The Defenseless Marriage Act: The Legitimacy of President Obama's Refusal to Defend DOMA [Section] 3
Pepper, Stacy, Stanford Law & Policy Review
TABLE OF CONTENTS INTRODUCTION A. President Obama's Approach to DOMA B. Questions Raised by a President's Decision to Enforce, but Not Defend, a Law I. WHETHER THE PRESIDENT HAS THE RIGHT TO INTERPRET THE CONSTITUTION II. WHETHER THE PRESIDENT HAS THE RIGHT TO ACT ON HIS INTERPRETATIONS OF THE CONSTITUTION III. WHETHER THE PRESIDENT HAS THE DISCRETION TO DECLINE TO DEFEND AN UNCONSTITUTIONAL LAW A. Whether Declining to Defend a Law, but Continuing to Enforce It, Is Constitutional 1. Unenforcement in the Form of Refusing to Impose the Law or Punish Transgressions 2. Unenforcement in the Form of Declining to Defend the Law Against Challenge in Court B. Whether the President Should Decline to Defend Laws 1. The Consequences of Declining to Defend a Law Absent Congressional Intervention in Court a. Repercussions at the Trial Stage b. Repercussions at the Appellate Stage i. Government Prevails at Trial, but Declines to Defend Its Victory Below aa.Vacatur and Remand bb. Ruling for the Appellant cc. Ruling for the Govermnent-Appellee ii. Government Loses at Trial, but Initially Pursues an Appeal 2. The Redeeming Effect of Congressional Intervention in Court CONCLUSION
President Obama's refusal to defend against constitutional challenge the Defense of Marriage Act (hereinafter "DOMA") revives concerns about the scope and application of executive power--when confronted with a law he views as unconstitutional, what action may a President take against the law without exceeding the bounds of his authority, and what action must he take to fulfill his Article II obligations? To the extent that law reviews and academic journals have endeavored to solve these questions, three potential answers have emerged: (1) the President must take no action against a law he thinks is unconstitutional because the Take Care Clause exhorts him to enforce Congress's law until the Supreme Court overrules it or Congress repeals it; (2) the President must refuse to enforce the law altogether because Article II forbids him from imposing upon citizens an unconstitutional law; and (3) the President must take some action against the law, but Article II grants him the discretion to decline to defend the law against challenge in court in lieu of outright unenforcement. In this article, I critique the assumptions giving rise to these divergent views on the President's executive authority and the aims of Article II's Take Care Clause. In doing so, I evaluate whether a President's decision not to defend a law against constitutional challenge (1) satisfies his Article II obligations, or (2) constitutes a normatively desirable exercise of his Article II powers. I answer both questions negatively. I conclude that a President must reject an unconstitutional law, but may not constitutionally decline to defend it without also refusing to enforce it. Moreover, I suggest that declining to defend a law, without more, discourages a vigorous system of checks and balances among the three branches of government and allows the President to circumvent the other branches under the pretense of deference to them.
A. President Obama's Approach to DOMA
DOMA allows states to reject or disregard "any public act, record, or judicial proceeding of any other State ... respecting a relationship between persons of the same sex that is treated as marriage under the laws of such other State ... [as well as] a right or claim arising from such relationship." (1) Section 3 of DOMA (hereinafter "Section 3") clarifies that, for purposes of federal law, the word "marriage" means "only a legal union between one man and one woman." (2) The word "spouse" "refers only to a person of the opposite sex who is a husband or wife. …