Legal Commentary

Federalist Society Podcast on the Government?s Duty to Defend the Law ? And A Few More Thoughts on the Decision Not to Defend DOMA

By Orin Kerr

The Federalist Society had an interesting podcast on the issue back in October that you can listen to here. It lasts 40 minutes, and it features Walter Dellinger, John Eastman, John Baker, and Dean Reuter.

In thinking over my reaction from yesterday, some of the feedback I?ve received has me somewhat less concerned than I was yesterday about the Obama Administration?s approach. In particular, it seems that everyone seems to think that, somehow, someone will be available to defend a law when the Administration declines to to do. It?s not entirely clear to me how this happens when an Administration declines to defend a law in the District Court, as opposed to the Supreme Court: The key problem is how to get the case up to the Supreme Court, which isn?t presented when the Administration defends the law in the lower courts. But if everyone agrees that this will happen somehow, then the Administration?s decision is a lot less significant, and therefore less worrisome from a standpoint of long-term impact, than I had thought.

As to how this might happen, some have pointed out that in INS v. Chadha, the Executive declined to defend the law in the circuit court, and the circuit court then appointed amici to represent the interests of both the House and the Senate to defend the law. This is a fair point. At the same time, the law in Chadha was an extremely unusual law: It was a power grab by Congress to take power from the Executive by giving both the House and the Senate unilateral veto power over Executive action. The House and Senate wanted the power; the Executive branch didn?t want them to have it. In that rather unique setting, it makes some sense that the House and Senate, rather than the Executive branch, would defend the law. In the case of DOMA, though, the law is no more Congress?s than it is the President?s. I suppose that you can look to the politics of the majority in each house of Congress and make a practical assessment of whether both or either institution would defend the law; because the House is now in Republican hands, presumably the House would do so if it can. But that strikes me as tricky because it depends on the timing; while it might be true today, presumably it wasn?t true last year.

Anyway, thanks for the helpful feedback; it?s an interesting and complicated question.

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