Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Damon Root has an important article at Reason about the myth that the DOJ always must defend every law against legal challenge -- and the precedents by conservative presidents that show the right's current selective outrage to be feigned.
Despite the angry protestations of leading conservatives--former House Speaker Newt Gingrich fumed that "the president is replacing the rule of law with the rule of Obama" while the Capital Research Center's Matthew Vadum argued that Obama could be impeached for failing to defend DOMA--the president's decision actually follows in the footsteps of two significant conservative precedents.
One of them was done by conservative hero Robert Bork:
irst, there was Solicitor General (and future Supreme Court nominee) Robert Bork's approach to the 1976 Supreme Court case Buckley v. Valeo. Bork's job as solicitor general was to give the government's position in defense of the 1971 Federal Election Campaign Act (FECA). The only problem was that Bork believed one of FECA's provisions, which allowed Congress to appoint members to the Federal Election Commission (FEC), violated the Constitution's separation of powers. In Bork's view, the power to make FEC appointments fell exclusively within the executive branch.So instead of submitting one brief to the Supreme Court, Bork submitted two, one challenging the constitutionality of the appointments provision and the other strongly defending the rest of FECA. Bork also ensured that the FEC would be filing its own brief defending the provision he had attacked. In its ruling, the Court largely sided with Bork, striking the appointments provision while upholding other aspects of the law. As Bork later explained of his approach, "it would seem to me not only institutionally unnecessary but a betrayal of profound obligations to the Court and to Constitutional processes to take the simplistic position that whatever Congress enacts we will defend, entirely as advocates for the client and without an attempt to present the issues in the round."
And the other was by conservative hero John Roberts, now chief justice of the Supreme Court:
That's what Obama and Holder did last week. Keep in mind that while the Constitution requires the executive branch to "take care that the laws be faithfully executed," the president also swears an oath to "preserve, protect, and defend" the Constitution. The question is what happens when the executive is charged with executing a law he deems unconstitutional. Should a contested congressional statute trump an oath to the Constitution?Deputy Solicitor General (and current Supreme Court Chief Justice) John Roberts faced that dilemma in 1990. At issue that year in Metro Broadcasting, Inc. v. Federal Communications Commission was a government policy giving preferential treatment to minority-owned stations seeking a broadcast license from the FCC. According to the George H.W. Bush administration this racial preference was unconstitutional. Roberts therefore filed a brief with the Supreme Court describing the policy as "precisely the type of racial stereotyping that is anathema to basic constitutional principles" while permitting the FCC to mount its own defense of the minority preference. The Court sided with the FCC.
I'm sure we'll be hearing from Newt Gingrich that Roberts should be impeached, right? Right? Bueller? Anyone? Yeah, I didn't think so.
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As my wife says: "You want consistency, eat cottage cheese."
yeah, I don't really know what it means, either. =P
Posted by: FastLane | March 8, 2011 12:24 PM
Now I can use a Sweedish Chef impression as valid political argument
BORK! BORK! BORK!
Posted by: m5 | March 8, 2011 1:15 PM
Your rebuttal to conservatives complaining about Obama not defending the constitutionality of DOMA is that conservatives don't complain when Bush or Reagan do it.
Your argument boils down to, if X doesn't do Y, then you shouldn't complain if Z doesn't do Y.
So let's apply that principle to the left since they have just used it against conservatives. This means that if the next conservative president says that he won't defend the constitutionality of Roe v. Wade, then the left has no right to complain. After all, the left didn't complain when Obama decided not to defend the constitutionality of DOMA.
Let's just get rid of the hypocrisy on BOTH sides and just say that the president doesn't need to defend the constitutionality of any law.
Posted by: Brian Dean | March 8, 2011 10:20 PM
Above should be rewritten to
"Your argument boils down to, if you didn't complain about X not doing Y, then you shouldn't complain if Z doesn't do Y."
Posted by: Brian Dean | March 8, 2011 10:28 PM
Brian Dean-
It depends on the form of the complaints. It's perfectly fine to criticize Obama for not defending DOMA on substantive grounds, to argue that he should defend it. And it would be perfectly fine for liberals to criticize a Republican president for not defending Roe on substantive grounds. What is not legitimate is to accuse either president of violating their oath of office, of refusing to enforce the law, or even of committing treason. All of those inane arguments have been made by conservative loonies over the last week over the DOMA decision.
Posted by: Ed Brayton | March 8, 2011 11:54 PM
@3: Brian, you do realize that not all forms of "complaint" are equal in magnitude and implication, do you? "I really think that President X made the wrong decision in not defending the constitutionality of Roe vs. Wade" is certainly not the same as "President X should be impeached for not defending the constitutionality of Roe vs. Wade!"
Posted by: daniel rotter | March 9, 2011 2:28 AM
The problem here is that Ed is not making a rebuttal. He is pointing out hypocrisy. There are numerous other posts where you can see actual rebuttals on this issue.
Posted by: Dennis N | March 9, 2011 11:17 AM