White House sets dangerous precedent

U.S. Attorney General Eric Holder announced Wednesday that the Obama administration “will no longer defend” the Defense of Marriage Act. DOMA, a 1996 law that allows states to not recognize same-sex marriages performed in other states, was seen as an appropriate compromise in the mid-90s, but has since become a lightning rod for criticism from gay rights activists.

Julia Vann | Daily Trojan

In his announcement, Holder clarified that the administration will continue to enforce the law, as is its constitutional responsibility, but that both he and President Barack Obama had concluded that the law itself, in particular Section 3, which defines marriage at the federal level as between a man and a woman, was not constitutional.

Therefore, the President has encouraged the courts to re-evaluate the Act and instructed the Justice Department to stop defending it in trial, while still permitting civil society groups to do so.

It is important to note that Obama’s decision does not, despite a widely seen Fox News report that was subsequently shown to be completely false, shirk the executive branch’s constitutional duties. The administration is not breaking any laws.

It is, however,  throwing the considerable power of the Presidency behind the cause of gay rights in a controversial way, as it is unclear that the Justice Department’s role is to actively oppose in court the very same laws it is expected to enforce on the street.

For this reason, Obama and Holder’s decision sets a dangerous precedent. Regardless of one’s position on gay marriage — I happen to agree that Section 3 of DOMA violates LGBT community members’ constitutional rights — this is not the proper means through which to reach a desired end.

In part, the problem with the Justice Department’s new policy is that it is part of a trend. Last year, Holder announced that the Justice Department would no longer enforce federal laws against medical marijuana in states that permit its sale and use.

This was another sensible idea, that the federal government should not be wasting its resources chasing the perpetrators of relatively harmless activities sanctioned by the states, but again it was achieved through questionable means.

The combination of these two policies establishes the expectation that Presidents can use their executive power to steer the law a certain way. That is supposed to be the purview of Congress.

Though I have written here before that the American system of government is currently biased in favor of the legislature, the Justice Department’s actions in these instances go too far and target the wrong policy areas.

It is important for the President to have more autonomy in economic and national security policy, which can be dangerously muddled by Congressional politicking.

On social matters such as gay marriage and drug enforcement, however, it is the give and take of Congress that leads laws to change gradually over time.

The Obama administration’s new DOMA policy is not only of questionable constitutionality, it is also poor strategy.

By establishing a standard that the President can use the power of the Justice Department to affect change in the law, Obama is leaving room for his hard-fought victories to be overturned easily by future ideological opponents.

The next Republican president could, for example, use Obama’s model to oppose health insurance reform or even gay marriage itself, by lending federal support to states that will surely continue to fight it after its inevitable legalization.

This hypothetical situation demonstrates how shifting the prerogative for social change from Congress to the Executive branch could lead to wilder swings in policy, replacing the gradual reform that has marked most of American history.

Though at times American gradualism can be frustrating, it at least reflects public opinion and avoids the possibility of regression.

Our traditional channels of social change, popular opinion leading to legislative and judicial reforms, are worth preserving.

Despite Obama’s great intentions in fighting DOMA, his new policy risks winning the battle, but losing the war.

Daniel Charnoff is a senior majoring in international relations (global business). His column, “Through the Static,” runs Fridays.

12 replies
  1. a law student
    a law student says:

    Daily Trojan, I do not have the patience for any more of these articles. Please educate your writers on the constitution before you let them write about it. When you don’t, it severely hurts our reputation as an intelligent school. Some of us would like to get jobs after we graduate.

    • I love the Daily Trojan
      I love the Daily Trojan says:

      @a law student: RIGHT ON! So many articles in the Daily Trojan make the students look like idiots. I recently moved here from a Cambridge, MA Ivy League school and if I only read the newspaper, I would think USC was one of the dumbest campuses I have ever worked on! Fortunately, I interact with smart, wonderful USC students every day.

    • USC Dad
      USC Dad says:

      Perhaps the Author should have used “Slippery Slope” instead of “Dangerous Precedent”. But please (a law student) tell us how the author is “uneducated” (my words) on the US Constitution?
      You made a broad general statement w/o specifics.

  2. Absurdity
    Absurdity says:

    I find this utterly confusing. I heard the other day on Democracy Now! that this will allow gay people to bring their loved ones into the US that might currently have no way other than applying for immigration to be with their partner and use the marriage entitlement to make them legal citizens. While this would be a nice thing for those that are separated does one have to live in a state that currently allows for legal unions or have we revived the full faith of the government? And if one would legalize a loved one will it or can it be overturned with the next whim of the next president? I don’t like purgatory but that’s what this feels like. I would prefer to know how to navigate my rights and the law.

    Similarly, in PA they have started banning of cellphone use while driving vehicles but they’ve been doing it by municipality. Some only target texting while other muni’s target cellphones in general. How is one to know when they take a trip to visit a relative or friend and cross muni or even state lines and get pulled over every 10 miles to be given a new ticket? It’s madness and just a money maker for muni’s that decide to enforce it. But it seems to me that it should be unenforceable because one has no way of knowing the laws of every municipality and state. It places too much of a burden on the driver.

  3. Christopher Ganiere
    Christopher Ganiere says:

    So what will the next law be that this president will not defend? Privacy Laws? Property Rights? Drug laws? Labor rights? Clean air? Torture? DMCA?

    Our country is founded with three pillars. Each is distinct. Each has a specific responsibility. Make law, Enforce Law, Judge Law.

    What happens when one branch of government doesn’t do its job? I agree this is a terrible precedent when a government worker intentionally does less than his best. Does the TSA worker have the right to judge the law and stop screening luggage because it violates privacy rights in that TSA worker’s opinion?

    Normal people quit or resign when they cannot do their job.

    • I love the Daily Trojan
      I love the Daily Trojan says:

      @Christopher Ganiere: Are you paying to go to school at USC? If so, you need to ask for a refund for some of your early course work. I can’t believe what you wrote in this comment!

  4. Old Alum Who Stumbled on this Idiocy
    Old Alum Who Stumbled on this Idiocy says:

    What Mr. Charnoff is missing is that this case, filed in the Second Circuit Court of Appeals turns specifically on the issue of whether gays constitute a “suspect class.” This is a brilliant piece of legal strategy on the part of gay rights activists. What it means is that it’s not enough to argue that DOMA is the will of the Congress — if Obama wants to defend DOMA (a law not worth defending if there ever were one) then he actually has to instruct his Attorney General to go to court and argue that gays have never been discriminated against in the history of the United States. Good luck with that one, buddy.

  5. I love the Daily Trojan
    I love the Daily Trojan says:

    I love that Daniel Charnoff, a senior majoring in international relations, believes he has a better idea of how the President’s actions will affect the future of politics in the US than the President and the Justice Department. Ha!

    • Just a thought
      Just a thought says:

      Hey, brainwashed College Student,
      He’s writing an opinion. I’m sorry you don’t agree with him but if you keep up your intolerance of others some people may think your a republican. Now, if you think the president knows better on how to affect the future of politics you better ask the college for a full refund of ALL your classes because obviously you didn’t see the results of the last election.

        • Just a thought
          Just a thought says:

          It only took one post for you to start the ad hominem attacks…I love the hypocrisy of tolerant liberals.

  6. Chief Justice Marshall
    Chief Justice Marshall says:

    “The combination of these two policies establishes the expectation that Presidents can use their executive power to steer the law a certain way. That is supposed to be the purview of Congress.”

    Really? See, e.g., Presidential veto power, Marbury v. Madison (authorizing judicial review).

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