Brody's Notes... Factcheck: Debunking Conservative Talking Points On DOMA

By Brody Levesque (Washington DC) FEB 28 | The hue and cry over the decision last week by President Barack Obama, ordering the Justice Department to cease defending section three of the 'Defence of Marriage Act,' has grown increasingly shrill and filled with vitriolic statements, some calling for his impeachment by conservatives.

GOP presidential hopeful, Herman Cain said:

"I think it is a breach of presidential duty bordering on treason. The oath of office by the president says that he will protect, observe, and defend the Constitution of the United States of America, which means all of its subsequent laws. The fact that he says that he has asked the Department of Justice not to enforce it, to me, is a breach duty as President of the United States."

Tony Perkins, head of the Family Research Council, appearing on an American Family Association radio programme over the weekend told the audience that President Obama has "unilaterally decided not to enforce DOMA."

Another potential GOP presidential candidate former House Speaker Newt Gingrich during an interview with U. S. News & World Report last week said:

 “I believe the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job,” said Gingrich.

Fox pundits Glenn Beck & Sean Hannity have also sharply criticised the president, all saying that he is failing in his presidential duties by "failing to enforce the laws passed by the Congress."

The problem is that the statements being made are false and misleading according to Equality Matters.  In a fact check released over the weekend, Equality Matters lays out the errors:

The Talking Point: Obama Is Refusing To Enforce The Law

Megyn Kelly, host of America Live: "The U.S. Attorney General Eric Holder has just announced that President Obama does not believe the law is constitutional and neither does Eric Holder.They're no longer going to be enforcing this federal lawthat's on the books, passed by Congress, signed by President Clinton and still very much a law."

Monica Crowley, radio conservative commentator: "It is his responsibility under the Constitution to enforce that law. Not just to decide 'well I don't like that law so I'm not going to enforce it.' To me that is a form of dictatorship. That is Mubarak Obama. You can't just pick and choose which law you're gonna enforce when you're president of the United States or the Attorney General." 

The Facts: Obama And The DoJ Will Continue To Enforce DOMA, Despite Not Defending It In Court. Attorney General Holder released a statement clarifying that, although the administration would not provide a legal defense of Section 3 in court, it will continue to enforce the law as written:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. [Attorney General Eric Holder's letter to Congressional leadership]

The Talking Point: Refusing To Defend DOMA Is Unconstitutional And Unprecedented

The Family Research Council: "President Obama's Justice Department has a constitutional obligation to defend federal law, even when he disagrees with the law. The Constitution requires that President Obama "shall take care that the laws be faithfully executed." By failing to defend DOMA, he is not satisfying this constitutional requirement. What will be the next law that he chooses not to enforce or uphold?"

Monica Crowley: "We are a nation of law. And what the Constitution says is that the President of the United States doesn't get to decide which laws he likes and which ones he's going to enforce. [...] To me that is a form of dictatorship. That is Mubarak Obama. [...] If President Bush had done that there would be calls for his impeachment. I think this is a very serious story." 

The Facts: Legal Precedent Exists For Refusing To Defend Unconstitutional Laws In Court. In his letter to Congressional leadership, Attorney General Holder clearly cites the basis upon which the government can legally choose not to defend legislation:

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute." Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).

This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001). [ Cited By The AG in his letter to Congressional leadership]

President George W. Bush Did The Same Thing When He Was President. In ACLU et al., v. Norman Y Mineta, the Justice Department chose not to defend a law prohibiting the display of marijuana policy reform ads in public transportation systems:

The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. The controversial statute was recently ruled unconstitutional by a federal district court. The Solicitor General Paul Clement stated in a letter to Congress that, "the government does not have a viable argument to advance in the statute's defense and will not appeal the district court's decision." [ACLU, 1/25/06]

As Did President Bill Clinton. In a 1996 press briefing, Jack Quinn, counsel to President Clinton, stated that the Clinton administration would not defend a law barring HIV-positive men and women from serving in the armed forces because they deemed it unconstitutional:

Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not. [White House memorandum by Quinn and Dellinger on HIV Provision via Clinton Presidential Center]

Read the entire Factcheck here: Equality Matters