Academic journal article Harvard Law Review

IV. Presidential Involvement in Defending Congressional Statutes

Academic journal article Harvard Law Review

IV. Presidential Involvement in Defending Congressional Statutes

Article excerpt

In February 2011, U.S. Attorney General Eric Holder announced that, pursuant to President Barack Obama's order, the Department of Justice would decline to defend the constitutionality of section 3 of the Defense of Marriage Act (1) (DOMA) in those circuits that had not yet determined the standard of review to be applied to "classifications based on sexual orientation." (2) Critics decried the President and Attorney General's decision as "low cynicism," (3) an "[e]xecutive [p]ower [g]rab," (4) and even "dangerous." (5) What was perhaps most surprising about this decision, however, was that the President and Attorney General made the decision even though then-Acting Solicitor General Neal Katyal objected to such "non-defense" (6)--the White House has traditionally afforded some independence to the Solicitor General. (7) The White House's overruling of the Acting Solicitor General by refusing to defend a statute was not, however, an unforeseeable event, nor will it likely be anomalous. Rather, the Solicitor General's role has, since the late 1970s, slowly but surely undergone transformation from an independent force in the defense of statutes' constitutionality to a conveyor of "the President's distinctive constitutional voice." (8)

This Part traces the increase of the President's influence over decisions whether to defend federal statutes and the concomitant decrease in the Solicitor General's power to make these decisions. Section A examines the Solicitor General's role within the executive branch and specifically addresses two issues that have long perplexed commentators: who or what should be considered the Solicitor General's "client," and what degree of independence the Solicitor General should enjoy from the President. Section B traces the evolution of the President's involvement in decisions not to defend statutes and the decline of the Solicitor General's role in this regard. Finally, section C examines how the President's new role might impact the future of the government's Supreme Court litigation.

A. The Solicitor General's Role Within the Executive Branch

1. Background.--The U.S. Code provides that "[t]he President shall appoint in the Department of Justice, by and with the advice and consent of the Senate, a Solicitor General, learned in the law, to assist the Attorney General in the performance of his duties." (9) Congress originally created the Office of the Solicitor General in order to aid the Attorney General "in preparing opinions and arguing cases before the Supreme Court." (10) Today, representing the United States before the Supreme Court remains the Solicitor General's main role. (11) The Solicitor General usually decides whether to petition for certiorari (12) and whether to file an amicus brief. (13) The Solicitor General is also responsible for coordinating the litigation of the independent agencies. (14) Perhaps most importantly, she or he typically determines the United States's position on the law, (15) including whether a federal or state law or official action is consistent with the U.S. Constitution. (16) "In short," writes Professor Rebecca Mae Salokar, "the solicitor general is responsible for any and all actions on behalf of the United States government before the Supreme Court." (17)

2. The Solicitor General's Client.--Historically, it has been difficult to determine precisely who the Solicitor General's client is. (18) Former Solicitor General Francis Biddle remarked that the Solicitor General's "client is but an abstraction." (19) Although commentators, including subsequent Solicitors General, routinely have criticized Solicitor General Biddle's formulation, (20) few have agreed on an alternative theory of who constitutes the Solicitor General's client. (21) One view holds that the Solicitor General's sole client is the President. (22) Other views expand the Solicitor General's client to the executive branch (23) or to the government as a whole. (24) Finally, some decline to identify a specific client and suggest instead that who the Solicitor General's client is at any time depends on context. …

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