Following President Obama’s determination that the executive branch would no longer enforce the Defense of Marriage Act, a surprising amount of insightful and well-reasoned commentary suggests some danger in this act (e.g.), for continuing to consolidate lawmaking power in the executive branch. But this is a power that’s regularly exercised, doesn’t upset the balance of power between the branches and, clearly, does not disturb any understanding of the separation of powers.
First, any concern here rests on an unreasonably slim understanding of executive power (and one belied, elsewhere, by conservative “unitary executive” theories). We tend to think of the President as the head of state, with largely ceremonial, “big picture,” and international responsibilities, but he’s also the head of government. Early stylings of the President as the “chief magistrate” are not stylistic; they represent the understanding, set out in the Vesting (“the executive Power shall be vested…”) and Take-Care clauses, that the President chooses the direction of the Executive Branch. This understanding is in line with traditional separation of powers theory. Under Montesquieu and Locke’s construction, faithful discharge of the executive power does not require a mindless automaton, carrying the legislature’s laws into effect: rather, it permits and indeed requires discretion and wisdom, as both a check on the legislature, and a recognition of the limitations of human ability. The President was expected, in the early Republic, to have an independent constitutional vision, and articulate it clearly, both with the veto power, and by exercising separate constitutional judgment in the discharge of his duties.
Recent days have seen the high-profile expansion of this power. But while some of this has been improper, not all of it is. Bush’s policy of neutering direct congressional rebukes (e.g., the Detainee Treatment Act) by signing statement was infuriating, and upset the separation of powers, both because the President’s reliance on executive power directly countermanded the legislature, but also because it continued separately illegal conduct on an almost unchallengeable basis. Separately, Bush also de-prioritized the Department of Justice’s enforcement of race-based civil rights claims. That’s terrible, and even shocking, but within the President’s power, and part of his job when directing the Department of Justice. Our remedy was the ballot box.
Directing the Department of Justice to stop defending the Defense of Marriage Act is like the latter example; not the former. The President isn’t, on his own authority, terminating an act of Congress. He’s recognizing a meritorious challenge based on good-faith (and soon-to-be) expansion of civil rights laws, and declining to offer a defense that’s both dissonant with his personal beliefs, and unsupported by any circuit-level authority.
The high-profile nature of the case makes this look like an unprecedented act, but it isn’t, as General Holder’s letter explains. Nevertheless, it’s perhaps reasonable to start speculating on slippery slopes, but when doing so, let’s confine it to the facts. Justice isn’t regularly a defendant in school prayer and abortion cases; their decision to opt out of litigation in which they’re not properly a party in the first place is, well, something less than shocking.
It’s entirely possible, though, that a Republican White House would direct the non-defense of the Affordable Care Act. In fact, I’d expect it. But Justice’s decision doesn’t terminate the litigation. They haven’t settled the case or consented to default judgment (and they probably couldn’t), because the executive branch isn’t the only only proper defendant. As set out in General Holder’s letter, and page 2 of the Politico article (but who reads two whole pages of a Politico article? Yeesh), Congress can step in and offer defense when the executive bows out. This poses the complex question of “legislator standing,” but it’s one courts resolve to permit the defense.
Directing non-defense is clearly a powerful tool, true, and yes, one that could be abused. But as of yet, we’ve seen no evidence of abuse from this administration, and we needn’t yet consider the future. Think of it like the filibuster: exceedingly important in the right hands, but dangerous in the wrong ones. Just another reason to keep electing Democrats.