Category: Duty to Defend

On St. Patrick’s Day, the Federalist Society sponsored a debate on the Hill regarding the Defense of Marriage Act (DOMA) and the President’s duty to defend federal statutes.  Generally speaking, the participants, (Ilya Somin, Ed Whelan and moderator Neomi Rao) were in agreement that the President may properly refuse to defend an unconstitutional statute under certain circumstances, while not necessarily agreeing (or, in Whelan’s case, emphatically disagreeing) with the President’s decision in this case.

With regard to Congress’s ability to intervene and defend the law, both Somin and Whelan thought that the courts would allow the House to participate in the case and make legal arguments in support of DOMA. This, they felt, would be sufficient to assure that the merits of the constitutional issue were addressed by the courts.  However, with respect to the issue of whether the House could intervene as a party, participate in discovery or the presentation of evidence, or, if necessary, appeal an adverse decision, neither were sure whether this would be allowed.  Whelan did remark that he hoped that the House would be permitted to revive arguments that the Justice Department had previously abandoned; he also recommended that the House insist that any dollars spent on its legal fees be taken out of the Justice Department’s budget, preferably with an appropriate multiple.

I just finished listening to an interesting Federalist Society debate between Professors Walter Dellinger and John Eastman relating to the Obama Administration’s refusal to defend the Defense of Marriage Act (DOMA). Two takeaways stand out.  First, in response to my question, Dellinger acknowledged that the decision could not be justified on the grounds that there was no reasonable basis for defending DOMA within the meaning of the Justice Department’s traditional policy for defending the constitutionality of federal statutes.  As he noted, there are numerous federal appellate court decisions supporting the constitutionality of DOMA. Instead, Dellinger would justify the administration’s position based on the President’s personal decision on a matter of “constitutional policy.”

Second, I asked Dellinger and Eastman whether they thought that Congress would have standing to defend the constitutionality of DOMA.  Dellinger said that it would not.  In his view, Congress can only participate in the litigation as an amicus.  He said this was not a problem because there exists a case or controversy due to the fact that the administration is still enforcing the law.  Moreover, he is certain that the administration would appeal any court decision striking down the law (the basis for this confidence was not apparent). However, in response to another question, he acknowledged that it may be “quite tricky” for an amicus to build a proper trial court record to defend the constitutionality of a law.

Eastman disagreed on this point.  He contends that there are circumstances in which legislators would have standing to defend the constitutionality of a law such as DOMA (citing Karcher v. May).  He noted that standing would be based on the fact that the legislators had been authorized to represent the institutional interests of the legislative body, and were not merely asserting their own interests as individual legislators. 

Attorney General Eric Holder has notified Congress, pursuant to 28 USC 530D, that the Justice Department will not defend the constitutionality of the Defense of Marriage Act (DOMA) in two pending cases.  Holder explains that while DOJ has previously defended the constitutionality of DOMA, the current cases were filed “in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny.”

In Holder’s judgment (and the President’s), however, sexual-orientation classifications ought to be subject to heightened scrutiny.  Holder contends that this position is consistent with the general test laid out by the Supreme Court for determining suspect classifications, but he does not contend that there is any direct Supreme Court or other federal appellate authority supporting his view.  In fact, he acknowledges “there is substantial circuit court authority applying rational basis review to sexual-orientation classifications.”  This turns out to be something of an understatement– the footnotes in Holder’s letter identify no fewer than nine separate circuits that have rejected the position DOJ intends to assert.  (The current cases, however, were filed in the Second Circuit, which has yet to rule on the question).

All of which is rather peculiar when one considers, as Holder puts it, DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.”  Holder implies, somewhat obliquely, that this practice may be inapplicable here because DOJ “in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a ‘reasonable’ one.”

In other words, while the legal rulings of nine federal courts of appeals may be “plausible” and “professionally responsible,” they are not “reasonable” enough to trigger DOJ’s duty to defend DOMA.  This wouldn’t seem to show much respect for the judicial branch, much less Congress.  And it would suggest that there is precious little left of the duty to defend.

