I would like to agree with Gary Endelman's conclusion in his article DOMA: What President Obama Can Do Now (07/08/ID), that the Obama's administration's reasons for refusing to disregard DOMA with regard to the issue of recognizing same sex marriages for as a basis for permanent residence are political, rather than legal. I made the same point in my comment in the 07/07/ID.
I also agree with Mr. Endelman that DOMA is unconstitutional, as I also mentioned in my 07/07 comment. Then why am I questioning Mr. Endelman's conclusions now? First, it is always useful to have someone to act as a devil's advocate. My following comments are written in that spirit. Second, even though I would like to be able to support Mr. Endelman's conclusion that the president has and should use the power to disregard DOMA and instruct DHS to issue green cards on the basis of a same sex marriage, I believe that there are some basic questions that need to be addressed first.
In support of his conclusion that the president has the discretion to disregard an act of Congress, such as DOMA, for constitutional reasons, Mr. Endelman puts forward the so-called "Dellinger Model", which was advanced in a 1994 opinion by then Assistant Attorney General Walter Dellinger. However, Mr. Endelman cites a questionable authority in support of the Dellinger model, namely an article by Professor Saikrishna Prakash: The Executive's Duty to Disregard Unconstitutional Laws 96 Georgetown Law Journal No. 5 1613, 1626-1627 (2008).
Professor Prakash mentions the Dellinger Model as a possible theory to justify executive branch discretion to disregard an act of Congress that a president believes to be unconstitutional. But he then rejects the Dellinger Model. Why? As the title of his article makes clear, he believes that the president has a duty, not merely the discretion, to disregard any law that he (or she) thinks is unconstitutional.
In Professor Prakash's view (if I understand his article correctly), if the president determines that a given law is unconstitutional, he (or she) is barred from enforcing it, because an unconstitutional statute is void ab initio. But an article contending that the president lacks discretion in dealing with an allegedly unconstitutional statute provides rather thin support for Mr. Endelman's conclusion that the president should disregard DOMA as a matter of discretion.
As described in the Prakash article, there are three conditions in the Dellinger Model for using executive discretion to disregard a statute the president believes to be unconstitutional. These conditions, clearly, are meant to put restraints on the use of executive power. The first condition is that the president must "believe" that the Supreme Court would judge the Statute to be unconstitutional. But what kind of restraint on unlimited executive power is that? Has there ever been a president with a view on any issue who did not believe that the Supreme Court would agree with him, if only the Court could see the light?
The second precondition for the use of presidential discretion, according to the Dellinger Model, is that the "Judiciary's views play a central role in the constitutional analysis". But what better way is there to make sure that the Judiciary is left out of this process than to give the president authority to disregard an act of Congress without waiting for the Supreme Court to rule on it? It might be more accurate to call this second condition part of the "Orwellian Model".
Third, the Dellinger Model appears to assume that the president would use the discretion to disregard an act of Congress responsibly and cautiously. But even if we trust President Obama to do so in the field of immigration (and what is responsible and cautious about "Secure Communities"?) how can we be assured that this would necessarily be the case in the future?
Just as President George W. Bush used his theory of the "unitary excecutive" in order, allegedly, to torture prisoners at Guantanamo, a future President Michele Bachmann might use her "discretion" to cut off all "unconstitutional" Social Security benefits, or abolish "unconstitutional" Medicare, "Obamacare" health care reform (which is already running into constitutional headwinds in the courts), the minimum wage, union rights or the income tax itself (not to mention Roe v.Wade).
Bachmann, or someone like her, might also try to destroy, on "constitutional" grounds, any vestiges of immigrant rights (such as they are). Suppose, for example, that she were to determine that the recent Supreme Court decision in Padilla v. Kentucky was wrongly decided and that, upon reconsideration, the Court would realize the "error" of its ways and overturn it.
Under Professor Prakash's reasoning, a Bachmann administration might in that case be obligated to remove people who had been convicted of deportable crimes but never advised of the potential consequences of a conviction by competent counsel, even without a new Supreme Court ruling. Under the Dellinger Model favored by Mr. Endelman, a President Bachmann might have the discretion to disregard the Padilla decision and apply the law as it was prior to that decision, based purely on her own view of the Constitution.
Both Mr. Endelman and Professor Prakash themselves warn against the dangers for abuse of their respective expansionary theories of presidential power. They are right to do so. We should take their warnings seriously. One only wishes that they has both been clearer about where the line is between legitimate presidential authority to disregard an act of Congress for constitutional reasons and outright executive branch dictatorship.
Mr. Endelman and Mr. Prakash also rely on the Supreme Court decision in Myers v. US 272 US 52 (decided in 1926, not 1976, as stated in Mr. Endleman's article through obvious typograpical error) to support their differing, if not conflicting, theories of broad executive power to disregard anything that the president thinks is an "unconstitutional" law. This is not the place to go into the details of that lengthy and complicated decision. It is enough for the purpose of this comment to note that the Myers decision was not unanimous. One of the dissenting Justices was named Oliver Wendell Holmes. Another was named Louis D. Brandeis.
Do my above comments mean that I no longer agree that the president can and should disregard DOMA? Not necessarily. The evil of discrimination against individuals in same sex relationships codified in DOMA is so heinous that the administration should look hard for a justification to disregard that law, without waiting for the Supreme Court to strike it down. I wish that I could suggest one. But I do not have any magic bullets.
(On the question whether the Supreme Court will ultimately strike down DOMA , I am a good deal less sanguine than Mr. Endelman. Of course, that would be the right decision, for the reasons stated in the landmark decision (and the concurring opinion of Justice O'Connor) in Lawrence v. Texas, discussed in my analysis of this decision last week. But we should not forget the Court's right wing Justices' obsession with "Original Intent". How many of the framers or signers of the Constitution would have been willing to recognize same sex marriages? Perhaps someone can provide a list.)
But in order to avoid opening the door to potential dictatorship by the executive branch (of which we had a foretaste in President George W. Bush's notorious "signing statements") any justification for presidential nullification of an act of Congress should rest on stronger grounds than those suggested in Professor Prakash's and Mr. Endelman's otherwise well reasoned and thoughtful articles.
Many of us would like to bestow more executive power on President Obama in the (as yet unrealized) hope that expanded presidential discretion might be used in order to apply the immigration laws in a more just, humane and rational way, as well as in connection with other vital issues. But as pro-immigration advocates, or progressives of any stripe, we need to be careful what we wish for.
Would we also be willing to recognize broad discretionary power, let alone a duty, to disregard an act of Congress for constitutional reasons without a Supreme Court ruling on the part of a President Bachmann or a President Palin? That question answers itself.