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The Indefensible Duty to Defend

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College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2012 The ndefeI nsible Duty to Defend Neal Devins William & Mary Law School, [email protected] Saikrishna B. Prakash Repository Citation Devins, Neal and Prakash, Saikrishna B., "The ndefeI nsible Duty to Defend" (2012). Faculty Publications. 1266. https://scholarship.law.wm.edu/facpubs/1266 Copyright c 2012 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs \\jciprod01\productn\C\COL\112-3\COL302.txt unknown Seq: 1 19-MAR-12 16:45 THE INDEFENSIBLE DUTY TO DEFEND Neal Devins* & Saikrishna Prakash** Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the du- ties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its indepen- dence and status. By currying favor with the courts and Congress, the Department helps preserve its near-monopoly on government litigation au- thority. Third, our analysis of refusals to defend shows that the duty to de- fend only lightly constrains the executive, posing no real barrier to decisions not to defend the constitutionality of laws. Finally, the duty to defend serves no constitutional purpose. Its supposed benefits arise from getting the courts to opine on the constitutionality of laws. But courts typically have that oppor- tunity as a result of executive enforcement of a law it believes is unconstitu- tional. Nothing further is gained by having the executive voice insincere and halfhearted arguments when others sincerely can advance strong ones. Or, we should say, nothing except enhancing the DOJ in the eyes of Congress and the courts at the expense of the President’s constitutional vision, which is what the duty to defend is all about. INTRODUCTION .................................................. 508 R I. THE DUTIES TO ENFORCE AND DEFEND AND THEIR MANY VARIATIONS .............................................. 513 R II. THE CONSTITUTION AND THE DUTIES TO ENFORCE AND DEFEND .................................................. 521 R A. Defending the Constitution Against Unconstitutional Laws ................................................. 523 R B. Interpretive Independence ........................... 526 R C. The Faithful Execution Clause and Unconstitutional Laws ................................................. 532 R D. Arguments Against Our Claim ....................... 535 R * Goodrich Professor of Law and Professor of Government, College of William and Mary. ** David Lurton Massee, Jr., Professor of Law & Sullivan & Cromwell Professor of Law, University of Virginia. In writing this article, we benefitted from conversations and correspondence with current and former officials from the Office of the Attorney General, Office of the Solicitor General, Office of Legal Counsel, Office of White House Counsel, and the House and Senate Counsel Offices. Thanks, in particular, to Jim Comey, Morgan Frankel, John Harrison, Nelson Lund, John McGinnis, Tom Merrill, and Charles Tiefer. Thanks also to our research assistants, James Gross, Brian Kelley, and especially Bryan Gividen. Thanks to participants at faculty workshops at the University of Oklahoma and Notre Dame law schools for helpful comments. 507 \\jciprod01\productn\C\COL\112-3\COL302.txt unknown Seq: 2 19-MAR-12 16:45 508 COLUMBIA LAW REVIEW [Vol. 112:507 III. THE REALPOLITIK OF THE DUTIES TO ENFORCE AND DEFEND .................................................. 537 R A. The Department of Justice and Bureaucratic Theory . 538 R B. The Duty to Defend and the Office of the Solicitor General.............................................. 541 R C. The Office of Legal Counsel and the Duty to Defend .............................................. 545 R D. Congress, the President, and the Duty to Defend ..... 549 R 1. Congress ......................................... 550 R 2. The White House ................................ 555 R IV. THE DUTY TO DEFEND IN PRACTICE: HOW THE SOLICITOR GENERAL ADVANCES THE PRESIDENT’S CONSTITUTIONAL VISION VIA EXCEPTIONS TO THE DUTY TO DEFEND .......... 559 R V. IMAGINING A WORLD WITHOUT DUTIES TO DEFEND OR ENFORCE ................................................. 571 R CONCLUSION .................................................... 