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Kraigmo's avatar

Why do presidents feel the need to defend all government laws, when those laws are thrown out by judges? Why not just let the lower judge's decison stand or let some other group defend the laws?

Asked by Kraigmo (7755points) October 13th, 2010

Right now, President Obama is forcing himself to defend the Defense of Marriage Act, even though he’s against the Act.

There is no Constitutional requirement for him to defend the act. He is only defending it because it is “traditional” for Presidential administrations to defend all laws passed by Congress.

So why bother defending it? Why not let the law lapse as the judge ordered? And if some Church or other group wants to defend the law, let them do it?

Why does Obama feel the need to follow a stupid tradition?

Or is it not stupid, and would there be negative ramifications if Presidents started to just let judicial decisions stand, instead of pushing for one way or the other?

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24 Answers

Seek's avatar

Because this whole damned country is obsessed with stupid traditions and it might affect his chance of being re-elected if he loses the religious majority. Gods, I am so tired of politicians kissing the system’s ass instead of (unthinkably!) doing the right thing.

crisw's avatar

I am not an expert in this, but this stood out-

“And if some Church or other group wants to defend the law, let them do it?”

They probably would not have standing.

tedd's avatar

Obama isn’t challenging it, the justice department is.

Obama could tell the justice department to not challenge it, but no president is “supposed” to tell the justice department what to look into and what not to. In fact there are numerous cases in court right now because Bush and cronies did just that.

The justice department is supposed to pursue and challenge everything, even if they disagree with it.

For the time being don’t ask don’t tell is gone, regardless of the justice departments actions… until a higher judge rules against the circuit judges ruling, or new legislation comes into place.

Side note, Obama wants it to be removed via legislation and in congress. Maybe he wants the Republicans to look like the bunch of bigots the majority of them are, trying to debate against something more than half of the country wants.

cazzie's avatar

There is protocol for these things, is there not? Legislature makes laws.. judges judge and uphold them and Presidents…. ummm… (lets see.. executive branch….. ) they Exect things.. I don’t know WHY he’s defending this… he’s walking a tightrope at the moment, isn’t he? But I think he can’t really talk against any standing law and only let the legislation take it’s natural course. He’s a Constitutional Lawyer. I think I trust him to know what he’s doing in regards to legal matters.

CyanoticWasp's avatar

Because this is the way our laws work.

The Executive ‘executes’ (enforces) the laws of the land. He doesn’t get to say, “I don’t like this law, so I’m not going to enforce it” (as a rule; there is some wiggle room). He also doesn’t want the laws of the Republic to be overturned by just any District Court judge in East Podunk. So when a Federal law is blocked at a local level by a lower court judge, the Executive is required (if he wants any sanity in law at all) to defend the existing Federal law as ‘probably constitutional’ and ‘existing law of the land’ until one of two things happens:
1. Congress can draft a new law for the President to sign, which modifies or overturns the existing law, or
2. The Supreme Court passes a final judgement on the law, saying, “The lower court guy was right, and this law is bullshit,” or “The lower court guy was all wet; this law rules.”

The process can be stopped at some point by either party to the original suit deciding at some point that they can live with the ruling delivered by whatever court. But it’s not very likely that the Federal Executive—the President—is going to fail to mount any defense at all for the Federal laws he’s sworn to execute—even the ones he doesn’t like—because to do so would indicate that his Attorney General has no independence and/or that it is too politicized. Attorneys General also don’t make laws; they uphold them. At least, that’s the plan.

ETpro's avatar

@CyanoticWasp is exactly right. There is precedent for Presidents refusing to challenge a court ruling and thus in fact killing a law they don’t like, thereby circumventing the Legislative barnch. But it is thin precedent, and the vast weight of precedent is that Presidents should not interfere with the Justice Department’s work, and the Justice Department should enforce the laws as they are currently on the books.

