How dare Obama refuse to defend DOMA against constitutional challenges!
To hear some Republicans tell it — John Boehner and Newt Gingrich, for example, as we see HERE — it is unprecedented irresponsibility for the Obama administration to decide against fighting legal challenges to the constitutionality of the Defense of Marriage Act, which has banned federal recognition of same-sex marriage for 15 years.
After all, they argue, the executive branch is morally and legally obligated to defend the laws of the land. Some Republicans are even hinting that the Obama administration’s failure to defend DOMA could be grounds for impeachment.
But, in fact, there’s plenty of precedent for what the administration is doing — or not doing, as it were — as Nina Totenberg of NPR has NOTED:
While the administration’s DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.
During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote. Solicitor General Kenneth Starr was recused in the case, so the lead counsel for the government in the case was Starr’s deputy, a fellow by the name of John Roberts, now the chief justice of the United States.