Monday, February 28, 2011

The Enforcement/Defense Calculus in DOMA and Beyond

By Mike Dorf 

The Justice Dept's decision last week to stop defending Section 3 of the Defense of Marriage Act (DOMA) predictably drew praise from gay rights groups and criticism from conservatives.  Many news stories--like this one in the Sunday NY Times--have raised the question of how much leeway the Executive Branch has to decide that a law is constitutionally indefensible even when those with different ideological views nevertheless stand ready to defend it and there is a fair chance that the courts could uphold it.  The Times story, for instance, notes that as a lawyer in the Justice Department in 1990, (now-Chief Justice) John Roberts told the Supreme Court that the government would not defend a FCC affirmative action program in broadcast licensing.  The Court upheld the policy in the Metro Broadcasting case, although that decision was effectively overruled five years later, following changes in personnel.)

One might think that the position taken by the Bush I Administration with respect to the FCC rule is not fully comparable to the Obama Administration's position on DOMA because the former was merely walking away from an agency rule rather than a statute adopted by Congress.  But this would be a mistake because, as both the majority opinion and a concurrence by Justice Stevens in Metro Broadcasting made clear, Congress, through conditions on an appropriations bill, had endorsed the FCC policy.  So whatever obligation the Executive Branch has to defend Congressional policies was as much in play with respect to the FCC program as it is in the case of Section 3 of DOMA.

Much has already been written about the Obama Administration's conclusion that it could not in good conscience advance arguments in support of DOMA, Section 3--at least not in those circuits that lack precedent making the highly deferential "rational basis" test the standard for judging laws that discriminate on the basis of sexual orientation.  Here I want to juxtapose the Administration's position on defense with its position on enforcement.  In Attorney General Holder's letter to House Speaker Boehner explaining the new position, Holder made clear that non-defense would not imply non-enforcement.  He wrote:
Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
This dichotomy should be familiar from the federal court same-sex-marriage litigation in California, in which the statewide elected officials declined to defend Prop 8, even as they continued (and continue) to enforce it.  Let's take a moment to step back and note how peculiar, indeed backwards, that arrangement is.

Suppose that one day your friend Socrates tells you that he is on his way to a cemetery to dig up some dead bodies and remove any valuable items of jewelry that might have been buried with them.  He asks you to join him.  You say that's immoral, that you would never do such a thing.  Socrates says that you haven't considered the matter fully and offers you a challenge: Come to the forum with him and debate the proposition "Graverobbing is immoral."  Socrates will take the affirmative of the proposition, while you will take the negative.  Now, you might have some aversion to arguing that graverobbing is a morally harmless act, but surely that aversion is less than your aversion to actually engaging in graverobbing.  If you think this example gilds the lily because graverobbing is not only immoral but also disgusting, imagine that the choice is between stealing a loaf of bread to give to a poor person and arguing in moral defense of stealing a loaf of bread to give to a poor person (assuming you think it immoral to steal a loaf of bread to give to a poor person).  So long as you think some act is immoral, wouldn't you generally think that it is worse to engage in the act than simply to argue to a neutral evaluator that the act is morally permissible?

We can quickly dispose of one objection.  You might worry that if you defend an immoral act, you will be so persuasive that it will come to be seen as moral simply because you are so much better at argument than those on the other side.  But that is certainly not going to be true in my example, in which no less than Socrates himself will argue the position that you actually favor.  And likewise in the actual court cases, there will undoubtedly be highly skilled lawyers challenging DOMA, so that the Justice Dep't will not overwhelm them if it defends DOMA.

One might also object to my hypothetical by noting that law is not exactly the same thing as morality, but which way does this cut?  Lawyers routinely make arguments that they do not personally find persuasive, whereas in the domain of morality we might think that one has a greater obligation to be true to one's actual beliefs.  At the very least, though, there is certainly no greater obligation only to make sincere arguments in matters of law than in matters of morality.

Consider one last example.  Thomas Jefferson thought that the Sedition Act violated the First Amendment (and history has validated him in this view).  Although it expired of its own force at the end of Adams' term, cases from the earlier period were still pending in the courts when Jefferson became President.  In accordance with his constitutional views of the Act, Jefferson dropped those prosecutions and issued pardons to those who had been convicted.  But suppose that Jefferson had reasoned as John Roberts and Eric Holder later would.  Jefferson would have persisted in the prosecutions of anyone already indicted under the Sedition Act, and presumably even would have initiated new prosecutions for pre-expiration Sedition Act violations, but if and when any of the defendants raised constitutional objections, Jefferson's lawyers simply would have declined to speak in defense of the Act's constitutionality, perhaps even acceding to the appointment of a Federalist lawyer to argue for constitutionality.  Would this not have been bizarre?

