OPINION:
The recent announcement by the Obama administration that it will no longer defend the provisions of the Defense of Marriage Act raises serious questions regarding the role of the executive branch in our constitutional republic (“Obama gets out of way of gay marriage,” Page 1, Thursday).
By unilaterally declaring the act unconstitutional, the Obama administration has, to some extent, usurped the judicial role in interpreting the Constitution of the United States and has assumed unto itself legislative powers, in effect, repealing a duly enacted act of Congress.
Executive branch authority to make determinations regarding the constitutionality of duly enacted laws is uncertain at best and may seriously undermine the “separation of powers” delineated by the Constitution. Article II of the Constitution provides for an oath of office in which the president swears to “faithfully execute the Office of President” and “preserve, protect and defend the Constitution of the United States.” Article II also provides that the president “shall take Care that the Laws be faithfully executed.”
If the framers of the Constitution intended to bestow upon the president the power to declare laws unconstitutional, they sure dropped the ball when drafting Article II. Without wasting much ink, they could have said “preserve, protect, interpret and defend” or “take Care that the Laws the President deems constitutional be faithfully executed.”
With regard to separation of powers, executive branch authority to declare laws unconstitutional would seem to undercut much of the power historically believed to be vested in the legislative and judicial branches. Given the creativity of lawyers, surely any administration can find lurking in the penumbra of some portion of the Constitution a rationale for declaring numerous laws unconstitutional. As a result, Congress might be legislating only until the next presidential election - even if it prescribes no sunset provisions and takes no subsequent action toward repeal.
Assuming a Republican president takes the oath of office in January 2013, perhaps the current litigation concerning the constitutionality of health care reform legislation is unnecessary. Serious questions about the constitutionality of that legislation have been raised. Might a new Republican administration simply decide not to enforce the mandatory insurance coverage provisions?
It is not hard to imagine the chaos that might ensue if each incoming administration were to decline to enforce on constitutional grounds all acts of Congress it finds offensive or inadvisable.
The executive branch, given its constitutional directive to take “Care that the Laws be faithfully executed,” would seem to be the least appropriate branch of our federal government for making determinations regarding the constitutionality of acts of Congress. Perhaps the Obama administration should revisit its decision concerning the Defense of Marriage Act.
JOHN S. MANNING
Bethesda, Md.
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