Newsweek was writing about the administration’s defense of DADT, but the arguments from various legal scholars are general, and apply to the defense of DOMA as well. It’s worth a re-read for anyone asking whether the administration HAS to defend bigoted laws.
There are two different arguments for why Obama could choose not to enforce the law. The first one: he could say it was unconstitutional.
Obama’s other option: simply using his executive power to decide how the laws will be, or won’t be, executed. So Obama could simply order the military to stop applying the law, or to use it much more narrowly and infrequently. “There are a lot of laws on the books he doesn’t rigorously enforce,” notes Geoffrey Corn, a military law expert who teaches at South Texas College of Law. “The courts have recognized that while Congress has full authority to pass laws, the president has authority over when to enforce laws,” says Turley. Many criminal statutes, for example, are often unenforced and prosecutors have a lot of discretion on when to bring charges and what sentence to seek.
Some experts wonder why the administration even chose to defend the law in the first place. Turley maintains that they didn’t have to: “The president has a duty to separate his administration from an unconstitutional statute. If a statute required racial discrimination, would the president seriously be arguing that he and his administration would have to defend the statute all the way to the Supreme Court?” Many liberals feel betrayed by a president who they see as having chosen to enforce and defend a discriminatory law.
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