Obama’s Constitutional Theory Would Uphold DOMA

by Stephen H. Miller on April 3, 2012

President Barack Obama has now shared with us his view of the Supreme Court’s role, which is to uphold laws that are passed democratically by Congress, and that for the court to overturn such a law would be “unprecedented” and “judicial activism.”

As the Washington Post reports:

President Obama challenged the Supreme Court on Monday to uphold his administration’s sweeping health-care reform legislation, arguing that overturning the law would amount to an “unprecedented, extraordinary step” of judicial activism. …

Obama questioned the authority of the nine-member panel of unelected justices to reverse legislation that was approved by a majority vote in Congress. … “I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint—that an unelected group of people would somehow overturn a duly constituted and passed law,” Obama said during a Rose Garden news conference. “Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.”

Obama added:

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

In reality, the bill was pushed through the House by Democratic leaders on a narrow vote of 219-212, not winning any Republican support. Even if it were relevant, “strong majority” is not only a lie, it’s a stupid lie.

Of course, he’s being mendacious and hypocritical (evidently, our great Constitutional scholar-in-chief has never heard of Marbury v. Madison, or so you might think). But even so, putting forth this argument will come back to bite “progressives” — such as when the Defense of Marriage Act (DOMA) that prohibits the federal government from recognizing same-sex marriage, which actually was passed by Congress with big (and bipartisan) majorities and signed into law by President Clinton, comes before the High Court.

More. David Boaz blogs at Politico:

It’s striking to me how the liberals and Democrats on this panel are bending over backward to defend the president’s strikingly inaccurate statement. … Everyone who observes the Supreme Court – every constitutional law professor, every reader of newspapers – knows that it’s just nonsense to say that it would be “an unprecedented, extraordinary step” to “overturn a law that was passed by a strong majority of a democratically elected Congress.”

More. Conor Friedersdorf writes at The Atlantic:

President Obama’s recent remarks notwithstanding, it isn’t as if the left wants a Supreme Court that consistently respects legislative majorities. The iconic decisions of the Warren Court, Roe vs. Wade, and efforts to extend marriage rights to gays are all premised on the notion that striking down popular laws is sometimes a worthy enterprise. Nor is the left going to champion fidelity to the text of the Constitution as it was understood at the time of the country’s Founding. And as Lawrence v. Texas shows, liberals are comfortable celebrating when longstanding precedents are overturned ….

Except when they’re not.

And from conservative columnist Byron York:

A decision on DOMA, which has not yet arrived at the Supreme Court, lies in the future. But if those arguments come when Barack Obama is president, perhaps DOMA’s defenders will remind the administration of the president’s respect for duly constituted and passed laws.

Furthermore. In the comments, “another steve” responds to criticism of this post from our loyal left-liberal readers:

It’s just nonsense to say the president’s remarks were taken “out of context.” They weren’t very long, you can read them in all the major papers. And many liberals immediately defended them, until the party’s talking points changed.

Finally, from the Washington Post fact checker: “It’s clear that Obama’s ‘unprecedented’ comment was dead wrong, because the Supreme Court’s very purpose is to review laws that are passed by the nation’s democratically elected Congress — regardless of how popular or well-intentioned those laws may be…. “

{ 18 comments }

SHOES THROWER April 3, 2012 at 2:11 pm

DOMA should be upheld- because it is consistent with the “condition of the men”, Ex Parte Bain, 121 U.S. 1 at 12 (1887), who framed the Constitution, not because it was passed by a strong majority of a democratically-elected Congress.

Walker April 3, 2012 at 2:26 pm

What makes you think that the men who framed the Constitution believed that the national government should tell the states what marriages they could recognize? Those men didn’t think about gay marriage, but they did think about federalism and the strictly limited national government they were creating.

TomJeffersonIII April 3, 2012 at 2:39 pm

Shocking! A politician being selective about the truth or reality in order to shape his message. I am sure that such a thing would never been done by a conservative…oh…wait…it has.

