Executive defense of congressional acts

Duke Law Journal

Volumn 61, Issue 6, 2012, Pages 1183-1235

  Meltzer, Daniel J ^a  

^a NONE

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EID: 84861854405     PISSN: 00127086     EISSN: None     Source Type: Journal    
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References (281)

1. MERLO J. PUSEY, CHARLES EVANS HUGHES 625 (1951) (Quoting Charles Evans Hughes).
2. See National Defense Authorization Act for Fiscal Year 1994 § 571, 10 U.S.C. § 654(b) (listing the conditions under which a service member must be discharged for homosexuality). The precise statutory proscription is somewhat more complex than the statement in text. (2006)
3. Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 (2006) and 28 U.S.C. § 1738C (2006)).
4. Defense of Marriage Act § 3, 1 U.S.C. § 7 Section 2 of that Act, which provides that no state must give effect to any act, record, or judicial proceeding of another state respecting a same-sex marriage, raises distinct issues(2006)
5. See, e.g., President Barack H. Obama, Address Before a Joint Session of the Congress on the State of the Union, DAILY COMP. PRES. DOC. No. DCPD201000055, at 11 (Jan. 27, 2010) ("This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are."); President Barack
6. See infra note 140.
7. Don't Ask, Don't Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515. Under that Act, the effective date of repeal is sixty days after the president has transmitted to the congressional defense committees a certification, signed by the president, the secretary of defense, and the chairman of the joint chiefs of staff, stating that implementation by the Defense Department of the policies and regulations necessary to effect a repeal is consistent with military readiness, military effectiveness, unit cohesion, and recruiting and retention of the armed forces
8. President Barack Obama, Statement on the Repeal of the Department of Defense's "Don't Ask, Don't Tell" Policy, DAILY COMP. PRES. DOC. No. DCPD201100653 (July 22, 2011).
9. Letter from Eric H. Holder, Jr., Attorney Gen. of the U.S., to Representative John A. Boehner, Speaker, U.S. House of Representatives 5 (Feb. 23, ), available at http://www. justice.gov/opa/pr/2011/February/11-ag-223.html. 2011
10. Ex parte Merryman, 17 F. Cas. 144, 152 (C.C.D. Md. 1861).
11. United States v. Nixon, 418 U.S. 683, 714 (1974).
12. See President Abraham Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in S. DOC. NO. 101-10, at 133, 139 (1989)
13. see also Edwin Meese III, The Law of the Constitution, 61 TUL. L. REV. 979, 983 (1987).
14. See KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY 1-13 (2007)
15. See generally Larry Alexander and Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359 (1997) arguing that the settlement of contested constitutional issues can be achieved only if the judiciary holds the ultimate interpretive role).
16. Keith E. Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. REV. 773, 780 (2002) (suggesting that judicial supremacy also entails little judicial deference to the constitutional judgments of the political branches when reviewing executive or congressional action).
17. See RONALD DWORKIN, A MATTER OF PRINCIPLE 33 (1985).
18. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power To Say What the Law Is, 83 GEO. L.J. 217, 228-62 (1994).
19. See, e.g., EDWARD S. CORWIN, COURT OVER CONSTITUTION 5-6 (1938)
20. Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 918, 924-25 (1990).
21. Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 GEO. L.J. 347, 355 (1994)
22. Bruce G. Peabody, Nonjudicial Constitutional Interpretation, Authoritative Settlement, and a New Agenda for Research, 16 CONST. COMMENT. 63, 72 (1999)
23. Robert C. Post and Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 YALE L.J. 1943, 1946 (2003)
24. Lawrence G. Sager, Justice in Plain Clothes: Reflections on the Thinness of Constitutional Law, 88 NW. U. L. REV. 410, 418 (1993)
25. see also infra text accompanying notes 131-47.
26. Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 COLUM. L. REV. 1189, 1224-25 (2006).
27. Sedition Act, ch. 74, 1 Stat. 596 Although it expired on the date of the inauguration of the next president (March 3, 1801), the Sedition Act provided that the expiration would "not prevent or defeat a prosecution and punishment of any offense against the law, during the time it [was] in force." 1798
28. GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME 73 (2004).
29. Letter from President Thomas Jefferson to Abigail Adams (Sept. 11, 1804), reprinted in 8 THE WRITINGS OF THOMAS JEFFERSON 310 n.1, 311 n.1 (Paul Leicester Ford ed., New York, G.P. Putnam's Sons 1897).
30. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
31. President Andrew Jackson, Veto Message (July 10, 1832), in 3 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 1139, 1144 (James D. Richardson ed., n.p., Bureau of Nat'l Literature 1897) ("It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent.").
32. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996)
33. Heckler v. Chaney, 470 U.S. 821-832 (1985)
34. PETER M. SHANE and HAROLD H. BRUFF, SEPARATION OF POWERS LAW: CASES AND MATERIALS 532 (1996).
35. Exceptions to the generalization stated in text may exist. For example, DOMA has applications in immigration enforcement, an area in which broad discretion is vested in the executive. After this Lecture was delivered, the Departments of Justice and Homeland Security stated that the Obama administration would not grant relief to the entire category of cases affected by DOMA, but that it would continue to exercise discretion in individual cases based on the particular factors of each situation; the administration did not specify, however, whether a same-sex marriage is a factor that weighs in favor of the exercise of discretionary relief. See
36. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 259-65 (1962)
37. DANIEL FARBER, LINCOLN'S CONSTITUTION 182-88 (2003)
38. David E. Engdahl, John Marshall's "Jeffersonian" Concept of Judicial Review, 42 DUKE L.J. 279-312 (1992)
39. John Harrison, Judicial Interpretive Finality and the Constitutional Text, 23 CONST. COMMENT. 33-42 (2006)
40. Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV. 123, 153-54 (1999)
41. Thomas W. Merrill, Judicial Opinions as Binding Law and as Explanations for Judgments, 15 CARDOZO L.REV. 43-46 (1993)
42. Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1008-09 (1965
43. A few commentators do contend that the president may properly defy a judgment. See, e.g., Gary 12 n.40 Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 AVE MARIA L. REV. 1, (2007)
44. Gary Lawson and Christopher D. Moore, The Executive Power of Constitutional Interpretation, 83 IOWA L. REV. 1267, 1313-29 (1996)
45. For a nuanced discussion contending that there is "no perfect solution" to the allocation of power between courts and the president, that all things considered, the best solution is to recognize that judgments bind the executive, that there may be rare cases in which the executive is morally justified in defying judgments, and that ultimately the responsibility for executive compliance with judgments rests with "Congress and the people," see Richard H. Fallon, Jr., Lecture, Executive Power and the Political Constitution, 2007 UTAH L. REV. 1. See generally William Baude, The Judgment Power, 96 GEO. L.J. 1807 (arguing that the president must enforce judgments of the judiciary unless the issuing court lacked jurisdiction). (2008)
46. As to Don't Ask, Don't Tell, see S. REP. NO. 103-112, at 272-285 (1993
47. As to DOMA, the constitutional issues were vetted in hearings before the House. The House Committee Report explicitly concluded that DOMA was constitutional and referenced the same conclusion of the Department of Justice, with some members filing a dissenting report. H.R. REP. NO. 104-664,1996
48. At about the time that the bill passed the House, the Senate Judiciary Committee held hearings at which issues concerning the Act's constitutionality were discussed, and, again, the administration's view of the constitutional issue was noted. See The Defense of Marriage Act: Hearing on S. 1740 Before the S. Comm. on the Judiciary, 104th Cong. 2 (statement of Sen. Orrin G. Hatch, Chairman, S. Comm. on the Judiciary). A Senate report on the bill does not appear to exist, but the floor debate before passage adverted to the constitutional issue and again to the Justice Department's view. See, e.g., 142 CONG. REC. 22,437 (statement of Sen. Trent Lott) ("[President Clinton's] Department of Justice has affirmed its position that H.R. 3396 'would be sustained as constitutional if challenged in courts.'").1996
49. Although the bill enacted by Congress must have been presented to the president for his signature, even when a bill is enacted into law by congressional override of a presidential veto-so that the statute is truly the act of the legislature alone-the executive remains responsible for defending its constitutionality in court.
