[This is a side discussion relating to this post, "Equality and the Rule of Law."]
As Marty Lederman has written, “The first category [of laws that the Justice Department has declined to defend] is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable.” That is plainly not the case here, where even the most successful Supreme Court decision since the law’s passage – Lawrence v. Texas – did nothing to change the standard of review of the military ban.
Lederman then notes, “The second category involves statutes that in DOJ’s view infringe the constitutional powers of the President himself.” These cases have traditional involved congressional passage of laws that directly conflict with presidential authority. The most noted of these cases is INS v. Chadha, where the executive branch refused to defend a portion of the Immigration and Nationality Act that authorized either chamber of Congress, effectively, to veto the decision of the executive branch regarding deportation of certain people from the country.
Lederman introduces the final as such: “The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional.” This, unfortunately, seems a much more broad of a category than it is. Note that Lederman describes it as the “smallest” category of these rare exceptions. The case most often cited for this exception is a 1946 case where the president refused to defend a law that prohibited payment to “certain employees of the Government” who were “specified by name” in the law. The Supreme Court agreed that the law was unconstitutional and struck it down.
The only other situations that don’t neatly fit into those categories – but overlap with them – include one situation when, in a case regarding “minority preference policies adopted by the Federal Communications Commission,” the Justice Department determined that the policy was unconstitutional. Now-Chief Justice John Roberts, then acting solicitor general in DOJ, argued against the FCC policies, but – important to note here – the Bush administration allowed the FCC to argue in defense of the policies. In other words, the government – just not the Justice Department – was still acting to defend the policies.
A final scenario, pointed out to me today by former Clinton White House lesbian and gay liaison Richard Socarides, was in 1996, when the Defense Department Authorization bill contained an amendment that then-White House counsel Jack Quinn described as “require[ing] the Armed Forces to toss out of the military everyone who is HIV positive.” President Clinton determined that this provision, which had not been subject at that point to review by any court, was unconstitutional. He, accordingly, directed the Justice Department not to defend the law.
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