal statutes at odds with the Constitution. These were usually claims made in legal memos and signing statements, rather than arguments raised in court against individual plaintiffs. Most importantly, these were cases where the executive branch was resisting congressional intrusions into its constitutional authorities. These conflicts would often not arise in court because they occurred in the national security area where the President and Congress have the primary lead. And they involved core presidential constitutional responsibilities to manage the strategy and tactics of ongoing wars and to protect the national security.
Here, President Obama is not defending the constitutional prerogatives of the executive against legislative intrusion. He is trying to change the meaning of the Bill of Rights and the Reconstruction Amendments – where the Supreme Court has recently exercised the institutional lead, and some would say (though not me) has the final constitutional say – in its application to individual citizens. Obama’s claim of power here pushes executive power very far, and I believe it is justified under the Constitution’s original allocation of authority to the President, but it is very different and more expansive than the Bush practice. And the supporters of Obama’s declaration should recognize this or remain hypocrites, yet again, on executive power depending on which political party happens to occupy the office.
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John Yoo
President Obama Misunderstands His Constitutional Role in Domestic Matters
Feb 20, 2011 at 3:24pmAs Sally and others have already noted, President Obama inserted himself into the Wisconsin budget battle by saying last week:
Some of what I've heard coming out of Wisconsin, where they're just making it harder for public employees to collectively bargain generally, seems like more of an assault on unions.
President Obama continues to display his misunderstanding of the constitutional order by repeatedly inserting himself into matters reserved to the states and localities, such as the arrest of Harvard Professor Henry Louis Gates, the location of a mosque near ground zero in New York City, and much of Arizona's immigration bill. In ignoring the proper division of responsibility between the national and state governments, Obama distracts the national political state from the pressing responsibilities on its own docket, such as spending no more than revenues and protecting the nation's security.
Obama's intrusion into all of these matters has not just created a track record of political misstep after misstep; it has also wasted the valuable political capital of the presidency on matters that are not its business. Ultimately, this will make Obama weaker when it comes time for him to call upon the powers of his office for something truly important, such as maintaining a surge in Afghanistan, correcting his mistaken views on Guantanamo Bay, or balancing the budget.
Obama's intervention also shows that he misconceived the constitutional priorities of his office. The president's primary job is to protect the national security and conduct foreign affairs. The chief executive's role in domestic affairs was primarily intended to be one of moderating Congress. Obama seems to wish that someone else would take the lead on national security, preferably the courts. And he seems to think his job is to push the domestic political system to extremes, not moderation -- hence health care and now his assault on Wisconsin. He also wants to deprive our system of one of its greatest virtues: experimentation in solving problems by the states. If Wisconsin is harassed by Obama and his national allies into giving up on their experiment in cutting public employee benefits, that is one more tool lost to solve our dire budget problems.
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Writing yesterday in the New York Times, Laurence Tribe laid out an arrogant, transparently manipulative, and ultimately counter-productive argument for why the Supreme Court will (or should) uphold ObamaCare.
Arrogance.
Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court....Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.
It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract.
That Tribe would attempt to urge the Justices in a strangely political way to put aside politics, as if the Justices would care if Tribe accused them of being political, is nothing short of arrogant. I can safely bet that Justices Roberts, Scalia, Kennedy, Thomas, and Alito could care less if Tribe attacked them for playing politics. Tribe basically thinks the Supreme Court's work is all political anyway, because it does not hew to his vision of constitutional law -- convincing him, if I remember correctly, to stop writing his treatises on constitutional law, which he announced in a public letter (another strange thing to do). The article's tone is not that of an observer; Tribe comes across as a teacher instructing the Justices not to disappoint him. Why the Justices would seek to decide a case so as to fall within the good graces of a single professor of constitutional law is beyond me.
Naively manipulative.
Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?
Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible.
