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.