Executive Branch DOMA Power Grab

Wednesday, February 23, 2011
William A. Jacobson

The decision by the the Department of Justice to refuse to defend the Defense of Marriage Act is a massive power grab by the Executive Branch.

The Justice Department is tasked with representing the "government" is the broad sense in legal matters coming before the courts. There is no congressional Justice Department. Whether it likes a law or not, the Justice Department traditionally has fulfilled the role of arguing for the constitutionality of a law if there were any good faith basis for doing so, because someone has to represent the will of the legislative branch in the courts.

For two years the Obama-Holder Justice Department fulfilled this role for DOMA, as challenges worked their way through the courts, despite the Executive Branch being opposed to the law on policy grounds.

But, in a crass political move, Holder in consultation with Obama has decided to stop defending a key section the law in the courts, although the law will be enforced until the courts rule definitively. The excuse for the reversal is that there is a challenge underway in the Second Circuit. the rest