Jonah points out one of the more puzzling aspects of the president’s DOMA announcement: He has now announced that he will be vigorously enforcing a statute that he and his attorney general have concluded is plainly unconstitutional. Of course, most Corner readers probably disagree with the conclusion that DOMA is unconstitutional, but let’s set that aside. If Obama were sincere and correct in his constitutional view, why on earth would he direct his administration to violate the Constitution? The courageous, and correct, view of his constitutional role would be to direct his administration to disregard the law.
The president has no less a role in enforcing the Constitution than the Supreme Court or Congress — his oath of office requires that he, “to the best of my ability, preserve, protect and defend the Constitution of the United States.” Since Marbury v. Madison, we have accepted the notion that the Supreme Court has the final say in announcing the Constitution’s meaning in particular cases and controversies, but that certainly does not mean that the president has no role, or duty, in determining its meaning.
Presidents are called upon daily to decide the proper meaning of the Constitution where the Supreme Court has not spoken. Indeed, there is a zone of “political questions” that the Supreme Court will never decide, so it is left to the political branches to determine the meaning of the Constitution in all sorts of instances, without input from the courts. That the courts are engaged on this particular issue does not mean that a president is absolved of his constitutional oath. If Obama has made a determination that a validly enacted statute is plainly inconsistent with the Constitution, it would seem that his oath would require him to disregard it.
But Obama wants to have it both ways. He wants to play to his base with a political determination of constitutional meaning, but not infuriate critics who might charge him with being “above the law.” The result is fairly unprecedented. Although Jonah raises the comparison to President Bush’s signing of the bipartisan McCain-Feingold campaign-finance bill, President Bush did not flatly conclude that he had determined parts of the bill to be unconstitutional, only that he had serious reservations about the law’s constitutionality. That may not be a portrait of constitutional courage, but it certainly isn’t the same as concluding that he will sign and enforce a statute that he has concluded is constitutionally indefensible (“despite the availability of professionally responsible arguments”).
So while Obama’s Justice Department and legal team can take comfort in their superiority to his predecessor, he certainly pays a price in constitutional consistency.