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DOMA: What President Obama Can Do Now

by Gary Endelman

"Once to every man and nation comes the moment to decide…" American poet James Russell Lowell 1849

The Dorman case has yet to be decided and the Obama Administration remains pledged to enforce a law that it will no longer defend in court. In vacating the ruling by the Board of Immigration Appeals in Dorman, the Attorney General signaled that the Administration is entertaining significant questions as to its constitutionality. Since the Board itself cannot render any such determination, and the Supreme Court has not yet had an opportunity to do so, it seems clear that the Attorney General is considering coming to a constitutional determination on behalf of the President. One wonders if the President can remain true to his oath of office while taking action now to promote the gender equality that he believes in. He can.

The Constitution does not enshrine the right of judicial review. The authority of the Supreme Court to be the last word on what the Constitution means flows not from the Constitution itself but from Chief Justice Marshall's political victory in Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803). The historical legitimacy of this achievement should not prevent President Obama from acting on his independent determination that DOMA is unconstitutional without waiting for the Supreme Court to weigh in. Since Cooper v. Aaron, 358 US 1, 18 (1958), the Supreme Court has consistently asserted that Marbury v. Madison stood for the sacred proposition that "the federal judiciary is supreme in the exposition of the law of the Constitution," and that "that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system." Those who advocate the suspension of DOMA enforcement are not asking President Obama to depart from this tradition nor to ignore a ruling of any federal court. Not even Chief Justice Marshall or any of his successors have or could maintain that only the Supreme Court can interpret the Constitution or that the President must stand mute and helpless when confronted with a flagrantly discriminatory law so pernicious that it must not be allowed to stand. The primacy of the Court does not demand the constitutional emasculation of the President. Marbury cannot be stretched that far.

We would do well to remember that the President has a vital role to play in the legislative process and that is why the Framers placed the veto power in Article I not Article III of the Constitution. See William Crosskey, Politics and the Constitution 419 (1953). The Constitution "never makes the President the constitutional second fiddle to the Supreme Court; nor does it suggest that the only way the President can raise constitutional objections is through the constitutional filters and doctrines announced by the Judiciary." Saikrishna Prakash, The Executive's Duty to Disregard Unconstitutional Laws, 96 Georgetown Law Journal No. 5, 1613, 1674 (June 2008)( hereinafter cited as "Prakash") .

On more than one occasion, the President has sued Congress to undo an unconstitutional act. See, e.g., United States v. Lovett, 328 U.S. 303(1946)(attack on bill of attainder) and Simpkins v. Moses H. Cone Memorial Hosp., 211 F. Supp. 628,640(M.D.N.C. 1962), rev'd 323 F.2d 959 (4th Cir.1963), cert. denied, 376 U.S.(1968) (attempt to bar federal funding for racially segregated hospitals). In fact, the expression by the President of his constitutional concerns about pending or enacted legislation " represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed…" James Wilson, a Framer himself, and later Associate Justice of the Supreme Court advised the Pennsylvania ratifying assembly that "…In the same manner, the President of the United States could shield himself and refuse to carry into effect an act that violates the Constitution." Jonathan Elliott(ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 446 (1836). While Justice Wilson may have been the first, he is hardly the last to conclude that the President may lawfully ignore a statute that he deems unconstitutional.

Assistant Attorney General John Harmon echoed this in his memorandum to White House Counsel Robert Lipshulz on September 27, 1977: "Cases may arise in which the unconstitutionality of the relevant statute will be certain, and in such a case, the Executive could decline to enforce the statute for that reason alone "

In Myers v. United States, 272 US 52(1976), the Supreme Court upheld President Wilson's defiance of a law that blocked him from removing postmasters without prior Senate sanction. In sustaining the authority of the President to disregard unconstitutional statutes, Attorney General Benjamin Civiletti opined as follows in a 1980 opinion:

Myers holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts…If the statute is unconstitutional, it is unconstitutional from the start. The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4 A Op. O. L.C. 55, 59 (1980)

On November 3 1993, Assistant Attorney General Walter Dellinger advised White House Counsel Bernard Nussbaum that , over the course of the prior three Administrations, " the Department of Justice has advised the President that the Constitution provides him with the authority to decline to enforce a clearly unconstitutional law. This advice is, we believe, consistent with the views of the Framers." http:///

One year later, the guidance is even more explicit in a memo to White House Counsel Abner Mikva:

Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional…numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they viewed as unconstitutional, and the Supreme Court has implicitly endorse this practice…If, however, the President exercising his independent judgment, determines both that a provision would violate the Constitution and that is probable that the Court would agree with him, the President has the authority to decline to execute the statute…the President may base his decision to comply(or decline to comply) in part on a desire to afford the Supreme Court an opportunity to review the constitutional judgment of the legislative branch.

The fact that President Clinton signed DOMA does not insulate it from subsequent judicial review nor from a decision by President Obama that continued observance of its provisions cannot be reconciled with his reading of the Constitution. The Supreme Court recognized as much in INS v. Chadha, 462 U.S. 919,942 n.13:

Furthermore, it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds. For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's authorization to be terminated by concurrent resolution was unconstitutional. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353 (1953).

President Obama has the constitutional prerogative to direct the conduct of subordinate federal officials, Franklin v. Massachusetts, 112 S.Ct. 2767, 2775(1992). In the exercise of such authority, therefore, he can and should instruct the Attorney General and Director of the USCIS to suspend enforcement of DOMA. Cf. Bowsher v. Synar, 478 U.S. 714, 733 (1986)("interpreting a law enacted by Congress to implement the legislative mandate is the very essence of' execution' of the law.").

