Obama Pushes the Limits of Executive Power in DOMA Decision

 

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.

There are 25 comments.

  1. Joseph Eagar Member
    raycon: I need to be reminded, Ricochet is a Conservative blog-site, isn’t it? Don’t conservatives, whether Christians, Jews or atheists have some consensus that the Judeo-Christian foundation of America is what we are here to conserve? Are we that ill equipped to share consensus on even a fundamental belief such as the historic interpretation of marriage? Or, are we simply engaging in intellectual masturbation here? · Feb 23 at 3:04pm

    Ricochet is a “center-right website, where conservatives of all stripes come together,” not a “Conservative” website. Too much of the web is segregated into groupthinks; that’s why Ricochet is so successful in the first place.

    Of course, the social argument for/against gay marriage can be debated; it comes down to what gay marriage is supposed to do: destroy the social moral order, or obliterate the gay moral disorder?

    • #1
    • February 24, 2011, at 2:51 AM PDT
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  2. Tommy De Seno Contributor

    Prof. Yoo I am confused by AG Holder’s letter regarding the standard of review. Hope you can help me clear it up.

    AG Holder has concluded that on the substantive due process issue, the appropriate standard of judicial review is “substantially related to an important government objective.” That’s the intermediate test.

    Does that mean the President is still taking the position that gay marriage is not a “fundamental right” (otherwise Holder would have used the “strict scrutiny” standard of “narrowly tailored to protect a compelling state interest”)?

    What has me puzzled is that Holder takes the time to go through the tests of history of discrimination, powerlessness, etc. Those are the tests for a “suspect class” which would raise the judicial review all the way up strict scrutiny.

    What am I missing? Why the strict scrutiny analysis if he is conceding the intermediate standard of review of “substantially related to an important government objective?”

    • #2
    • February 24, 2011, at 3:33 AM PDT
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  3. Tommy De Seno Contributor

    fyi I asked this question of Prof. Epstein and he gave me an answer in his thread.

    • #3
    • February 24, 2011, at 4:01 AM PDT
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  4. raycon and lindacon Inactive

    I need to be reminded, Ricochet is a Conservative blog-site, isn’t it? Don’t conservatives, whether Christians, Jews or atheists have some consensus that the Judeo-Christian foundation of America is what we are here to conserve? Are we that ill equipped to share consensus on even a fundamental belief such as the historic interpretation of marriage? Or, are we simply engaging in intellectual masturbation here?

    • #4
    • February 24, 2011, at 4:04 AM PDT
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  5. Tommy De Seno Contributor
    raycon: I need to be reminded, Ricochet is a Conservative blog-site, isn’t it? Don’t conservatives, whether Christians, Jews or atheists have some consensus that the Judeo-Christian foundation of America is what we are here to conserve? Are we that ill equipped to share consensus on even a fundamental belief such as the historic interpretation of marriage? Or, are we simply engaging in intellectual masturbation here? · Feb 23 at 3:04pm

    We most likely have a different definition of conservative.

    • #5
    • February 24, 2011, at 4:08 AM PDT
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  6. raycon and lindacon Inactive

    No doubt. My guess is that the next few years will tell which of us is right.

    • #6
    • February 24, 2011, at 4:20 AM PDT
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  7. Profile Photo Member
    raycon: I need to be reminded, Ricochet is a Conservative blog-site, isn’t it? Don’t conservatives, whether Christians, Jews or atheists have some consensus that the Judeo-Christian foundation of America is what we are here to conserve? Are we that ill equipped to share consensus on even a fundamental belief such as the historic interpretation of marriage? Or, are we simply engaging in intellectual masturbation here? · Feb 23 at 3:04pm

    The ancient Romans had marriage. The Greeks had marriage. Barbarians and primitive societies had marriage. It’s not a product of Judeo-Christian traditions.

    • #7
    • February 24, 2011, at 4:22 AM PDT
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  8. AmishDude Member
    raycon: I need to be reminded, Ricochet is a Conservative blog-site, isn’t it? Don’t conservatives, whether Christians, Jews or atheists have some consensus that the Judeo-Christian foundation of America is what we are here to conserve? Are we that ill equipped to share consensus on even a fundamental belief such as the historic interpretation of marriage? Or, are we simply engaging in intellectual masturbation here? · Feb 23 at 3:04pm

    Lawyers. If you view the world through the eyes of a lawyer, then these views start to make sense: All good things must be mandated, all bad things must be prohibited. The law is a reflection of the popular morality. Popular will is inferior to judicial whim, etc.

