Tuesday, March 26, 2013

CRASH: On "Executive Nullification", DOMA, and Prop 8

Aside from whether the Supremes will find a new "constitutional right" for "gay marriage", there are some extremely important issues before them regarding separation of power. 
Today’s arguments deal with Prop. 8, which Jerry Brown refused to defend in court. Tomorrow’s arguments deal with DOMA, which Barack Obama and Eric Holder refused to defend in court. Indeed, Obama is sending in his Solicitor General to argue for DOMA to be struck down — and his argument, carried to its logical conclusion, would lead to gay marriage being legalized in all 50 states.
The immediate issue is whether lawyers not representing the State of California (for Prop. 8) or the United States (for DOMA) have standing to defend legislation when the executive has decided they will not. If the Supreme Court ultimately holds that the groups now defending DOMA or Prop. 8 have no standing in court to defend the measures, it would essentially confer a backdoor executive veto on any legislation that an executive doesn’t like. You disagree with a law? Don’t bother engaging in the political process and trying to get it overturned. Just wait until your guy sits in the governor’s office or the Oval Office, and have someone bring a lawsuit.
Your guy will refuse to defend the legislation, and BOOM! you’re done. The lawsuit wins, the legislation gets invalidated, and there’s nobody around with any right to complain about it. Easy as pie!
I agree with this, and note that there are several really important issues balled up in this case, besides the issue of “gay marriage”.

The concept of “nullification” has a lot of costs/benefits, and I’m not sure how they would weigh out in the end. But what Brown and Obama have done sets a very dangerous precedent for “executive nullification”. I don’t see any natural limit to how far down the governmental ladder that goes.

Nor do I see how you have a “law of the land” concept operative under it, since executives in each jurisdiction could readily decide differently which laws they would enforce (i.e., sheriffs).

1 comment:

  1. As long as executives enforce only the laws as written (only subtracting, not adding), a little nullification would be a good thing. Indeed, a vast majority of laws ban actions that aren't wrong -- and as far as I'm concerned, everyone's first duty is to be just, not to follow whatever rules the politicians make.