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Religion & Law

: Constitutionally Correct

The Executive Power Grab in the Decision Not to Defend DOMA

By ADF Alliance Alert

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Orin Kerr writes at the Volokh Conspiracy: "By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case ? in this case, the degree of scrutiny for gay rights issues ? and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion."

Full post as published by Constitutionally Correct on February 23, 2011 (boomark / email).