The Defenseless Marriage Act: The Legitimacy of President Obama's Refusal to Defend DOMA § 3

Abstract

This article examines whether a President’s refusal to defend a law against constitutional challenge in court is: (1) constitutional and (2) normatively desirable. I answer both questions negatively.With respect to the constitutional question, I evaluate the assumptions necessary for a President to take action against an unconstitutional law, namely that he has the right to interpret the Constitution and the right to act on those interpretations in some form. The thrust of my article focuses on whether the means by which a President confronts an unconstitutional law are discretionary such that he may refuse to defend a law without also refusing to enforce it.I conclude that a President may not refuse to defend a law without also suspending it. Upon further analysis, I conclude that when a President suspends a law, he precludes the Court's review of its constitutionality altogether (at least under our existing conceptions of standing and justiciability), so, in effect, declining to defend a law does not exist as a legitimate, constitutional means of presidential action against an unconstitutional law.I also shed some light on the previously unexamined question of whether declining to defend a law is normatively desirable. The strongest argument supporting declining to defend the law is that, as opposed to outright suspension of a law, declining to defend only demonstrates much greater deference to the other branches of government (i.e., Congress may step in to defend the law if it chooses, and continuing to enforce the law facilitates a case or controversy such that a court may hear the case on its merits). I conclude, however, that this deference is a fiction: The President only facilitates a case or controversy if Congress steps in to defend the law in question. Furthermore, the fact that Congress is willing to do so is not a benign acceptance of the Executive’s invitation, but an inevitable response to what is, unquestionably, an attack upon it and its laws. Declining only to defend a law allows the President to attack the other branches of government without incurring the checks and balances that should accompany such action and to obscure accountability for his constitutional interpretations. Short of a willingness to suspend the law and endure the political consequences, the law deserves the Executive Branch's defense.