50. U.S. CONST. art. II, § 3
51. see also David A. Strauss, Presidential Interpretation of the Constitution, 15 CARDOZO L. REV. 113-117 (1993).
52. U.S. CONST. art. II, § 3.
53. See HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW 456 (1982).
54. Tenure of Office Act, ch. 154, 14 Stat. 430 (1867) (repealed 1887).
55. Myers v. United States, 272 U.S. 52 (1926).
56. See 2 TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES, BEFORE THE SENATE OF THE UNITED STATES, ON IMPEACHMENT BY THE HOUSE OF REPRESENTATIVES FOR HIGH CRIMES AND MISDEMEANORS 73 (Washington, Gov't Printing Office ) ("The constitutional injunction upon the President is to take care that the laws be faithfully executed, and upon him no power whatsoever is conferred by the Constitution to inquire whether the law that he is charged to execute is or is not constitutional."). 1868
57. See EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1984, at 72 (5th rev. ed. 1984)
58. Eugene Gressman, Take Care, Mr. President, 64 N.C. L. REV. 381-382 (1986
59. The similar view of Professor Christopher May is conveyed by the title of his article. See Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 HASTINGS CONST. L.Q. 865, 977 (1994)
60. see also Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1126 (9th Cir. 1988) (awarding attorneys' fees after concluding that the government had acted in bad faith when the executive branch refused to enforce a statute that it believed encroached on executive power), withdrawn in part per curiam, 893 F.2d 205 (9th Cir. ) (en banc). 1989
61. A textualist might object that the Take Care Clause requires faithful execution of the "laws" but not the "Constitution," while noting that in other clauses of the Constitution, most references to "laws" refer to acts of Congress. A list compiled by Professor Edward Swaine includes: [U.S. CONST.] art. I, § 2, cl. 3 (enabling Congress to direct census "by Law")
62. This argument shows little more than the limitations of textualism, for surely the obligation of the executive to comply with the Constitution is implicit in the constitutional structure. See Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 LAW & CONTEMP. PROBS. 7, 27 Moreover, another clause in the Constitution-Article II, Section 1, Clause 8, which prescribes the presidential oath-does expressly require the chief executive to pledge to preserve, defend, and protect the Constitution. See U.S. CONST. art. VI (stating that members of Congress and all executive and judicial officers of the United States, as well as their state government counterparts, "shall be bound by Oath or Affirmation, to support this Constitution").2000
63. See Issues Raised by Provisions Directing Issuance of Official or Diplomatic Passports, 16 Op. O.L.C. 18, 31-36 (1992).
64. Craig v. Boren, 429 U.S. 190, 204 (holding unconstitutional a state law that set a different minimum age for men and women when purchasing certain beers)(1976)
65. Frontiero v. Richardson, 411 U.S. 677, (holding unconstitutional a practice of determining dependency status in part based on sex). 690-91 (1973)
66. See generally U.S. COMM'N ON CIVIL RIGHTS, SEX BIAS IN THE U.S. CODE (noting that "800 sections of the code. contained either substantive sex-based differentials or terminology inconsistent with a national commitment to equal rights, responsibilities, and opportunities"). (1977)
67. See, e.g., Representation of Congress and Congressional Interests in Court: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 94th Cong. 83- 84 (supplemental answer of the Dep't of Justice) ("Where there is a patent inconsistency between the Constitution and an act of Congress, the Department, representing the United States, must argue that the Constitution prevail."). (1976)
68. See 28 U.S.C. § 530D (requiring the attorney general to submit a report to Congress when, inter alia, executive officials establish a policy to refrain from enforcing a provision of an act of Congress, determine not to defend such a provision, or decide not to appeal a decision adversely affecting the constitutionality of such a provision). (2006)
69. Judge Frank Easterbrook appears to take the view that the president has the power to engage in independent review but does not suggest that he must do so in every case. See Easterbrook
70. Professor Saikrishna Prakash goes further, suggesting a presidential duty to disregard unconstitutional enactments. See Saikrishna Bangalore Prakash, The Executive's Duty To Disregard Unconstitutional Laws, 96 GEO. L.J. 1613, 1682 (2008)
71. see also Michael B. Rappaport, The Unconstitutionality of "Signing and Not-Enforcing," 16 WM. & MARY BILL RTS. J. 113, 122-23, 129 (2007) (contending that if the president has the power not to enforce an unconstitutional statute, exercise of that power is mandatory, not discretionary, and that whether or not he has a general power not to enforce, he is obliged to veto bills that he intends not to enforce).
72. U.S. CONST. art. II, § 1
73. U.S. CONST. art. VI.
74. Cf. Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 GEO. L.J. ("[C]ould these officers refuse to carry out residential orders, forcing the President at a minimum to pay the political costs of dismissing them?"). 373, 374-75 (1994)
75. U.S. CONST. art. VI.
76. See Michael W. McConnell, The Rule of Law and the Role of the Solicitor General, 21 LOY. L.A. L. REV. 1105-1114 (1987)
77. See David Barron, Constitutionalism in the Shadow of Doctrine: The President's Non- Enforcement Power, 63 LAW & CONTEMP. PROBS. 61-90 (2000)
78. ("[A]n expansive conception of presidential authority. would be blind to the ways in which constitutional doctrine itself suggests that the scope of an institution's interpretive authority is defined by a structure in which there are three branches sharing power rather than one branch exercising all of it.").
79. Nina Pillard, A veteran of the Office of Legal Counsel (OLC), reports that in her experience, OLC reviewed every bill that the Justice Department's Office of Legislative Affairs viewed as having a significant chance of passage. Cornelia T.L. Pillard, The Unfulfilled Promise of the Constitution in Executive Hands, 103 MICH. L. REV. 676, 711-12 & n.110 (2005)
80. see also Trevor Morrison, Constitutional Alarmism, 124 HARV. L. REV. 1688, 1709-12 (2011) (reviewing BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC (2010)) ("OLC's core function is to provide formal legal advice through written opinions.").
81. See, e.g., CAROLINE D. KRASS, OFFICE OF LEGAL COUNSEL, AUTHORITY TO USE MILITARY FORCE IN LIBYA 1 (2011), http://www.justice.gov/olc/2011/authoritymilitary- use-in-libya.pdf (discussing whether "the President had the constitutional authority to direct the use of force in Libya")
82. Charlie Savage, Secret U.S. Memo Made Legal Case To Kill a Citizen, N.Y. TIMES, Oct. 8, at A1 (describing an undisclosed memo from OLC that analyzed the constitutionality of using lethal force against an American citizen located in Yemen and asserted to be a cobelligerent of al Qaeda). 2011
83. See, e.g., Comm. on the Judiciary v. Miers, 558 Supp. 2 55-57 2011 (refusing to grant former White House Counsel Harriet Miers immunity from being compelled to testify before the House of Representatives about the forced resignations of nine U.S. attorneys in 2006 and addressing the "important separation of powers concerns" raised by the interbranch conflict).
