Deferring on Defending U.S. Law

“When Congress enacts laws on behalf of the American people, the American people have the right to expect them to be defended when they’re challenged. How the attorney general’s constitutional duty to protect and defend the laws of the United States becomes optional is a great mystery.”

This comment came from the Alliance Defense Fund’s Senior Legal Counsel, Austin Nimocks, a commentary on the statement made by Attorney General Eric Holder on February 23rd. Speaking on behalf of the President, Holder shared that both he and Obama viewed the Defense of Marriage Act (DOMA) as an unconstitutional violation of the Equal Protection Clause of the Fifth Amendment and had directed the Department of Justice to no longer defend the statute in court. The statute, which defines marriage as between one man and one woman and prohibits federal benefits to same-sex couples, was passed in 1996 and signed by President Clinton. When previously asked about DOMA, President Obama had commented that he possessed a “duty to uphold existing law.” Since then, however, his actions have shown otherwise.

Much stir has arisen in American communities from all sides as the constitutionality of the President’s declaration remains in question. Conservatives cry that the president’s duty is not to determine the validity of American laws, but to uphold them at all costs—regardless of personal opinion. Laws inherently transcend personal opinion and mores; thus, the vocation of president remains innately unprejudiced in this respect, and any deviation from this position imparts a great vulnerability to the American constitutional republic and its checks and balances. In precedent, the Supreme Court alone has possessed the authority to declare a law unconstitutional through a process called judicial review, which has preserved the validity of law by ensuring that no other entity can put itself above the law. All three branches then adhere to these established laws and statutes. If the President can arbitrarily declare an established law or statute to be unconstitutional—even those laws already accepted and deemed as existing in accordance with Constitutional principles—who then can we entrust to uphold the law? In such a situation, all law becomes meaningless. Yet the Obama Administration’s recent decision has implied that law is indeed arbitrary and that there are some who remain above it.

Questions remain, leaving us to ask: what precedent will this set for future presidential administrations? Will separation of powers become irrelevant as the lines designating specific constitutional authorities become blurred, with each entity gradually assuming the roles of the others? When the President chooses not to execute laws already established as constitutional, who then is left to defend them? And when the societal standards of conduct no longer suffice, how much longer before this mindset decisively reaches the foundations of government –the Constitution itself?

As Daniel Dreisbach, a constitutional law expert at American University, put it, “The question now becomes: Is there anyone left who can defend the constitutionality of this statute in court?” Speculation seems to point to Congress, with questions of whether the Legislative branch has enough standing to enforce DOMA’s defense. For now the answer seems to be “unlikely.”

James Madison stated in the Federalist #47 that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many… may justly be pronounced the very definition of tyranny.” This is why it remains of utmost importance for Americans to not watch silently. We must remember that limited power is derived from the consent of the governed, as is tyranny. And when all other recourses fail, there is still one more entity left in the Constitution’s defense: American citizens. Ultimately, it is our activism—or apathy—that determines the course of our nation. As so appropriately proclaimed by British statesman Edmund Burke, “The only thing necessary for evil to triumph is for good men to do nothing.”

Let us not suffer the consequences of apathy.

Erin Grant is the President of Students for Life at Harding University. Since high school, she has been active in politics at the state, national, and international levels. She has interned with Phyllis Schlafly at Eagle Forum’s Education Center and will intern with the Heritage Foundation in Washington, D.C. this summer. You can follow her tweets here.

This article originally appeared in The Liberty Bell, a content partner of The Arkansas Patriot.


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