Today, President Barack Obama concluded, and Attorney General Eric Holder announced, that the administration will not defend the Defense of Marriage Act (DOMA).  DOMA defines marriage as between a man and a woman for the purposes of federal law, and clarifies that no state has to recognize a homosexual marriage from another state.  The President’s announcement is refreshing in its honesty, at least insofar as it drops the farce that the administration has been offering anything even remotely approaching a vigorous (and professional) defense of the federal statute.

On this count, even supporters of gay marriage have acknowledged that the Justice Department’s non-defense of DOMA to date has bordered on creating collusive litigation, and concluded that the “DOJ’s faint-hearted advocacy is no way to run a legal system.”  So, notwithstanding the President’s desire to undermine DOMA, his non-enforcement may actually bolster its prospect in the courts: by getting out of the way, the Justice Department will make way for competent and vigorous legal defense of the statute.

But the President’s decision is nonetheless a serious one.  While the President has a duty to interpret the Constitution through his decisions to enforce statutes, it is the well-established  policy of the Justice Department to defend a federal statute unless no reasonable argument may be made in its defense, or unless the statute would infringe on some core presidential constitutional authority (that is, the President doesn’t need to vigorously defend a federal statute that he believes infringes on his Article II power).  Applying this policy, the Executive Branch has traditionally defended federal statutes vigorously, even in cases where it had strong constitutional doubts, and where it had strong policy reservations.

For example, in his signing statement for the Bipartisan Campaign Reform Act, President Bush expressed his view that certain provisions of the act were likely unconstitutional.  Yet, the President and his Justice Department, through Solicitor General Ted Olson, vigorously defended the entire bill, including those constitutionally deficient provisions.   Olson succeeded in his defense, although he successfully attacked provisions of the same bill as unconstitutional after he left the Justice Department.

There are reasonable legal arguments to be made in defense of DOMA.  The Justice Department’s failure to make them to date, and the President’s abandonment of the case, appear to be judgments made not based on a determination of the availability of reasonable legal arguments, but based upon the policy preferences of the President.  That has never been the standard used by the Justice Department or any prior administration.

The President is now required by federal law (28 U.S.C. § 530D) to file a report to Congress within 30 days explaining the decision not to defend the law, “including a complete and detailed statement of the reasons for the policy or determination . . . .”  The courts of appeals will need to appoint counsel to defend the law.

Members of Congress, consistent with the law of standing, should seek to intervene in the case or file amicus briefs to assure that DOMA gets the vigorous defense that should be afforded to all federal statutes for which reasonable legal arguments may be offered – and which the President is refusing to provide.  Furthermore, the court should give special consideration to such intervening or amicus briefs as statements of the federal government in support of a statute, given the complete failure of the President to carry out his constitutional duty to “take care that the laws be faithfully executed.”