Equality Matters

Sen. Sessions Still Has No Idea What’s Happening With DOMA

April 01, 2011 5:55 pm ET

When the Senate Judiciary Committee held a confirmation hearing Wednesday to vet several Justice Department nominees, Republican Senator Jeff Sessions focused on one nominee in particular – Donald Verrilli – who, if confirmed, would become the next solicitor general of the United States. Sen. Sessions turned the hearing into an opportunity to grill Verrilli on the Justice Department’s decision not to defend Defense of Marriage Act (DOMA), rattling off a number of gross inaccuracies in the process.

Sessions Falsely Claimed Obama Supported DOMA During Presidential Campaign

Sessions: Obama Supported DOMA During His Campaign

SEN. SESSIONS: I am very troubled by this White House and the attorney general in failing to defend DOMA, the Defense of Marriage Act. It’s unacceptable. It cannot be justified. It was direct interference politically by the President of the United States who, during the campaign, said he accepted and supported this act. [Senate Judiciary Committee, 3/30/11]

Reality: Obama has openly favored the repeal of DOMA since he was a candidate in 2008 pledging to "fully repeal" the law. From an Obama ‘08 campaign memo:

Obama also believes we need to fully repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. [BarackObama.com, accessed 2/24/11]

Sessions Fabricated Illegality In DOJ’s Decision

Sessions: The Decision Not To Defend DOMA Did “Not Comply With The Law”

SEN. SESSIONS: I would suggest what should have happened. Solicitor General should have told the Attorney General, “We cannot not defend that statute; it does not comply with the law,” and the Attorney General should have told the President, “I know you may have changed your mind, Mr. President, but this is a statutory law passed by the Congress of the United States; it has been upheld constitutionally; and it has to be defended. We cannot fail to defend that statute.” [Senate Judiciary Committee, 3/30/11]

Reality: Legal Precedent Exists For Refusing To Defend Unconstitutional Laws In Court.  In his letter to Congressional leadership, Attorney General Holder clearly cites the basis upon which the government can legally choose not to defend legislation:

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.  However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a "reasonable" one. "[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity," and thus there are "a variety of factors that bear on whether the Department will defend the constitutionality of a statute."  Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996).  This is the rare case where the proper course is to forgo the defense of this statute.   Moreover, the Department has declined to defend a statute "in cases in which it is manifest that the President has concluded that the statute is unconstitutional," as is the case here.   Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).  [Department of Justice, Letter to Congressional Leadership, 2/23/11]

Reality: A 1994 DoJ Memorandum Clarifies Presidential Authority To Refuse To Enforce Unconstitutional Laws. A 1994 memorandum issued by the Department of Justice cites numerous legal decisions establishing the "unassailable" basis for the Executive Branch to not enforce a statute they view as unconstitutional:

Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute.


Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. 


While the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable, it does not offer sufficient guidance as to the appropriate course in specific circumstances. [Department of Justice Memorandum, 11/2/94]

Hypocrisy: Sessions Previously Endorsed A Candidate Who Asked Supreme Court To Overturn Law Of Congress

Sessions: The Solicitor General Has a Duty “As A Matter Of Integrity” To “Defend The Lawful Statutes Of Congress.”

SEN. SESSIONS: I would ask you this question: Not only should not, as a matter of integrity, the Solicitor General defend the lawful statutes of Congress, those, if they have a basis to be defended within the standards as you’ve articulated them, but don’t you have a duty to not, in any way undermine the defense of those statutes. Take any action that would weaken the defense of those statutes in court.


The failure to defend a perfectly defensible statute -- maybe people can disagree about its constitutionality, but not that it’s defensible or not. And I supported Attorney General Holder and have tried not to be a carping critic any more than necessary, but this one really hit me hard, and I think it goes to the integrity of the Department. [Senate Judiciary Committee, 3/30/11]

Reality: In 2005, Sen. Sessions Voted To Confirm John Roberts As Chief Justice Of The United States Supreme Court.  Sessions voted to approve Roberts to the Supreme Court, speaking highly of his love for the law and court:

SESSIONS: I think, Mr. Rice, that Judge Roberts has a value that he's expressed articulately, beautifully, repeatedly that he loves the law, he loves the court, and he believes a court has a role to be a neutral arbiter and not to impose its personal views. And I don't think he brings that because he may be politically conservative and believes in lower taxes or whatever he believes in politically. I think that's his deepest and highest value that was repeatedly stated here many, many times, and I think that's exactly what we need in the courts of America today. And I think the people of this country will be more respectful of the court if the court returns to that role. That's my personal view. [U.S. Senate Judicicary Committee hearing on the nomination of John Roberts to be Chief Justice of the Supreme Court, via Nexis, 9/15/05]

While In The Solicitor General’s Office, Roberts Asked The Supreme Court To Invalidate Congressional Statutes. As Former Justice Department Attorney Martin Lederman explained in 2005, while Supreme Court Chief Justice John Roberts worked in President George H. W. Bush's Office of the Solicitor General, he was instrumental in the decision for the Justice Department not to defend federal statutes that required minority preferences in broadcast licensing in Metro Broadcasting v. Federal Communications Commission:

[A] memo in the files of Associate White House Counsel Fred Nelson (see the back page of this) reveals that Roberts was "[r]eluctant to defend [the] commission's position." In the Supreme Court, the Department of Justice not only did not defend the federal statutes -- it urged the Court to declare them unconstitutional. Acting Solicitor General Roberts, appearing on behalf of the United States as amicus curiae, argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. The Acting SG's amicus brief went further still: It urged the court to reject the deference to Congress suggested in Fullilove, and to apply strict scrutiny to federal affirmative action programs (a position that would, of course, restrict Congress's future legislative prerogatives -- i.e., that would substantially limit federal power). [Balkinization, emphasis added, 9/8/05]

Sessions Misconstrued DOJ’s Position On Defending DOMA

Sessions: Obama Is Wrong For Arguing DOMA Is “Indefensible.” In his statement, Sessions went on to say:

SEN. SESSIONS: To say that act is indefensible constitutionally cannot be justified. Two district courts have upheld it in Washington and Florida. Five federal courts have dismissed challenges to this act. Two district courts have found it unconstitutional. But to say it can’t be defended is not correct. And would you not agree that in terms of all the people in the Department of Justice the solicitor general is the person that, often called the ninth – the tenth justice of the Supreme Court, the one that has to stand firmest to defend the rule of law? [Senate Judiciary Committee, 3/30/11]

Reality: Obama And The Justice Department Said DOMA Was Defensible But Not In Cases That Require Heightened Scrutiny. As Attorney General Holder explained in his letter to Congressional Leadership:

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision.   In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny.   Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.).   Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.ii

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue.   As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.


If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. [Department of Justice, Letter to Congressional Leadership, 2/23/11, emphasis added]


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&mdash C.M.

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