During today’s oral arguments on the Defense of Marriage Act in U.S. v. Windsor, Justice Scalia tried to determine how the Obama administration had decided that it could refuse to defend the constitutionality of DOMA. He expressed his wonder at their reasoning:
It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel, which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged constitutionality has to do with presidential powers. When the presidential powers are involved, he’s the lawyer for the President. So he can say, “We think the statute’s unconstitutional, I won’t defend it.” The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I’m wondering if we’re living in this new world where the Attorney General can simply decide, “Yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it.” If we’re in this new world, I don’t want these cases like this to come before this Court all the time. And I think they will come all the time if that’s the new regime in the Justice Department that we’re dealing with.