On Wednesday, Mr. Justice…er, President Obama declared the Defense of Marriage Act to be unconstitutional. Many on the left have tried to gloss over this decision by telling us that the President has really done nothing at all.
They point to his instructions to all federal agencies that, henceforth, the federal government will continue to enforce the law, but will not defend it.
Forgetting for the moment that presidents do not have the constitutional power to declare laws validly passed by Congress and signed by the President to be unconstitutional (See: Article 3 of the United States Constitution), most lawyers, myself included, are looking at this decision and scratching their heads.
How can the federal government claim it will continue to enforce a law, while at the same time proclaim that it will not defend the law?
Apparently, I am not alone.
On Thursday, Federal District Court Judge Jeffery White in the Northern District of California entered the following order in a case pending before him.
How does the Executive [Branch] reconcile the position that it intends to enforce a statute that it has affirmatively declared to be unconstitutional and deemed inappropriate to defend?
I am anxiously awaiting the government’s response.