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A Presidential Pirouette.

So… After fighting challenges in court for two years, suddenly DOMA is now unconstitutional!!!!

So, why was it “constitutional” prior to today?????

Bruce at Gay Patriot asked in jest if President Obama could be impeached:

Should a President who both knowingly signs a law that is unconstitutional (Obamacare) AND who refuses to defend a law (DOMA) passed by Congress and signed by a President that he deems to be unconstitutional be charged with impeachment?

No. There is no sense that they (Obama, Pelosi, or Reid) thought Obamacare would possibly lose in the courts – they thought it was perfectly fine. One the second point – setting aside the proclamation that suddenly they’ve seen the light and now recognize DOMA as unconstitutional, there are examples of laws on the books that the DOJ has in the past simply chosen not to defend. Here is Law Prof Marty Lederman defending then DOJ attorney John Roberts (hmmm… why does that name sound familiar???) concerning a brief explaining why the DOJ will not defend a law:

As a general matter, the Department has traditionally adhered to a policy of defending the constitutionality of federal enactments whenever “reasonable” arguments can be made in support of such statutes — i.e., whenever the constitutionality of the law is not fairly precluded by clear constitutional language or governing Supreme Court case law. This practice has been predicated on the notion that because the political branches — the Congress that voted for the law and the President who signed it — have already concluded that the statute was constitutional, it would be inappropriate for DOJ lawyers to take it upon themselves to reject the constitutional judgment shared by the President and the legislature.

There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn’t really an “exception” to the “rule” as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute’s defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ’s view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the “must-carry” provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.)

Interestingly enough, the blog that I got that from was written in 2009, concerning the Obama administrations decision to defend DOMA in the courts. The bigger and more interesting question is – Why has he suddenly seen the light? What changed from yesterday to today to cause this judicial pirouette? Could it be the result of more than a little support drift from the usually reliable gay contingent, who are being courted by the younger / less religiously motivated Conservative crowd with some success?