February 24, 2011

DAVID BERNSTEIN ON OBAMA’S DOMA CONTRADICTION:

According to news reports, while Justice will not defend DOMA in Court, the Administration will continue to enforce DOMA until it’s declared unconstitutional by the judiciary.

Wait a second! If the Executive Branch is asserting the authority to engage in independent constitutional review of an existing law, and the president decides that the law is unconstitutional, it strikes me that the Executive Branch has no business enforcing this unconstitutional law.

So I take the Obama Administration to task not for asserting executive review here, which is at least arguably proper, but for trying to split the baby in half, and declaring that it won’t defend an unconstitutional law, but will enforce it. And not just any unconstitutional law, but one regarding which the Administration claims there are no “reasonable” supporting arguments.

Yes, you take an oath to enforce the Constitution. This may give the President the authority to enforce the Constitution as he sees it, but it surely doesn’t give the President the authority to choose not to enforce the Constitution as he sees it.

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