Nullo's avatar

The theory is quite simple: The office of the President is the one that determines whether or not to sign or else veto a bill.
I do hope that DOMA isn’t overturned. The judge is awfully biased. :|

iamthemob's avatar

@CyanoticWasp is absolutely right. One aspect that hasn’t been discussed is that the lower court’s ruling has created a circuit court split on the enforcement of the law. The law of one circuit is not binding on the others – it is only persuasive if they get the question in their own courts. The only binding interpretation is that of the Supreme Court. Essentially, in one place DOMA will be effective, and in others it will not. If the DoJ did not appeal the decision, the process would have to run through the other circuits until there was consistency, or it would be a mess. In many ways, the DoJ appeal merely accelerates the process of determining the constitutional validity of the law on the grounds questioned. This is why it may be the best route, and why there is conflict in the maneuver. The President has the duty to see that the federal laws are executed effectively. This split prevents that from happening.


I’m not sure why you bring in the signing or veto issue into this, as the law has already been signed. I don’t see why that isn’t a moot issue. I also wonder how the judges bias comes into question unless the legal decision demonstrates that bias. If the ruling rests on legal determinations that are reasonable, the decision is good. Therefore, you have to show how the underlying reasoning doesn’t have legal support. Constitutional interpretation always implies a human element – there is always, by necessity, some subjectivity to the analysis. Therefore, it is beside the point to show how bias affects interpretation unless the interpretation becomes unreasonable due to it. If you must point to something other than the legal reasoning to show that the legal reasoning is biased or unreasonable, it is not. If the reasoning itself is not clearly biased or unreasonable on the face, overall, then the decision is good, regardless of whether one or even most agree with it or not.

IchtheosaurusRex's avatar

These are called pro forma appeals. I’m sure it galls Obama to no end to have to appeal decisions on bad laws that were signed before he took office. However, in this particular case, he wants Congress to act (don’t we all). Otherwise, it has to be kicked all the way up to the Supreme Court, where it will either be heard or denied certiorari, in which case it would become binding on all lower jurisdictions.

It’s also noteworthy that he doesn’t have to give the appeal to his best lawyers.

Nullo's avatar

@iamthemob My point is that the logic goes that the President – the ultimate decision-maker – approved of the bill. He‘s the one who installed it. So it seems reasonable for him to defend his choice.
Yes, I am aware that DOMA was signed by Bush. That’s why I was referring to the office of the President in my last post.

iamthemob's avatar


It’s not an issue of defense, however. The President is responsible for executing. The Office can defend anything, but that is not it’s responsibility – but it is the defense of a position that the law is Constitutional…a position that should change with time, as it is an evolving document. If we’re talking about defense of the law or the Constitution, well…it’s more the people who are responsible for defending the Constitution, as the document provides very few positive rights so much as declares the limits of government power.

The problem may be that the Supreme Court, in terms of Federal Law, is the ultimate decision-maker if there is any as to an individual law, but there is none in our branched system when we consider federal law generally. The Legislature writes the laws – which we assume are constitutional in a legal sense if not or until challenged. The President signs, vetos, or accepts the law. If the law is accepted, we assume in the same way as above. If it is vetoed, it’s never law. But the veto can be overriden…and therefore the Legislature has it’s own final word. If overriden, we assume in the same way as above. If the law is challenged, and the Supreme Court declares it is unconstitutional…it is. If they declare it constitutional, then it is. If it represents policy that the government things is important, the Legislature can write the law differently – and we start the cycle again.

Nullo's avatar

@iamthemob That is why it is tradition, and not law. It’s also why I dislike activist judges.

Frankly, I don’t want Obama defending DOMA; I don’t see how he could possibly give it honest effort, since he’s not in favor of the thing.

IchtheosaurusRex's avatar

@Nullo , Bush had nothing to do with DOMA. That particular hate crime was perpetrated by the United States Congress in 1996, and was signed into law by William Jefferson Clinton. Clinton says now that he regrets his decision, but it’s water over the dam.

Nullo's avatar

@IchtheosaurusRex In any case, it wasn’t the present administration.
Not a hate crime, btw. Just classic values resisting attempts to change ‘em.

iamthemob's avatar

yeah, I hate when the classic values get changed. Stupid Thirteenth Amendment…

Nullo's avatar

@iamthemob That was a practice, not a value.

iamthemob's avatar

@Nullo really? It wasn’t justified by claiming that the slaves were biologically beneath their white masters somehow? There weren’t arguments that it was based on the bible? It wasn’t based on the interpretation that citizenship was rightfully in the hands of white men?

