A number of liberals have stepped forward to explain that the Trump administration’s failure to defend the Affordable Care Act from a legal challenge is totally different from the Obama administration’s failure to defend the Defense of Marriage Act from a legal challenge. Ruth Marcus writes that “the [Trump] administration’s behavior sets a dangerous precedent about the obligation of this and future presidents to follow their constitutional duty to faithfully execute the laws enacted by Congress.” In the earlier case, on the other hand, “the Obama administration chose not to defend a statute whose constitutional repugnance had grown too obvious to ignore.”
For reasons Robert VerBruggen and Yuval Levin have already set forth in this space, I think the current ACA lawsuit is a very weak one that deserves to fail and probably will. The Trump administration should have refrained from endorsing that lawsuit for that reason. Here I want to explore two different questions: What obligation does the executive branch have to defend a statute that has come under constitutional challenge? And was the Obama administration’s action in the Defense of Marriage Act case defensible, reasonable, or right?
You can see why Marcus, quite apart from any desire to rationalize Obama’s decision, does not want to maintain that a president has an obligation to defend a statute in court no matter how radical and obvious its constitutional defects. The president’s “duty to faithfully execute” a statute cannot trump his duty to faithfully execute the Constitution. Whether he can do both simultaneously is exactly what is at issue whenever a lawsuit asserts that the statute is unconstitutional.
Perhaps a constitutionally conscientious president should treat such cases more or less as Marcus would suggest, and direct his aides to defend the challenged statutes unless the constitutional case against them is overwhelmingly strong. Or perhaps the executive branch should reach its own best judgment about the constitutional merits of a lawsuit and share that judgment with the courts. The text of the Constitution does not tell a president what to do in such matters, and nor, it seems to me, do the logic and structure of the Constitution. If a president has doubts about the constitutionality of a statute—even doubts that fall short of a firm conviction—he can refrain from defending it in court without embracing “lawlessness,” as Marcus puts it.
Anyway, different administrations will naturally reach different conclusions about when a statute’s constitutional “repugnance” is “obvious.” I am not sure what is gained by moving from the claim “this administration’s view that this statute is unconstitutional is obviously absurd” to “this administration’s view that this statute is unconstitutional is obviously absurd, and it is therefore shirking its duty to defend the statute in court.” The first claim is damning enough if true, and the second depends on its truth for all its force.
Now to the second question, regarding the Obama administration’s 2011 decision to stop defending the Defense of Marriage Act. Was that act so obviously unconstitutional as to merit no defense? Apparently no justice of the Supreme Court thought so: When the Court ruled on the law in 2013, four of the justices voted to uphold its constitutionality and the other five joined an opinion that gently criticized the administration for abandoning the defense.
It would require considerable sophistry to maintain that the Defense of Marriage Act was unconstitutionally discriminatory but that other laws defining marriage as the union of a man and a woman were constitutionally permissible, which is presumably why nobody tried to do so for very long. The Supreme Court left us without DOMA but with those other marriage laws in place for only two years. In 2011, however, President Obama not only declined to say that traditional marriage laws were unconstitutional; he was still pretending to support such laws. So the extremely smart lawyers in his administration maintained that DOMA was obviously unconstitutional without drawing any conclusions—even conclusions that were fairly, well, obvious—about marriage law in general.
One can support or oppose same-sex marriage. For an example of constitutional integrity, it would be best to look elsewhere than the Obama administration.