Obama, DOMA and the Balance of Powers…

President Obama yesterday announced via his Attorney General Eric Holder that his administration would enforce, but not defend the 1996 Defense of Marriage Act (DOMA).

He took this action, claiming that the Defense of Marriage Act which defines in federal law marriage as a union of a man and a woman – passed by a vote of 85-14 in the Senate, 342 – 67 in the House, signed into law by President Clinton – was unconstitutional. Now if you wonder when the Executive Branch started deciding for itself which laws were constitutional and which were not, it appears the answer is “well, starting this week.”

Ed Whelan, President of the Ethics and Public Policy Center, had this observation over at Bench Notes:

“But it is logically incoherent for the Obama administration to refuse to defend DOMA on the ground that it’s clearly unconstitutional and to continue to enforce it. The obvious explanation for this incoherence is political: Obama doesn’t have the guts to take the political heat for not enforcing DOMA, but he’s hoping that his refusal to defend it will lead to court rulings that he can hide behind.”

And isn’t it curious that President Obama decides himself that a federal law is unconstitutional – free and clear from any input from SCOTUS – but is unmoved about his own health care law that a U.S. District Judge in Florida ruled unconstitutional.

When both the President and the Attorney General took office, they swore under oath to defend the Constitution. They never took an oath to interpret it.

Regardless of your position on the issue, can anyone really say the President is acting under law on this one? And if so, I would love to know how.

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