Critics Call Obama DOMA Decision an Executive Power Grab

WASHINGTON, Feb. 24, 2011— -- President Obama's decision to stop defending the Defense of Marriage Act in federal court has sparked a flurry of debate over whether the move signals a dangerous power grab by the executive branch.

"The president is replacing the rule of law with the rule of Obama," said former House Speaker Newt Gingrich. "The president swore an oath on the Bible to ensure that the laws be faithfully executed, not to decide which laws are and which are not constitutional."

House Judiciary Committee Chairman Rep. Lamar Smith called it the "politicization of the Justice Department -- when the personal views of the president override the government's duty to defend the law of the land."

In a letter to members of Congress Wednesday, Attorney General Eric Holder explained that Obama determined that DOMA, which defines marriage for federal purposes as only between one man and one woman, "violates the equal protection component of the Fifth Amendment" and therefore is not obligated to defend it.

Legal experts say the decision not to defend a federal law, while rare and controversial, is not unprecedented.

Most recently, in 1996, President Clinton warned he would not defend a law requiring the military to discharge H.I.V.-positive service members because he found it unconstitutional. Other cases have involved laws imposing sex discrimination or unfairly targeting specific individuals.

But some have warned that unlike previous cases, in which the unconstitutionality of the law seemed reasonably apparent, the questions surrounding DOMA are not supported by a legal consensus or judicial precedent.

"This theory is not compelled by case law. Rather, it's a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet," wrote George Washington University law professor Orin Kerr in a blog post.

"The Obama administration has moved the goalposts of the usual role of the Executive Branch in defending statutes," he wrote.

Kerr says the president's action could undermine the role of the impartial court system if the Justice Department can conduct its own constitutional reviews of challenged laws, and then exercise discretion in whether to defend them.

The executive branch's "duty to defend" a law, even if the administration finds it politically unpopular, has been tradition for decades.

If Obama can choose not to defend DOMA on constitutional grounds, some critics say, a future Republican president may be able to do the same to Democrats' controversial health care reform law.