An explanation of how the President just bent the rules to undercut the Defense of Marriage Act.

First off, it's important to know that technically, the POTUS is NOT supposed to do what Obama just did. Decisions on pursuing defense of federal statutes are supposed to reside with the Department of Justice, based on whether they have fully exercised the "duty to defend," which essentially means that they've made all practical legal arguments.

It's designed this way to insure that laws get defended equally no matter who is in the White House--so that, for instance, a right-wing Republican couldn't tell the DOJ to not defend the Voting Rights Act. It also means that you have DOMA being defended even while the White House is under our control, because that's what the rules say you have to do.

Now, here's how the President is getting away with it. One important line in his statement on the matter: "I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option." In other words, he's opening up the floor for congresscritters to take the DOJ's place, allowing the DOJ to bow out.

The reason that the DOJ is obligated to defend federal law to the end of their available arguments is because they are the ONLY party which does so. It's not like, say, California's system, where just anyone can step in and take up the case if the Governor and AG decline. But in this case, the President is effectively creating a special exemption for members of Congress to take up the slack if they so choose.

Make no mistake--this is NOT the end of DOMA, and it'll almost certainly still go the the SCOTUS. However, it does so now with poorer--and more importantly, crazier--defenders than before.

It seems very few of the loudest dissenters get it:

It's designed this way to insure that laws get defended equally no matter who is in the White House--so that, for instance, a right-wing Republican couldn't tell the DOJ to not defend the Voting Rights Act. It also means that you have DOMA being defended even while the White House is under our control, because that's what the rules say you have to do.

Thank you, btw, for posting this.

The salient points of the statement:

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination."

and:

"The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional."

Technically the DOJ didn't carry it as far as they could have, i.e. the SCOTUS. But they're using the fact of the most recent court case to bolster the AG's recommendation to drop the thing, and Obama's letting Congress have it to stop any arguments that the admin is abrogating their responsibility.

He takes an oath:
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The oath is to the Constitution.

As to the 'Duty to Defend':
Government's 'Duty to Defend' Not a Given: http://www.law.com/jsp/article.jsp?id=1202473959808&slreturn=1&hbxlogin=1

Note that Obama is required by law to notify Congress that the DOJ won't be defending the DOMA.

A Tea Partier can't come in and say the Voting Rights Act is unconstitutional because they say so. That right falls to the judicial branch, and the DOJ.

And yes, he's required to notify Congress, but offering them the opportunity to defend it is the key point, so no one can say that the admin is taking a fall.

of the President and his authority concerning laws he believes to be unconstitutional:

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES: http://www.justice.gov/olc/nonexcut.htm

Prior to the beginning of the cases against DOMA, there was no "settled law" to work with, and there's no signing statement on DOMA. Here, what they did was take the most recent court ruling and accept that as settled law.

In his letter, Holder wrote the following:

'As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).'

The entire letter can be found here: http://whitehouse.blogs.cnn.com/2011/02/23/attorney-general-declares-doma-unconstitutional/

Waxman's article Holder cited can be found here: http://www.law.stanford.edu/display/images/dynamic/events_media/Defending%20Congress.pdf

thanks for the explanation.

Sid

Does Congress appoint a Special Acting Deputy Attorney General or the like, who has standing to appear in court to defend the act (and to take any necessary appeals from lower-court decisions overturning the act)? If there were 41 DOMA opponents in the Senate, could they filibuster any such appointment? What if there's disagreement in the pro-DOMA camp? For example (a hypothetical that's probably not impossible): The pro-DOMA Senators want to appoint some reputable law firm or a former Solicitor General or the like, who'll argue that the law should be upheld under the "rational relationship" test that applies to most statutes under the Equal Protection Clause. The wild-eyed Tea Partiers in the House want to appoint someone recommended by James Dobson, who'll argue that the United States is a Christian nation and that LGBTQ people are an abomination in the eyes of the Lord, so DOMA should be upheld and http://en.wikipedia.org/wiki/Lawrence_v._Texas|Lawrence v. Texas> should be overruled?

I wonder if a better solution would be an analogy to a special prosecutor. The Attorney General could appoint someone from outside DoJ who'd be retained for the limited purpose of defending DOMA. That would make clear that Obama and Holder don't support the position, but would keep the function within the executive branch.

Hmmm??