Fast forward to today, when two sorts of reasons are typically thought to justify the enforce-but-don't-defend approach.  First, it is sometimes said that this approach means that the President abides by his constitutional duty to faithfully execute the laws.  But this position is clearly question-begging, because, of course, the duty only extends to valid laws, and by hypothesis, we are dealing with what Holder himself calls a "rare case" in which the Administration determines that there are no reasonable grounds for defending the law at issue.

Second, enforce-but-don't-defend can perhaps be justified on the ground that this approach tees up the matter for judicial resolution, as the Holder letter states.  So long as the Executive is enforcing the law, its targets will have standing to challenge it, and so long as the courts permit other representatives (such as those selected by Congress or the courts themselves) to argue in defense of the law's constitutionality, there will be a concrete dispute for resolution in court.

I don't find this justification persuasive either.  To begin with, any force it has derives from standing rules that are themselves somewhat arbitrary.  The Supreme Court allows representatives of Congress to defend a statute that the Administration declines to defend but does not typically allow a private party or member of Congress to sue the Executive Branch to demand that it enforce a law the Executive refuses to enforce.  If one really values judicial resolution so highly, we could imagine a different regime in which whenever an Administration declines to defend a law's constitutionality, representatives of Congress could be given standing to sue the Administration for a declaratory judgment that the law is valid.

But in any event we shouldn't make judicial resolution the be-all and end-all.  Suppose that the Sedition Act had been challenged and upheld in court--as it almost certainly would have been by the Federalist-packed Supreme Court.  Would Jefferson then have been obligated to enforce it, notwithstanding his firm conviction that it was unconstitutional?  To my mind, an Administration should retain some freedom to choose not to enforce a law that the Supreme Court would uphold or even one it has upheld, if the President and her advisers, after due consideration of the stakes, make a judgment that the law is unconstitutional.  This power can be abused, of course, and some of the positions taken by President Bush 2 in signing statements went too far (though the most egregious examples involved a stated refusal to comply with laws rather than a refusal to enforce laws).   However, I think that risk is worth taking to get the basics right.  Doing so means that the judicial-resolution tail shouldn't wag the enforcement dog.

32 comments:

Joe said...

Obama is setting forth a new doctrinal position on the level of scrutiny in legislation involving homosexuals and executing a legislative policy here. The court judgment would be a type of tiebreaker.

Judicial review is not the final say in every case, but it seems like a logical one in this one. This is not a matter of prosecutorial discretion. It would be a rejection of carrying out legislative policy. Not jailing a few people seems different than providing thousands benefits. And, heightened review would affect a lot more than this one issue.

This is one reason why the Jefferson precedent is somewhat different. As to the balance of things, sometimes, I would think humility would require me to not make the final decision. Executives carry out things they themselves think immoral (e.g., a law about abortion) because the other two thirds of government (and society) accepts it.

I also think taking it slow is important in the development of the law in areas like this. Pragmatically, in this case, this is the best thing to do.

AF said...

Professor Dorf,

I agree that acting but refusing to defend an immoral act would be backwards for a private individual, but I don't think the executive's decision whether to enforce and/or defend the constitutionality of laws it considers unconstitutional is particularly analogous to a private individual's moral calculus. In particular, the principle of separation of powers plays a central role in the executive's decision, whereas it obviously has nothing to do with the graverobbing dilemma.

I'm not sure that you even disagree that the executive has a strong presumptive obligation to enforce federal statutes as written and is not free to disregard any laws which it believes in its own independent legal judgment to be unconstitutional. That would clearly be contrary to the principle of separation of powers, tipping the balance even more to the executive than it already is, and would furthermore be a recipe for regular constitutional crises. Your point seems to be that once the executive decides that a particular law is so indefensible that the presumption of constitutionality is overcome, it should cease to enforce it rather cease to defend it in court.

But once you accept that separation of powers implies that the executive should presume the constitutionality of Congressionally-enacted statutes, it follows quite naturally that the executive should have a lower threshold for ceasing to defend a law in court than for ceasing to enforce it. The executive's primary obligation is to enforce statutes; defending them in court is secondary. Furthermore, it is more respectful of separation of powers for the executive to tacitly or even expressly invite the judiciary to assist it in overruling Congress than to do so unilaterally. This would be true even if standing doctrine were altered to make it easier to challenge non-enforcement; the same separation-of-powers analysis applies to the question as to whether the law should be enforced while the legal process played out.

