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.