    You’re thinking too big, if you think like a lawyer then you see that it’s just about expressing the national morality via legislative (or more often, judicial) edicts.

    Of course, marriage isn’t even Judeo-Christian. In fact, the prohibition of polygamy comes from more of a Roman tradition than a Jewish one. It’s a trap to think about marriage in religious or even traditional terms.

    • #8
    • February 24, 2011, at 4:34 AM PDT
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  9. Greg Alterton Inactive

    Interesting that Obama is willing to cave on the DOMA based on a couple of lower court rulings, but hasn’t yet acknowledged lower court rulings on the constitutionality of his healthcare reform.

    On the marriage issue, government should get out of the business of “licensing” marriages, and grant everyone and anyone a “civil union” in recognition of the contractual nature of the partner relationship. Everyone, whether hetreo or gay, would be recognized as a civil union by the state. Leave the recognition and the ceremony of marriage to churches (even gay churches, if you want gay marriage).

    • #9
    • February 24, 2011, at 4:50 AM PDT
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  10. Greg Alterton Inactive

    Raycon, unless or until there is a spiritual revival in the country the likes of the Great Awakening in the mid-1700s, the social conservative battle against gay marriage is likely a losing one. There just aren’t that many social conservatives around (or should I say, not enough people around who hold to traditional values…as you point out, we see this even on conservative blog sites).

    • #10
    • February 24, 2011, at 4:53 AM PDT
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  11. Nathaniel Wright Member

    Hmmm… I wouldn’t agree with the supposition that those who favor Gay Marriage — as a matter of policy — don’t hold traditional values. One does not necessitate the other. Catholic marriage is a sacrament, but civil marriage is not. Both have existed for centuries and the civil pre-dates the Catholic.

    I would argue that Conservatives who seek to conserve the ideals as set forth in the Declaration, Constitution, Federalist Papers, and Classical Philosophy are equally Conservatives as those who wish to preserve the “Judeo-Christian foundation of America.” Certainly, there are Judeo-Christian foundations to our grand republic, but there are also non-religious Classical and Enlightenment philosophical foundations as well.

    Moral traditions hold value, and have real civil value, but not all traditions are just. A Conservative allows traditions to be tested, a progressive merely ignores them.

    • #11
    • February 24, 2011, at 5:16 AM PDT
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  12. Joseph Stanko Member
    Greg Alterton: Raycon, unless or until there is a spiritual revival in the country the likes of the Great Awakening in the mid-1700s, the social conservative battle against gay marriage is likely a losing one. There just aren’t that many social conservatives around (or should I say, not enough people around who hold to traditional values…as you point out, we see this even on conservative blog sites). · Feb 23 at 3:53pm

    If that’s so, then how do you account for the fact that gay marriage loses every single time it’s put to a popular vote? How do you account for the fact that Prop 8 won comfortably here in California in the very same election that swept Obama into office and gave the Dems overwhelming control of both houses of Congress? Why are gay marriage advocates trying so hard to impose it via the courts if the public is on their side?

    As John points out, state-by-state legalization via the normal legislative process would yield a much more durable, lasting social consensus.

    • #12
    • February 24, 2011, at 5:20 AM PDT
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  13. JM Hanes Member

    John Yoo:

    I’ve taken the liberty of cross posting this question from Prof. Epstein’s Dumb on DOMA thread, because it somehow seems relevant here too. Not being a lawyer, I wonder if you could tell me what to make of this, in Holder’s declaration to the Speaker:

    Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

    I also wonder if there’s any way to discern if the Attorney General made another end run around the Office of Legal Counsel in this matter, as he has done in the past? He certainly played up Obama’s personal role in the decision making, contra all of the President’s former protestations.

    • #13
    • February 24, 2011, at 5:28 AM PDT
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  14. JM Hanes Member
    raycon: Don’t conservatives, whether Christians, Jews or atheists have some consensus that the Judeo-Christian foundation of America is what we are here to conserve?