84. Daniel A. Farber, The Supreme Court and the Rule of Law: Cooper v. Aaron Revisited, 1982 U. ILL. L. REV. 387, 408
85. Geoffrey P. Miller, The President's Power of Constitutional Interpretation: Implications of a Unified Theory of Constitutional Law, 56 LAW & CONTEMP. PROBS. 35, 37 (1993)
86. An important feature of executive-branch lawyering involves questions, including constitutional questions, that are not justiciable, often in the separation-of-powers or foreign affairs areas. See Trevor Morrison, Stare Decisis in the Office of Legal Counsel, 110 COLUM. L. REV. 1448, 1451 ("[B]ecause many of the issues addressed by OLC are unlikely ever to come before a court in justiciable form, OLC's opinions often represent the final word in those areas. ."). (2010)
87. See, e.g., City of Boerne v. Flores, 512 U.S. 507, 529 (1997)
88. United States v. Nixon, 418 U.S. 683, 704 (1974)
89. Cooper v. Aaron, 358 U.S. 1, 17 (1958)
90. Lear Siegler, Inc. v. Lehman, 842 F.2d 1102, 1122 (9th Cir. 1988), withdrawn in part per curiam, 893 F.2d 205 (9th Cir. ) (en banc)1989
91. Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 ADMIN. L. REV. 1303, 1323-25 (2000).
92. See generally S. DOC. NO. 108-17, at 2117-59 (2004) (listing the seventy-four statutes invalidated by Supreme Court decisions from 1969 to 2002)
93. S. DOC. NO. 110-17, at 163-64 (2008) (listing the five additional statutes invalidated by the Court from 2002 to 2008
94. Doe v. Mukasey, 549 F.3d 861, 885 (2d Cir. 2008)
95. Nelson v. La Crosse Cnty. Dist. Attorney, 301 F.3d 820, 838 (7th Cir. 2002)
96. Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d 1061, 1077 (10th Cir. 2001)
97. Reardon v. United States, 947 F.2d 1509, 1523 (1st Cir. 1991)
98. Rothe Dev. Corp. v. Dep't of Def., 606 F. (W.D. Tex. 2009)Supp. 2d 648, 653
99. ACLU v. Mineta, 319 F. (D.D.C. 2004)Supp. 2d 69, 86-87
100. Gavett v. Alexander, 477 Supp. ,1049 (1979).
101. Dickerson v. United States, 530 U.S. 428 (2000).
102. Miranda v. Arizona, 384 U.S. 436 (1966).
103. See 18 U.S.C. § 3501 (2006).
104. Davis v. United States, 512 U.S. (Scalia, J., concurring)452, 463 (1994)
105. United States v. Dickerson, 166 F.3d 667, 681-82 (4th Cir. 1999), rev'd, 530 U.S. 428 (2000)
106. Eric D. Miller, Should 1029Courts Consider 18 U.S.C. § 3501 Sua Sponte?, 65 U. CHI. L. REV. , 1033-35 (1998).
107. See Reply Brief for the United States at 1, Dickerson, 530 U.S. 428 (No. 99-5525), WL 374574, at2000
108. See Dickerson, 530 U.S. at 432
109. See Seth P. Waxman, Defending Congress, 79 N.C. L. REV. 1073, 1083 (2001)
110. Issues Raised by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37, 50 (1990)
111. Attorney General's Duty To Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 56 n.1 (1980).
112. Presidential Authority To Decline To Execute Unconstitutional Statutes, 18 Op. O.L.C. 199-201 (1994).
113. See, e.g., Constitutionality of Proposed Legislation Affecting Tax Refunds, 37 Op. Att'y Gen. 56, 64 (1933)
114. Attorney General's Duty To Defend the Constitutionality of Statutes, 43
115. United States v. Lovett, 328 U.S. 303 (1946).
116. Urgent Deficiency Appropriation Act, 1943, ch. 218, § 304, 57 Stat. 431, 450
117. See President Franklin D. Roosevelt, Statement of the President Condemning Rider Prohibiting Federal Employment of Three Named Individuals (Sept. 14, ), reprinted in 1943 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 385, 385 (Samuel I. Rosenman ed., 1950) ("On July 12 I reluctantly signed H. R. 2714, the urgent Deficiency Appropriation Act, 1943. I felt obliged to approve it because it appropriates funds which were essential to carry on the activities of almost every agency of Government during the recess of the Congress. If it had been possible to veto the objectionable rider,. I should unhesitatingly have done so."). 1943
118. See H.R. REP. NO. 78-1117, at 3-4 (1944) (statement of Francis Biddle, Att'y Gen. of the United States). Pursuant first to a house resolution, H.R. Res. 386, 78th Cong., 89 CONG. REC. 10,882 (enacted), and then to a joint resolution, see Joint Resolution of Mar. 4, 1944, ch. 84, 58 Stat. 113, a special counsel was appointed to appear as amicus on behalf of Congress in defense of the statute. 1943
119. See Petition for Writ of Certiorari at 6, Lovett, 328 U.S. 303 (No. 809), reprinted in 44 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES 5, 10 (Philip B. Kurland & Gerhard Casper eds., 2001).
120. Brief for the United States at 2, Lovett, 328 U.S. 303 (No. 809), reprinted in 44 LANDMARK BRIEFS AND
121. See John Hart Ely, United States v. Lovett: Litigating the Separation of Powers, 10 HARV. C.R.-C.L. L. REV. 1, 16 (1975
122. The statute at issue in Lovett has also been viewed as patently unconstitutional. See Representation of Congress and Congressional Interests in Court
123. Notably, Many of the historical sources, such as the Federalist papers, on which departmentalist commentators rely, are concerned with interbranch disputes
124. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
125. For example, presidents have refused to defend such measures as the independent- counsel provisions of the Ethics in Government Act of 1978, Pub. L. No. 95-521, §§ 601-602, 92 Stat. 1824, 1867-74 (codified as amended at 28 U.S.C. §§ 49, 591-598 (2006
126. Brief for the United States as Amicus Curiae Supporting Appellees at 3, Morrison v. Olson, 487 U.S. 654 (1988) (No. 87-1279), WL 1031600, at 5, and the legislative veto, see Brief for the Immigration and Naturalization Service at 34, INS v. Chadha, 462 U.S. 919 (1983) (Nos. 801832, 80-2170 & 80-2171), 1982 WL 607220, at 351988
127. Constitutionality of Congress' Disapproval of Agency Regulations by Resolutions Not Presented to the President, 4A Op. O.L.C. 21, 21-22 (1980)
128. Statement on Signing the Treasury, Postal Service, and General Government Appropriations Act, 1994, 2 PUB. PAPERS 1855, 1855-56 (Oct. 28, 1993)
129. Memorandum from President Franklin D. Roosevelt to Robert H. Jackson, Attorney Gen. of the U.S. (Apr. 7, 1941
130. Robert H. Jackson, A Presidential Legal Opinion, 66 HARV. L. REV. 1353, 1357-59 (1953).
131. Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990).
132. Communications Act of , Pub. L. No. 73-416, 48 Stat. 1064 (codified as amended in scattered sections of 47 U.S.C.). 1934
133. See Communications Amendments Act of 1982, Pub. L. No. 97-259, § 115©(1), 96 Stat. 1087, 1094 (codified at 47 U.S.C. § 309(i)(3)(A) ) (requiring such preferences through the assignment by lottery of certain low-power stations). 2006
134. See Brief for Federal Communications Commission at 11, Metro Broad., 497 U.S. 547 (Nos. & 89-700), 1990 WL 505688, at *11. 89-453
135. See Brief for the United States as Amicus Curiae Supporting the Petitioner at 7, Metro Broad., 497 U.S. 547 (Nos. 89-453 & 89-700), 1989 WL 1126975, at *7.
