I shudder to say this, but Newt Gingrich might have a point about the Obama administration’s announcement this week that it will no longer defend a portion of the Defense of Marriage Act. Granted that the law is offensive; what kind of precedent is Obama setting with this move?
Wednesday Attorney General Eric Holder announced that the Justice Department has determined that a portion of the marriage law is unconstitutional and so will no longer defend it. Gingrich, appearing on Newsmax yesterday, said that Obama is not a “one-person Supreme Court” capable of invalidating a duly enacted law on his own. He went on:
Imagine that Governor Palin had become president. Imagine that she had announced that Roe v. Wade in her view was unconstitutional and therefore the United States government would no longer protect anyone's right to have an abortion because she personally had decided it should be changed. The news media would have gone crazy. The New York Times would have demanded her impeachment
Gingrich was trying to take a shot at the media for bias, but his scenario is not all that implausible. Well OK, the idea of President Palin is fairly implausible at this point, but who’s to say that a future GOP president won’t seize on this precedent to unilaterally invalidate a law that it does not like, be it abortion-related or the individual mandate in healthcare or some section of the Clean Air Act. [See editorial cartoons about Palin.]
George Washington Law Professor Orin Kerr lays out a worst-case scenario:
If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.
As if we needed the presidency to become any more imperial at this point. This scenario sounds like one the old Bush administration lawyers would embrace, the main difference being that the Obama team announces their move loudly while the Bush gang was quieter about his power grabs. [See photos of the Obamas behind the scenes.]
The Plum Line’s Adam Serwer sort of poo-poos the Kerr scenario:
So the question really becomes whether or not the GOP takes at face value and in good faith the administration's arguments that their decision not to defend Section 3 is a rare decision being made because of a limited and unique set of circumstances, namely the overwhelming empirical evidence that "sexual orientation is not a characteristic that generally bears on legitimate policy objectives," and a desire to avoid setting new anti-gay precedents in courts where they have not been established.
If Republicans choose to take yesterday's decision as license to simply stop enforcing laws they don't like when they're in control of the White House -- and, at this point, from child labor laws to Social Security, some Republicans don't make a distinction between laws they don't like and laws they think are unconstitutional -- then the scenario Kerr envisions could come to pass. But that depends on what Republicans decide to do, not on what the Obama administration did yesterday.
That seems to me to put an awful lot of good faith into a political party that spent eight years trying to ramp up the powers of the presidency and more recently has become increasingly hostage to its own radical fringe. And it also puts an awful lot of faith in presidents of any party to walk back expansions of executive power. But the history of the expansion of presidential authority shows that presidents jealously guard their accumulated power. And that expansions of that power which achieve worthwhile ends now--rolling back a reprehensible law like the Defense of Marriage Act--are often used later for less noble purposes.