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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, February 24, 2011 ::
    Executive branch will not defend DOMA

    Constitutional: The presumption that the Executive will defend all federal statutes against constitutional attack is not conclusive, but it is very high. To reach for my stock example of a plainly unconstitutional statute: if Congress had passed, and the previous President had signed (or if Congress had enacted over the present President's veto) a law that says "The Presbyterian Church of America is hereby established as the national church of the United States," I trust and assume that no President would allow his DOJ to defend it. But it would normally take a case of unconstitutionality that clear to overcome the presumption of Congressional constitutional propriety under which the Executive operates.

    DOMA, both as policy and as to its constitutionality, is "controversial." That fact alone is enough to take it out of the category of the "clearly unconstitutional" and establish a duty in the Executive Branch to take care that it be faithfully executed. The alternative is to allow the Executive, through DOJ, to become a non-Article III reviewing court, a sort of Executive Council of Review, with the branch of government that has the "take care" duty fulfilling that duty only when it is independently convinced, de novo, of a federal law's constitutionality. That is not the Constitution we have.

    Political: Why would the Obama Administration, already under fire for neither doing or saying anything while Libya crumbles and the fate of Gadhafi, one of the most prolific post-WWII political criminals, is up for grabs, make a decision like this at a time like this? He must be in such trouble with "the base" that he can -- must -- ignore world-shaping events, and take risks with the national electorate at the same time (no way his switch on DOMA helps him nationally), in order to placate and energize them. And also to prepare the rest of us for his full embrace of same-sex marriage, since no one really believes he's "struggling" with it, unless you mean "struggling" with his pollsters to find the right time to make the big announcement.

    :: David M. Wagner 12:34 PM [+] ::

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