    I peg the consensus at conserving our constitutional foundations. I suspect it might prove difficult to argue that the Founders ever actually contemplated Judeo-Christian culture as that concept is generally understood today. Indeed, the fact that legislation put forward by Jefferson to allow the naturalization of Jews and Catholics in Virginia was defeated, suggests a certain lack of cohesion on that score.

    • #14
    • February 24, 2011, at 5:56 AM PDT
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  15. Profile Photo Member
    raycon: I need to be reminded, Ricochet is a Conservative blog-site, isn’t it? Don’t conservatives, whether Christians, Jews or atheists have some consensus that the Judeo-Christian foundation of America is what we are here to conserve?

    No.

    • #15
    • February 24, 2011, at 6:07 AM PDT
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  16. Profile Photo Member
    John Yoo: But there is an important difference.Obama is interpreting the Constitution at odds with the Supreme Court on a matter of individual rights.

    This is very different than the Bush administration’s invocation of the right to decline to enforce federal statutes at odds with the Constitution.

    What Obama is doing, and what the Bush administration did with their signing statements, etc., is abandoning the constitutional mandate to enforce the law. If the Obama thinks DOMA is unconstitutional he can advocate a Congressional repeal but he cannot refrain from enforcing it as long it is the law of the land. The same thing applied to the Bush administration: if it disagreed with legislation that interfered with its prerogative powers,the administration still had to enforce the law. I don’t see where the Constitution allows President’s to enforce only those laws they agree with.

    Despite the contextual differences between Bush and Obama,this all still whiffs too much of monarchical authority.As I mentioned in Professor Epstein’s post,this is little better than the suspension authority claimed by Charles I – claimed, I might add, as a prerogative power of the Executive

    • #16
    • February 24, 2011, at 7:13 AM PDT
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  17. raycon and lindacon Inactive
    Greg Alterton: Raycon, unless or until there is a spiritual revival in the country the likes of the Great Awakening in the mid-1700s, the social conservative battle against gay marriage is likely a losing one. There just aren’t that many social conservatives around (or should I say, not enough people around who hold to traditional values…as you point out, we see this even on conservative blog sites). · Feb 23 at 3:53pm

    Gee, what a coincidence. The Great Awakening happening at the same time as the Founders stumbled upon the Declaration that Life, Liberty and the Pursuit of Happiness was a gift from the very Creator that the world was awakening to. Will such happenings never cease?

    Judeo-Christian isn’t limited to only those subjects articulated in the Old and New Testaments. Clearly, the Romans, Greeks and other great thinkers from the past didn’t live in a vacuum. C.S. Lewis called these foreshadows of God’s Revelation. Aristotle might not have envisioned the God of Scripture, but he was not out of tune with God’s creation. Of course he lived thousands of years before God revealed Himself.

    What’s our excuse?

    • #17
    • February 24, 2011, at 8:50 AM PDT
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  18. Profile Photo Member
    raycon: Gee, what a coincidence. The Great Awakening happening at the same time as the Founders stumbled upon the Declaration that Life, Liberty and the Pursuit of Happiness was a gift from the very Creator that the world was awakening to. Will such happenings never cease?

    Judeo-Christian isn’t limited to only those subjects articulated in the Old and New Testaments. Clearly, the Romans, Greeks and other great thinkers from the past didn’t live in a vacuum. C.S. Lewis called these foreshadows of God’s Revelation. Aristotle might not have envisioned the God of Scripture, but he was not out of tune with God’s creation. Of course he lived thousands of years before God revealed Himself.

    What’s our excuse?

    I’ll wager that the proximity of the “Great Awakening” and the American Revolution was more coincidental then anything else. The Revolution was pioneered by a number of deists (Jefferson, Paine, Franklin, etc.) who, if living today, would no doubt be questioned by genuinely religious voters for their deism. Imagine if the President edited the New Testament by removing passages referring to the divinity of Christ.

    • #18
    • February 24, 2011, at 9:51 AM PDT
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  19. raycon and lindacon Inactive
    Michael Labeit

    raycon: Judeo-Christian isn’t limited to only those subjects articulated in the Old and New Testaments. Clearly, the Romans, Greeks and other great thinkers from the past didn’t live in a vacuum. C.S. Lewis called these foreshadows of God’s Revelation. Aristotle might not have envisioned the God of Scripture, but he was not out of tune with God’s creation. Of course he lived thousands of years before God revealed Himself.

