Chief Justice Refused to Defend Law in 1990

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.

8 comments on this post.
  1. Modusoperandi:

    Oh, come on! You can’t pull the wool over our eyes. You darn well know that those two things are totally different. John Roberts was John Roberts, and was in a Republican administration, while Obama is Obama, and Obama Obama Obama.
    So there!

  2. slc1:

    The Chief Justice seems to have a short memory.

  3. Randomfactor:

    Obama, in this instance, is doing what he swore to: faithfully EXECUTE the laws. Says nothing about defending them in court.

  4. anubisprime:

    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.

    Bit late now to whine over milk that was spilt so long ago it has metamorphosed into cheese…the smelly kind!

    Sensing defeat they are just throwing a tantrum as any kiddy does when it finds out its way is a no way!

  5. baal:

    I was dismayed at the chief justice for these remarks. We can just as easily see him arguing that the president may not like a law but must defend it fully until it gets the law removed (i.e. what he’s asking for in these comments).

    I read it as the magicians left hand. Lookie over here to distract you while I make my decision over there. This is so much theater to pull the discussion away from how bigoted the ‘traditional marriage’ argument is.

  6. David C Brayton:

    Indeed, it was an awfully strange comment. If the Chief Justice was actually suggesting that the President could not enforce any law that he thought was unconstitutional, it would be mass chaos every time a new President was elected (not to mention what would happen during lame duck periods).

    Only laws that are blatantly unconstitutional should not be enforced. Where there is a colorable argument regarding constitutionality of a law, it is up for the courts to decide. See Marbury v. Madison.

    In the DOMA cases, the administration struck the correct balance…not defending the constitutionality of DOMA after one circuit decided that it was unconstitutional.

    (If the Chief Justice was serious, I wonder how he views Marbury v. Madison. Although there are valid criticisms of Marbury, it is hard to see any justice making the argument that a monumental 210 year old decision should be overturned.)

  7. dshetty:

    Another american conservative turns out to be a hypocrite – who would have guessed.

  8. gshelley:

    In his statement, was Roberts clear about what he meant? Was he suggesting that any time an administration thought a law unconstitutional, they should ignore it, and if someone thought it should be followed, they can challenge it, or did he mean in a specific case like this, where a lower court had already ruled in unconstitutional? In which case, did he mean they should ignore it in all jurisdictions, or just the ones where it has been ruled unconstitutional?
    Either way, the media on the right has been a little quieter on this than I would have expected if one of the liberal judges had made the same sort of comment (and as I mentioned in another post, even managed to ignore this entirely when complaining that if the decision goes against them, it will be the same as allowing the administration to just ignore laws they don’t like

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