NPR’s Nina Totenberg covers a question that has been debated here on the Corner: Is it reasonable for the president to continue to enforce the Defense of Marriage Act after he has determined it is legally indefensible? I provide my two cents in the story — though I will note that a particular nuance of my comment was lost in translation. The story reports that I agree “that the issue of enforcement is something of a ‘conundrum’ that forces the president to either take apparently contradictory positions or usurp the power of the legislature by unilaterally refusing to enforce a law.” I hope I did not say that the president would be usurping power by unilaterally refusing to enforce the law — what I intended to say (and may not have said clearly) is that he could be accused of doing so. That is, executive-power critics will come out of the woodwork to suggest that a president is overreaching when he refuses to enforce an unconstitutional law (or in this case, one he deems unconstitutional). This is a difficult political position for a president, and it is likely the reason that Obama chose the path of least resistance here, despite the incongruity of a pledge to enforce a blatantly (in his view) unconstitutional law.
While the story generally follows conventional wisdom on the underlying merits of the DOMA question, it provides useful historical context for the debate on executive power.