That there may be some cases where the executive is justified in unilaterally refusing to enforce a law does not mean that it is justified in doing so whenever it believes a law cannot be defended in court. Rather, non-enforcement should be reserved for extreme cases, where it is impossible or futile for the executive to wait for the judiciary to weigh in. These cases would typically precipitate constitutional crises, struggles between the branches of government. It makes very good sense for this option to be a last resort.

Michael C. Dorf said...

AF correctly reads me to be saying that non-enforcement ought to be invoked very rarely. However, I continue to think that the analogy to individuals is sound--or at least instructive, because the duty to faithfully execute the law is a double-edged sword. It certainly entails enforcing laws with which the Executive disagrees as a matter of policy and usually entails enforcing laws as to which there are merely constitutional doubts. But if those doubts are grave enough, then the Constitution can be understood to place a duty on the President NOT to enforce the law in question, just as we might think that an individual has a duty not to engage in acts she believes to be immoral.

As to the separation-of-powers dimension, much depends on how one conceives of the role of the political branches in constitutional interpretation. Although I don't go as far as early "departmentalists" such as Jefferson, or even necessarily as far as modern departmentalists like Larry Kramer, I do think there is a legitimate role for the President and Congress to make some independent judgments. That is all that I meant by saying that presenting these issues for the judiciary ought not to be the be all and end all.

egarber said...

Isn't there already a version of the "defend don't enforce" dynamic in play -- in that new administrations enforce laws they find objectionable less energetically?

For instance, a Republican president who believes in a more limited commerce clause might hold back enforcing certain pollution laws, while defending any such law in court.

I guess my point is that on some level, it seems the executive branch is constantly voting on issues with a constitutional flavor via inaction that falls short of formalized announcements. Perhaps that's enough unitary room.

Hashim said...

I agree with AF that, as a theoretical matter, the Executive Branch could probably justify adopting a higher threshold for non-enforcement than non-defense, given that the President's "take care" obligation pertains only to "faithful execution" of the laws. For example, it's at least arguably consistent with the President's "take care" obligation to refuse to defend if he thinks the statute is clearly unconstitutional after considering all reasonable arguments, but to refuse to enforce only in the even rarer circumstance where no reasonable defense of the statute existed. The theory would be that the President is faithfully executing Congress' law in the face of some constitutional ambiguity, even if he's unwilling to defend it based on his personal resolution of that ambiguity, but is faithfully executing the Constitution when he declines to enforce a patently and unambiguously unconstituitonal law.

But theoretical argument has little traction in responding to Mike's real-world point, because the Executive has already picked such a high threshold for non-defense that there's no longer a credible gap for non-enforcement that's consistent w/ the President's "take care" obligation. Specifically, the Executive purports to apply the "no reasonable argument" standard for non-defense. But if a statute is that patently and unambiguously unconstitutional, it's hard to understand how enforcement of such a law is consistent w/ the "take care" obligations. To the contrary, it's pretty clear that the real rationale is to preserve the availability of judicial review and avoid charges of Executive nullification. But that's very difficult to square w/ the President's "take care" obligations, for the reasons Mike identifies.

egarber said...

If presidents have independent authority to refuse enforcement, who decides whether his action was an example of "faithful execution"? That one seems non-justiciable -- best left either for impeachment or the next election, I guess.

But if such a rule was accepted practice, let's pretend Mike Huckabee wins the presidency in 2012. It's not hard to see him refusing to implement the new healthcare law, given the two radical district court rulings. It just doesn't seem possible to me that the option wouldn't be constantly abused, while weakening the judiciary in the process.

Crispian said...

I am curious about the ethical implications for Holder. He is the lawyer for the United States. As such he needs to faithfully advocate the legal position of the government (not only the desire of the president). The law at issue is presumed to be constitutional. Thus generally, the Attorney General must make an argument for constitutionality.

I agree with you that there must be some space for non-enforcement/non-defense where a law is truly believed to violate the Constitution. Yet Holder is advocating a position that is unfavorable to finding the law constitutional (strict scrutiny). To me, this is not the same as saying the law is unconstitutional and that it cannot be defended. Holder admits the law might be upheld as it has been in other courts.

Holder writes that he is not only going to not defend the law...but is going to impress upon the court that an unfavorable standard should be adopted.