136. Brief for the United States as Amicus Curiae Supporting the Petitioner See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
137. See 28 U.S.C. § 518(a) (2006).
138. The Department of Justice, in urging the statute's unconstitutionality, might have taken the view that the position it was advancing would help to uphold the constitutionality of other federal statutes-for example, the federal civil rights laws insofar as they bar discrimination against white citizens. If congressional power to apply those laws to such discrimination would otherwise be hard to establish-under, for example, the Commerce Clause or the spending power-then the Department of Justice might have argued that its position in Metro Broadcasting sacrificed an application of the Federal Communications Act to preserve applications of federal civil rights laws. But although the government's brief alluded generally to the federal government's interest in enforcing federal civil rights laws, it did not make the more focused argument just described. See Brief for the United States as Amicus Curiae Supporting the Petitioner
139. National Defense Authorization Act for Fiscal Year Pub. L. No. 104-106, § 567, 110 Stat. 186, 328, repealed by Act of Apr. 26, 1996, Pub. L. No. 104-134, § 2707, 110 Stat. 1321, 1321-330.1996
140. See Press Briefing, Jack Quinn, Counsel to the President & Walter Dellinger, Assistant Attorney Gen., Office of Legal Counsel, U.S. Dep't of Justice (Feb. 9, 1996), available at http:// archives.clintonpresidentialcenter.org/?u=020996-press-briefing-by-quinn-and-dellinger-on-hivprovision. htm
141. See H. Jefferson Powell, The Province and Duty of the Political Departments, 65 U. CHI. L. REV. 365, 382-83 (1998)
142. "[I]t would be difficult to claim that it would be irrational for Congress to conclude that treating HIV-positive individuals for combat injuries would require safeguards otherwise unnecessary, and that as a consequence their presence in combat units would complicate health care under combat conditions. Nondeployability inte [sic] combat units is an established basis for military classifications, and it seems doubtful that a court would have concluded that there was no 'reasonably conceivable state of facts' justifying Section 567's discrimination." (footnotes omitted) (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993
143. See Act of Apr. 26, 1996, Pub. L. No. 104-134, § 2707, 110 Stat. 1321, 1321-330.
144. One instance dating back to the Kennedy administration is found in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963
145. In that case, the statute, unlike Don't Ask, Don't Tell or DOMA, did not directly regulate the operations of the federal government. Rather, a provision of the Hospital Survey and Construction (Hill-Burton) Act, ch. 958, 60 Stat. 1041 (codified as amended at 42 U.S.C. § 291-291m (2006)), explicitly authorized the use of federal funds to support hospitals that provided separate-but-equal services to African- Americans1946
146. In Turner Broadcasting System, Inc. v. FCC, 819 F. (D.D.C. ), after Congress had overridden President George H.W. Bush's veto of the "must-carry" provisions requiring cable operators to carry local and noncommercial programming, the Bush administration refused to defend the statuteSupp. 321993
147. "[I]n the litigation challenging the constitutionality of the must-carry provisions, the Department of Justice, appearing on behalf of defendant FCC, informed the district court that it declined to defend the constitutionality of the must-carry provisions, 'consistent with President Bush's veto message to Congress.'" (quoting Defendants' Motion and Memorandum in Support Thereof for Civ. A. Nos. 92-2247, 92-2292, 92-2494, 92-2495 & 92-2558))). When the Clinton administration took office, it defended the enactment, Brief for the Federal Appellees at 8-9, Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (No. 95-992), 1996 WL 435560, at *8-9 the Issuance of a Revised Briefing Schedule in This Case and Its Related Cases at 2, Turner Broad. Sys., 819 F. Supp. 32 (
148. Letter from Andrew Fois to Senator Orrin G. Hatch
149. Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, 84 Stat. (codified as amended in scattered sections of 42 U.S.C.). 314
150. Lowering the Voting Age to 18: Hearings Before the Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 91st Cong. (statements of William H. Rehnquist, Assistant Attorney Gen., Office of Legal Counsel, U.S. Dep't of Justice). 233-49 (1970)
151. President Richard Nixon, Statement on Signing the Voting Rights Act Amendments of 1970, PUB. PAPERS 512, 512 (June 22, 1970).
152. Oregon v. Mitchell, 400 U.S. 112 (1970).
153. See Transcript of Oral Argument, Mitchell, 400 U.S. 112 (No. 43, 44, 46 & 47), reprinted in 69 LANDMARK BRIEFS AND ARGUMENTS
154. ("When [the bill] was pending before the Senate. Deputy Attorney General Henry Kleindienst appeared. and presented the view of the President that the. [bill] should be done by constitutional amendment.. And. Assistant Attorney General Rehnquist presented. a substantial statement against [the bill's] constitutional validity. .").
155. President George W. Bush, Statement on Signing the Bipartisan Campaign Reform Act of 2002, 1 PUB. PAPERS 503, 503 (Mar. 27, 2002).
156. See McConnell v. FEC, 540 U.S. 93, 113 In Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the Department of Justice took a unique approach when defending the Federal Election Campaign Act of 1971, Pub. L. No. 92225, 86 Stat. 3 (1972). President Nixon, in signing the original Act, had not expressed any constitutional concerns about the legislation. President Richard Nixon, Statement on Signing the Federal Election Campaign Act of 1971, PUB. PAPERS 165 (Feb. 7, 1972). Two years later, President Ford expressed his pleasure in signing a bill making significant amendments to the Act(2003)
157. He did then state a constitutional concern, albeit in a somewhat muted form: "And although I do have reservations about the first amendment implications inherent in the limits on individual contributions and candidate expenditures, I am sure that such issues can be resolved in the courts." See President Gerald R. Ford, Statement on the Federal Election Campaign Act Amendments of 1974, 2 PUB. PAPERS 303, 303-04 (Oct. 15, 1974). Before the Supreme Court, the Department of Justice filed two briefs. The first, styled "Brief for the Attorney General and the Federal Election Commission," argued that the recording, disclosure, contribution, expenditure, and public-finance provisions of the Act did not violate the First Amendment. See Brief for the Attorney General and the Federal Election Commission, Buckley, 424 U.S. 1 (Nos. 75-436 & 75-437), WL 171459, at 37. In this respect, it was a typical government brief defending a statute. The second brief, styled "Brief for the Attorney General as Appellee and for the United States as Amicus Curiae," had two parts. Brief for the Attorney General as Appellee and for the United States as Amicus Curiae, Buckley, 424 U.S. 1 (Nos. 75-436 & 75-437), reprinted in 84 LANDMARK BRIEFS AND ARGUMENTS1975
158. Reprinted in 84 LANDMARK BRIEFS AND ARGUMENTS
159. The remainder of the second Justice Department brief set forth the views of the United States on the First Amendment issues "as amicus curiae in the true sense of that phrase" and provided an essay analyzing both sides of the issues without taking a final position. Brief for the Attorney General as Appellee and for the United States as Amicus Curiae
160. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
161. Brief for the United States as Amicus Curiae at 9-10, Heller, 128 S. Ct. 2783 (No. 07290), WL 157201, t * 9-10 (arguing that the Second Amendment confers an individual right to bear arms, that regulations infringing n that right "warrant close scrutiny," and that the regulation at hand "may well fail such scrutiny"). 2008
