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The PJ Tatler

Hans A. von Spakovsky


February 24, 2011 - 12:57 pm

On President Obama’s decision to violate his constitutional duty to “take care that the laws be faithfully executed” and defend DOMA, I would refer the readers of The Tatler to the opinion of Benjamin Civiletti, United State Attorney General for the final two years of the Carter administration.

In a 1980 letter to the Senate on the attorney general’s duty to defend and enforce legislation, Civiletti said that “if executive officers were to adopt a policy of ignoring or attacking Acts of Congress whenever they believed them to be in conflict with the provisions of the Constitution, their conduct in office could jeopardize the equilibrium established within our constitutional system.” When confronted with such a choice, “it is almost always the case that [the Attorney General] can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.”

This politically-driven decision by President Obama and Attorney General Holder contravenes the Justice Department’s long, well-established policy of defending a federal statute unless no reasonable argument can be made in its defense or the statute would infringe on some core presidential constitutional authority. Neither of those situations applies to DOMA. Numerous reasonable arguments can be (and have been) made in its defense, and it has nothing whatsoever to do with presidential authority.

Given the behavior of the current president and attorney general, it almost makes one long for the days of Jimmy Carter and Benjamin Civiletti.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the coauthor of the book “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”.
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