Professor Jason Mazzone has a political suggestion for the Obama administration over at Balkinization:  wait until after the November elections to decide whether to appeal a federal court ruling that the “Don’t Ask Don’t Tell” policy is unconstitutional.  Noting that the President has opposed DADT and promised to repeal it, Mazzone argues that “[i]f Republicans make significant gains in Congress (thereby making repeal of DADT less likely), the Administration can decline to appeal, thereby leaving Judge Phillips’s ruling in place, with the hope that the failure to appeal won’t get much political traction in 2012.”

This may be good political advice, but it overlooks a couple of relevant legal points.  First, such a strategy would violate the spirit, and quite possibly the letter, of federal law.  The Attorney General is required by statute to report to Congress (specifically, the House and Senate leadership, the chairman and ranking members of the Judiciary Committees and the House and Senate legal counsels) whenever he determines “not to appeal or request review of any judicial . . . determination adversely affecting the constitutionality of any . . . provision” of federal law (28 U.S.C. § 530D(a)(1)(B)).  Such report must be submitted “within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination.” (28 U.S.C. § 530D(b)(2)).  By delaying a decision not to appeal, the Justice Department might very well leave the House and Senate without a reasonable opportunity to intervene in support of the statute’s constitutionality.

Second, longstanding Justice Department policy is that it “appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.”  Neither of these exceptions hold true with respect to DADT.

Accordingly, however much the administration may disapprove of DADT, it has an obligation to defend its constitutionality in court. Evidently it intends to continue to do so.

           In the late 1990s a bank robbery suspect named Charles Dickerson made an incriminating statement while in FBI custody.  Claiming that he had not received Miranda warnings, Dickerson moved to suppress the statement at his trial.  The Fourth Circuit, while finding that no warnings were given, held that the statement was nonetheless admissible under 18 U.S.C. § 3501.  The Supreme Court granted certiorari to consider the validity of section 3501. 

            Before the case was argued, a dispute arose between Congress and the Clinton Justice Department (at that time under the leadership of Attorney General Reno, Deputy Attorney General Holder, and Solicitor General Waxman).  By letter of November 1, 1999, the Attorney General informed Speaker Hastert that the Justice Department would not defend the constitutionality of section 3501.  (By law the Attorney General is required to inform Congress whenever the Department declines to defend the constitutionality of a federal statute.). 

            In a responsive letter dated February 16, 2000 (which I drafted on his behalf), Speaker Hastert strongly objected to the Justice Department’s refusal to defend the statute.  Hastert noted the Department’s longstanding position that it “appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.”  Solicitor General Waxman, in his 1997 confirmation hearings, expressly affirmed that the Department “is bound to defend the constitutionality of all acts of Congress unless no reasonable arguments can be made in support.” 

            As Hastert pointed out, the Justice Department’s refusal to defend section 3501 could not be justified under this standard.  There was, of course, no suggestion that the statute infringed upon executive power.  Furthermore, there was plainly a reasonable argument in support of the law’s constitutionality in light of post-Miranda precedent (some of which is discussed in my previous post) and the decision of the Fourth Circuit in the Dickerson case itself.   

            Waxman later wrote a law review article attempting to explain the Justice Department’s position in the Dickerson case.  Waxman claimed that the Justice Department’s obligation to defend a statute did not apply when doing so “would require the Solicitor General to ask the Supreme Court to overrule one of its constitutional precedents.”  He explained that unlike the ordinary case in which the constitutionality of a statute is at issue, the instance “when a contrary constitutional ruling is directly on point” creates a “direct tension” between “the interests of the legislative and judicial branches.”  The Solicitor General, he argued, “has an obligation to honor the important doctrine of stare decisis and a duty to respect the rulings of the Court.”  These obligations evidently relieved the Solicitor General of the duty to defend section 3501. 

            Waxman’s argument, however, makes no sense.  In the first place, whether or not upholding section 3501 required overruling a “constitutional precedent” (ie, Miranda) was itself one of the key issues in the Dickerson case.  The Fourth Circuit, which lacks the power to overrule Supreme Court precedent, believed that it did not.  The Justice Department believed otherwise, but Waxman does not explain why its judgment in this regard should be controlling.  After all, the whole point of the duty to defend is that the Justice Department will defend a statute it believes to be unconstitutional, so long as it believes it can make a reasonable argument in support of the law’s constitutionality. 

