Gingrich on DOMA: What if President Palin refused to defend a law because she thought it was unconstitutional?
posted at 6:39 pm on February 25, 2011 by Allahpundit
Via Newsmax, a tangent on the news today that Boehner and the House GOP may intervene in the courts on DOMA’s behalf since Obama doesn’t want to. Ace is annoyed that Gingrich is pandering by wink-winking at impeachment at a moment when the public wants seriousness of purpose on fiscal issues. Point taken — this is obviously him trying to win the “Who’s The Most Anti-Obama Of ‘Em All?” contest in the primaries — but Newt’s argument about double standards is useful. This would indeed be an insufferable, five-alarm freakout in the media and in the lefty blogosphere had a Republican president refused to execute some law cherished by the liberal base. In fact, notwithstanding Obama’s DOMA precedent, it’ll still be a five-alarm freakout if President Palin or Romney or whoever decides that ObamaCare is unconstitutional and refuses to implement that. Why not get ahead of the curve by drawing the parallel now in case we have to fight that battle later?
The Roe analogy doesn’t really work, though. When you’ve got a controlling Supreme Court ruling, it’s much dodgier for a president to disagree than when the Supremes haven’t touched an issue yet and there’s divided opinion among the lower courts, as there is with DOMA and, for the moment, ObamaCare. Essentially, The One’s arguing that he agrees with one side of an unsettled legal debate; if the Roberts Court steps in by ruling in DOMA’s favor and Obama continues to decline to enforce the law, that’s a much more problematic executive precedent. Which, needless to say, the next Republican president can and will exploit to the hilt. Exit question: Is this going to be a grand backfire for liberals?
Update: Sloppiness on my part above. As a commenter reminds me, Obama’s not refusing to enforce DOMA, he’s refusing to defend it in court. Why a president would continue to enforce a statute that he thinks is unconstitutional is beyond me, but it’s a more modest executive power grab than a “no enforcement” stance. The basic point still stands, though: If O doesn’t want to defend statutes popular with social conservatives, don’t expect a Republican DOJ to be offering any appellate arguments in ObamaCare’s favor if the case hasn’t reached the Supreme Court by 2013.