On DOMA, Obama Seeks A Stalemate From His Zugzwang

In declaring the Defense of Marriage Act (DOMA) unconstitutional,  President Obama is not declaring war on the executive branch's constitutional role as envisioned by the founders.  While his move is definitely an unusual gambit as he seeks a stalemate between his previous position on gay marriage and what many suspect his real position may be, the real crime is his contradictory actions following his decision.  As a result, he has backed himself in a corner and gave conservatives an open door to ending judicial activism.

In chess, a zugzwang refers to a position where one is forced to make an undesirable move.  A stalemate occurs when one player's King is not in check but he has no available move to make that would not put his King in check.  When a player finds that he has been maneuvered into a zugzwang, his best move will often be to play for a stalemate in order to obtain a draw.  One danger in this maneuver is that the player must be aware of all possibilities, otherwise he further place himself into the zugzwang.  President Obama has chosen to play for the stalemate. 

In running for President, candidate Obama stated his opposition to legalizing gay marriage.  Despite his repeated statements supporting this position, it has endlessly been speculated that it did not reflect his true feelings on the matter.  If, and I will say if, in fact President Obama has always been a closet gay marriage supporter, he must find a path that enables him to fess up.  But he must do so without seeming like the liar so many hoped he was.  If this seems troubling, read my last statement again.  His supporters hoped that the President of the United States was lying to them; and many assumed it.  This is his zugzwang. 

By moving the discussion away from his own personal position to questions of constitutionality, Obama hopes to deflect any criticism.  I would expect that given the constitutional crisis, his own feelings will soon need to be corrected to this new position.  How can anyone fault him now for seeking to align his own position with the constitution?  In effect, he is attempting to remove all potential criticism of his position on gay marriage (policy) to his position on the constitution (law).  And to further deflect away from him, he will continue to enforce DOMA , but will now cease defense of it in court.  Should the court find DOMA unconstitutional, he has nobly continue enforcement, but alas it has been a futile effort.  Suddenly gay marriage is the law despite President Obama's best efforts, and all will accept his changed mind as the only sensible position.

Now the obvious trap that he's set for himself is what to do if DOMA wins in court.  I don't see much potential for further action from him under this scenario.  The executive arsenal is limited when the other two branches are opposed to it.  At best, the President may seek to use this as an unspoken litmus test for future court appointments just as abortion is used today.

The true trap lay in his actions today.  President Obama has stated that he is enforcing a law that he personally believes is unconstitutional.  This is reprehensible and shameful.  While probably not an impeachable offense, it is a dishonorable action by a man who has sworn to protect and defend the constitution.  For the President to enforce a law that he believes is opposed to the constitution is indefensible.

All three branches have the right and the duty to examine the constitutionality of law.  The legislative branch must decide on constitutionality before enacting laws, the executive must decide before enforcing the laws, while the judiciary will judge whether the other two branches have acted constitutionally.  All parties swear an oath to defend the constitution and are expected to do so.  Unfortunately, as we have seen from the recent Congress, many fail to understand it.

As Republicans took over leadership of the U.S. House recently, they mandated that all legislation would cite the constitutional authority for the act.  In response, several Democrats took offense, citing their belief that determining constitutionality was only the province of the courts.  Apparently the words of their oath of office had not lead them to reflect on any constitutional matters in the legislation brought before them.  Perhaps, such ignorance will one day cease to be electable; or worse yet, it will expand as our nation seeks to subvert its founding law.

So the President's finding that a law is unconstitutional is not unfounded.  In fact, when a President believes a law is not constitutional and will probably be found such by the court, he fails to honorably discharge his duties by continuing to enforce that law.  In other instances where a President has found a law he believed to be unconstitutional, he has refused to enforce that law and the Justice Department has actively argued against that law in court.  In a memorandum entitled, PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES (1994), Walter Dellinger, then Assistant Attorney General notes the following cases:  (emphasis mine)

• Myers v. United States, 272 U.S. 52 (1926): The President refused to comply with -- that is, enforce -- a limitation on his power of removal that he regarded as unconstitutional, even though the question had not been addressed by the Supreme Court. A member of Congress, Senator Pepper, urged the Supreme Court to uphold the validity of the provision. The Supreme Court vindicated the President's interpretation without any member of the Court indicating that the President had acted unlawfully or inappropriately in refusing to enforce the removal restriction based on his belief that it was unconstitutional.
• Freytag v. Commissioner, 501 U.S. 868 (1991): A unanimous Court ruled that the appointment of special trial judges by the Chief Judge of the United States Tax Court did not violate the Appointments Clause. Five Justices concluded that the Tax Court was a "Court of Law" for Appointments Clause purposes, despite the fact that it was an Article I court, so that the Tax Court could constitutionally appoint inferior officers. Four Justices, in a concurrence by Justice Scalia, contended that the Tax Court was a "Department" under the Appointments Clause. The concurrence stated that "Court of Law" did not include Article I courts and that the Framers intended to prevent Congress from having the power both to create offices and to appoint officers. In this regard, the concurrence stated that "it was not enough simply to repose the power to execute the laws (or to appoint) in the President; it was also necessary to provide him with the means to resist legislative encroachment upon that power. The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws, see Art. I, § 7, or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring).