Practices are laws are by necessity based on values – the Eighth Amendment is based on the “evolving standards of decency” in U.S. society, and the First Amendment obscenity test is partially based on the moral judgment of the community. Slavery was a legal institution, a practice, that was based on a value judgment about the worth of black citizens.

Nullo's avatar

@iamthemob A value doesn’t need changing just because it’s old, or even because you don’t like it. There is no Biblical basis for considering one person to be of less worth than another.

iamthemob's avatar

@Nullo – Of course not – however, your statement was that it wasn’t a hate crime but a classic value resisting change. The implication, of course – or at least the only one that could be read, was that it wasn’t a hate crime because of this. I was simply pointing out that classic values don’t retain their merit by age alone, but by proving the merit of their existence through constant testing against the state of the present world. There were both biological and biblical arguments in support of slavery, not a biological argument in the bible (although one would argue that Hebrews deserved slaves because everyone was beneath them, and therefore to enslave a Hebrew was to bring the wrath of god on you, and therefore there was a biblical OT argument for considering one person to be of less worth than another). This is why there are three different questions – the third is about a Constitutional argument, and of course I wasn’t suggesting the bible contained a Constitutional argument in favor of slavery. Simply that there were (1) biological or natural arguments, (2) biblical arguments, and (3) Constitutional arguments all based on what we now consider to be outdated “classic” values, on which both laws and practices were based.

Kraigmo's avatar

Apparently, Obama can and will choose to not enforce this law. I asked this Question in October of 2010. Back then, Obama must have been worried about the upcoming Congressional elections.

ETpro's avatar

@Kraigmo You have misread the President’s statement on DOMA or perhaps listened to FOx, where they outright lied about it. The President instructed his Justice Department not to any longer defend DOMA challenges in court because he believes that after two separate Federal courts have rules it unconstitutional, the Justice Department can no longer, in good consicence, defend it as constitutional. He is saying that it appears discriminatory, and not equal justice for all. But as the law requires, his administration will continue to enforce the law. They simply will not defend its constitutionality.

Presidents have often taken this position by Executive Order. Regan, Bush 41 and 43 all did on other issues. Bush 43 often refused by executive order to even enforce laws he didn’t like. That was and remains unprecedented in US legal history.

Kraigmo's avatar

@ETpro , I did misstate using the words “enforce this law” when I should have meant “defend in court”.

Obama has done a 180 on this issue for the 2nd or 3rd time in a row.

He was defending DOMA vigorously last October. Now he is telling the Solicitor General and the Justice Department to no longer defend the law in court.

And if he has the power and Constitutional ethic to do that….. then how about stop defending all obviously unconstitutional laws? Such as the drug laws that have nothing to do with interstate commerce.

iamthemob's avatar

@Kraigmo – The president doesn’t have the luxury of multiple court decisions finding drug laws unconstitutional, unlike the decisions regarding DOMA.

Stating that a law is unconstitutional and therefore refusing to defend it in court is not the same as stating that he will not enforce the law. Supporting a leader that would do so is, in fact, dangerously close to supporting a dictator who arbitrarily rules on the Constitutionality of each law individually.

ETpro's avatar

@Kraigmo What @iamthemob said. I wish it were different. I strongly agree that the drug laws are currently stupid, harmful and waste a vast amount of our nation’s resources. I’m going to do a study to see what the total financial impact would likely be if we legalized and taxed the sale of drugs. Millions of prison inmates returned to society. Billions in sales with jobs created growing, transporting and selling. Reduced law enforcement costs. It wouldn’t surprise me in these times that budgets are so stretched if this one simple change would save over $1 trillion per year.

But sadly, the President has no legal athourity to just strike down laws because he doesn’t like them, or even stop defending them in court. Granted George W. Bush did both frequently by executive order, but that didn’t make it legal. I don’t want to see a continuation of that sort of rule by executive decree.

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