Having It Both Ways

I think that the administration’s position on DOMA is craven (so what else is new…?).

If they really believe that the law is unconstitutional (a position with which I don’t necessarily disagree), it’s nonsensical, and in fact a violation of the president’s oath of office to uphold the Constitution (which is the highest law in the land), to enforce it. I thought that George Bush should have been impeached not for signing McCain-Feingold, but for doing so while explicitly stating that he believed it to be unconstitutional. This was a blatant violation of his oath of office, though he obviously didn’t realize it. In both cases — this and the Obama DOMA position — it is trivializing the oath for the sake of pandering. In Bush’s case it was to the so-called “moderates” (i.e., mindless, or at least principleless) and in the current president’s case, to his base. It is not up to the other two branches to defer their judgment of constitutionality on untested law to the Supreme Court — they must follow it once such a judgment is rendered, but unless and until it is, they are obligated by their oath of office to follow their own. If the president really believes that DOMA is not only unconstitutional, but that there are really no reasonable arguments on the other side, then he is bound to not enforce it, and to get such a ruling as soon as possible (an eventuality that would be hastened by his inaction in enforcement).

And as is often the case, this is another example of the difficulty of many, even those who should know better, to distinguish between the concept of “constitutional” and “law I agree with.” Roe v. Wade was a judicial travesty, regardless of one’s views on abortion, and we should demand consistency from the administration regardless of our views on gay marriage. The president is bound by his oath to enforce, and even defend, bad laws, but not unconstitutional ones.

Which brings us back to Elena Kagan’s confusion on this issue, and why she was a frightening appointment to SCOTUS. She has it exactly backwards. It would actually be good law to force people to purchase and eat their vegetables, at least in terms of the public health, but it would be a law both totalitarian and tyrannical. And unconstitutional.

More thoughts from Jonah Goldberg (here and here), Shannen Coffen (here and here), and David Bernstein.

[Update a few minutes later]

More at Cato.

4 thoughts on “Having It Both Ways”

  1. It also introduces a lot of political risk into our economy if Presidents can decide which laws to enforce and defend. SCOTUS can change the law, but it happens slowly, and usually once a precedent is established it sticks for decades or centuries. A Presidential Constitution can flip flop back and forth every 4-8 years.

    How does a business plan its future if ObamaCare comes and goes with each new Administration?

  2. It is not up to the other two branches to defer their judgment of constitutionality on untested law to the Supreme Court —they must follow it once such a judgment is rendered, but unless and until it is, they are obligated by their oath of office to follow their own.

    Says who? That’s not in the Constitution. I agree with Andy Jackson, and disagree with this prevailing wisdom, merely promulgated by the Supreme Court itself, and cravenly used by the other two branches to dodge the hot potatos. Each branch is co-equal, and therefore each has the right and duty to judge constitutionality independent of the other two, and act accordingly.

    A Presidential Constitution can flip flop back and forth every 4-8 years.

    Only if the voters stand for that behaviour, and I think they would not. It’s sort of the like the big question of whether the War Powers Act was constitutional. Every President since Nixon has said it’s not, but they’ve all been careful to avoid violating it egregiously enough to provoke a struggle with Congress or the Supreme Court.

    On the other hand, if the population and Congress is very strongly behind the President, which would be very rare, he can take necessary steps short of insane measures like packing the Court or hiring hit men to speed up retirements.

    Yes, it muddies up the lines of responsibility and power. That was, of course, Madison’s exact intent. Build a system without a clear chain of command for really drastic steps, so they can only really be taken with extremely broad-based support.

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