Included in Dellingers memorandum are the following:

• Statement of James Wilson on December 1, 1787 on the Adoption of the Federal Constitution, reprinted in 2 Jonathan Elliot, Debates on the Federal Constitution 418 (1836): Wilson argued that the Constitution imposed significant -- and sufficient -- restraints on the power of the legislature, and that the President would not be dependent upon the legislature. In this context, he stated that "the power of the Constitution was paramount to the power of the legislature acting under that Constitution; for it is possible that the legislature . . . may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but when it comes to be discussed before the judges,-- when they consider its principles, and find it to be incompatible with the superior power of the Constitution,-- it is their duty to pronounce it void . . . . 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." Id. at 445-46.
• 7 A Compilation of the Messages and Papers of the Presidents 377 (Aug. 14, 1876) (Pres. Grant): This is one of the earliest of many instances of a President "construing" a provision (to avoid constitutional problems) in a way that seems to amount to a refusal to enforce a provision of it. An 1876 statute directed that notices be sent to certain diplomatic and consular officers "to close their offices." President Grant, in signing the bill, stated that, "[i]n the literal sense of this direction it would be an invasion of the constitutional prerogatives and duty of the Executive." Id. In order to avoid this problem, President Grant "constru[ed]" this provision "only to exercise the constitutional prerogative of Congress over the expenditures of the Government," not to "imply[] a right in the legislative branch to direct the closing or discontinuing of any of the diplomatic or consular offices of the Government." Id. at 378.
• Issues Raised by Section 129 of Pub. L. No. 102-138 and Section 503 of Pub. L. No. 102-140, 16 Op. O.L.C. 18 (1992) (preliminary print): This opinion concluded that two statutory provisions that limited the issuance of official and diplomatic passports were unconstitutional and were severable from the remainder of the two statutes. On the question of non-execution, the opinion rejected "the argument that the President may not treat a statute as invalid prior to a judicial determination." Id. at 40. The opinion concluded that the Constitution authorizes the President to refuse to enforce a law that he believes is unconstitutional.
• The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55 (1980):  Attorney General Civiletti, in answer to a congressional inquiry, observed that "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." Id. at 59. He added as a cautionary note that "[t]he President has no `dispensing power,'" meaning that the President and his subordinates "may not lawfully defy an Act of Congress if the Act is constitutional. . . . In those rare instances in which the Executive may lawfully act in contravention of a statute, it is the Constitution that dispenses with the operation of the statute. The Executive cannot." Id. at 59-60

This President is justified in making a constitutional determination of the law and choosing to disregard it when he believes it to be unconstitutional and expects the court would agree; in fact, it is his duty.  Other cases have acknowledged an occasion may arise when a President would enforce a knowingly unconstitutional law in order to initiate an action for the court to examine.  But since DOMA cases are already in the courts, this President has no defensible reason to continue enforcement other than his attempt to straddle the fence of popular opinion.  To continue enforcement of a law he believes is unconstitutional, damages the integrity of the office of the President of the United States.  President Obama cannot have his cake and eat it too.

[My own opinion is that DOMA is absolutely constitutional.  Where the constitution is silent on matters and the current circumstances do not argue for a decision to be extrapolated from the text, then the will of the people as expressed through their representatives should be allowed to stand.  Often removing certain topics from the national discussion with no textual backing, prevents consensus from forming due to the controversial nature of the ruling, i.e. Roe v Wade.  I have a rule of thumb when I read Supreme Court decisions.  If the majority decision sounds absurd, the decision probably was absurd.]

The other, unintended effect of Obama's action, is that, during this time of heightened awareness of the constitution and the founders (thanks to the Tea Party), perhaps the people will better understanding of  the true role of the three branches of our government.  Just as we have heard a Democrat Congressperson state that it is only the courts position to determine constitutionality, many people are simply unaware of the actions provided by the U.S. Constitution. 

As I discussed in an earlier post entitled, Judicial Activism...I'll Know It when I See It, the judiciary can also, at times, insert its own desires place of constitutional law.  It is the duty of the other two branches to correct such over reach by the judiciary, but the use of that power has been limited in the past. 

If Obama's move should light a fire under all three branches urging them toward fulfilling their oath and truly defending the constitution, (from not only today's wrongs, but also yesterday's) this President's wrong may allow us to correct the other wrongs that have trampled across our founding document.  If conservatives can keep Obama boxed into the zugzwang that he created, then the slow creep of liberal court activism might finally be "check-mated".

[After reading this be sure to read Jonah Goldberg's Throwing in the Towel at NRO]

[This post has been amended since it's first publication, because I am an idiot.]