DOMA and the Mandate: Tit for Tat?

Orin Kerr has raised a really good point about the Obama administration’s decision to abandon its defense of DOMA: “By adopting a contested constitutional theory inside the Executive Branch, the Bush Administration could pursue its agenda without the restrictions that Congress had imposed. In effect, the simple act of picking a contested constitutional theory within the Executive branch gave power to the Executive Branch that none of the other branches thought the Exeutive Branch had (and which laws like FISA had been premised on the Administration not having). It was a power grab disguised as academic constitutional interpretation.”  I agree with Orin’s framing of what’s happening, and I think it merits further discussion.

But Orin, in a separate post, also makes a political/slippery slope claim, namely, that there is a connection between the Obama administration’s decision to abandon DOMA (a Clinton-era Congressional Act) and a future Republican Administration’s decision to defend the individual mandate.  I imagine that this kind of goose/gander or tit/tat argument was raised in the Holder DOJ, but I think it can’t possibly carry much weight.  The reason is simple: it’s basically impossible to imagine a Republican President elected in 2012 who would be willing to allow his DOJ to defend the mandate in any circumstance.  That would be true if Obama had defended DOMA proudly, holding-his-nose, or (as the case may be) not at all.   Though it may be that this future President (Romney? Christie? Huntsman) will allude to Obama’s decision as precedent, this will be mere rhetorical gloss.  The decision has already been made, and was sealed up just as soon as one federal district judge blessed the anti-mandate position.  That’s why, I think, Jack Balkin wrote this post: he’s laying down his marker for a come-to-Randy moment in 2013.

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4 Responses

  1. Orin Kerr says:


    I disagree. Before today, I would have thought it very unlikely that a Republican DOJ wouldn’t defend the law. This creates an interesting disagreement: You think something is “basically impossible” that I think is very likely.

    Can you say a bit more about how you think this decision was made “already” and “sealed up”? Who made the decision?

  2. Dave Hoffman says:


    I am just reading the tea leaves, and the candidate’s reactions to Vinson’s maximalist decision. You are obviously closer to the key players on this than I am. But when folks like Romney praise the 10th amendment aspects of Vinson’s decision … and we see the increasingly respectful hearing that Randy gets on the Hill … I guess I become convinced that the republican primary voters are going to demand that candidates pledge that the mandate isn’t just bad policy, it is unconstitutional. If that’s the political landscape in 2013 – assuming Obama loses – then I can’t see the DOJ standing by the law. The only really comparable example would be Guantanamo, and I guess you sort of have a point there.

  3. Orin Kerr says:


    My sense is that it’s not uncommon for the legal establishment in a party to think a law is unconstitutional while the Administration of that party nonetheless dutifully defends the constitutionality of the law in court. A recent example is McCain Feingold: Everyone understood that SG Ted Olson thought it was unconstitutional, even as he stood up in Court and successfully argued to the contrary. Another example is the Ashcroft v. Al Kidd case the Supreme Court will hear next week, in which the Obama Administration is defending the Bush DOJ’s use the material witness statute for national security detentions. So I suppose the question is whether there is reason to that the next GOP President will take a different view.

  4. TJ says:


    I’m somewhere between you and Orin on this one. I think yesterday’s actions have decreased the likelihood of a future Republican administration defending the law, and it was not zero previously. In that sense I share Orin’s concerns that this increases the acrimony and tit-for-tat and politicization of DOJ.

    The more pointed note is that you seem to be practicing some “naive realism” yourself. You are not the only one, of course, but that is the broader problem: we are getting into something of a vicious cycle.