            In the case of section 3501, the strongest argument in support of its validity was not the Miranda should be overruled, but that post-Miranda precedent had established the non-constitutional nature of Miranda’s requirements.  Under this argument, section 3501 could be upheld without overruling Miranda.  Of course, this approach might be characterized as overruling Miranda by implication or, perhaps more accurately, as holding that Miranda had already been overruled by implication.  But these descriptions merely highlight the fact that there is no bright-line distinction between formally “overruling” a legal precedent and other rulings by the Court that have essentially the same effect.  Waxman’s attempt to carve out an exception to the duty to defend is an invitation to confusion and mischief. 

            Even if defending section 3501 did require the Solicitor General to ask the Court to overrule Miranda, it is not at all apparent why this should make a difference to the duty to defend.  Of course, if the Solicitor General believes that there is no reasonable basis for asking the Court to overrule a particular precedent or series of precedents, the duty to defend does not require him to do so.  But if the Solicitor General can make a reasonable argument that the Court should overrule a particular precedent (because, for example, the rationale of a precedent has been undermined by subsequent caselaw), it is hard to see why it shows any disrespect to the Court’s decisions to ask it to do so.

            Waxman clearly approaches this subject from the perspective of judicial supremacy, i.e., namely the concept that the courts are the sole and final arbiter of constitutional questions.  Indeed, he says that “under Marbury v. Madison, the Supreme Court has the final word on the meaning of the Constitution.”  This is, at best, a significant oversimplification of how constitutional issues are debated and sometimes settled in our system.  But even if one accepts the concept of judicial supremacy, there is something disturbing about the notion that merely asking the Supreme Court to reconsider a precedent is inconsistent with the Solicitor General’s obligations to the Court.   

            Equally questionable is the idea that there is a “judicial interest” in adhering to a prior decision, even an erroneous one.  One would think that the Court’s “interest,” if that is the right word, is in deciding cases correctly under the Constitution.  Indeed, it is only the Court’s duty to follow the Constitution that justifies it, under Marbury, in declaring a federal statute unconstitutional.  One might question whether declaring a federal statute unconstitutional solely on the basis of stare decisis, without reconsidering whether the initial decision correctly interpreted the Constitution, is itself an exercise of power authorized by Marbury’s reasoning.  It certainly does not offend any judicial interest for the Solicitor General to make reasonable arguments in favor of applying the well-recognized exceptions to the doctrine of stare decisis. 

            It is interesting to compare the Justice Department’s position in Dickerson with its decision to defend the constitutionality of the Communications Decency Act.  This ill-considered law made it a crime to make “indecent” or “patently offensive” materials available on the Internet to minors.  As Waxman notes, two three-judge panels “found the law facially unconstitutional in every respect.”  It is clear that the Justice Department also believed that it was unconstitutional.  Nevertheless, Waxman defended it (unsuccessfully) before the Supreme Court; as he wryly notes, “there is nothing quite like standing in front of the Supreme Court to defend the constitutionality of a law that not a single judge has ever found to be constitutional in any respect.”  The Government, it is true, did not ask the Supreme Court to overrule any precedents; instead, it argued that the statute was “plainly constitutional” under three Supreme Court precedents.  To which the Court responded, also somewhat wryly, that “a close look at these cases, however, raises–rather than relieves–doubts concerning the constitutionality of the CDA.” 

            In the case of the CDA, the Solicitor General defended a law which was, at best, of dubious constitutionality under any reasonable reading of the First Amendment, as well as under numerous Supreme Court precedents.  In the case of section 3501, on the other hand, the Solicitor General refused to defend a statute which was completely consistent with the historic understanding of the Fifth Amendment, and was, at worst, contrary to the Miranda decision, a widely-criticized precedent which had been undermined by subsequent Supreme Court decisions.  As Judge Clark would say, I find it hard to wrap my mind around the differing approaches in the two cases. 

            Be that as it may, the Justice Department adhered to its position in Dickerson, and filed a brief with the Supreme Court arguing that section 3501 was unconstitutional under Miranda.  Since both the prosecution and defendant were on the same side, the Court appointed Professor Paul Cassell to defend the constitutionality of the law.  We also filed an amicus brief on behalf of the Speaker. 

            In my next post I will discuss the Dickerson decision (spoiler alert- we lost).