From my column on Obama’s DOMA flip:
And you know what? That’s fine. Lots of people change their minds about issues like these. Support for gay marriage and gay rights generally has been on the rise for years. My own views have been evolving as well.
But that is all irrelevant. The politics are irrelevant too. I don’t know if this is a politically smart move on Obama’s part or a dumb one, though I have my theories.
Either way, what Obama is doing is flatly outrageous. Carney says that “the president is constitutionally bound to enforce the laws and enforcement of the DOMA will continue.”
No, he is not.
There’s a myth out there that only the Supreme Court determines what is, or is not, constitutional. It’s a bipartisan myth. “We can’t have presidents deciding what laws are constitutional and what laws are not,” Sen. Scott Brown (R., Mass.) said in a statement. “That is a function of the judicial branch, not the executive.”
President Bush made a similar, indefensible error when he signed the McCain-Feingold campaign-finance bill, even though he believed portions of it were unconstitutional (and he was right; the Supreme Court overturned it in Citizens United v. Federal Election Commission last year).
The problem is that the Constitution doesn’t say any such thing (and, no, it’s not in Marbury v. Madison either). The president doesn’t take an oath to “preserve, protect and defend” the Supreme Court. He takes an oath to defend the Constitution.