Precedent for Administration not Defending Law?

In case you haven't heard, the Obama administration has sparked outrage among Republicans by refusing to defend DOMA in court. Obama cited what he saw as longstanding discrimination against homosexuals as the primary influence on his view that the law is unconstitutional.

I think that - political timing aside - Obama made the right decision from a moral point of view. But is that even the right question to be asking? From the point of view of America's political framework, surely it's worrisome that the president refused to execute the very purpose of the executive branch?

Thinking out loud here, I also realize that Obama has pointed to the fact that several courts have already found DOMA to be unconstitutional. On another note, I also realize that the required compromise of the president's moral integrity to implement all laws, taken to the extreme example, would mean that the president shouldn't refuse to defend a hypothetical bill legalizing mass genocide.

I think it's safe to say that this situation is more nuanced and complicated than either of those observations might lead somebody to conclude, though. Are there many precedents for this kind of action? I for one am still on the fence here.

Thoughts?

In practise, there is always a difference in the effort the executive branch puts into upholding certain laws; e.g. the police might put more effort into solving a rape case than in trying to catch someone who has evaded a parking ticket.

Originally posted by wittywonka
In case you haven't heard, the Obama administration has sparked outrage among Republicans by refusing to defend DOMA in court. Obama cited what he saw as longstanding discrimination against homosexuals as the primary influence on his view that the law is unconstitutional.

I think that - political timing aside - Obama made the right decision from a mor ...[text shortened]... ny precedents for this kind of action? I for one am still on the fence here.

Thoughts?

The Executive's primary responsibility is to "faithfully defend the Constitution of the United States."

The Executive is not required to, and indeed should not, defend or enforce a law that he reasonably believes is unconstitutional.

Originally posted by sh76
The Executive's primary responsibility is to "faithfully defend the Constitution of the United States."

The Executive is not required to, and indeed should not, defend or enforce a law that he reasonably believes is unconstitutional.

What if he only pretends to believe it is unconstitutional?

Originally posted by KazetNagorra
What if he only pretends to believe it is unconstitutional?

There's really no way to make that determination.

In any case, the President has to do what's best in his judgment. If the President does a bad job, the remedy is to vote him out at the next election.

In a really, really egregious case, impeachment is also an available remedy, though I doubt there would be a serious impeachment movement based on something as trivial as this.

Originally posted by sh76
There's really no way to make that determination.

In any case, the President has to do what's best in his judgment. If the President does a bad job, the remedy is to vote him out at the next election.

In a really, really egregious case, impeachment is also an available remedy, though I doubt there would be a serious impeachment movement based on something as trivial as this.

correct me if i am wrong but it seems that you are saying that the executive branch can/should cherry pick what laws to uphold and defend?

Originally posted by utherpendragon
correct me if i am wrong but it seems that you are saying that the executive branch can/should cherry pick what laws to uphold and defend?

The executive should refuse to enforce any law that he, in good faith, believes is unconstitutional. If you want to call that cherry-picking, then so be it. If the Supreme Court specifically rules that something is constitutional, then the President is bound by that opinion since the Supreme Court is the final arbiter of the US Constitution. If the Supreme Court has not ruled on an issue, it is within the President's discretion to determine that a law is unconstitutional.

I do solemnly swear 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.

- President's Oath of Office

Originally posted by sh76
The executive should refuse to enforce any law that he, in good faith, believes is unconstitutional. If you want to call that cherry-picking, then so be it. If the Supreme Court specifically rules that something is constitutional, then the President is bound by that opinion since the Supreme Court is the final arbiter of the US Constitution. If the Supreme Cour tect and defend the Constitution of the United States.[/quote]

- President's Oath of Office

whats law is law ,correct? for a president to arbitrarily pick and choose what laws are constitutional (in his opinion)and which ones to uphold is a dangerous precedent. IMO. You disagree?

Originally posted by sh76
The executive should refuse to enforce any law that he, in good faith, believes is unconstitutional. If you want to call that cherry-picking, then so be it. If the Supreme Court specifically rules that something is constitutional, then the President is bound by that opinion since the Supreme Court is the final arbiter of the US Constitution. If the Supreme Cour ...[text shortened]... tect and defend the Constitution of the United States.[/quote]

- President's Oath of Office

choosing not to defend a law is "making law", i thought that was reserved for the legislative and judicial branches.

(never mind all that "regulation" clamato by the executive branch.)

Originally posted by utherpendragon
whats law is law ,correct? for a president to arbitrarily pick and choose what laws are constitutional (in his opinion)and which ones to uphold is a dangerous precedent. IMO. You disagree?

But choosing which laws he, in good faith, believes are unconstitutional is not arbitrary.

I also don't think it's a matter of precedent. Presidents don't enforce every law on the books. That's nothing new. For example, no President has acknowledged the validity of the War Powers Resolution of 1973.

Originally posted by zeeblebot
choosing not to defend a law is "making law"

No it's not.

It's declining to enforce a law. That's not the same as making law.

The Supreme Court declares laws unconstistutional, not the President. It is part of the checks and balance system set up by the Constitution. By circumventing the checks and balance system a President is breaking his oath to preserve the Constitution.