August 18, 2011 3:24 pm ET
On a conference call with several bloggers Tuesday night, GOP presidential candidate and former Godfather’s Pizza CEO Herman Cain said it would be “a great thing” to impeach President Obama for refusing to defend the 1996 Defense of Marriage Act (DOMA) in court. According to Cain, Obama’s decision not to “uphold the laws of this nation” amounted to “an impeachable offense.” Following his logic, Cain would have also thought it was “a great thing” to impeach former Presidents Reagan, H.W. Bush, Clinton, and W. Bush, who all chose not to defend laws they viewed as unconstitutional.
Cain Told Bloggers That He Would Support Impeaching President Obama Over His Decision Not To Defend DOMA. As Politico reported:
Asked on a conference call with bloggers this evening why Republicans can't just impeach Barack Obama, Herman Cain answers that it's mostly a matter of legislative politics, POLITICO's Elizabeth Titus reports:
"That’s a great question and it is a great — it would be a great thing to do but because the Senate is controlled by Democrats we would never be able to get the Senate first to take up that action, because they simply don’t care what the American public thinks. They would protect him and they wouldn’t even bring it up," Cain said, citing the administration's position on the Defense of Marriage Act as an impeachable offense.
More from his answer: "So the main stumbling block in terms of getting him impeached on a whole list of things such as trying to pass a health care mandate which is unconstitutional, ordering the Department of Justice to not enforce the Defense of Marriage Act — that’s an impeachable offense right there. The president is supposed to uphold the laws of this nation … and to tell the Department of Justice not to uphold the Defense of Marriage Act is a breach of his oath. … There are a number of things where a case could be made in order to impeach him, but because Republicans do not control the United States Senate, they would never allow it to get off the ground." [Politico, 8/16/11, emphasis added]
Cain Has Previously Claimed Obama’s DOMA Decision “Border[ed] On Treason.” During an interview with the American Family Association’s Bryan Fischer in February, Cain called the Obama administration’s DOMA decision “a breach of presidential duty bordering on treason”:
FISCHER: I want to give you an opportunity, Herman, as a possible 2012 candidate: what is your take on President Obama's refusal to defend the institution of natural marriage?
CAIN: I think it is a breach of presidential duty bordering on treason. The oath of office by the president says that he will protect, observe, and defend the Constitution of the United States of America, which means all of its subsequent laws. The fact that he says that he has asked the Department of Justice not to enforce it, to me, is a breach duty as President of the United States. [Right Wing Watch, 2/28/11]
George W. Bush DOJ Didn’t Defend A Law Prohibiting The Display Of Marijuana Policy Reform Ads. In ACLU et al., v. Norman Y Mineta, the Justice Department chose not to defend a law prohibiting the display of marijuana policy reform ads in public transportation systems:
The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems. The controversial statute was recently ruled unconstitutional by a federal district court. The Solicitor General Paul Clement stated in a letter to Congress that, "the government does not have a viable argument to advance in the statute's defense and will not appeal the district court's decision." [ACLU, 1/26/05]
Clinton Administration Didn’t Defend A Law Requiring Dismissal Of HIV-Positive Service Members. In a 1996 press briefing, Jack Quinn, then counsel to President Clinton, stated that the Clinton administration would not defend a law requiring the dismissal of HIV-positive men and women serving in the armed forces, because they deemed it unconstitutional:
QUINN: As Mike indicated, we anticipate that tomorrow the President will sign the Department of Defense Authorization bill. As you also know, the President's indicated previously that there's a provision in that bill that he finds completely abhorrent and offensive -- the Dornan Amendment, which would require the Armed Forces to toss out of the military everyone who is HIV positive, no matter what the cause of that affliction, and despite the fact that these people are physically and medically able to perform their military duties.
This provision of the bill, in the President's judgment, is mean-spirited and serves no purpose other than to punish people who deserve this government's help, not its hatred.
The President's response to this provision is three parts. First, we will vigorously support the Kennedy-Cohen legislation which we anticipate will soon be introduced to repeal the Dornan Amendment. The President calls upon Congress to act swiftly on this legislation and pass it.
The second, the President has determined that this provision is unconstitutional. He's, therefore, directed the Attorney General not to defend it in court. The President has been informed in this regard by the Department of Defense that in its judgment the Dornan Amendment serves no legitimate military purpose; that it is arbitrary, unwarranted, and unwise. [White House Press Briefing by Jack Quinn and Walter Dellinger on HIV Provision via Clinton Presidential Center, 2/9/96]
George H. W. Bush Didn’t Defend Federal Statutes That Required Minority Preferences In Broadcast Licensing. 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, 9/8/05]
Ronald Reagan Chose Not To Defend A Congressional Resolution Vetoing An INS Deportation Decision. In INS v. Chadha, the Reagan administration was actively involved in arguing that a law passed by Congress was unconstitutional:
Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional. The Court of Appeals held that § 244(c)(2) violates the constitutional doctrine of separation of powers, and accordingly directed the Attorney General to cease taking any steps to deport Chadha based upon the House Resolution. [Syllabus, INS v. Chadha, accessed 2/24/11]
1994 DOJ Memo Outlines Circumstances In Which The President May Appropriately Decline To Enforce A Statute That He Views As Unconstitutional. From 1994 Department of Justice memorandum, written by then-Assistant Attorney General Walter Dellinger:
I have reflected further on the difficult questions surrounding a President's decision to decline to execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts to share with you. 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. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).
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. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).
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]
Legal Scholar: “The President’s Duty To Preserve, Protect, And Defend The Constitution Requires The President To Disregard Unconstitutional Statutes.” From a paper by University of Virginia Law School professor Saikrishna Prakash, published in the Georgetown Law Journal:
Recent Presidents have claimed a power to disregard statutes that they deem unconstitutional, prompting critics to make an array of arguments against these assertions. As a matter of text, the Faithful Execution Clause supposedly bars such non-enforcement. As a matter of history, the English Parliament specifically prohibited a royal discretionary power to disregard statutes. Moreover, American Presidents did not exercise a power to disregard unconstitutional laws until almost a century after the Constitution's creation. Taken together, these arguments are said to refute the regal pretensions of modern Presidents. This Article serves as an antidote to such claims, while sharpening our understanding of the proper Executive Branch stance towards unconstitutional statutes. The critics are correct in supposing that the President lacks a discretionary power to disregard unconstitutional statutes; instead, the Constitution is best read as obliging the President to disregard statutes he regards as unconstitutional. First, the Constitution never empowers the President to enforce unconstitutional statutes. He no more has the power to enforce such statutes than he has power to enforce the statutes of Georgia or Germany. Second, the President's duty to preserve, protect, and defend the Constitution requires the President to disregard unconstitutional statutes. When the President enforces a statute he regards as unconstitutional, he violates the Constitution no less than if he were to imprison citizens without hope of trial. Third, the Faithful Execution Clause requires the President to choose the Constitution over unconstitutional laws, in the same way that courts must choose the former over the latter. Consistent with these understandings, John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws. Indeed, President Jefferson halted Sedition Act prosecutions on grounds that the Act was unconstitutional. According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it. [Georgetown Law Journal, June 2008]
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