Thanks to the rule of law, Americans are not subject to the capricious rule of men. Instead, the laws apply equally to the high and the low alike. To achieve this end, the Founders separated powers and responsibilities within government, giving Congress the authority to make the laws and charging the president with the constitutionally imposed duty to “take care that the Laws be faithfully executed.”
At least that is how it is supposed to work. The Obama administration, however, increasingly has sought to implement policies through executive fiat that it has failed to achieve through legislation and to enforce such policies through selective nonenforcement of the laws.
Take, for example, the administration’s refusal to defend the Defense of Marriage Act (DOMA), which defines the word “marriage” for purposes of federal law as the legal union of a man and a woman. Guided by the president’s duty to “take care,” the Justice Department’s long-standing policy has been to defend all federal laws in court so long as they do not infringe on executive authority and so long as any reasonable, non-frivolous legal argument can be made. Accordingly, Justice vigorously defends federal laws even in cases in which it has constitutional doubts or in which the administration in power has deeply held policy differences. This has been the consistent position of Democratic and Republican administrations alike.
Or so it was. Attorney General Eric H. Holder Jr. justified President Obama’s decision to abandon what had been a fainthearted defense of DOMA by suggesting that courts should apply a standard of review that has never been adopted by a federal appeals court or the Supreme Court. This novel argument clearly does not comport with the long-standing, constitutionally guided executive policy of defending the law unless all arguments supporting it are frivolous. But it does comport with the policy preferences of the Obama administration.
Rather than go through the arduous and politically perilous path of seeking to repeal the law - which passed with overwhelming bipartisan support - the administration hopes to achieve the same end by neglecting its duty to defend. In this case, the House of Representatives has engaged the ever-capable Paul Clement to defend the law, but under our constitutional system, it should not have to go to such extraordinary lengths to assure that democratically enacted laws are defended in court.
More recently, the Department of Homeland Security provided another example of circumventing the legislative process - this time through nonenforcement. Last month, the department announced it would (1) halt all deportation proceedings against illegal immigrants who are attending school, have family in the military or are primarily responsible for other family members’ care, and (2) let them apply for work permits.
If you think this sounds familiar, you’re right. These are key provisions from the so-called Dream Act, which failed to pass in Congress. But why go through the difficult process of actually passing a politically unpopular law when you can achieve the same end by picking and choosing how it is that you enforce the law already on the books?
This new policy builds upon the president’s very selective enforcement of immigration laws, which the administration characterizes as focusing on persons who have committed other serious crimes (in addition to the crime of illegally entering the U.S.). Indeed, the Obama Justice Department has argued that an Arizona law that works hand in hand with existing federal immigration law should be superseded by the president’s policy decision to enforce the federal law only selectively.
Defining marriage for the purposes of federal law and creating exceptions to our immigration laws are important policy questions - ones that under our constitutional system are delegated to Congress. By picking and choosing which laws to defend and enforce, the Obama administration is circumventing Congress’ appropriate role and also is failing to take care that the laws are faithfully executed. Such actions weaken the rule-of-law protections of our constitutional system and drift us precariously closer to the rule of men.
• Robert Alt is deputy director of the Heritage Foundation’s Center for Legal and Judicial Studies.