I haven't been a lawyer very long, but if I were to not only withdraw from defending a client (claiming I am incapable of making an argument in favor of my client), but also tell the court that it should adopt a standard that would be detrimental to my client...I don't think that would be viewed favorably.

As I alluded to above, I think there are circumstances where an AG could refuse to defend a law if it is believed to be unconstitutional. The fact that the administration has defended the law up until now, continues to enforce it, and couches its reticence in lacking precedent in the particular district rather than in the Constitution strongly suggests it is not a principled stance.

As a young lawyer, I can look at the precedent and make a viable argument for constitutionality. Holder claims this is not possible. One would assume he is a competent lawyer. If he felt the other courts had been using the wrong standard, did he say so? And why does he say the DOJ could defend the law if the present court uses a lower standard? By Holder's own admission, this is less about the Constitution and whether the administration can make a plausibly argue for the other side. Is this a breach of his ethical responsibility of competence and advocacy?

egarber said...

All of this makes me also wonder about another question:

If we're willing to say the president can refuse enforcement or defense of unconstitutional laws, is the standard his guess about judicial precedent? Or is he free to derive his own rationale, based on history or anything else?

Obviously, the latter would invite all sorts of abuse, but if we're willing to create shared binding responsibility (arguably a big jump in the modern era), what makes the judicial understanding controlling, vs. something else?

JP Andreas, Pres. A.C.L.P. said...

As I deal extensively with this subject on my own blog I will here just make a few points in response to everyone's comments in this excellent discussion. As usual, my comments will tend towards the political end of things due to the fact that I find it presently more salient as well as don't feel really qualified to speak competently to matters such as the Sedition Act ;)

1) I agree with Crispian (and to the extent that Dorf and egarber seem to agree, with them also), that POTUS here is motivated by less than a sincere belief that there is "no reasonable basis" on which the DOMA can be defended on a strict scrutiny basis (rather than on shoring up his base for the 2012 elections).

2) I also agree with Dorf on his individual/moral analysis and the determination that the Administration essentially has it backwards; Rather than "enforce but not defend" it should rather be the other way around. However, I have a slightly different take on WHY the Administration is doing so; instead of doing so to prevent mootness I believe the Adminstration is doing so from a crass calculation that by taking such a position it is MORE FAVORABLE to its position and likely to send a message to the judiciary and gay rights groups that will basically invite a full frontal assault in the non- precedential circuits. This would not only fit with the basic m.o. of Obama to play both ends against the middle as long as possible and drag his feet as long as he can only to finally come out with what he in all likelihood believed all along (but didn't have the courage to say in his 2008 campaign). If he had any integrity at all he would have admitted he supported gay marriage from the beginning and/or have the courage to state he would, if he really believes it appropriate, cease both enforcing AND defending the DOMA.

3) I also, like others, find this "decision" of the Administration premature in its timing and especially disturbing that the continual march of consolidation of Federal power to the derogation of the other branches continues, apparently, on nothing more than the whims of a President. Not only does this raise problems vis a vis the authority of Congress' judgment on issues and the President's duty to "take care" to faithfully execute the laws, but it seems to me the continuity issue egarber raises is a strong argument for the inappropriateness of Obama's actions here. It may be, as suggested, that such policy disagreements among the political branches may in difficult cases have to be decided by the electorate, but, as pointed out here, the Administration has been defending the DOMA for two years. Has it only now come to the conclusion the law is unconstitutional? It seems to me that if our government of laws and not of men means anything, it MUST mean that new Administrations must enforce and defend laws passed previously that they might not personally agree with or work to repeal them, (just as judges must interpret and uphold laws the court might not personally have passed had it possessed the powers of the legislature). Anything less is a stark move away from the rule of law and a serious undermining of the principle of Separation of Powers.

4) Moreover, and what I find equally interesting, is Obama's selective enforcement of legislation, i.e., the Administration has no qualms about enforcing Obamacare, a new and much- more controversial piece of legislation which has been clearly declared unconstitutional and that is has been ordered by a Federal court to cease from implementing, while the DOMA, which the American people largely support and has managed for most of its 15 year history to avoid any such declarations, can be jettisoned at the personal discretion of the President for much less compelling reasons. In my view, that says volumes about the Administration's sudden "awareness" that section three of the DOMA might be "unconstitutional" and thus doesn't merit "defending."

egarber said...

Hi JP,

Two things:

1. Most if not all of my comments were about non enforcement, not Obama's action, which was the decision not to defend. Therefore, I didn't make a claim one way or another about the WH's action here.

