COMMENTARY: Calling for a president who follows his heart

Should Barack Obama be defending in court anti-LGBT laws that he believes are unconstitutional?

Should our President defend in court laws that, in his heart, he believes are incorrect? That is the compelling question raised in the past two weeks, which saw the Obama administration decide to appeal two court rulings favorable to the LGBT community.

First, on October 12, the Justice Department appealed a July 2010 federal court decision invalidating a portion of the federal Defense of Marriage Act (DOMA), which defines marriage to between a man and a woman.

Second, on October 14, two days after another federal judge issued an injunction to stop enforcement of the military’s “Don’t Ask, Don’t Tell” (DADT) policy, the Justice Department announced its intention to appeal that ruling also. The Justice Department has even asked for a stay of the decision so the DADT policy can remain in effect pending appeal (on October 20, the Ninth Circuit Court of Appeals granted the Justice Department’s request for an emergency stay until the matter can be considered more fully).

President Obama wants to repeal both DOMA and DADT. That is why so many members of the LGBT community are angered (or at least confused) by his administration’s appeal of both cases. The White House justifies the appeals based upon longstanding practice for the Justice Department to defend federal statutes enacted by Congress when those laws are challenged in court. But the actions do not match Obama’s heart, which if he listened to it, would tell him that those laws need to go away.

Justice Department officials insist that DOMA and DADT were properly enacted through Congress so they’re obliged to defend the statutes in court. At the same time, the White House wants to reassure the LGBT community and its supporters that President Obama really, really is dedicated to ending DOMA and DADT.

It’s just that Obama claims the laws must be repealed through Congress rather by judicial rulings (or in the case of DADT, by an Executive Order which he could sign at any time). Going beyond that, until its appeal in the DADT case can be decided, the Justice Department has asked the courts to allow the “Don’t Ask, Don’t Tell” policy to remain in effect (at least the Pentagon had the decency to announce that it would halt or limit enforcement of DADT while the case is on appeal, though it is warning military personnel not to come out during this time).

The Justice Department’s explanations do not sit well with many members of the LGBT community, who saw Obama as the vessel for change. Some LGBT persons and their supporters are reminded of the betrayal they felt in 1993; that’s when former President Bill Clinton backtracked on a campaign promise to end the ban on gays in the military and instead reached the controversial DADT policy as a compromise.

Other critics believe political motives are involved – as the Democrats face a challenging midterm election on November 2 and don’t need the White House to add more fuel to the conservative fire.

So what’s a President to do when he believes a law is wrong?

To begin with, the Presidential oath of office does not technically require defense of all Congressional laws. A President swears as follows: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

In order to “preserve, protect and defend the Constitution,” shouldn’t the President actually challenge – rather than defend -- laws that he believes are unconstitutional?

Moreover, there is precedent for a President to exercise discretion about whether to enforce Congressional laws.

In a 1926 case named Myers v. United States, the Supreme Court agreed with President Woodrow Wilson’s view that a Congressionally-enacted statute was unconstitutional. That case involved an 1876 federal law which required the President to get approval from the Senate to appoint and remove U.S. postmasters.

In 1920, President Wilson removed a postmaster in Portland, Oregon without getting Senate approval. The Supreme Court found that the President has exclusive power to remove officials of the Executive branch, so the federal statute was unconstitutional to begin with.

Notably, the Supreme Court’s decision said nothing about President Wilson overstepping his bounds by refusing to abide by the law.

And in a 1991 case, Freytag v. Commissioner, four Supreme Court justices noted that the President has “the power to veto encroaching laws. . . or even to disregard them when they are unconstitutional.” The issue in the Freytag case was obscure (a dispute about U.S. tax court judges), but that principle recognized by four (albeit not a majority) of Supreme Court justices is profound.

The Myers and the Freytag cases, and other precedent, are even summarized in a 1994 memorandum by now judge Abner J. Mivka, who was then White House counsel to President Bill Clinton. That memorandum concludes that “there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.”

Some would argue a President should not pick and choose when to enforce a properly-enacted Congressional statute; this avoids the law being subject to chaos depending on what party holds the Oval Office.

And there is sound reason for the President to defer to enactments of Congress, which (supposedly) represents the will of the people. In the specific case of the “Don’t Ask, Don’t Tell” policy, there is also some merit in the idea of deferring to Congress and the Pentagon on military matters.

There is also a potential middle-ground. The President could direct the Justice Department to appeal the DOMA and DADT court rulings, but to make clear in arguments to the court (and to the public) that the appeal is obligatory and in truth the President believes the laws are unconstitutional. This middle ground position could placate LGBT supporters, but may appear wishy-washy.

In the end, I come back to two inevitable conclusions.

First, separation of power exists in the U.S. government system for good reason. Courts have the very job to determine whether laws are unconstitutional. Just because a law was enacted by Congress does not mean it is constitutional, and does not mean it must be defended if the President strongly feels it is improper.

I do not suggest a President should frequently decline to defend a law – but our nation’s leader should be able to use his judgment. And such discretion is particularly important to use when it comes to undoing laws that discriminate against minority groups, who need their rights protected from occasional misguided acts by the majority.

My second conclusion is based more in emotion.

I want a President who follows his heart. When we vote for a political candidate, that is a large part of what we seek: someone who has conviction and the courage to follow it.

I often disagreed with California Governor Arnold Schwarzenegger, but I applaud his refusal to defend California’s Proposition 8 in the federal case challenging it as unconstitutional. And while it’s easier for Schwarzenegger to do so now that he’s on his way out of office, I’ll take a sign of true heart from my elected officials on any day.

To those who voted for him, and especially to his LGBT supporters, President Obama was a transformative vessel to bring hope, change and heart to the White House. Thus, his unwillingness to stand (at least in court) by the courage of his conviction on DOMA and DADT is all the more disappointing.

Eventually, the LGBT community will win its battles for equal rights.

But it sure would be nice to have alongside us a President who lets his actions reflect what he truly feels in his heart.

Jimmy Nguyen is nationally-recognized as an award-winning lawyer, evolving media expert, LGBT leader, and diversity advocate. He also writes for his own web site at JimmyWin.com.

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