In a post on his Twitter feed, Capital Research Center senior editor Matthew Vadum wrote:
The link Vadum included went to a post by Ben Stein on The American Spectator blog, in which Stein argued that President Obama and Attorney General Eric Holder's decision on the Defense of Marriage Act amounted to "a major constitutional coup":
I am all for gay men and women to have every right that I have. But isn't it a dangerous usurpation for the president to now take over the roles of the courts in their ultimate duty -- ruling on the constitutionality of laws? Isn't this about as dangerous an act as a president has ever done? Or am I missing something? Again, I love gay people and want them to be total equals of everyone else. But isn't there a major constitutional coup going on here?
The Department of Justice recently announced that it will no longer defend Section Three of the Defense of Marriage Act following a review, in conjuction with the White House, that found that its definition of marriage as a "legal union between one man and one woman" is unconstitutional. But that does not mean, as Vadum suggested, that the administration will stop enforcing the law. Indeed, the Justice Department has stressed that the Executive Branch will continue to enforce the law until Congress repeals Section Three or a court renders the section unconstitutional.
Moreover, in his letter to congressional leadership, Holder cited the basis upon which the executive branch chose not to defend this part of the legislation. Holder said that while "plausible" arguments could be made on behalf of the law, there were really no "reasonable" arguments available to defend it and the Justice Department has previously declined to defend laws in such a circumstance:
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. "[D]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).
- Matthew Vadum