576 R INTRODUCTION The belief that the President must enforce and defend laws that he thinks unconstitutional is widely held, although there is substantial disa- greement over the obligation’s scope. Consider reactions to President Barack Obama’s February 2011 decision to enforce but not defend the Defense of Marriage Act (DOMA).1 For some, the President’s decision to enforce but not defend the DOMA was “honest, transparent, and respect- 1. See Letter from Eric H. Holder, Jr., Att’y Gen. of the United States, to Hon. John H. Boehner, Speaker of the House (Feb. 23, 2011) [hereinafter Holder Letter], available at http://talkingpointsmemo.com/documents/2011/02/letter-from-the-attorney-general-to- congress-on-litigation-involving-the-defense-of-marriage-act.php?page=1 (on file with the Columbia Law Review) (stating President will enforce but not defend the DOMA). In July 2011, the Department of Justice (DOJ) filed papers explaining why it thought same-sex classifications were subject to strict scrutiny review and, consequently, why the DOMA is unconstitutional. See generally Defendants’ Brief in Opposition to Motions to Dismiss, Golinski v. U.S. Office of Pers. Mgmt., 781 F. Supp. 2d 967 (N.D. Cal. 2011) (No. C 3:10- 00257-JSW) (arguing DOMA violates Equal Protection). In response, the Ninth Circuit Court of Appeals cited the administration’s nondefense of the DOMA in lifting the stay of a district court’s ruling that the “Don’t Ask Don’t Tell Act” violated the First Amendment. Log Cabin Republicans v. United States, Nos. 10-56634, 10-56813, at 2 (9th Cir. July 6, 2011), 2011 WL 2637191, at *1 (order lifting stay of district court’s judgment). \\jciprod01\productn\C\COL\112-3\COL302.txt unknown Seq: 3 19-MAR-12 16:45 2012] THE INDEFENSIBLE DUTY TO DEFEND 509 ful of the rule of law.”2 Others were critical, claiming that because the Act is not clearly unconstitutional, he ought to have defended it.3 The President’s critics and defenders are both mistaken. Contrary to his critics, there simply is no duty to defend federal statutes the President believes are unconstitutional. Contrary to his defenders, there likewise is no duty to enforce such laws. Given President Obama’s belief that the DOMA is unconstitutional,4 he should neither enforce nor defend it. The duty to enforce seems premised on the belief that courts should be, as Obama Attorney General Eric Holder declared, “the final arbiter of . constitutional claims.”5 The duty to defend seems grounded on the view that the Department of Justice generally should serve as Congress’s lawyer—defending congressional statutes that it or the President thinks are unconstitutional. Yet nothing in the Constitution requires the President to either subordinate his constitutional vision to the courts or serve as the mouthpiece of Congress before the courts. To the contrary, the duties to enforce and defend are inconsistent with the Constitution’s text and structure, both of which speak to the President’s responsibility to 2. Walter Dellinger, The DOMA Decision, The New Republic (Mar. 1, 2011, 12:00 AM), http://www.tnr.com/article/politics/84353/gay-marriage-obama-gingrich-doma (on file with the Columbia Law Review). For a nearly identical argument, see Peter M. Shane, Not Defending DOMA: A Conscientious and Responsible Decision, Huffington Post (Feb. 25, 2011, 2:26 PM), http://www.huffingtonpost.com/peter-m-shane/not-defending- defense-of-marriage_b_828348.html (on file with the Columbia Law Review) (praising Holder’s letter as a “careful, highly deliberate step . consistent with the . executive’s obligations towards the Constitution and the rule of law”). 3. See, e.g., Orin Kerr, The Executive Power Grab in the Decision Not to Defend DOMA, The Volokh Conspiracy (Feb. 23, 2011, 3:49 PM), http://volokh.com/2011/02/ 23/the-executive-power-grab-in-the-decision-not-to-defend-doma (on file with the Columbia Law Review) (arguing that by basing nondefense of DOMA on “a contested theory of the constitutionality of laws regulating gay rights . the Obama Administration has moved the goalposts of the usual role of the Executive branch”); Adam Winkler, Why Obama Is Wrong on DOMA, Huffington Post (Feb. 24, 2011, 12:01 PM), http://www.huffingtonpost. com/adam-winkler/why-obama-is-wrong-on-dom_b_827676.html (on file with the Columbia Law Review) (arguing nondefense of DOMA “sets a terrible precedent”); John Yoo, Obama Pushes the Limits of Executive Power in DOMA Decision, Ricochet (Feb. 23, 2011, 2:26 PM), http://ricochet.com/main-feed/Obama-Pushes-the-Limits-of-Executive-Power-in- DOMA-Decision (on file with the Columbia Law Review) (asserting that “decision to no longer enforce [DOMA] . uses the legal system to short-circuit the normal political process”). 4. We take no position on the constitutionality
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