Legal Commentary

Walter Dellinger on the Decision Not to Defend DOMA

By Orin Kerr

In response to my earlier post on the Obama Administration?s decision not to defend DOMA, Walter Dellinger writes in via e-mail (posted with his permission):

Orin, your post comparing what the Justice Department has announced it will do in DOMA cases to some of John Yoo?s theories of presidential power doesn?t give proper weight to the enormous difference between refusing to obey a law (which the Bush administration did ? and secretly!) and obeying the law which the Obama administration will continue to do with DOMA. Informing the courts of the administration?s view of that a law is unconstitutional, while facilitating the participation of amicus who will argue in defense of the law, is respectful of the role of the other branches, both Congress and the judiciary.

Walter then flagged this New York Times piece he wrote on the subject, which is worth a read.

I agree with Walter that there is a big difference between adopting a view of the Constitution in secret and adopting a view in public, especially if there is a way that others might defend the law if the Administration bows out. I also agree that there is a big difference between declining to enforce a law and declining to defend it. My concern is with two issues. First, my sense is that it is not clear that others can step in to defend DOMA, and if so, how that would work. (If that is actually an easier issue than I?m thinking it is, then I would rethink my objections. For example, once a case reaches the Supreme Court, the Court can appoint amici to defend the law. I?m not sure how it can work in lower courts, though.) And second, the decision not to defend DOMA is likely to trigger a tit-for-tat that will have significant repercussions for the role of the Executive branch in defending legislation in the future. Perhaps it?s inevitable that DOJ will take on a more politicized role in the future ? with each Administration declining to defend legislation it opposes on a relatively routine basis? but it doesn?t strike me as a positive development.

UPDATE: I have added a bit to the post shortly after posting it.

ANOTHER UPDATE: Here?s a DOJ letter from 1996 detailing past instances of when the President declined to defend legislation. I?ll have to study it in more detail tomorrow, but I wanted to post it for now so others can see it (if you haven?t already).

Full post as published by The Volokh Conspiracy on February 24, 2011 (boomark / email).