Daily Archives: March 2, 2011

Precedent for Presidential Refusal to Defend Statutes the Administration Believes to be Unconstitutional

U.S. Supreme Court

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Initially I questioned the Obama Administration’s refusal to defend DOMA. On reflection, however, there may be precedent for their actions. Ilya Somin points out several precedents in both Republican and Democratic administrations that support the premise that the President may be justified in not supporting legislation he deems unconstitutional.

During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7–2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5–4 vote.

Check out his full comments on the Volokh Conspiracy. And the last word?

The fact that Republican administrations have done the same thing in the past doesn’t necessarily prove that Obama’s decision was justified. After all, as Obama himself would be quick to agree, Republican administrations make plenty of mistakes too.

The Volokh Conspiracy » Precedent for Presidential Refusal to Defend Statutes the Administration Believes to be Unconstitutional.

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