Orin Kerr on Obama's decision not to defend the Defense of Marriage Act:
...If you look at AG Holder’s reasons for why DOJ won’t defend DOMA, it is premised on DOJ’s adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that “the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA.” This theory is not compelled by caselaw. Rather, it’s a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.
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.
If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended.
Presumably, under this logic President Palin won't defend ObamaCare in court. Of course, President Palin won't veto a repeal of ObamaCare, either [if a repeal made it past a Democratic filibuster in the Senate].
As to the notion that Obama was going to de-politicize the Department of Justice, well, I presume no one took that seriously anyway.
SOME HISTORY: Jack Balkin thinks this gives liberal courts good political cover and provides some history:
Why does a change in the official position of the Administration matter to federal judges? The answer is that when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. Agreeing with the President appears less countermajoritarian, even if other parts of the federal government (and the various states) disagree.
Thus, it was only after the Truman Administration asked the Supreme Court to overturn Plessy v. Ferguson in Sweatt v. Painter in 1950, and again in the Brown litigation in 1952, and after the Eisenhower Administration's Justice Department concurred with the Truman Administration when it came into office, that the Supreme Court finally felt comfortable overturning Plessy v. Ferguson in Brown v. Board of Education in 1954. After the Bush Administration took the official position that the Second Amendment protects an individual right to bear arms in self defense (around 2001), this provided political cover for the Justices to reach the same conclusion in 2008 in District of Columbia v. Heller. Note that the President's explicit and public support for a constitutional position does not have to be a reason explicitly stated in judicial opinions, but it can be an important factor nonetheless.
I would feel better if his historic examples involved a Federal law, not a prior court decision or a local law. [AKS AND RECEIVE - America Blog dug up some nolo contendre examples in order to bash the original Obama decision to defend these cases. This 2005 case about the advocacy of marijuana reform is good:
WASHINGTON - The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. The controversial statute was recently ruled unconstitutional by a federal district court. The Solicitor General Paul Clement stated in a letter to Congress that, "the government does not have a viable argument to advance in the statute's defense and will not appeal the district court's decision."
As the Wall Street Journal reported today, "Mr. Clement's opinion also could serve as a warning to Congress that it can't assume the Justice Department will support the controversial riders that lawmakers have been adding to funding bills if those riders are challenged in court." The Wall Street Journal added, "Two past solicitors general, Charles Fried and Seth Waxman, said it is rare for a solicitor general to refuse to defend a statute passed by Congress" and that "Mr. Fried, who served under President Reagan, recalled making such a decision only twice."
The law at issue in ACLU et al., v. Norman Y. Mineta is Section 177 of the FY2004 federal spending bill, also known as the 'Istook Amendment,' which threatens to cut off more than $3 billion in federal funding from local transit authorities nationwide that accept advertisements critical of current marijuana laws. Rep. Ernest Istook (R-OK) introduced this amendment to the spending bill last year and Congress re-included the same law in this year's federal budget.
A court ruled that to be a free speech violation and the DoJ couldn't figure out how it wasn't. One might note that the politics ran a bit backwards relative to this DOMA example, since it was a Republican administration dumping a dubious (but potentially pleasing to part of the base) amendment foisted on them by a Republican Congress.
ERRATA: My official editorial position is that the judicial cramdown of gay marriage is highly probable. I would prefer a legislative process but I also believe that the cramdown won't be divisive forever, as Roe v. Wade has been - experience will tell whether gay marriage strengthens, weakens or has no effect on marriage; experience with abortion hasn't, and won't, tell us whether life begins at conception.