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Soapbox Philosophy: Obama uses neglect to undermine
by Gregory R. Norfleet · Op-Ed · March 02, 2011
Anyone who disagreed with President George W. Bush’s use of “signing statements” to guide the executive branch in how to interpret laws he signed — yet contained sections with which he disagreed — ought to be even more upset with President Barack Obama’s decision to order the Department of Justice to stop enforcing a key section of the Defense of Marriage Act.
Public defenders have the unenviable job of devising a defense for suspects with criminal histories, even when all evidence clearly points to the defendant. As long as the defendant refuses to plead guilty, his or her appointed attorney has a professional duty to perform, regardless of personal opinion or feelings.
The same is true for the U.S. Department of Justice when federal laws, even ones in which they personally disagree, are challenged. By accepting Obama’s direction to stop defending DOMA, they have thus agreed to neglect their duty to the American people. It would be no different if a criminal suspect’s attorney decided to not bother showing up for court because he believed the defendant guilty.
Article II, Section 3 of the U.S. Constitution requires that the executive branch “take care that the laws be faithfully executed.” Should Obama argue that DOMA conflicts with the last part of his oath of office to “preserve, protect and defend the Constitution of the United States,” I would argue that he is not taking the appropriate steps to repeal a law in which he disagrees. By ordering the DOJ to stop doing its job on Section 3 of DOMA — which defines marriage for federal purposes as the union of one man and one woman — he is undermining the separation of powers and federal checks and balances.
This is a naked abuse of federal power and our president’s impatience with a law in which he disagrees but cannot find legislative support for repeal nor judicial support to overturn.
The 15-year-old law was overwhelmingly approved by a Republican Congress, signed by a Democratic president and has been unsuccessfully challenged in federal court. That means that in the past 15 years, all three branches of government weighed in and, in the end, supported it. Only two of those branches have the power to remove DOMA, in whole or in part, and the executive branch is not one of them.
Bush disagreed with the McCain-Feingold campaign finance law on First Amendment grounds, but the government defended it before the Supreme Court. Bush also opposed abortion, but government officials who answer to him enforced laws protecting abortion clinics.
For those who hailed Obama’s decision last week, stop and consider the long-term consequences of other presidents following this example. Imagine President Mike Huckabee or President Sarah Palin ordering federal departments to stop enforcing the recent health care overhaul provisions.
There is a process for overturning or repealing laws. The president does not have the luxury of picking and choosing the laws he will enforce.
While I personally support DOMA, and that support is what prompted this column, this writing is not an effort to defend it. Also I am not concerned with Republicans stepping in to pick up what the DOJ has laid down. Despite some like Salon.com’s Linda Hirschman, who believes Obama has put the GOP into an untenable predicament, I don’t think it would be difficult for conservatives to respond to the two existing federal cases against DOMA, especially with case history on their side.
I write this to hold my president accountable to his responsibilities as the head of the executive branch.
He, and my country’s attorney general, need to do their jobs. And to have patience and faith in the tried-and-true democratic process.
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