John Boehner and his House of Representatives will defend Section 3 of DOMA, no surprise to anyone.
In his statement, Boehner says, “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.” The cheap shot at the President is to be expected from a fellow politician. Certainly, Boehner knows perfectly well that no president could finally decide unilaterally whether a law is or is not unconstitutional, and Obama hasn’t made any claim like that. The President can offer the court his opinion, just as Boehner and his lawyers will, but in our constitutional system it’s up to the courts to make the final call about such things.
Interestingly, Boehner does mention that ultimate authority of the judicial branch, which is strange because that authority is, to the most conservative members of his party, a one-way ratchet. To their way of thinking, courts have authority to declare DOMA constitutional, but if they declare it unconstitutional, they will be judicial activists, defying the elected branches. That charge is as predictable as the sun rising in the east.
So now we have a situation where the Speaker of the House differs with the President about a law’s constitutionality. If the courts rule Section 3 unconstitutional, then, how would anyone determine whether the court got it right? The president who signed the bill isn’t in office any more, and the one who is says that, in his opinion, Section 3 is unconstitutional. The current leader of the House says it isn’t. How do you determine whether a court is activist or not if different political branches are of divided opinion?
This is exactly the reason making the judicial branch independent of the political branches was so profoundly important to America’s success. Politicians always disagree, sometimes for good reasons, sometimes for bad reasons, and sometimes for no reason at all. When it comes to the law, someone has to resolve differences of opinion, even if those differences arise over time. Courts are, above all, an institution that needs to transcend politics, as best they can, being composed of fallible human beings.
The constitutionality of Section 3 will now be both properly defended and properly challenged in the judicial branch, and it will be properly decided there. Boehner is right that the courts are the correct place for such a ruling, and I think we have a right to expect him to be consistent about that when the courts do make their final decision.