2. Regarding your point #4, I think you have it reversed. The whole thrust of Mike's post is that it seems backward to selectively defend while fully enforcing. Holder said the administration will continue to enforce the law as is -- just like the new healthcare framework. So your criticism doesn't really apply.

Peter said...

Prof. Dorf, how different would current standing law have to be for "representatives of Congress [to] be given standing to sue the Administration for a declaratory judgment that [a] law is valid"?

JP Andreas, Pres. A.C.L.P. said...

Egarber: Just so there is no misunderstanding. My last question really is more of a hypothetical to the community as opposed to you personally. Judging from your very astute comments re: a potential Mike Huckabee administration I really don't think we fundamentally disagree on the impropiety of the President's actions, (even if my trying to respond to intricate legal arguments I haven't really researched at 2 in the morning leads to less than clear conclusions, lol) I do appreciate your input. On to bed...

egarber said...

"If we're willing to say the president can refuse enforcement or defense of unconstitutional laws, is the standard his guess about judicial precedent? Or is he free to derive his own rationale, based on history or anything else?" clearly points out the logistical nightmare that Obama playing the role of a one man supreme court invites.

Yes, this is a concern for me, but mostly as it relates to decisions not to *enforce* laws. If the Justice Department decides not to defend in court, there will always be a committed body that can step in and fill the role –- maybe more effectively, since Justice’s “heart” might not be in it every time.

To me, refusing to enforce arguably offends the oath to “faithfully execute”, but there’s no direct constitutional charge to defend (imo) – meaning there is room in the latter sphere for administrations to take a stand. So there’s nothing inappropriate about Obama’s action in the DOMA context. Gingrich mentioned that he is “suspending” laws at will. That’s plainly wrong, given that enforcement will continue.

[Recall that in a similar vein, Chief Justice Roberts as solicitor general refused to defend FCC affirmative action rules under Bush Sr.]

egarber said...

I am unclear what your statement "just like the new health care framework" refers to.

Earlier, you said:

“JP: Moreover, and what I find equally interesting, is Obama's selective enforcement of legislation, i.e., the Administration has no qualms about enforcing Obamacare,……. while the DOMA…..can be jettisoned at the personal discretion of the President for much less compelling reasons.”

I was simply saying that it’s factually inaccurate to say Obama is “selectively enforcing” anything. He’s enforcing *everything* -- DOMA, healthcare, and all other laws. The AJ specifically wrote that in the announcement. The DOMA action refers to defense in court. So your observation is like yelling at a cat for being a dog. :)

As for the new healthcare law generally, the implication that people won’t be able to keep their current plans has no basis in the law itself; they most certainly will. The new exchanges are designed to provide affordable options for the 20-30 million without coverage (thus reducing the cost-shift impact on those with existing policies). We can discuss all of that in a different thread sometime.

egarber said...

I reposted JP's last comments from email, and they were removed again, it appears. Mike, any thoughts?

JP Andreas, Pres. A.C.L.P. said...

Egarber: I will certainly look forward to further discussion on the health care issue in another thread. While we may not in the end agree on everything I find your points well argued and their erudite tone welcoming, and for that I am appreciative.

Unfortunately, and as you have noted, it does not seem to prevent my rebuttal posts from being censored, either by the "system" or someone else with Administrator privileges on here who I have annoyed by strongly pressing my own point of view, (e.g., my citing Newt Gingrich's argument re if the show were on the other foot in a potential Palin Administration tempted to declare Obamacare or FACEA 'unconstitutional' for either enforcement or defense purposes, Google). It would really be nice if someone would allow full and fair debate in the marketplace of ideas instead of this ongoing censorship that others have also noted.

Indeed, I find to do otherwise extremely ironic from lawyers and academics who ostensibly should understand and support "freedom of speech" on a day in which the Supreme Court casts aside the IIED claims of those targeted by the Westboro Baptists. Truth really is stranger than fiction... jp

JP Andreas, Pres. A.C.L.P. said...

P.S. I will try to go easier on the cats. lol

egarber said...
This comment has been removed by the author.
egarber said...

Thanks JP. It's been fun.

On your comments being dropped, whatever the cause, it's not the blog owner. I've had extended debates here that are much more heated than this. Something is wacky elsewhere...

Cristiero Rola said...

seo :Evaluating from your very smart feedback re: a potential Robert Huckabee management I really don't think we generally differ on the impropiety of the President's measures, (even if my trying to answer complicated appropriate quarrels I haven't really investigated at 2 in the day results in less than clear results, lol) I do appreciate your knowledge. On to bed... seo博客
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