Tribe's arguments are so clearly one-sided. His basic argument is that the Commerce Clause clearly and obviously permits Congress to regulate health care, to the point of forcing all citizens to buy health insurance. So if the Republican-appointed Justices (Tribe neglects to discuss any Democratic Justices) vote to overturn Obamacare, it must be the work of politics, not law. Strange, but 50 percent of judges that have heard the case so far disagree that this is the obvious answer. Putting that to one side, Tribe's argument can obviously be flipped around. If Obamacare is such a central part of the Democratic Party's agenda -- indeed, it may well be the defining issue in the 2012 elections, as it was for the 2010 elections -- why isn't any vote by Justices Ginsburg, Breyer, Sotomayor, and Kagan (all Democratic-appointed) to uphold the individual mandate equally political? Aren't they trying to keep the party that appointed them in power? Tribe doesn't address this obvious implication of his argument because he is trying to manipulate the Justices to agree with him (see point on arrogance, above).
Counter-productive.
There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.
Tribe's argument is ultimately counter-productive. He is attempting to set up the ObamaCare decision in the courts as political in nature, not legal, despite the fact that plenty of judges and professors have serious doubts about the constitutionality of the law and the fact that the Court has never upheld a law that compelled individuals to undertake any activity, economic or not (except for jury duty and the military draft). He is accusing the district judges who have held ObamaCare as being so obviously wrong on the Constitution of following their personal political desires. He is ignoring the fact that three of the sitting Republican Justices on the Court (Scalia, Kennedy, and Thomas) have already voted in the past to strike down Acts of Congress as beyond the Commerce Clause in Morrison (invalidating portions of the Violence Against Women Act) and Lopez (striking down the Gun Free School Zones Act), and that they could strike down ObamaCare in a move consistent with their long-standing views on federal power. By trying to manipulate the politics of the Court, no matter how transparently and unsuccessfully, Tribe only contributes to an atmosphere that politicizes the Court's decisions, which in this case will only help opponents of the law who have the majority of the American people on their side.
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FREEDMAN > Tribe: Judges Who Uphold Personal Liberty are "Confused"
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I've now had a chance to read Judge Vaughn Walker's 138 page decision (for those interested, only the last 40 pages or so contain the important discussion of constitutional law).
It is a sweeping decision, not just on gay marriage, but for its elevation of the federal judges into arbiters of social norms and private morality. Judge Walker sees it as the job of the courts to test whether laws passed by a majority of the people, or a legislature, advance the public good as defined by expert testimony by social scientists. I'm more than happy if the government required that its own laws produce more benefits than costs. But do we want this job done by a single judge, or a small group of judges, relying on social science (in this case, the work of sociologists, psychologists, and political scientists produced to the court by the litigating parties) of a recent phenomenon?
Here's how it worked in the gay marriage case. Walker asked whether the goal of Prop 8 -- higher levels of marriage & less divorce, encouragement of procreation, social stability -- were achieved by a ban on gay marriage. He said no. He cited a few studies, as if they proved facts about the real world, by the plaintiffs' experts. Because of this, the law failed the rational basis test -- there was no possible logical link between the goals of Prop 8 and the means.
Imagine if the courts were to apply this approach to other laws. Did the stimulus and bailout bills in fact encourage economic growth? Do the illicit drug laws in fact increase health and reduce crime? Can we catch terrorists by monitoring their emails and phone calls without a warrant? One judge, armed with a few social science studies, could decide to overrule the considered judgment of the elected branches of government.
Why is this troubling? First, social science -- as anyone who reads these studies -- is far from a perfect science. There are so many variables and alternative explanations involved in understanding human interaction. I am dubious whether sociologists and psychologists can tell us the real causes and effects of gay marriage -- it has only been legal in the United States for a few years, and only in a few states. That is why my preferred solution of relying on federalism makes sense -- if states can choose different policies, we can learn from the information generated and understand the costs and benefits.
Second, what does this portend for other legislation built on moral intuitions? If gay marriage goes by the wayside because it is hard to measure a ban's effects, what about similar laws. Will Judge Walker invalidate the ban on adultery next? How about bigamy? Why not allow group marriages? What about the age limitations on marriage or sex?
Third why the limited use of this aggressive form of judicial review only on morals legislation? I think one reflection of the judge's activism here is that he subjects Prop 8 to a demanding standard, but would never apply the same review to economic legislation, where the utter irrationality of the government's regulations is far easier to see.
YOO > Gay Marriage: The Political Tight Spots
EPSTEIN > The Living Constitution Kills Prop 8
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