In the wake of the Supreme Court’s decision in United States v. Windsor, various Federal Government agencies have been tackling the issue of how to deal with the Court’s decision that Section Three of the Defense Of Marriage Act, which defined marriage as only being between a man and a woman, was unconstitutional. In most cases, the decision was rather easy since the statutes that controlled many benefits do not contain their own definition of marriage. Instead, such benefits were denied to same-sex couples based solely on DOMA. In other cases, though, the answer wasn’t so clear. This is especially true of the provision of certain benefits available to veterans and their spouses from the Department of Veterans Affairs, where the law in question specifically defines marriage as between persons of opposite genders. Because of this, the department had initially concluded that it didn’t have the authority to ignore this law or grant the benefits in question to same-sex spouses. Last week, a Federal District Judge in California ruled that the statute in question was unconstitutional, based largely on the Supreme Court’s holding in Windsor. Then, today, the Obama Administration announced that it will no longer be enforcing this provision of the law:
The Obama administration said Wednesday it will stop enforcing a law that blocks benefits to partners of military veterans in same-sex marriages.
In a letter to congressional leaders, Attorney General Eric Holder said that a provision in federal law on benefits to veterans and their families defines “spouse” to mean a person of the opposite sex. He says that definition leaves out legally married same-sex couples, and runs afoul of a June Supreme Court ruling.
The court declared unconstitutional a provision in the Defense of Marriage Act restricting the words marriage and spouse to apply only to heterosexual unions. Holder says that like the Defense of Marriage Act, the provision in the veterans benefits law has the effect of placing lawfully married same-sex couples in a second-tier marriage.
“Decisions by the Executive not to enforce federal laws are appropriately rare,” Holder told Congress. “Nevertheless, the unique circumstances presented here warrant non-enforcement.”
He said the Supreme Court’s conclusion that DOMA imposes a stigma on everyone in same-sex marriages “would seem to apply equally” to the veterans benefits law. Holder noted that after the Supreme Court’s decision, the Bipartisan Legal Advisory Group of the House of Representatives withdrew from a pending lawsuit challenging the constitutionality of the veterans benefits provisions.
This goes far beyond the Administration saying, as it did in the case of DOMA, that it would not be appealing a court decision finding the law unconstitutional. As I’ve noted in the past, see here and here for example, this is not an uncommon practice by Presidential Administrations and is fully within the scope of prosecutorial discretion that Executives and their deputies such as the Attorney General have. Instead, the Administration here is saying that they won’t enforce the law. This is a step above what the Administration has previously done. Indeed, when it was announced that the Justice Department would not be defending DOMA in Court, they made it clear that they would continue to enforce the law until the matter was ruled on by the nation’s highest court. Granted, we have a decision by a Federal Judge that the law is unconstitutional, a ruling that would seem to be absolutely correct in light of the Windsor decision. However, that’s just one decision by one Federal Judge in a specific case in California. Legally, that ruling has no legal effect beyond the specific issue before him and has no territorial impact outside the judicial district in which he sits. It strikes me as dangerous for an Administration to say that it won’t enforce a law under those kind of circumstances.
For one thing, if we accept the idea that a President can decide not to enforce a law then where does it end? Would a Republican President have the authority to order the agencies under him to refuse to implement Obamacare or spend any money allocated by Congress for that purpose? What if such a President told the IRS to stop enforcing the penalty provisions against people who don’t comply with the individual mandate? To make the issue relevant to this specific case, what if such a President ordered his Secretary of Veterans Affairs to strictly enforce the law in question, including the limitation of spousal benefits to opposite sex couples? All of these actions would likely be struck down by a Court at some point, but in the meantime there would be legal chaos created solely by Presidential whim.
As much as I agree with the effect of the Obama Administration’s decision in this case, I have serious doubts about the way they’re going about doing it. The Constitution requires the President to “take care that the laws be faithfully executed,” I’m not sure that a world where President’s have the power to decide on their own not to enforce a law is the kind of world we really want to live in. For as much as such a power can be used for good, it also has the potential to be used for evil.
