The Imperial Presidency

http://www.theatlantic.com/business/archive/2011/02/the-imperial-presidency/71632/

Feb 23 2011, 7:02 PM ET By Megan McArdle

Orin Kerr worries that the Obama administration's decision not to defend 
the Defense of Marriage Act may have far-reaching implications:

     Now, I wouldn't in a million years compare torture and wiretapping 
with gay rights. Obviously, the subject matter is totally and completely 
different. But there's an interesting analytical similarity between the 
DOJ's position on DOMA and the Bush Administration's reliance on its 
Article II theories. If you look at AG Holder's reasons for why DOJ won't 
defend DOMA, it is premised on DOJ's adoption of a contested theory of the 
constitutionality of laws regulating gay rights. The letter says that "the 
President and [the Attorney General] have concluded that classifications 
based on sexual orientation warrant heightened scrutiny and that, as 
applied to same-sex couples legally married under state law then, from 
that perspective, there is no reasonable defense of DOMA." This theory is 
not compelled by caselaw. Rather, it's a possible result, one that is 
popular in some circles and not in others but that courts have not weighed 
in on much yet.

     By taking that position, the Obama Administration has moved the 
goalposts of the usual role of the Executive branch in defending statutes. 
Instead of requiring DOJ to defend the constitutionality of all federal 
statutes if it has a reasonable basis to do so, the new approach invests 
within DOJ a power to conduct an independent constitutional review of the 
issues, to decide the main issues in the case -- in this case, the degree 
of scrutiny for gay rights issues -- and then, upon deciding the main 
issue, to decide if there is a reasonable basis for arguing the other 
side. If you take that view, the Executive Branch essentially has the 
power to decide what legislation it will defend based on whatever views of 
the Constitution are popular or associated with that Administration. It 
changes the role of the Executive branch in defending litigation from the 
traditional dutiful servant of Congress to major institutional player with 
a great deal of discretion.

     If that approach becomes widely adopted, then it would seem to bring a 
considerable power shift to the Executive Branch. Here's what I fear will 
happen. If Congress passes legislation on a largely party-line vote, the 
losing side just has to fashion some constitutional theories for why the 
legislation is unconstitutional and then wait for its side to win the 
Presidency. As soon as its side wins the Presidency, activists on its side 
can file constitutional challenges based on the theories; the Executive 
branch can adopt the theories and conclude that, based on the theories, 
the legislation is unconstitutional; and then the challenges to the 
legislation will go undefended. Winning the Presidency will come with a 
great deal of power to decide what legislation to defend, increasing 
Executive branch power at the expense of Congress's power. Again, it will 
be a power grab disguised as academic constitutional interpretation.

Maybe it was always thus, but it seems to me that both parties are 
increasingly resorting to procedural tricks rather than politics, and it 
worries me.  Maybe this means that our political system is broken, maybe 
it means that the parties are getting increasingly ruthless--or maybe I'm 
overestimating the extent of the change.  But as I say, it worries me.  I 
think it would be disastrous on a whole lot of levels if the GOP managed 
to undo ObamaCare with this sort of thing.  But if the precedent stands, I 
think you can expect them to try it the next time they have the 
presidency.

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