The Federal Health Care law is (IMHO) constitutional and should be treated as such. The fact that conservatives disagree with it, does not make it unconstitutional.

DOMA is also Constitutional because (1) the courts have given the lowest level of scrutiny to sexual orientation based discrimination, so the equal protection issue probably will not matter too much ahead of public opinion. (2) The Constitution says that Congress can set the terms/conditions of the ‘full, faith and credit clause’.

Barry Deutsch April 3, 2012 at 4:08 pm

Stephen, did you read Orin Kerr’s post about this? He argues that your argument involves take Obama’s words out of context, and isn’t a fair representation of what Obama said.

Houndentenor April 3, 2012 at 5:41 pm

It’s silly to make a big deal out of the President’s comments since they have no bearing on how the court will rule. It’s indicative of the low level of our current political discourse that we’d rather pick through something than this rather than discuss the important issues of the day.

And yes, both the right and left are hypocritical when it comes to supporting states rights and individual liberty. Duh!

Frank April 3, 2012 at 7:30 pm

I’m on my first visit to INDEPENDENT(?) Gay Forum.

I suggest you change the name to REPUBLICAN Gay Forum.

I can, and do, get this style of argument on RedState.com. Refreshingly they don’t bother pretending to be anything but Republican.

Jorge April 4, 2012 at 1:07 am

I’m on my first visit to INDEPENDENT(?) Gay Forum.

I suggest you change the name to REPUBLICAN Gay Forum.

Such impatience. Wait until that Democratic apologist posts.

Anyway, I don’t pay much attention to what Barack Obama says. However I think what he should be doing is touting his vision, his rightness, his resolution. It worked for Bush.

Tom Scharbach April 4, 2012 at 8:42 am

Stephen, the post is unnuanced, which is not typical of you. It sounds a little bit like the “President Obama’s position on same-sex marriage is no different than Senator Santorum’s …” quip we sometimes get in the comments.

President Obama is no Gingrich when it comes to SCOTUS. Although his press conference statement was idiotic (on its face, it was Gingrich’s “two branch” argument), the President was speaking to the Court’s traditional deference to Congress on application of the commerce clause in regulating economic matters, as he made clear yesterday (see Q&A on page 5):

We have not seen a court overturn a law that was passed by Congress on an economic issue like health care, that I think most people would clearly consider commerce. A law like that has not been overturned, at least since Lochner. Right? So we’re going to back to the ‘30s, pre-New Deal. And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it. But it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly-elected legislature, our Congress. And so the burden is on those who would overturn a law like this.

Now, as I said, I expect — I expect the Supreme Court actually to — to recognize that and to abide by well-established precedents out there. I have enormous confidence that, in looking at this law, not only is it constitutional, but that the court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.

The President’s press conference statement was just flat wrong as a matter of constitutional history and constitutional theory. He was talking ahead of his brain, in my view, because you can’t get out of high school (at least in my day) and certainly not law school, without knowing that the statement is absurd.

On the other hand, his statement at the AP luncheon yesterday with respect to the Court’s traditional deference vis a vis the Commerce Clause are within the mainstream, I think. I heard the same thing said at the University of Chicago Law School 40-odd years ago, and if you look into Justice Roberts’ hearings, you’ll see a statement along the same line. SCOTUS does traditionally defer to Congress on commerce.

In any event, it seems a leap of illogic to make the connection between the Court’s deference on the commerce clause to the constitutionality of DOMA, a law that upsets the federal balance with respect to a power traditionally held by the states.

This is a case where (a) President Obama should have kept his mouth shut, and (b) reading anything other than “brain fart” into the statement is as dumb as the press conference statement itself.

Jorge April 5, 2012 at 7:55 am

In any event, it seems a leap of illogic to make the connection between the Court’s deference on the commerce clause to the constitutionality of DOMA, a law that upsets the federal balance with respect to a power traditionally held by the states.