    What’s our excuse?

    I’ll wager that the proximity of the “Great Awakening” and the American Revolution was more coincidental then anything else. The Revolution was pioneered by a number of deists (Jefferson, Paine, Franklin, etc.) who, if living today, would no doubt be questioned by genuinely religious voters for their deism. Imagine if the President edited the New Testament by removing passages referring to the divinity of Christ. · Feb 23 at 8:51pm

    Jefferson, Paine, Franklin… living the foreshadows of God’s revelation of Himself. It happens even with those who have rejected that revelation. Michael, you are not seeing the point. You, yourself, a libertarian, are living proof. Otherwise, what is the objective foundation of your convictions?

    • #19
    • February 24, 2011, at 10:02 AM PDT
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  20. Profile Photo Member
    raycon

    Michael Labeit

    Jefferson, Paine, Franklin… living the foreshadows of God’s revelation of Himself. It happens even with those who have rejected that revelation. Michael, you are not seeing the point. You, yourself, a libertarian, are living proof. Otherwise, what is the objective foundation of your convictions?

    There are alternatives to the Judeo-Christian perspective. I think many of the Founding Fathers, given their remarks, particularly Jefferson and Paine, proved to be lousy Christians, yet they were among the most influential agitators of the Revolution. Of all the things that I’ve been labeled as or have been attributed to me, “living proof of God’s revelation of Himself” is among the most atypical. If Christianity requires social conservatism, then I would make for an awkward living proof.

    • #20
    • February 24, 2011, at 10:56 AM PDT
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  21. Bereket Kelile Member
    Michael Labeit I’ll wager that the proximity of the “Great Awakening” and the American Revolution was more coincidental then anything else. The Revolution was pioneered by a number of deists (Jefferson, Paine, Franklin, etc.) who, if living today, would no doubt be questioned by genuinely religious voters for their deism. Imagine if the President edited the New Testament by removing passages referring to the divinity of Christ. · Feb 23 at 8:51pm

    I don’t like to get away from the topic of the thread but I just wanted to say that Christians and other religious people were aware of Jefferson’s beliefs. It wasn’t some kind of a secret that we only know today when it’s a moot point. Let’s also not forget that John and Samuel Adams were also leaders in the revolution and responsible more than most for keeping the movement going. We shouldn’t pick the side of the conflicting visions we like best and neglect the other. They’re both there and with us to this day.

    • #21
    • February 24, 2011, at 11:07 AM PDT
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  22. AmishDude Member

    I think Burke really informs us on same-sex marriage. He argued that institutions should be changed only with very good reason. He also championed non-governmental community institutions.

    Both are violated here. The good reason for same-sex marriage seems to be a rights argument that is premised on the notion of mere psychological validation. Marriage is a little bit more than a note from the government saying, “We approve of you and your lifestyle, you’re cool beans with us.” The rights issue is weeak because you can’t exercise the right without the consent of another party.

    But most telling, gays aren’t getting married anyway. Let me explain. If marriage licenses were canceled tomorrow, there would still be weddings and most of the couples wouldn’t even notice. There would be a parallel civil institution.

    But gays aren’t getting married now. If the marriages were important, then there would be thousands of couples with certificates of commitment from the Unitarian church or somesuch. In that case, it would be natural to recognize that institution legally, but when it comes to same-sex marriage, the sine qua non is legal recognition.

    • #22
    • February 24, 2011, at 12:46 PM PDT
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  23. JM Hanes Member

    I, too, see little substantive difference between Bush and Obama on this point. In fact, I think Obama’s course is more defensible. While he is not exactly reliable, Obama has, in fact, made a public commitment to enforcing the law as it stands, and the DoJ has always had considerable latitude in how it chooses to approach actual litigation.

    In contrast, a signing statement simply allowed President Bush to avoid the political consequences of exercising his veto power. Declining to use the constitutionally explicit remedy against incursions on executive branch prerogatives not only sets a lousy, potentially dangerous, precedent, it also leaves the matter at issue unresolved.

    • #23
    • February 25, 2011, at 2:46 AM PDT
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