The Proposition that Presidents May Decline to Enforce Unconstitutional Statutes Is ‘Unassailable’ - By Andrew C. McCarthy - The Corner - National Review Online

The Proposition that Presidents May Decline to Enforce Unconstitutional Statutes Is ‘Unassailable’ - By Andrew C. McCarthy - The Corner - National Review Online

The problem with what the Obama administration is doing with DOMA is political, not legal. Nothing requires a president to defend or enforce a law he truly believes is unconstitutional, or even a law he believes is constitutional but chooses, in his discretion, not to enforce as a matter of policy (see, e.g., Obama on the immigration laws).

Putting the law to the side, it is outrageous for an administration to use its Justice Department’s privileged position as the lawyer for the United States to sabotage a case, and for a president to claim his legal position is evolving when, in fact, he is transparently pandering to a key constituency. Those are reasons to vote him out of office, and for Congress not to trust the administration to carry out the Justice Department’s mission faithfully — Congress ought to be slashing DOJ’s budget and holding aggressive DOJ oversight hearings. But I don’t see anything legally wrong with Obama’s refusal to defend DOMA. (FWIW, I think it’s ethically preposterous to claim DOMA is unconstitutional yet continue enforcing it — but, again, I think the idea is to hold Obama politically accountable.)

Can you say King Obama?