The only reason I’m holding back here is because of accusations the President was taken out of context. The idea that judicial review, judicial activism, or even judicial legislation are unprecedented really cannot withstand scrutiny, though the latter is out of favor.

another steve April 5, 2012 at 5:30 pm

It’s just nonsense to say the president’s remarks were taken “out of context.” They weren’t very long, you can read them in all the major papers. And many liberals immediately defended them, until the party’s talking points changed.

Houndentenor April 5, 2012 at 7:26 pm

Just to be clear, I don’t think it was appropriate for the President to comment on the case. I would say the same about any President commenting on any case. Even so, nothing he says is going to influence the court one way or the other. In fact, it seems they’ve already made their decision even though they aren’t going to release it until June.

TomJeffersonIII April 6, 2012 at 10:54 am

I am not sure how cookie cutter ‘liberal’ I am (given that I support the 2nd Amendment, public prayer and want to see fewer abortions) and I not too concerned with what the president says or does not say…actions speak…louder…and all of that.

The Constitutionality of the Federal health care reform package hinges largely on the commerce powers of the Federal government, something that the conservatives on the court generally dislike and have since the ‘New Deal’.

Roe v. Wade has all but been replaced by a different case in the 1990s, which gives legislators a bit more authority, but not more then the want.

I am not sure if the period between 1986 and 2003 is a long time, legally. I am not a lawyer. Does not seem like such a long time if you compare it to say, ‘separate but equal’ to brown v. board of education.

Anyways, Lawrence was decided on privacy/equal protection grounds, not commerce powers.

Houndentenor April 6, 2012 at 12:06 pm

DOMA is unconstitutional because the federal government has no power to override a state’s marriage license. The only way around that is to amend the Constitution.

Jorge April 7, 2012 at 10:35 am

Does a state have a power to override another state’s marriage licence powers and force that state to give marriage benefits to someone?

Does a state have the power to override the federal government’s marriage licence powers and force the federal government to give marriage benefits to someone?

DOMA merely establishes that the states and the federal government are sovereign when it comes to their own governance on marriage. There is nothing unconstitutional about that, except for the discrimination beef.

Houndentenor April 7, 2012 at 11:34 am

To answer your questions:

1. Yes, the states can actually refuse to recognize marriages performed in other states. They don’t usually can. They can’t, however, refuse to recognize divorces from other states. It’s odd and I was confused about this for a long time, but that’s how it is. One wonders how the religious right would respond if a state that allows same sex marriages decided not to recognize any marriages from states that do not offer marriage equality.

2. The federal government has no marriage license powers. None. I so rarely agree with Dick Cheney but on this matter he is correct. Marriage is a state issue. Not only should the federal government not be involved, it has no Constitutional authority to be involved.

Stephen (NOT THE BLOGGER) April 7, 2012 at 8:39 am

I thought that the president was referring specifically to laws regulating commerce. And it’s nonsense to say that the states can dictate marriage law. Of course they can’t. I can be legally married in New York but the same marriage is not legal in Kansas? My marriage was undertaken in Canada where it is legal. Does the federal government not recognize Canadian law? If marriage law was not federal but a matter for states there would have been no need for DOMA and no legal ground for instituting it. But then, I’m not an American, and though I’ve lived here for a very long time I still find the fetishizing of so-called states’ rights very weird.

Tom Scharbach April 7, 2012 at 9:08 am

If marriage law was not federal but a matter for states there would have been no need for DOMA and no legal ground for instituting it.

Right on both. That’s why Section 3 of DOMA is unconstitutional and why Section 2, although it may be constitutional, is unnecessary.

tomjeffersonfm April 8, 2012 at 1:02 pm

Again, I think that the LEGAL difference between here is that the Federal Health Care Law (love or hate it) is based on the commerce powers of the Federal government, which I guess have greatly expanded since the 1930s.

The two big modern gay rights cases; Romer v. Evans and Lawrence v. Texas were decided on Equal Protection/Due process grounds. I think that their was an earlier case in the 1950s, but that was based on the First Amendment. Again, none of these were about what the commerce powers are or are not.

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