Here’s What Happens if Congress Decides to Defend DOMA Itself

So here’s the situation: the Obama administration announced last week
that it now believes the Defense of Marriage Act is unconstitutional and
will no longer defend it in court. That said, it also will not provide health care benefits to the
same-sex partners of federal employees: DOMA defines marriage as between one
man and one woman, and the administration will continue to to enforce
the law even if it doesn’t defend it in court. Bizarre.

In any event, Congress can continue to
defend the law if it wants to–federal statute allows an intervention if
the Obama administration Justice Department won’t do so, the Heritage Foundation’s Hans von Spakovsky explains. Basically, the Senate can vote to have its legal counsel appear on behalf of the chamber in place of the Justice Department. The House can do that, or hire private counsel. House
Majority Leader Eric Cantor says Congress will begin action if Obama doesn’t
move to defend DOMA by Friday. Speaker John Boehner says he’s explored
the possibility of hiring a special counsel; his staff is researching
several legal options, Politico’s Scott Wong and Simmi Aujla report.

Then what? In 1990, the Bush Justice Department refused to defend a rule requiring affirmative action when handing out licenses to broadcasters, so the Federal Communications Commission filed its own brief. The Supreme Court sided with the FCC. (Interestingly, the solicitor general who wouldn’t defend the rule was John Roberts, the current Chief Justice.) On the other hand, President Clinton refused to defend a law that kicked people with HIV out of the military. The law was eventually repealed. Presumably, Obama hopes the issue plays out more like the latter example.

Congress decides to do, the point is Obama isn’t the first president to tread this path,
Nina Totenberg reports for NPR. Here are a few of the examples she lists:

  • Eisenhower, Kennedy, Truman: wouldn’t defend laws establishing separate but equal facilities
  • Ford: new limits on campaign finance passed after Watergate
  • Reagan: laws establishing an independent counsel law and legislative veto by one house of Congress
  • Clinton: law requiring military service members to be fired if they had HIV
  • George W. Bush: affirmative action in awarding licenses to broadcasters

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