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Obama's Justice

By Sam Singer

President Obama has developed a curious habit of taking one legal position in his public statements and an altogether contrary position in the courtroom. To be fair, it is his Justice Department doing the talking in court, but that's a bureaucratic formality, right?

It depends on who you ask. The White House has stressed that with rare exceptions, the Justice Department must defend all validly enacted laws, not just the ones favored by the sitting administration. As a result, Justice Department legal opinions won't always represent those of the President.

Civil rights advocates see things differently. They take issue not with the president's statement of the Justice Department policy but with his understatement of its exceptions. Some insist the president is selling himself short, that he's got more say at Justice than he allows for. Less charitable dissenters believe the president is trying to convince the public that his hands are tied when in reality they're just a bit full.

Disagreement over Justice Department policy is at the bottom of some of the president's most heated clashes with would be-supporters on the left. In February, the president took a thrashing from the civil liberties crowd when the Justice Department reiterated a Bush-era interpretation of the "state secrets" privilege against which then-Senator Obama had vigorously campaigned. In May, the same dispute arose with a different crowd, this time over the DOJ's support of "Don't Ask, Don't Tell," the Pentagon's policy prohibiting gays and lesbians from serving openly in the military. Most recently, the White House clashed with LGBT groups over a Justice Department brief which held back little in its defense of the Defense of Marriage Act (DoMA).

Frustrating a firm answer is a conspicuous absence of controlling rules. It's no service to Obama that his spokespeople tend to describe the Justice Department policy in terms of custom rather than law. If there are statutes or regulations on point, the president's aides have neglected to reference them. With no apparent basis in law, the scope of the policy is open to interpretation, which raises the inference that it's not as cast-iron as the White House claims. Richard Socarides, a former senior aide to President Clinton, describes the policy as a loose presumption that if properly handled will give way to White House policy directives. Socarides argues that Obama has it backwards, particularly with respect to the Justice Department's approach to laws governing social issues like gay marriage. When the president opposes a law like the DoMA, Socarides claims the Justice Department should be carrying his flag, not Congress's.

My own research came up short of a governing statute or hard-and-fast rule. The closest I came to an authoritative source in the popular press is a 2005 analysis by former DOJ attorney and Georgetown law professor Marty Lederman. Lederman's contribution is more organizational than substantive; he maps historical exceptions to the Justice Department's "general policy" of defending the constitutionality of federal statutes and then groups them. Lederman identifies three categories of exceptions. First, the Justice Department will not defend a law if one or more intervening Supreme Court rulings rule out a plausible legal defense. This strikes me as obvious: The Justice Department has no business writing briefs in support of a law the Supreme Court has authoritatively deemed unconstitutional, but this is his list, not mine. Second, the Justice Department may balk at defending a law if it believes the law infringes on the proper authority of the executive branch. This is less obvious but hardly surprising when one considers the Justice Department's interests in a powerful executive branch. It's also the most commonly invoked exception, although it has yet to surface in the Obama Justice Department. Third, the Justice Department won't defend statutes that the president has publicly declared unconstitutional.

With respect to the DoMA, this third exception invites the question: Why doesn't Obama come out and call the law unconstitutional? As I see it, there are only two possible answers. The first and less plausible answer is that Obama sincerely believes the law is constitutional. I say less plausible because the president tipped his hand by calling for the DoMA's reversal. To be sure, one can find fault with a law without questioning its constitutionality, but Obama has made a point of elevating his rhetoric when addressing the DoMA, and has publicly criticized the law as discriminatory.

The second possibility is that Obama won't declare the law unconstitutional because the fallout would be messy. Not only would he create new enemies in Congress, but he would risk a small-scale turf war within the executive branch by forcing the Justice Department's hand. If that's the real hold-up, the White House has brought its argument full circle: The Justice Department won't yield unless the President declares the law unconstitutional, but the president won't declare the law unconstitutional because it would require the Justice Department to yield. It's an unfortunate, if dizzying, line of reasoning, but perhaps one we should come to expect.


Sam Singer is the Beachwood's legal correspondent. He welcomes your comments.


Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.

* Taking Government Out Of The Marriage Business. Separating church and state.

* Chicago's Disorderly Conduct. Dissent allowed even in Daleyland

* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.

* Is Blago A Flight Risk? We asked; a judge said yes.

* Obama's Torture Test. Politically calculating.

* Replacing Souter. Signs point to Kagan.

* Going to Pot. The states vs. the feds.

* The Sotomayor Show. A guide for viewers.

* Chicago's Still Valid Gun Ban. Chicago vs. D.C.

* The Gay Rights Gamble. What happened in California may no longer stay there.

* Legal Fiction. When judges go noir.


Posted on July 8, 2009

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