While all eyes have been on the Supreme Court — and the president’s extraordinary warning to the Justices not to take the “unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress”– some may have missed the action this week in a federal courtroom in Boston.
On Wednesday, oral arguments took place over another law passed by a “strong majority of a democratically elected Congress” — the Defense of Marriage Act (DOMA). Indeed, both cases feature the same lawyer — former solicitor general Paul Clement — who delivered the argument against Obamacare before the Supreme Court last week and in defense of DOMA before the U.S. Court of Appeals for the First Circuit this week.
Why is Clement, and not the Justice Department, defending this law in federal court? Because the Obama administration announced last year that it had decided that it would no longer defend DOMA in court. Quite the opposite, the Justice Department is actively urging district courts around the country to … you guessed it … overturn this law.
But wait, you may ask: Wasn’t DOMA passed by “strong majority of a democratically elected Congress”? Yes, indeed. Unlike Obamacare — which was rammed through Congress in a party-line vote using extraordinary parliamentary procedures — the Defense of Marriage Act is an example of genuinely bipartisan legislation. It was passed in the House by an overwhelming vote of 342-67 and in the Senate by a vote of 85-14, and signed into law by Obama’s Democratic predecessor, Bill Clinton. If that’s not a “strong majority” I don’t know what is.
Never mind that, says Attorney General Eric Holder. In a letter to House Speaker John Boehner last year, Holder declared:
After careful consideration, including a review of my recommendation, the 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. I fully concur with the President’s determination.
So let’s get this straight: When it comes to Obamacare, the president considers a failure by the Supreme Court to uphold the law “judicial activism.” But when it comes to DOMA, Obama is just fine seeing “an unelected group of people … overturn a duly constituted and passed law.”
Of course, Obama would argue that in the case of Obamacare he believes the law is constitutional, while he has determined that DOMA is unconstitutional. But the Constitution does not appoint him as the final arbiter of what is constitutional. It assigns that role to the Supreme Court. That is why we have an independent judiciary.
Today, Attorney General Holder answered a federal judge’s demand that he submit a letter explaining whether the Obama administration believes federal judges have the authority to strike down federal laws. He reportedly acknowledged that “the power of the courts to review the constitutionality of legislation is beyond dispute.” That is progress. Perhaps he can go on to explain why the administration believes it would be “unprecedented” for the Supreme Court to strike down Obamacare even as it is urging federal courts to do just that when it comes to DOMA.