President Obama: The New Arbiter of Constitutionality

There are lots of arguments, both pro and con, about President Obama's declaration that DOMA is unconstitutional.

P. S. This is my very amateur take on whether the President has acted legally or not. And please understand that I am not commenting on DOMA per se, but on President Obama's decision and his demand that the Department of Justice not defend the law.

One argument is that a president does have the right to question the constitutionality of a law. It has (rarely) been done by past presidents, as some legal pundits insist. The case that I found touted was Myers versus the United States under President Wilson. President Wilson had not followed a law that he, as President, must ask the Senate for permission to fire a postmaster. He just went ahead and fired Mr. Myers. This Supreme Court decision upheld President Wilson's action and allowed presidents to fire people he had previously appointed. Many claim that this decision implies that a President can make decisions on the constitutionality of laws that have been passed.

However, I'm not sure I follow this line of reasoning here.

Others argue that President Obama's decision not to enforce DOMA is a completely new idea and an usurption of the Constitution. Here's Orin Kerr's words on the practical considerations, "The new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion." http://volokh.com/2011/02/23/the-executive-power-grab-in-the-decision-not-to-defend-doma/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+volokh%2Fmainfeed+%28The+Volokh+Conspiracy%29

Others argue that this instance is completely different from previous examples of a President not defending a law. At other times the Justice Deparment refused to act to defend a law, it was because there was a lack of "reasonable legal arguments." Thus, even though the President may question the constitutionality of a particular law, the Justice Department has traditionally decided whether or not it could effectively argue the case. The President did not tell the Department of Justice what to do. http://blog.heritage.org/2011/02/23/obama-drops-pretense-administration-will-not-defend-doma/

In this instance, there is not a lack of legal arguments.

And, the President in my humble opinion is overstepping his authority.

Most of all, this is cheap political trick to try and get votes. Politics have no place in deciding what is constitutional and what isn't.