A question for the Chief Justice

So, Mr. Chief Justice, where did you say you went to law school?  That’s what I want to ask Mr. Roberts after yesterday’s hearing on The Defense of Marriage Act or DOMA.

Here is the relevant exchange as reported by the New York Times.

He expressed irritation that the case was before the court, saying President Obama’s approach — to enforce the law but not defend it — was a contradiction.

“I don’t see why he doesn’t have the courage of his convictions,” the chief justice said. He said Mr. Obama should have stopped enforcing a statute he viewed as unconstitutional “rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’ ”

The White House took umbrage at the remark and said the president was upholding his constitutional duty to execute the laws until the Supreme Court rules otherwise. “There is a responsibility that the administration has to enforce laws that are on the books,” said Josh Earnest, a deputy White House press secretary. “And we’ll do that even for laws that we disagree with, including the Defense of Marriage Act.”

The Chief Justice should know that the President has to enforce laws until they are declared unconstitutional by a court.  Thus my question.

The situation, however, is a little bit more complicated.  NPR explains it this way.

Has the Obama administration abrogated its responsibility by continuing to enforce DOMA, while refusing to defend it in court?

Justice Antonin Scalia: “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 — 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.”

Deputy U.S. Solicitor General Sri Srinivasan: “Justice Scalia, one recognized situation in which an act of Congress won’t be defended in court is when the president makes a determination that the act is unconstitutional. That’s what happened here. The president made an accountable legal determination that this act of Congress is unconstitutional.”

Paul Clement, lawyer for GOP House leadership in defense of DOMA: “The House’s single most important prerogative, which is to pass legislation and have that legislation, if it’s going to be repealed, only be repealed through a process where the House gets to fully participate.”

Justice Kennedy: “Suppose that constitutional scholars have grave doubts about the practice of the president signing a bill but saying that he thinks it’s unconstitutional — what do you call it, signing statements or something like that? It seems to me that if we adopt your position that that would ratify and confirm and encourage that questionable practice because if the president thinks the law is unconstitutional, he shouldn’t sign it, according to some view. And that’s a lot like what you’re arguing here. It’s very troubling.”

Deputy U.S. Solicitor General Sri Srinivasan: “But my point is simply that when the president makes a determination that a statute is unconstitutional, it can follow that the Department of Justice won’t defend it in litigation.”

What should a President do in a situation like this one?  Does he just continue to enforce the law while trying to get Congress to repeal it as Paul Clement seems to argue.  Or does he do what he did:  say he thought the law was unconstitutional while both appealing and enforcing it.  I suppose that he could have issued an executive order to the IRS to accept joint tax returns from all legally married couples but that would have created an even bigger uproar that going to the Supreme Court.

My point, Mr. Chief Justice, is that yes, this may be an unprecedented situation, but the job of the Supreme Court and therefore your job is to make the ultimate decision on Constitutionality.  So just do your job.  And by the way, where did you go to law school?

Edith Windsor, the plaintiff in the DOMA case,

Edith Windsor, the plaintiff in the DOMA case.

Photograph Christopher Gregory/The New York Times

 

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