Why the Administration's Failure to Defend DOMA Has Negative Implications for Liberty

I had not previously commented on the Department of Justice and Presidential decision not to put up a constitutional defense of the Defense of Marriage Act (DOMA). Initially, it did not appear to have implications for my main concerns, however, Orin Kerr, writing in Volokh, explains why this is a huge power grab by the executive branch.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended.

Once again the administration hasn't considered the long term implications of its legal positions. (Dean describes Attorney General Eric Holder as "that miserable hack" with good cause.) First, it is trying to push off Supreme Court review of the Affordable Care Act until after the 2012 election, which it very well could lose. Second, if its theories hold, then a Republican President could nullify the entire ACA by refusing to defend it, and conceding that the individual mandate is unconstitutional and not severable. In one neat stroke an entire piece of legislation is voided without proper political debate. As much as I loathe Obamacare (ACA), this is no way to run a Republic. Executive power has been the chief threat to liberty in my lifetime, adding to executive power is unlikely to advance the cause of freedom.