Presidential Decisions Not To Defend The Constitutionality Of Federal Law: A Brief History

A look at history reveals that President Obama's decision to decline to defend Section Three of DOMA is hardly unprecedented.

Doug Mataconis · · 13 comments

As I noted yesterday, President Obama’s decision not to defend the Constitutionality of Section Three of the Defense Of Marriage Act in Court has aroused no small degree of controversy, as well as the absurd suggestion by Newt Gingrich that it is potentially an impeachable offense. The truth of the matter is that this is something that Presidents have done frequently in the past.

Here’s a list of some of the more prominent cases, borrowed from a 1995 letter to Orrin Hatch by the Clinton Justice Department:

This case concerned the constitutionality of § 304 of the Urgent Deficiency Appropriation Act of 1943, providing that, after November 15, 1943, no salary or other compensation shall be paid to certain employees of the Government. The employees in question filed suit against the government. On appeal, the Solicitor General joined the claimants in arguing that the statute was an unconstitutional Bill of Attainder. The Attorney General at the time suggested Congress employ its own counsel to defend the statute and, when they did, the courts gave that special counsel leave to appear and defend the law.

Under the relevant immigration laws that were in effect at the time of this case, the INS had the authority to suspend deportation of a someone in the country illegally for at least seven years if the Attorney General deportation would result in extreme hardship. The House of Representatives, acting on its own, could then reverse the INS’s decision. Chadha was a qualifying alien under the law, and the Attorney General had suspended his deportation based on the “extreme hardship” standard but Congress acted to reverse that decision. Chadha appealed, arguing that the “one-house veto” was unconstitutional and the Department of Justice agreed. Defense of the statute was handled by the Senate Legal Counsel.

This case involved a challenge to the constitutionality of Independent Counsel Act. Although the Independent Counsel was technically an arm of the Department of Justice, the Solicitor General appeared amicus curaie to argue that the statute was unconstitutional.

This case involved a challenged to the practice of the Federal Communications Commission to give preference in the granting of broadcast licenses to organizations which met a certain level of minority ownership. The Acting Solicitor General appeared amicus curaie to argue that the law was unconstitutional. The FCC used i’s own counsel’s office to defend the policy,

A federal statute permitted the Surgeon General to make an exception in the award of grants for hospitals that discriminated on the basis of race if there was a “separate but equal” hospital facility for all races immediately available. The Department of Justice joined a group of black doctors and patients in a class action arguing that the law was unconstitutional.

Garrett v. Alexander 477 F. Supp 1035 (D., D.C, 1979)

A federal law permitted the army to sell surplus rifles to the public, but only to members of the National Rifle Association. The Department of Justice took the position that the requirement for NRA membership was a violation of the Equal Protection Clause of the Fifth Amendment and made this argument in Court. The District Court gave Congress the opportunity to appear to defend the statute, but Congress declined to do so.

Federal law prohibited non-commercial radio or television stations from editorializing or endorsing a political candidate. The Solicitor General appeared to argue that the law violated the First Amendment. Senate Legal Counsel appeared to defend the law in the District Court. The case went to appeal after the Reagan Administration came to office, at that time the new Solicitor General determined that he could defend he law and did so in the Court of Appeals and the Supreme Court, where the law was eventually upheld.

This case concerned the constitutionality of the “must carry” rules imposed on cable television providers by Federal Law. In the District Court, the Department of Justice took the position that the rules were unconstitutional. On appeal, after the Clinton Administration took power, the Department of Justice decided it could defend the constitutionality of the statute on appeal.

So, as you can see, this is a rare, though not uncommon, occurrence, and it is worth noting that there is no suggestion in the record of any of these cases that the Executive Branch’s decision not to defend a Federal Law in court was in any way unconstitutional, or a breach of the President’s duties under the Constitution.

UPDATE (Dodd): I’m going to interpose myself here to add two items to your list:

After a federal law that cut off funds to local mass-transit operators if they accepted marijuana reform ads was struck down on First Amendment grounds, Bush II Solicitor General Paul Clement decided he could not defend a law that was viewpoint-based on its face.

Dickerson v. United States, 530 U.S. 428 (2000)

18 U.S.C. § 3501, enacted in 1968 (shortly after Miranda v. Arizona), was intended to overrule Miranda‘s requirement that the famous warnings be given to establish voluntariness of statements by criminal defendants. Every administration (including Reagan and Bush I) took the position that the statute was unconstitutional and therefore did not employ it when opportunities to do so arose. The Fourth Circuit applied it sua sponte in Dickerson and the Clinton DOJ declined to defend it. Chief Justice Rhenquist’s opinion struck down the law.

Update (Doug Mataconis): This post by Ilya Somin reminds me of another case where the President declined to defend Federal law:

Bob Jones University v. United States 461 U.S. 574 (1982)

In this case, the IRS had denied Bob Jones University tax-exempt status based on its history of racial segregation and discrimination, which it claimed was religiously based. The Reagan Justice Department declined to defend the decision in Court and filed an amicus curiae brief on behalf of the University.

Additionally, Somin’s post also links to this informative piece by Tony Mauro in The National Law Journal.

Finally, it’s worth noting that a decision by a President not to defend a law in Court doesn’t always result in that law being found unconstitutional. Of the eleven cases listed above, the position the government took was adopted by the Court six times, and rejected five times.