162. See, e.g., Heller, 128 S. Ct. at 2822 (Stevens, J., dissenting)
163. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
164. Brief for the United States as Amicus Curiae, Brown, 347 U.S. 483 (Nos. 1, 2, 4 &10), 1952 WL 82045.
165. Bolling v. Sharpe, 347 U.S. 497 (1954).
166. Brief for Respondents at 12-14, Bolling v. Sharpe, 347 U.S. 497 (1954) (No. 8), 1952 WL 47280, at 12-14.
167. Brief for the United States as Amicus Curiae
168. To be sure, the notion that amicus briefs should not undermine federal statutes could make the government's position depend upon the sequence of litigation. For example, in Stenberg v. Carhart, 530 U.S. 914 (2000), the United States argued that Nebraska's partial-birthabortion ban was unconstitutional and that its enforcement could interfere with the ability of federal agencies to provide abortions to those for whose health care they are responsible. Brief for the United States as Amicus Curiae Supporting Respondent at 1, Stenberg, 530 U.S. 914 (No. 99-830), 2000 WL 340108, at *1. That position did not, to my knowledge, undermine any federal statute then on the books, as it predated enactment of the federal Partial Birth Abortion Ban Act of 2003, Pub. L. No 108-105, 117 Stat. 1201 (codified as amended at 18 U.S.C. § 1531 ), which was later upheld in Gonzales v. Carhart, 550 U.S. 124 (2007). The concept of avoiding arguments that undermine federal statutes has enough flexibility to accommodate reasonable concerns about effective advocacy and maintaining credibility with the courts. In the Heller litigation, for example, one cannot rule out the possibility that the solicitor general believed that the most effective way to uphold federal gun laws was to concede certain positions on which the government was unlikely to sway the majority, and thereby to establish the government's credibility, on which it could later draw when arguing that various federal statutes raised distinguishable questions. See infra text accompanying notes 180-95. A skeptic might note, in response, the similarities between the government's brief in Heller and the platform of the Republican Party. See REPUBLICAN NAT'L COMM., 2004 REPUBLICAN PARTY PLATFORM: A SAFER WORLD AND A MORE HOPEFUL AMERICA 72 (2004), http://www.presidency.ucsb.edu/papers_pdf/25850.pdf(2006)
169. Brief for the United States as Amicus Curiae Supporting the Respondent at 1-2, Ewing v. California, 538 U.S. 11 (No. 01-6978), 2002 WL 1798896, at *1-2(2003)
170. Brief for the United States as Amicus Curiae Supporting Petitioners at 1, Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377 ) (No. 98-963), 1999 WL 280452, at *1(2000
171. Brief for the United States as Amicus Curiae Supporting the Petitioner at 1-3, Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (No. 83-1158) 1984 WL 566038, at *1-3. 1985
172. Of course, unless enacted over a presidential veto, the acts are also in some sense acts of the executive.
173. In suggesting that enforcing-but not defending-a statute ordinarily places the constitutional issue before the court, former Solicitor General Seth Waxman appears to have been focusing on Supreme Court litigation. See Waxman
174. In many cases-including particularly the challenge to Don't Ask, Don't Tell and, some might say, to DOMA-a court's judgment about constitutionality might depend on the evidentiary record assembled in the district court concerning the strength or weakness of the asserted government interests. Remember, after all, the Brandeis brief.132 And it is uncertain whether Congress or one of its houses may intervene as a party or simply file a brief as an amicus and whether, if it may intervene, it enjoys all of the rights of a party at the district court level to depose and summon witnesses, gather and introduce documents, and the like.133 The Department of Justice has taken the
175. Metro Broadcasting, a case in which the litigation was based on the administrative record, furnishes an example. And in Lovett, although the case came to the Court of Claims without an agency record as such, the legal issues did not depend importantly on further factual development.
176. See Ruth Bader Ginsburg, Muller v. Oregon: One Hundred Years Later, 45 WILLAMETTE L. REV. 359, 362 (2009
177. [In Muller v. Oregon, 208 U.S. 412 (1908
178. Louis Brandeis, as counsel,] superintended a brief unlike any the Court had seen. It was to be loaded with facts and spare on formal legal argument. Its success would depend on the Court's willingness to take judicial notice of a vast array of information outside the formal record of the case.").
179. In Lovett, the solicitor general, in seeking certiorari on the question of the statute's constitutionality, noted that he had been requested to do so by the special counsel appointed to represent congressional interests, so that the Supreme Court could decide the constitutional question.
180. The Court did make something of the fact that unlike in Chadha, the houses of Congress had not authorized suit and had indeed opposed it, but whether those observations were determinative is unclear. More generally, the tone of the Raines opinion is broadly skeptical of judicial review of interbranch disputes in which no party claims individualized injury. Thus, whether the basis for intervention in Chadha remains good law-and if so, whether it is limited to cases in which (a) the substantive constitutional issue involves a separation-of-powers challenge to legislative authority, and/or (b) both houses of Congress have specifically authorized intervention- remains to be seen. Moreover, intervention granted only on appeal-or in the district court, but only for purposes of briefing legal issues-may be a different matter from intervention at the trial level to engage in plenary litigation.
181. permitted to intervene. Memorandum of Points and Authorities in Support of the Unopposed Motion of the Bipartisan Legal Advisory Group of the U.S. House of Representatives To Intervene for a Limited Purpose at 3, Windsor, 797 F. Supp. 2d 320 (No. 10 Civ. 8435 (BSJ) (JCF)), 2011 WL 3164126, at * 3. Nevertheless, some of these cases, such as Chadha, involved executive-legislative disagreements about the separation of powers, and in none of them did the congressional intervenor appear actually to have engaged in full-scale litigation in the district court, as distinguished from having defended the statute in connection with a motion for a preliminary injunction, a motion to dismiss for failure to state a claim, or a motion for summary judgment on a very limited record, such as affidavits.
