Diary

Executive Nullification

It’s appropriate for a president to veto a law on the grounds that it is unconstitutional in his opinion. Many have done so.

But imagine if, as Attorney General Eric Holder has announced regarding the Defense of Marriage Act (DOMA) the executive refused to defend the constitutionality of settled laws (DOMA, signed by Clinton, has been on the books since 1998) based on whether the current president agreed with them?

When a plaintiff (recruited by the president’s party) filed suit and the AG refused to defend it, lacking a defense, the court would enter a default judgment for the plaintiff. Without an appeal, the issue would never even get to the Supreme Court; individual federal judges might throw out major pieces of legislation without appellate review.

A president would suddenly gain, in effect, the power to overturn laws he didn’t like without Congress having to repeal them.

Liberals should be careful how they applaud this choice by the Obama administration. What if a future Republican president were to refuse to defend the constitutionality of the Social Security Act? Or the Income Tax Code?

Presidents shouldn’t have this sort of power by themselves.

OTOH, perhaps Republican presidential candidates should be rushing to microphones to be the first to announce that, if elected, they will appoint an Attorney General who will not defend the constitutionality of Obamacare.