The Indefensibility of Refusing to Defend the Defense of Marriage Act

That’s what the Amicus Brief filed by the Claremont Institute in the case United States v. Windsor is claiming.

It touches on this admittedly interesting question:

Whether the President can deprive this Court of jurisdiction to consider the constitutionality of an act of Congress by refusing to defend the act when it is challenged?

A strange situation useful perhaps to consider in certain con-law classes focused on issues like “standing”, but note well. In my essay below calling for Democrat Leaders who are Forthright Supporters of the Constitution, I said that such leaders “will shy away from acts of questionable constitutionality.” Well, that’s not Obama.

And I said that the bad So-to-Speak-Supporters of the Constitution “take . . . dubiously constitutional actions . . . that are difficult or impossible to apply a “check or balance” to, and . . . difficult or impossible to successfully challenge in court.”

Well, that is.

The Claremont brief reminds us at one point of what is at stake:

The Bipartisan Legal Advisory Group, as the duly authorized representative of the House of Representatives, also has standing to intervene as a party to defend statutes adopted by Congress, particularly when the President abrogates his duty to “take care that the laws be faithfully executed.” To hold otherwise would give the President a de facto authority to suspend the law, the very concern that the Take Care Clause was designed to protect against.