182. Brief for the Attorney General as Appellee and for the United States as Amicus Curiae
183. see also Buckley v. Valeo, 424 U.S. 1, 140 (per curiam) (noting that the conduct of civil litigation may be undertaken only by persons who are "Officers of the United States" under Article II's Appointments Clause)1976
184. Representation of Congress and Congressional Interests in Court
185. See Windsor, 797 at 323 ("[T]he DOJ asks that BLAG's involvement be limited to making substantive arguments in defense of Section 3 of DOMA while the DOJ continues to file all procedural notices."). Supp. 2
186. Intervention or appearance as amicus curiae by the Senate Office of Legal Counsel must be authorized by a Senate resolution. 2 U.S.C. §§ 288b©, 288e(a) In the House of Representatives, clause 8 of rule 2 of the House rules permits the speaker of the house, after (2006)
187. Press Release, Representative John Boehner, Speaker of the U.S. House of Representatives, House Will Ensure DOMA Constitutionality Is Determined by the Court (Mar. 9, available at http://johnboehner.house.gov/News/DocumentSingle.aspx?2011
188. Press Release, Representative Nancy Pelosi, Pelosi Letter to Speaker Boehner on House Counsel Defense of DOMA (Mar. 11, 2011http://pelosi.house .gov/news/press-releases/2011/03/pelosi-letter-to-speaker-boehner-on-house-counsel-defense-ofdoma.shtml
189. A final practical point relates to the possibility that there will be a multiplicity of lawsuits filed in which Congress would have to take up the defense. For example, each service member discharged under Don't Ask, Don't Tell, even if now eligible for reinstatement, might be able to bring suit in the Court of Federal Claims under the Tucker Act, 28 U.S.C. §§ 1346, 1491 (2006), and the Military Pay Act, 37 U.S.C. § 204 (2006), seeking back pay in connection with a separation alleged to be unconstitutional. See, e.g., Holley v. United States, 124 F.3d 1462, 1465-66 (Fed. Cir. 1997)
190. Filipiczyk v. United States, 88 Fed. Cl. 776, 779 (2009)
191. Loomis v. United States, 68 Fed. Cl. 503, 505 (2005)
192. Clifford v. United States, 59 Fed. Cl. 440, 441 (2004)
193. Golding v. United States, 48 Fed. Cl. 697, 700-01 (2001)
194. Milas v. United States, 42 Fed. Cl. 704, 706, 710 (1999
195. In addition, the Court of Federal Claims recently ruled that it had jurisdiction to entertain claims by service members who were honorably discharged but whose separation pay was reduced from 100 percent to 50 percent because of their \homosexuality. See Collins v. United States, No. 10-778C, 2011 WL 4937336 (Fed. Cl. Oct. 18, 2011). There is a six-year limitations period on actions in the Court of Federal Claims. See 28 U.S.C. § 2501 (2006)
196. Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir. ). As a rough indicator of the order of magnitude of possible claims, more than 3000 individuals were apparently discharged under Don't Ask, Don't Tell in the six years from 2005 to 2010. See Don't Ask, Don't Tell2004
197. As to DOMA, see Letter from Andrew Fois, Assistant Attorney Gen., Office of Legislative Affairs, U.S. Dep't of Justice, to Representative Henry J. Hyde, Chairman, Comm. on the Judiciary, U.S. House of Representatives (May 14, 1996), reprinted in Defense of Marriage Act: Hearing on H.R. 3396 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 104th Cong. app. at 243 (1996). As to Don't Ask, Don't Tell, see generally Memorandum from Janet Reno, Attorney Gen. of the U.S., to President William J. Clinton, Defensibility of the New Policy on Homosexual Conduct in the Armed Forces (July 19, 1993), available at 140. Don't Ask, Don't Tell was upheld in Cook v. Gates, 528 F.3d 42 (1st Cir. 2008)http://dont.stanford.edu/regulations/RenoMemo.htm
198. Able v. United States, 155 F.3d 628 (2d Cir. 1998)
199. Richenberg v. Perry, 97 F.3d 256 (8th Cir. 1996)
200. Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996
201. Loomis v. United States, 68 Fed. Cl. 503 (2005
202. Upholding a similar Army regulation). The decisions in Cook and Loomis v. United State s, 68 Fed. Cl. 503 (2005), postdated the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 In Witt v. Department of the Air Force, 527 F.3d 806, 819 (9th Cir. 2008), the court held that the policy was subject to heightened scrutiny(2003
203. On remand for a trial under that standard, the district court ruled that the policy was unconstitutional as applied, Witt v. U.S. Dep't of the Air Force, 739 F. 1308, 1316 (W.D. Wash. 2010). A different district court held the policy unconstitutional in Log Cabin Republicans v. United States, 716 F. Supp. 2d 884, 927 (C.D. Cal. 2010), vacated as moot, 658 F.3d 1162 (9th Cir. 2011Supp. 2
204. DOMA was upheld in Smelt v. County of Orange, 374 F. Supp. 2d 861 (C.D. Cal. 2005), aff'd, 447 F.3d 673 (9th Cir. 2006)
205. Wilson v. Ake, 354 Supp. 2d 1298 (M.D. Fla. 2005)
206. In re Kandu, 315 B.R. 123, 138 (Bankr. D. Wash. 2004).
207. More recently, one district judge found DOMA to be an unconstitutional denial of equal protection, see Gill v. Office of Pers. Mgmt., 699 Supp. 2397
208. D. Mass. 2010). In a companion case, Massachusetts v. U.S. Department of Health & Human Services, 698 F. Supp. 2d 234 (D. Mass. 2010), the same judge reached the more dubious conclusion that DOMA also violates the Tenth Amendment
209. see also In re Levenson, 587 F.3d 926, 931 (9th Cir. ) (reviewing, in a nonjudicial administrative capacity, an internal discrimination complaint by an employee of the judicial branch and determining that DOMA is unconstitutional)2009
210. Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (invalidating California's ballot proposition purporting to prohibit same-sex marriage), aff'd, Perry v. Brown, Nos. 10-16696 & 11-16577, WL 372713 (9th Cir. Feb. 7, 2012). After this Lecture was delivered, the Bankruptcy Court of the Central District of California also held the statute unconstitutional. In re Balas, 449 B.R. at 569. 2012
211. Letter of Eric H. Holder, Jr., To Representative John A. Boehner
212. See Cook v. Gates, 42, 60-62 (1st Cir.528 2008).
213. Williams v. Taylor, 529 U.S. 362,2000).
214. See Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 726 (1989). In making this claim, I wish to account for the Supreme Court's very interesting decision, handed down two months after this Lecture, in Camreta v. Greene, 131 S. Ct. 2020
215. (2011). There, the Court stated that one court of appeals' decision clearly establishes the law prospectively within that circuit, for purposes of assessing in future cases whether an official is entitled to qualified immunity from damages in a constitutional-tort action under 42 U.S.C. § 1983 (2006). Camreta, 131 S. Ct. at 2032. Under Camreta, the availability of qualified immunity for the very same conduct could differ from one circuit to another, based on the state of circuit precedent. Accepting that outcome does not derogate from the point in text. A court could take the view that there are functional reasons why officials should be required to be familiar with
216. Only a limited body of law, such as, for example, decisions of the Supreme Court and of their state supreme court or regional federal court of appeals. Immunity is a remedial doctrine that may appropriately have a heavy functional component. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 1820-24 (1991). The Department of Justice has no corresponding functional reason to treat the merits of suits to enjoin a federal statute of nationwide applicability differently in different federal circuits-at least in cases, such as DOMA, in which no circuit court precedent so requires. And indeed, just a few days after the Camreta decision, in Ashcroft v. Al-Kidd, 131104 HARV. L. REV. 1764-97
217. S. Ct. 2074 , Justice Kennedy, who had dissented in Camreta, suggested that the Court's approach in that case would not necessarily apply in the same way to a federal official with nationwide responsibilities2011
218. See Letter of Eric H. Holder, Jr., To Representative John A. Boehner
219. Walter Dellinger, The DOMA Decision, NEW REPUBLIC (Mar. 1, 12:00 AM), http://www.tnr.com/article/politics/84353/gay-marriage-obama-gingrich-doma2011
