Don’t Defend, Don’t Appeal?

Published October 30, 2010

The Weekly Standard

The recent district court ruling that the “don't ask, don't tell” law governing homosexuals in the military is unconstitutional triggered speculation that the Obama administration, which is eager for Congress to repeal “don't ask, don't tell,” might choose not to appeal the ruling. That speculation proved mistaken — an appeal has been filed — but it provides an apt occasion to explore the principles that ought to govern a presidential administration in deciding whether to defend a federal law that it disfavors.

In considering those principles, it's useful to test them against one's political biases. So both supporters and opponents of “don't ask, don't tell” might consider, for example, the following hypothetical: It's 2014, and Obamacare has withstood several constitutional attacks in the federal courts of appeals, but a district court has just issued a nationwide injunction against that law's continued implementation. Is it proper for the Republican president who defeated Barack Obama's bid for reelection to decline to appeal the injunction?

At the outset, it is essential to distinguish between laws that an administration opposes or disfavors on policy grounds only and laws that it regards as unconstitutional. When a president opposes a law on mere policy grounds, he is nonetheless obligated to defend it vigorously. That obligation flows directly from the president's duty under Article II of the Constitution to “take Care that the Laws be faithfully executed,” for the duty to faithfully enforce a law entails defending it against attacks in court.

The president's “take Care” obligation does not apply to laws that are unconstitutional, as the Constitution is first and foremost among the “Laws” that the president is dutybound to “take Care  …  be faithfully executed.” But that observation does not resolve the question how the president ought to go about deciding whether a particular law is unconstitutional and therefore ought not be enforced or defended. May he, for example, regard a law as unconstitutional only if the Supreme Court's precedents clearly dictate that it would so hold? Or may he form that judgment on his own, where the Court's case law is unclear or even where his judgment is contrary to the Court's ruling that the law is constitutionally permissible?

As it turns out, these questions have been weightier in theory than in practice, at least insofar as the Department of Justice's duty to litigate in defense of a federal statute is at issue. Over the last several decades, presidential administrations with very different theoretical understandings of the president's authority to interpret the Constitution have embraced the general proposition that, with the exception of laws that intrude on executive-branch prerogatives, the Department of Justice should vigorously defend the constitutionality of any law for which a reasonable defense may be made under existing precedents.

This general proposition has not been absolute. In rare instances, as Clinton Justice Department official Walter Dellinger outlined in a recent New York Times op-ed, an administration has determined not to offer a substantive constitutional defense of a defensible law. Instead, it has pursued only a nominal defense: It sets forth in its briefs its position that the law is unconstitutional but also files a formal appeal from a decision adverse to the law. That formal appeal ensures that the judicial hierarchy can operate to correct a wrong decision. Further, as Dellinger explains, when an administration pursues the option of making only a nominal defense, the courts can and should invite other interested and capable persons to defend the law.

In theory, a hypothetical future president might exercise his powers much more robustly by declining to enforce and defend any law that he regards as unconstitutional, no matter how defensible it is under the Court's precedents. There are limits, however, on how effective such an approach might be. The reality is that a president can't, by mere nonenforcement, unilaterally and permanently wipe from the books a federal law that the courts might deem to be constitutionally permissible. That law might, for example, be enforceable by private parties or by a subsequent president.

Further, it would be cowardly and irresponsible for a president to attempt to nullify a law by declining to appeal a district-court ruling that strikes down the law. If the president believes that the law shouldn't be enforced and defended, he ought to have the courage to adopt that course of conduct from the outset, rather than hiding behind the ruling of an inferior-court judge and trying to prevent that ruling from being reviewed by higher courts.

Let's now apply these principles to the “don't ask, don't tell” case and the Obamacare hypothetical.

To date, the Obama administration's objection to “don't ask, don't tell” has been entirely on policy grounds. It has therefore been obligated, under the president's “take Care” duty, to defend “don't ask, don't tell” vigorously in court. It has badly failed to live up to that obligation. Among other things, taking the path of least political resistance within the administration, then-Solicitor General Elena Kagan chose in 2009 not to seek Supreme Court review of a rogue Ninth Circuit decision that, in conflict with precedents from the Supreme Court and other circuits, subjected “don't ask, don't tell” to heightened scrutiny. Then, when the district court applied the heightened scrutiny required by the Ninth Circuit decision, the Department of Justice (in the words of the district court) “called no witnesses, put on no affirmative case, and only entered into evidence [the law's] legislative history.” Only a naif would fail to recognize that the Obama administration has been deliberately sabotaging the litigation (just as it has also been undermining the Defense of Marriage Act).

Obama's Department of Justice has filed an appeal of the “don't ask, don't tell” ruling. But that appeal is consistent with a continued desire merely to pretend to defend “don't ask, don't tell.” The Ninth Circuit panel on appeal will be applying the heightened-scrutiny standard that the Department of Justice chose not to challenge last year, and it will be reviewing the wildly one-sided record that Justice let the district court compile. So the result in the Ninth Circuit is virtually foreordained.

Might the Obama administration now take the position, as Dellinger recommends, that “don't ask, don't tell” is unconstitutional? Such a position would be a remarkable about-face: In implausibly explaining to Congress the Justice Department's decision last year not to seek Supreme Court review of the Ninth Circuit ruling, Attorney General Eric Holder never remotely suggested that Justice had any doubts about the constitutionality of “don't ask, don't tell.” Nor is there any apparent principle that would explain why an administration that has conspicuously claimed to adhere to the general practice of defending the constitutionality of laws that can reasonably be defended would make an exception in this instance.

That said, since the Obama administration clearly isn't going to comply with its constitutional duty to vigorously defend “don't ask, don't tell” in court, it would do better to get largely out of the way and let others offer a real defense, both in the Ninth Circuit and in any subsequent Supreme Court review. If that displacement requires a flimsy and implausible constitutional assertion by the Department of Justice and only a nominal defense, that would be a small price to pay.

As for the Obamacare hypothetical: A Republican president in 2014 whose objections to Obamacare rested entirely on policy grounds would be constitutionally obligated to defend the law vigorously in court. That vigorous defense
would require appealing any district-court ruling against the law and seeking to block the court's injunction from taking effect pending appeal.

If the Republican president had constitutional objections to Obama-care, he would have the option of doing what he could to implement those objections unilaterally as soon as he took office in 2013. If he chose not to do so, he would be obligated to defend the law with vigor, and he shouldn't pretend that the district court's injunction gave him any basis not to continue to do so. The Obama administration's dereliction of duty in “don't ask, don't tell” litigation is not a worthy model to follow.

Edward Whelan is president of the Ethics and Public Policy Center and a regular contributor to National Review Online's Bench Memos blog on constitutional law.

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