ADF's Schowengerdt: "How Odd it is to Hear a DOJ Lawyer Argue a Law Passed by Congress is Unconstitutional"


Alliance Defense Fund attorney Dale Schowengerdt on National Review's Bench Memos blog:

It’s hard to describe how odd it is to hear a Department of Justice lawyer argue in court that a law passed by Congress should be struck down as unconstitutional. It is, after all, the DOJ’s job to defend laws passed by Congress. But as I sat at the First Circuit Court of Appeals in Boston on Wednesday listening to the appellate arguments for the Federal Defense of Marriage Act (DOMA) cases, that’s exactly what I heard for 20 minutes from the DOJ lawyer.

... Ultimately, it’s much better that Paul Clement is defending these cases rather than the DOJ, which only pretended to defend DOMA before deciding to jump ship and join the opposition. But still, you have to wonder how the DOJ’s unprecedented decision to attack the constitutionality of a law that it has a constitutional duty to defend will impact the Department in the long-term. Surely every administration has to defend laws that it would not have supported politically. For example, and speaking of Paul Clement, when he was solicitor general under the Bush administration he defended the infamous McCain-Feingold campaign-finance law, which is of course a darling of the Left. No doubt President Bush (and perhaps Clement himself), strongly disliked the law. But, by all accounts, Clement defended McCain-Feingold vigorously — and successfully — at the Supreme Court.

... Does DOMA deserve anything less? It was enacted by huge, bipartisan majorities in both houses (85–14 in the Senate, 342–67 in the House), its constitutionality was affirmed by the DOJ, and it was signed by President Clinton. When its constitutionality was later challenged in federal court three times under the Bush administration, the DOJ defended it successfully each time. So why the change? Has the legal precedent since then made defending DOMA a hopeless cause? Hardly. In fact, it’s just the opposite.