Chief Justice John Roberts took a swipe at President Obama during oral arguments Wednesday on the Defense of Marriage Act, saying the president should have the “courage” to stop executing statutes he deems unconstitutional rather than relying on the courts to pave the way.
“If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions,” Roberts said of Obama, “and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”In response, Vicki Jackson, the lawyer appointed by the Supreme Court to argue that the court lacks standing to hear the case, responded that it’s “a hard question” given that the constitutional questions turn on what relief the injured parties are seeking.
The case was unusual in that the Obama administration, after initially defending the law, switched sides in 2011 and began pushing the Supreme Court to overturn it, concluding that it was discriminatory and unconstitutional. (It’s rare but within precedent for a president to refuse to defend the validity of a federal law.) As a result, the House Republican majority took the reins and hired counsel to defend it in court. Meanwhile, the Justice Department said it would continue to enforce the law until the courts reach a decision as to its validity.
Justice Antonin Scalia also took issue with the White House’s approach to DOMA, comparing it to an alleged debtor who admits to owing someone money but refuses to pay it.
“Which is the equivalent of the government saying, yeah, [a law is] unconstitutional but I’m going to enforce it anyway,” Scalia said. “I’m wondering if we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it. If we’re in this new world, I don’t want these cases like this to come before this Court all the time.”
White House spokesman Josh Earnest defended Obama against Roberts’ insinuation.
“Well, there is a responsibility that the administration has to enforce the laws that are on the books, and we’ll do that even for laws that we disagree with, including the Defense of Marriage Act,” he told reporters Wednesday afternoon. “It’s not unprecedented for an administration to take that position. … We’ll see what the outcome looks like from the Supreme Court.”
This post has been updated since the time of publication.