Precedent for Presidential Refusal to Defend Statutes the Administration Believes to be Unconstitutional

Last week, I defended President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act, on the grounds that the administration has concluded that it is unconstitutional. Although I disagree with some of the administration’s specific legal arguments in this case, I think the president’s duty to defend the Constitution supersedes his obligation to uphold federal statutes when the two conflict.

As I mentioned in the earlier post, this is not the first time that an administration has refused to defend a federal law on such grounds.
NPR recently published a helpful summary of similar decisions by previous administrations, including various Republican ones:

While the administration’s DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.

During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote.

The fact that Republican administrations have done the same thing in the past doesn’t necessarily prove that Obama’s decision was justified. After all, as Obama himself would be quick to agree, Republican administrations make plenty of mistakes too.

The history does, however, support my point that presidential refusal to defend the constitutional of a statute doesn’t automatically lead to its defeat in Court. As NPR notes, the courts ended up upholding the challenged law in many of the cases where an administration chose not to defend it. More importantly, in all these cases the law was effectively defended by other parties, even if it was ultimately struck down.