The Hill reported in a March 27 article that a number of conservative Supreme Court justices are questioning the Obama administration’s decision in 2011 to no longer defend the Defense of Marriage Act. DOMA is a law that does not allow same sex couples to receive federal benefits contingent on marriage, such as survivor’s benefits and certain tax deductions. The Department of Justice, at the direction of President Barack Obama, has decided it will not defend the law on the grounds that it is unconstitutional.
Where do the president’s powers end when it comes to these matters? And why does he have to take actions like the one concerning DOMA, which do not seem to have much constitutional justification?
During the DOMA arguments, Supreme Court Justice Antonin Scalia expressed his concern that the DOJ can just decide it does not defend laws. He also questioned whether the president has to make that decision, or if the attorney general and solicitor general can make the decision themselves.
We have three branches of government: one to make the laws (the legislative), one to defend and enforce the laws (the executive) and one to interpret and determine the constitutionality of the laws (the judicial).
This president, however, has decided he is not content to do his own job, but would rather act as all three branches of government. He has decided he is the divine arbiter of what is right and of what is constitutional. In doing this, he seems to be taking on a few characteristics of a king: Deciding what the laws are and when he wants to enforce them.
This sets a dangerous precedent because it is Congress’ job to represent the best interests of the people, and it is the Supreme Court’s job to make sure Congress and the president do not overstep their bounds. I have not seen any cases where Congress has decided to try to run the military and the Supreme Court hasn’t decided to veto laws it considers to be bad policy. Just ask Chief Justice John Roberts about his decision on the Affordable Care Act.
I can imagine people rolling their eyes at my argument, but I ask how they will feel when a Republican president decides to do the same thing. What if the federal funding for Planned Parenthood was challenged because they provide abortion services and the new president decides he will not defend against the lawsuit, based only on his opinion on the matter?
Obama needs to stop this streak of individual action, and take a more responsible track when it comes to making these decisions. There isn’t a second chance at a first impression, but he has three years and nine months in which he needs to govern. And in their decision on this case, the Supreme Court has a chance to help curtail this type of irresponsible action in the future.