Consider the words of former U.S. Attorney General Benjamin Civiletti, who served during the last two years of the Carter administration. In a 1980 letter to the Senate regarding his duty to enforce the law, Civiletti wrote: “If executive officers were to adopt a policy of ignoring or attacking Acts of Congress whenever they believed them to be in conflict with the provisions of the Constitution, their conduct in office could jeopardize the equilibrium established within our constitutional system.”
And if an attorney general finds himself defending a law he disagrees with? Then, according to Civiletti, “it is almost always the case that [the Attorney General] can best discharge the responsibilities of his office by defending and enforcing the Act of Congress.” That’s how the Bush administration handled the Bipartisan Campaign Reform Act. The president said that certain provisions of the act were likely unconstitutional, but his Justice Department mounted a vigorous defense of the legislation in court.
In doing so, the Bush administration upheld a long-standing principle -- to defend a federal statute unless no reasonable argument can be made for it, or unless the statute would infringe on some core presidential authority. Neither applies in DOMA’s case. Yet the administration abandoned it.
In a way, it’s for the best. DOMA deserves better than the half-hearted defense it has been getting so far. Now Congress can finally put the case in the hands of legal counsel who can ensure that the law of the land gets the full-throated support it should have had all along.
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