220. United States v. Schwimmer, 279 U.S. 644, 654-55 (1929).
221. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245-2272 (2001)
222. M. Elizabeth Magill, The First Word, 16 WM. & MARY BILL RTS. 27, 30 (2007
223. Early in the Obama administration, Secretary of Defense Robert Gates and Chairman of the Joint Chiefs of Staff Admiral Michael Mullen were very publicly guarded in addressing Don't Ask, Don't Tell. Secretary Gates said, "If we do it,. it's important that we do it right, and very carefully." Elisabeth Bumiller, Gates Cautious on Repeal of Ban on Gays in Military, N.Y. TIMES THE CAUCUS BLOG (Apr. 16, 2009, 6:23 PM), http://thecaucus.blogs.nytimes.com/ 2009/04/16/gates-cautious-on-repeal-of-ban-on-gays-in-military (quoting Sec'y Gates) (internal quotation marks omitted). Admiral Mullen stated, "I would need some time for a force that's under a great deal of stress-we're in our sixth year of fighting two wars-to look at if this change occurs, to look at implementing it in a very deliberate, measured way." This Week with George Stephanopoulos (ABC television broadcast May 24, 2009) (quoting Admiral Mullen) transcript available at )http://abcnews.go.com/ThisWeek/story?id=7664072
224. The point is not that enforcing and defending discriminatory statutes is always the best way to secure their repeal. The political calculus in each case will differ. Indeed, in the case of the HIV provision noted previously,
225. See Confirmation Hearings on the Nominations of Thmas Perrelli Nominee To Be Associate Attorney General of the United States and Elena Kagan Nominee To Be Solicitor General of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 47 (statement of Elena Kagan) ("Traditionally, outside of a very narrow band of cases involving the separation of powers, the Solicitor General has defended any Federal statute in support of which any reasonable argument can be made."). The future solicitor general's view could be viewed as having an unspecified qualification, as she spoke of a presumption of defense, without indicating when that presumption might be overcome, but the tenor of the exchange suggests at the very least that there is a strong presumption in favor of defense2009
226. Holder explained, "Well, that is now contained in a statute. The duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to." Nomination of Eric H. Holder, Jr., Nominee To Be Attorney General of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 112 (statement of Holder) (referring to civil-liability protections under the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (codified as amended in scattered sections of 18 and 50 U.S.C.)). Holder continued, "The Justice Department has as a matter of policy the obligation to defend Federal statues [sic]. I can't think of a statute that my Department of Justice, should I 30 be confirmed, would be more proud to stand behind." 2009
227. See, e.g., Confirmation Hearing on the Nominations of Larry D. Thompson To Be Deputy Attorney General and Theodore B. Olson To Be Solicitor General of the United States: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 132 (statement of Theodore B. Olson)2001
228. Confirmation Hearing on the Nomination of John Ashcroft To Be Attorney General of the United States: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 141 (2001) (statement of John Ashcroft)
229. Paul G. Cassell, The Statute that Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175, 224 n.215 (1999)
230. Dawn E. Johnsen, What's a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B.U. L. REV. 395, 410 (2008).
231. In the case of DOMA, then-Solicitor General Kagan had joined the Supreme Court months before the decision not to defend was made, and her eventual successor, Donald Verrilli, had been nominated but had not yet received a hearing on that nomination. Although Verrilli, who worked in the Obama Justice Department and White House, had been recused from working on DOMA, he nonetheless faced a barrage of critical questions during his confirmation hearing related to the administration's decision to cease its defense of DOMA. Justice Department Nominations: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2011), available at Given congressional expectations, when the administration fails to present a colorable defense to a statute, broader legislative responses may be forthcoming. One could easily imagine oversight hearings-especially when one house is controlled by a party other than that of the president-attacking the Justice Department for not performing its duty; senators may threaten to hold up the confirmation of nominees to the Department of Justice or, indeed, for any executive post, in retaliation for the failure to defend the interests of Congress. With respect to the decision not to defend DOMA, such reactions quickly materialized.161 More broadly, whether such reactions occur; whether, when they do, they are more than pretexts for efforts to criticize or oppose the executive branch; and whether they cause serious difficulties all depend on the politics of the moment. But there is a clear potential for a regrettable increase in interbranch frictionhttp://www.senate.gov/fplayers/CommPlayer/commFlashPlayer.cfm?fn= judiciary033011p&st=xxx
232. See, e.g., Rex E. Lee Conference on the Office of the Solicitor General of the United States, 2003 BYU L. REV. 1, 106 ("I had sworn to defend capital punishment in my confirmation hearings, and I certainly was not going to go back on that." (statement of former Solicitor General Drew S. Days III)).
233. For criticism of the attorney general during an appropriations hearing less than a week after the DOMA decision, see The FY 12 Department of Justice Budget: Hearing Before the Subcomm. on Commerce, Justice, Science, and Related Agencies of the S. Comm. on Appropriations, 112th Cong. 73:30-77:55 Republicans added the DOMA decision to a list of reasons why they might oppose the confirmation of Deputy Attorney General James Cole. See David Ingram, Republicans Launch New Attacks on Deputy AG, THE BLT: THE BLOG OF LEGAL TIMES (Mar. 17, 2011, 12:13 PM), http://legaltimes. typepad.com/blt/2011/03/republicans-launch-new-attacks-on-deputy-ag-james-cole.html. After this Lecture was delivered, Mr. Cole was finally confirmed in June 2011, more than a year after his nomination. For repeated criticism voiced during the hearing on the nomination of Verrilli to be solicitor general, see Justice Department Nominations , available at http://appropriations.senate.gov/ webcasts.cfm?method=webcasts.view&id=09fe9fcf-221b-42ed-a363-64fa49c53ac92011
234. See, e.g., Justice Department Nominations
235. Larry D. Kramer, Foreword: We the Court, 115 HARV. L. REV. 4, 6-7 (2001)
236. RICHARD H. FALLON,For a discussion of underenforcement and gaps between constitutional doctrine and constitutional meaning, see, for example, JR., IMPLEMENTING THE CONSTITUTION 3, 37-38, 45-46, (2001)
237. Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1264 (1988).
238. ("The courts typically sacrifice some measure of their own best view of whether a statute is constitutional and apply a general presumption of constitutionality and the extremely deferential rational basis standard of review."). 167
239. See The Report of the Department of Defense Working Group That Conducted a Comprehensive Review of the Issues Associated with a Repeal of Section 654 of Title 10, U.S.C., "Policy Concerning Homosexuality in the Armed Forces": Hearings Before the S. Comm. on Armed Servs., 111th Cong. 6 (2010) (statement of Robert M. Gates, U.S. Sec'y of Def.)
240. For example, the Defense Department report survey data showed that although only 21.2 percent of service members overall believed that unit readiness would be negatively impacted by the repeal of Don't Ask, Don't Tell, certain groups were more likely to perceive a negative impact, such as Army "combat arms," 35.1 percent of whom thought readiness would be hurt. U.S. DEP'T OF DEFENSE, REPORT OF THE COMPREHENSIVE REVIEW OF THE ISSUES ASSOCIATED WITH A REPEAL OF "DON'T ASK, DON'T TELL" 68 tbl.7, 74 tbl.15 , available at h. Even within branches of the service, division existed. Whereas 31.8 percent of Marines thought repeal would have a negative impact, that number climbed to 43.5 percent when limited to Marine Corps "combat arms" alonehttp://www.defense.gov/home/features/2010/0610_dadt/DADTReport_FINAL_20101130%28 secure-hires%29.pdf2010
241. U.S. CONST. art. I, § 8, cls. 12-13.
242. Rostker v. Goldberg, 453 U.S. 57, 80 n.15 (1981).
243. See Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 127 (1996) ("While the Supreme Court's decisions interpreting the Constitution cannot simply be equated with the Constitution, we are mindful of the special role of the courts in the interpretation of the law of the Constitution."); see also Johnsen,
244. See Peter L. Strauss, The President and Choices Not To Enforce, 63 LAW & CONTEMP. PROBS. 107, 119-20 (2000)
245. But such accusations have been made about the Obama administration's briefs in defense f DOMA during the period before the decision was made to cease defending the Act.185 In its briefs, the Department of Justice disavowed two of the interests that the congressional record suggested that DOMA supported: promoting effective child-rearing and encouraging procreation.186 The briefs noted that many leading medical, psychological, and social-welfare organizations had concluded, "based on numerous studies, that
246. See Oregon v. Mitchell, 400 U.S. 112, 117-18 (holding that "Congress can fix the age of voters in national elections, such as congressional, senatorial, vice presidential and presidential elections, but cannot set the voting age in state and local elections")1970
247. McConnell v. FEC, 540 U.S. 93 (2003)
248. See McConnell, 540 U.S. at 188-246 (invalidating two provisions of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. , 116 Stat. 81 (codified as amended in scattered sections of 2, 8, 18, 8, 36, and 47 U.S.C.), but rejecting or dismissing constitutional challenges to a large number of others). 107-155
249. Lynn D. Wardle, Section Three of the Defense of Marriage Act: Deciding, Democracy, and the Constitution, 58 DRAKE L. REV. 9512010
250. [I]t would be inaccurate to say the Obama administration's Justice Department presented a high quality or serious defense like previous administrations had given when defending DOMA in earlier cases.")