Thomas Jefferson did precisely that when he pardoned those convicted under the Sedition Act despite its judicial affirmation. See Norman Small, Some Presidential Interpretations of the Presidency, 21 (1963). In fact, Jefferson said that his "oath to protect the Constitution" left him no choice but to "arrest execution" of the Sedition Act at "every stage." Letter from Thomas Jefferson to Abigail Adams (July 22, 1804), in 1 The Adams-Jefferson Letters 274, 275-76( Lester J. Cappon, ed.,1959). Going beyond pardons, he put a stop to any ongoing Sedition Act prosecutions because " he realized that he could not permit the continued enforcement of a law he believed was unconstitutional." Prakash at 1617 n.17. The reasons why President Jefferson directed his prosecutors not to enforce the Sedition Act are the precisely the same reasons why President Obama should suspend enforcement of DOMA. Only by taking this action can President Obama remain faithful to his oath of office that requires him to "preserve, protect and defend" the Constitution as required by Article II, section I and to "faithfully execute the laws" in compliance with Article I, section I. Not only can President Obama refuse to enforce DOMA, he is constitutionally bound to do so. Prakash at 1616-17.

An exercise of executive discretion now is not in derogation of the right of the Supreme Court to interpret the Constitution but, rather, in aid of it. Making DOMA a dead letter so far as immigration is concerned will only hasten the day when the Supreme Court can officiate at its funeral. A proper appreciation for the continuing role that separation of powers should and must play in our constitutional conversations argues most powerfully for recognition of the President as an independent exegetical authority whose legitimacy stems not from the Supreme Court but from the Constitution itself: As always, Jefferson said it best: In explaining the need for separation of powers, he noted that such a delicately nuanced mechanism could only work as designed if each co-equal branch could pass constitutional judgment on "cases which arise within the line of its proper functions…according to its own judgment, & uncontrolled by the opinions of any other Department.." Though John Marshall would win out in the end, Jefferson boldly proclaimed that "succeeding functionaries have the same right to judge of the conformity or non-conformity of an act with the constitution, as their predecessors who past it. For if it be against that instrument, it is a perpetual nullity." (emphasis added). See Prakash at 1667 notes 238-240. The fact that Jefferson elected not to include this in his first annual address to Congress, or that it came before John Marshall established the Supreme Court as primus inter pares, in no way diminishes or detracts from its continuing relevance.

We do not contend for the President to be endowed with or exercise a general power to disregard in order to advance short-term political or policy objectives. The inherent dangers to our constitutional equipoise that can flow from such executive initiative are obvious to any fair minded observer. Those who argue for President Obama to disregard DOMA would doubtless not approve of similar actions by a more conservative Chief Executive who declined to enforce restrictions on gun ownership or safeguards for abortion rights. For this reason, rather than embracing a general right to disregard laws with which the President disagrees, we advocate instead the adoption of the multi-factor test put forward by Assistant Attorney General Walter Dellinger noted above. In late June 2006, Mr. Dellinger reflected on the impact that his 1994 opinion has had upon this debate ::

For the proposition that the president has the authority to decline to abide by statutes he views as unconstitutional, the administration has relied principally on an opinion I authored as head of the Office of Legal Counsel in 1994. And rightly so. That opinion is based upon long-standing and consistent executive practice. Moreover, the most relevant U.S. Supreme Court decision, Myers v. United States, 272 US 52 (1926), by clear implication considers it appropriate for a president to decline to execute unconstitutional statutes. And as President Carter's Attorney General Ben Civiletti wrote in an 1980 opinion, the president's constitutional duty to execute the laws "does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts.

The Dellinger model advances what Professor Prakash aptly calls a "discretionary " power to disregard. Prakash at 1625-27. President Obama should exercise this power with respect to DOMA to expedite not avoid Supreme Court review. There are three key criteria that the President must satisfy under the Dellinger model:

The multi-factor test seems designed to do three things. First, it checks Executive Disregard by imposing the precondition that the President believe that the Supreme Court would judge the statute unconstitutional. Second, it ensures that the Judiciary's views play a central role in the constitutional analysis…Third, it never obliges the President to disregard any laws. Instead, it grants the President discretion to choose whether to enforce laws that he believes a court would find unconstitutional…When factors suggest that Executive Disregard is appropriate, the President may choose to disregard the unconstitutional statute; he is under no obligation to do so.
Prakash at 1626-27.

The decision not to allow I-130 immediate relative petitions based on same-sex marriages is a political not a legal one. At the very least, the USCIS should accept such petitions in the context of adjustment of status if only to allow for the extension of advance parole and employment authorization companion benefits. Final approval can, in the exercise of caution and with due regard for separation of powers, await final judicial resolution. President Obama does not have to wait for the Supreme Court to tell him that DOMA must go. He should act now not because he disagrees with DOMA as a matter of policy or politics, but because not doing so deprives the nation of a necessary and irreplaceable constitutional prism. The President can act now if he has the will to do so.

About The Author

Gary Endelman is a Senior Associate at Fong & Associates, LLP, a firm specializing in corporate immigration law. Fong & Associates clients include S&P 500, Fortune 500, Global 500 and IT 100 companies, large-cap and mid-cap companies, oil and gas companies (integrated, operations and oil well services), hospitals, school districts, colleges and universities, research institutes, high tech manufacturers and software companies. Gary Endelman's practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for international executives, aliens of extraordinary ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. This article does not reflect the opinions of Fong & Associates.

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