The Department of Justice announced this week that it will no longer attempt to defend the Defense of Marriage Act from federal lawsuits, saying, in part

[T]he President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.  The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.  Given that conclusion, the President has instructed the Department not to defend the statute in such cases.

This is a remarkable development on two levels.

The first is the purely constitutional analysis.  This is by no means the first time that an administration has refused to defend a law.*  The majority of those situations fit into one of two categories.  The larger group includes cases where a Supreme Court decision subsequent to the filing of the suit has rendered a potential defense null and void.  A second, smaller class consists of circumstances in which the case in question infringes upon Article II powers themselves. In the latter, the DOJ is essentially refusing to argue against its own interests (legal, constitutional interests, not specifically ideological interests).

A small number of non-defended laws don’t fall under either of these headings.  These are instead cases where the administration has openly condemned as unconstitutional the underlying law.  While the DOMA decision this week could be categorized as such, the distinction here is that (1) the DOJ has been defending DOMA for years, even in this administration, and (2) much (but not all) of the legislation that would occupy this space had provisions in it that were of a highly unusual or otherwise blatantly (irrationally) unconstitutional nature.

Before I get into that discussion, let’s parse what happened this week: The executive branch has decided that a classification heretofore given rational basis protection (or, if you prefer, a stronger rational basis “plus” protection) should be given a heightened level of scrutiny.  The executive branch has then effectively adjudicated DOMA sua sponte, as in the above wherein “The President has also concluded that Section 3 of DOMA . . . fails to meet that standard and is therefore unconstitutional.”

This is a misapplication of Article II power.

It is certainly true that the Oath of Office requires that members of the executive branch “uphold” the Constitution, and supporters would argue that such a charge presumes some level of interpretation.  Perpetually-swooning Obama apologists will tout his legal credentials as evidence that he should be entrusted with making these sorts of determinations.  There is nonetheless an extraordinary step taken here.

The executive branch has acknowledged that the level of scrutiny that would be in play in a DOMA challenge very well might not be the level of scrutiny to which it thinks the law “should be subject.”  Yet, it chooses to rely on a standard that is not based on controlling, federal precedent.

Imagine a different example.  Suppose Congress passed a law outlawing the burning of the American flag, as it did in 1989.  A major Supreme Court case (Texas v. Johnson) had already dealt with this precise issue.  The Court had ruled conclusively on a Texas state law banning flag-burning using a rationale that would still apply directly to the federal law passed in the wake of that case.

So, it would have been a different matter if the DOJ had refused to defend the federal anti-flag-burning statute.  That’s because Texas v. Johnson would have already rendered on-point constitutional authority upon which the executive branch could anchor its decision of non-defense.  The rationale would be that the same First Amendment principles that invalidated the state law in Texas v. Johnson would likewise apply to the later-enacted federal law that mirrored its intent and effect.  However, even in that situation, an argument could be made that the executive branch may be obligated by its constitutional duties to defend the law.

We needn’t even reach that question, though.  The scenario with DOMA is much different.  This is not merely the executive branch saying that a piece of legislation is contrary to settled caselaw.  This is the executive branch citing a standard that has not been enunciated by the judiciary, and then going even further by applying that standard itself to render the decision that portions of DOMA are unconstitutional and should no longer be defended.

The most strident supporters of either President Obama or gay marriage rights will nevertheless praise the decision by the DOJ.  This is short-sighted.

Put the substantive constitutional arguments to one side for a moment.  Let’s think about procedure and process.

I think back to a frequent argument in which I found myself during my law school days.  Often, many of my more . . . impassioned classmates would make the unapologetic case for judicial activism as a proper tool for the promotion of ideological preferences.  These preferences were often held by elites, who, by definition, lacked the numbers to enact their agenda by other methods.  The legitimacy of the process was always subservient to their ideological interests.  The ends, in other words, justified the means.  I tried in vain to make the point that just because one “really, really cares” about an issue doesn’t mean that the opposing position magically becomes “unconstitutional.”**

My counter-argument was always to get them to think about judicial activism using the metaphor of a loaded gun.   Most partisan people have no objection to the figurative use of judicial “force” as long as their side wields the “weapon.”  But what happens if the folks they despise manage to pry the gun from their morally-superior fingers?

It was difficult for me to convince anyone of that possibility back then because they (somewhat arrogantly) assumed that ideology develops in a linear direction that moves evermore toward their preferred end of the political spectrum.

The events of this week provide a similar, but more tangible example of the phenomenon of which I warned.

My home state of Virginia is currently the front line for a challenge over the constitutionality of the federal legislation colloquially known as “Obamacare.”  One notion powering the challenges spearheaded by Virginia Attorney General Ken Cuccinelli is that the federal government may not compel citizens to purchase health insurance.  What Cuccinelli and his conservative friends neglect to mention when filling their PAC coffers is that the other half of that idea is that this is a power reserved to the states.  But I digress.

Imagine it’s now 2013.  Cucinelli’s challenge and/or others like it have made their way to the upper tiers of the federal judiciary.  However, newly-elected Republican president Jeb Bush tells his DOJ that they will no longer defend the law.  The argument being that the President’s interpretation of the Tenth Amendment is that the power to mandate the purchase of health insurance is one reserved to the states, and, furthermore, in applying that principle to “Obamacare,” many provisions of the law don’t pass constitutional muster.  All of this still occurs, mind you, even if Congress is controlled by the Democrats.

Therein lies the problem.  We would become even more beholden to partisan and ideological manipulation that impacts the judiciary.  Not only that, but procedural maneuvering would continue to encroach on the province of substantive adjudication.

Any future president could wrest even more Article I power from Congress by dressing up partisan argument as constitutional theory to create a pretense for not defending a law that wasn’t politically or ideologically expedient.

As a practical matter, I find this particularly curious in the case of the Obama Administration.  Given the fact that a controversial health care bill is the centerpiece of his domestic legacy up to now, coupled with the fact that the momentum of pro-gay marriage forces is already significant, it seems like a bizarre gambit.  I have to wonder if this is the battle in which to reinforce the possibility of future presidents employing a similar strategy—a strategy that could undermine legislation from either side of the aisle.  This strikes me as a rare misstep for President Obama, whether or not the Supreme Court someday embraces a similar view of DOMA.

What’s worse, in this era of cable news absurdity, the subtle distinction between what the Obama Administration did and what previous administrations have done will be erased entirely.  If you take the concern I have above, strip it of its academic tone, remove any acknowledgment that similar actions have occasionally been taken in the past, and then quadruple the volume, you’ll have the version we’ll see on Fox News.  That is to say—you’ll see it, because I won’t be watching.  All of that is bad news for the president.

My central premise could not be simpler.  We have a system of checks and balances for a reason.  Constitutional interpretation is, in all but the broadest sense, the province of the judicial branch.  Meanwhile, one of the checks on executive power is obliging that branch to execute (and, correspondingly, defend) laws duly passed by Congress.  Until the judiciary renders binding authority that casts significant doubt on whether execution of that duty is improper on constitutional grounds, that duty remains intact.  The executive branch fails to fulfill its responsibilities when it fails to defend still-valid law, whether that law is DOMA or Obamacare.

I hope that this is a historical hiccup and not a false loophole to be exploited by future administrations.  Given the tenor of partisan discourse over the last twenty years, my hope in that regard is not substantial.

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*For a good summary of that subject, read the first half of this article from 2005.

**Although I must admit that many “leading” legal scholars (and, to a lesser extent, the Supreme Court of the last fifty or so years) seem to believe something that looks a lot like this far more often than I’d like to see.