Last week the Justice Department announced that it would no longer enforce the Defense of Marriage Act (DOMA). Passed by huge bipartisan majorities in both chambers of Congress and signed into law by President Clinton in 1996, DOMA defines a legal marriage as one between a man and a woman. Additionally, the act shields each state from having to legally recognize same sex marriages permitted in other states. In making the announcement, Attorney General Holder said the decision was based on his and the president’s opinion that the law was unconstitutional.
Now, naturally, the Obama Administration’s announcement has angered many on the right. Newt Gingrich, one of the right’s main moral barometers, thinks Obama has a constitutional duty to enforce the law and if he doesn’t he hinted that he possibly should be impeached. The former Speaker of the House was quoted recently as saying,
"I believe the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job. His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent.”
It’s a big surprise that Gingrich would come out against the president like this. Of course I am kidding. It is not a surprise at all given Newt’s interest in the office Obama currently occupies. What is also not a surprise is that Gingrich is way off base in his analysis. Under our separation of powers, Congress really can’t tell the president what to do. What Gingrich is doing harkens back to the impeachment of President Andrew Johnson in 1868. Johnson, a Democrat, disagreed with the fascist policies of the Radical Republicans toward the South after the Civil War. The last straw was his firing of Secretary of War Edwin M. Stanton in violation of the newly passed (over Johnson’s veto) Tenure of Office Act. The Act denied the president the power to remove anyone from office who was appointed by a previous president without the advice and consent of the Senate. In the end, Johnson was acquitted by the Senate and the Supreme Court ruled the Tenure of Office Act unconstitutional in 1926 consequently upholding the separation of powers between the Executive and Legislative branches.
Article comments
1 - Glenn Contrarian
Kenn -
The whole issue is silly from the get-go. Why? Because I think you'll find very, very few presidents from either party who didn't decide that there were certain laws and regulations they wouldn't enforce. Dubya was really big on this one when it came to environmental matters, treaties, and a little something called 'torture'. And of course there's Reagan and his denial of the necessity of the law when it came to Iran-Contra. And then of course, there's Nixon.
If you'll think about it, all Obama did differently was to come right out and say it.
2 - Kenn Jacobine
We agree Glenn! But the point of my article was more about the right of juries and states to do the same thing. I perceive you would disagree with that?
3 - Michael Broder
Ken, when I saw your comment on my article on this topic, I had no idea that you were doing exactly what I was calling attention to in my piece: confusing enforcement of the law with defense of court challenges to the constitutionality of the law. If is of course the latter that the Obama administration has decided not to do: that is, not to defend court challenges to the constitutionality of DOMA (actually, the constitutionality of a specific portion of the law). The administration has explicitly asserted that it will continue to enforce all provisions of the law, as it is a law duly passed by an act of Congress and signed into law by the President (in this case, President Clinton).
4 - Kenn Jacobine
Yes, you are right. I believe he has the right and I would prefer that he just ignore the stupid thing.
5 - Boeke
DOMA is unconstitutional on the face of it. DOMA attempts to promote the affairs of married people over others, which violates equal protection.