On the Alleged Tyranny of Obama’s Refusal to Defend the Constitutionality of DOMA

The funniest reaction to the Obama administration’s salutary decision to not defend the constitutionality of Section 3 of DOMA comes, needless to say, from Jeff Goldtsein:

Of course, he doesn’t get to determine that – it was passed by the legislature and signed into law by President Clinton, and so it the duty of the government to defend it — but then, Obama is above the law.

As are all dictators.

We live in a country where the President and his cronies decide what laws to follow and what laws to enforce; what companies are supported and what companies are not; who has to follow comprehensive health care reform and who does not.

Which means we live in a fascist country, ruled by an elected dictator who has positioned himself above and outside the laws he demands we follow — and who has granted himself the right to determine who has to follow what laws, how, when, and why.

That is not freedom. It’s tyranny. Simple as that.

The punchline being that Obama’s predecessor really did believe that he could violate valid acts of Congress and constitutional requirements, and Goldstein was strongly in favor of this. OK, but it’s not exactly news that Goldstein is a buffoon whose views of executive power switch from Carl Schmitt to anti-Federalist depending on the partisan identity of the current occupant of the White House. That still doesn’t make Obama’s actions right if they’re procedurally similar to the Yoovian idea that the laws apply only at the pleasure of the president. As you can see from the comments, many liberals seem to share Col. Mustard’s view that this represents some kind of executive “power grab.” The fact that they’re on the same side as the Duke of Dijon should suggest that their probability of being wrong approaches 100%, and in fact these arguments represent a fundamental misunderstanding of what’s going on here:

• It’s important, first of all, to emphasize what Obama is not doing — namely, claming to be above the law.   He is not claiming that DOMA doesn’t apply, or that the federal courts cannot adjudicate the constitutionality of the act.  He is not, in the manner of Jefferson or Jackson, saying that he would ignore a court ruling upholding DOMA.  (The Reagan and Bush administrations — as was their right — repeatedly argued that Roe v. Wade should be overruled.   The Supreme Court, as you may remember, declined.)   He’s merely unwilling to argue on behalf of the law’s constitutionality.   There’s nothing about this that is in any way inconsistent with our constitutional framework or the rule of law. The judiciary is not the exclusive interpreter of the Constitution.
• But, the argument seems to go, what if because of this precedent allows President Palin to refuse to defend the constitutionality of the mandate?   Well, first of all, there’s no precedent being established here.  Saint Reagan himself established “tyranny” in the United States at least twice, and if you think that won’t be enough precedent for a future Republican president you must be too distracted by the attempts to put Reagan’s name on every federal institution and face on every unit of federal currency.
• But even leaving this aside, if you believe that a Republican president would be bound by past norms you really shouldn’t be permitted to leave the house unaccompanied.    To state the obvious, if he wants to President Barbour will refuse to defend the constitutionality of the ACA, and he would still do it if Obama himself defended DOMA before the Supreme Court.
• This shouldn’t need to be said either, but the idea that presidents merely mechanically execute laws passed by Congress has never been and never will be how our system works.   How the White House interprets and chooses to implement federal law changes substantially depending on who occupies the White House.   The occasional refusal to assert that a federal law is constitutional is just one variant of this.

In short, this is a procedurally unexceptionable and substantively commendable act. It doesn’t reflect a belief that the president isn’t bound by the law. It reflects a judgment about the constitutionality of one particular law, a judgment that the other branches remain free to reject. Obama is doing the right thing here, and his actions are different in kind, not degree, from Yoovian theories of arbitrary executive power.

UPDATE:  Goldstein continues to assert that Reagan was a fascist. What constitutional or statutory provision requires the DOJ to defend the constitutionality of each and every statute remains unspecified.   What constitutional authority gave gave the Bush administration the power to unilaterally replace FISA is also unspecified.