Conservatives have thrown a fit over the Obama administration’s decision to stop defending the constitutionality of the Defense of Marriage Act, calling it “unprecedented” and a terrible breach of their responsibility. And Chief Justice John Roberts went at it from the other end, arguing that if Obama really believed the law was unconstitutional, he should have stopped enforcing it:
CHIEF JUSTICE ROBERTS: I would have thought your answer would be that the Executive’s obligation to execute the law includes the obligation to execute the law consistent with the Constitution. And if he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.
This is a really bizarre claim. The president is not duty bound to defend the constitutionality of the law, but he is sworn to implement and enforce the laws until they are declared unconstitutional. And one has to wonder why Roberts did not tell the first President Bush not to enforce a law that Roberts himself refused to defend as constitutional when he was in the DOJ in 1990.
The Washington Post reports today that John Roberts was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing. (In fact, Roberts was the Acting Solicitor General for purposes of the case, because SG Starr had a conflict.) The case in question was Metro Broadcasting v. FCC, and it raised very interesting questions about the circumstances under which the Department of Justice will refrain from defending the constitutionality of federal statutes.
Against the urging of the FCC, Roberts made the decision not to defend the constitutionality of the law in court. In fact, he went to the Supreme Court and made the argument that the law was unconstitutional, just as the Obama DOJ did this week in the marriage equality cases. By the way, he lost that argument when the Supreme Court upheld the law in question. So did Roberts urge Bush to refuse to enforce that law? There is no indication that he did.