251. Ed Whelan, Obama's Dive on DOMA, NAT'L REV. ONLINE BENCH MEMOS BLOG (Feb. 23, 2011, 2:53 PM), ("[T]he Obama administration has been sabotaging DOMA litigation from the outset. Today's ction [ordering the Department of Justice to stop defending DOMA] at least has the modest virtue of bringing that sabotage out into the open."). http://www.nationalreview.com/bench-memos/260523/Obama-s-dive-doma-ed-whelan
252. See, e.g., Memorandum of Law in Support of Defendants' Motion To Dismiss at 19 n.10, Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374 (D. Mass. ) (No. 09-10309-JLT), 2009 WL 5803678 ("In this case, the government does not rely on certain purported interests set forth on the legislative history of DOMA. ."). 2010
253. Lawrence v. Texas, 539 U.S. 558 (2003).
254. 17-18, 2009 WL 5803678.
255. See Gay and Lesbian Rights, GALLUP, http://www.gallup.com/poll/1651/gay-lesbianrights. Aspx (last visited Feb. 14, 2012) (reporting polling data suggesting that between 1996 and , the percentage of Americans who believe homosexual relations between consenting adults should be legal rose from 44 to 64 percent, while the percentage opposed declined from 47 to 32 percent). 2011
256. A fourth interest articulated by Congress-preserving governmental resources- though not of overwhelming force by itself, continued to be relevant to the statute as defended by the Obama administration
257. FED. R. CIV. P. 11
258. To be sure, one could deploy such a theory in favor of a different set of rights-for example, First Amendment rights to contest campaign-finance legislation or the right to bear arms protected by the Second Amendment.
259. OFFICE OF LEGAL POLICY, U.S. DEP'T OF JUSTICE, GUIDELINES ON CONSTITUTIONAL LITIGATION 3-4 (1988).
260. Griswold v. Connecticut, 381 U.S. 479 (1965).
261. Roe v. Wade, 410 U.S. 113 (1973).
262. Miranda v. Arizona, 384 U.S. 436 (1966).
263. A strong policy of executive defense of acts of Congress does not ensure perfect stability in constitutional decisionmaking. It places broader authority in the courts, who may themselves shift course; after all, a key precedent in any challenge to DOMA or Don't Ask, Don't Tell, Lawrence v. Texas, overruled the Court's earlier decision in Bowers v. Hardwick, 478 U.S. 186 (1986). But notwithstanding complaints about declining respect for stare decisis, see, e.g., Geoffrey R. Stone, The Roberts Court, Stare Decisis, and the Future of Constitutional Law, 82 TUL. L. REV. 1533-1534 (2008)
264. Linda Greenhouse, Precedents Begin Falling for Roberts Court, N.Y. TIMES, June 21, at A21, shifts in judicial attitude occur far more slowly than shifts in the executive. When control of the White House passes from one party to another, typically the entire White House staff and Justice Department leadership change, but the Supreme Court remains as it is until a vacancy arises. 2007
265. See F.M. CORNFORD, MICROCOSMOGRAPHIA ACADEMICA 7 (Dunster House ed., ) ("The Principle of the Dangerous Precedent is that you should not now do an admittedly right action for fear you, or your equally timid successors, should not have the courage to do right in some future case, which, ex hypothesi, is essentially different, but superficially resembles the present one. Every public action which is not customary, either is wrong, or, if it is right, is a dangerous precedent. It follows that nothing should ever be done for the first time.").1923
266. See Eugene Volokh, The Mechanisms of the Slippery Slope, 116 HARV. L. REV. 1026, 1132-34 (2003).
267. See Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 SUP. CT. REV. 103-127
268. ROBERT H. JACKSON, THAT MAN: AN INSIDER'S PORTRAIT OF FRANKLIN D. ROOSEVELT 74 (2003).
269. Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, Profiling Originalism, 111 COLUM. L. REV. 356, 391-400 (2011)
270. John O. McGinnis & Michael B. Rappaport, Supermajority Rules and the Judicial Confirmation Process, 26 CARDOZO L. REV. 543, 554 (2005)
271. Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28, 113-15 (2004).
272. For discussion, see Frederick Schauer, Foreword: The Court's Agenda-And the Nation's, 120 HARV. L. REV. 4, 5-24 (2006)
273. see also Thomas W. Merrill, Originalism, Stare Decisis, and the Promotion of Judicial Restraint, 22 CONST. COMMENT. 271, 282-83 (2005)
274. ("Comparative law scholars have occasionally examined the proclivities of different national courts toward activism. These efforts invariably rank the U.S. Supreme Court as world champion of activists." (footnote omitted))
275. David Strauss, Pop Con, LEGAL AFF., Mar.-Apr. , at 60 (arguing that "the Supreme Court has figured out a way to pursue an aggressive agenda without incurring too much popular opposition"). 2005
276. The Federalist No. 10, At 80 (James Madison) (Clinton Rossiter Ed., 1961).
277. President Barack Obama, Remarks At A Reception Honoring Lesbian, Gay, Bisexual, And Transgender Pride Month, 1 PUB. PAPERS 927, 929 (2009 Plaintiffs' Request for Admission at 3-4, Log Cabin Republicans V. United States, 716 F. Supp. 2D 884 (C.D. Cal. 2010) (No. Cv 04-08425-Vap (Ex)).
278. See Defendants' Memorandum Of Points And Authorities In Support Of Defendants' Motion For Review of Magistrate Judge's Discovery Ruling at 4, Log Cabin Republicans, 716 F. Supp. 2d 884 (No. CV 04-08425-Vap (Ex)), Wl 2171536, At * 4 ("The President'S Statements Set Forth The Executive'S View That the statute does not contribute to national security and, indeed, that it weakens it. But it was the Considered Judgment Of Congress In 1993 That The Statute Was Necessary For Military Effectiveness, And thus to ensure national security, and that statute remains in force today."). 2010
279. Order (In Chambers) At 3, Log Cabin Republicans, 716 F. Supp. 2D 884 (No. Cv 048425- Vap (Ex)) (granting in part and denying in part plaintiffs' ex parte application for certain requests for Admission To Be Deemed Admitted); Accord Minute Order Denying Defendants' Motion For Review Of Magistrate Judge's Discovery Ruling (In Chambers) at 2, Log Cabin Republicans, 716 F. Supp. 2d 884 (No. Cv 04-08425-Vap
280. Defendants' Supplemental Responses To Requests 3, 4, And 5 Of Plaintiff'S First Set Of Requests for Admission at 3, Log Cabin Republicans, 716 F. Supp. 2d 884 (No. CV 04-08425VAP (Ex)).
281. See, E.G., Fed. R. Civ. P. 36(A)(4) ("If A Matter [In A Request For Admission] Is Not Admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit Or Deny It.").