Please explain your decision, Mr. President

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.

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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. winnie888 on February 27, 2011 at 6:35 am

    Playing both sides, waffling, fence sitting…maybe, just maybe, Obama should remember that silence is golden.  Until he's a federal judge (like Vinson), I suspect that his opinions on the constitutionality of a law are meaningless.  Of course, Obama has determined that Vinson's opinion re. obamacare is meaningless as he continues to ignore it.

    I suggest we ignore Obama when it comes to DOMA.


  2. Dimsdale on February 27, 2011 at 3:53 pm

    If I were one of Constitutional Instructor Øbama's former students, I would be quite worried.


    Even more telling is that he can declare Øbamacare constitutional when several judges have specifically disagreed.

Obama annoyed

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