Obama, Gay Marriage, and Executive Power

As Matt Welch noted
yesterday, the Obama administration has announced it will no longer
defend the Defense of Marriage Act in court.
According to Attorney General Eric Holder, ?the President and
[the Attorney General] have concluded that classifications based on
sexual orientation warrant heightened scrutiny and that, as applied
to same-sex couples legally married under state law then, from that
perspective, there is no reasonable defense of DOMA.?
At the Volokh Conspiracy, George Washington University law
professor Orin Kerr wonders if this action
sets a dangerous precedent for the expansion of executive
power:

By taking that position, the Obama Administration has moved the
goalposts of the usual role of the Executive branch in defending
statutes. Instead of requiring DOJ to defend the constitutionality
of all federal statutes if it has a reasonable basis to do so, the
new approach invests within DOJ a power to conduct an independent
constitutional review of the issues, to decide the main issues in
the case ? in this case, the degree of scrutiny for gay rights
issues ? and then, upon deciding the main issue, to decide if there
is a reasonable basis for arguing the other side. If you take that
view, the Executive Branch essentially has the power to decide what
legislation it will defend based on whatever views of the
Constitution are popular or associated with that Administration. It
changes the role of the Executive branch in defending litigation
from the traditional dutiful servant of Congress to major
institutional player with a great deal of discretion.
If that approach becomes widely adopted, then it would seem to
bring a considerable power shift to the Executive Branch. Here?s
what I fear will happen. If Congress passes legislation on a
largely party-line vote, the losing side just has to fashion some
constitutional theories for why the legislation is unconstitutional
and then wait for its side to win the Presidency. As soon as its
side wins the Presidency, activists on its side can file
constitutional challenges based on the theories; the Executive
branch can adopt the theories and conclude that, based on the
theories, the legislation is unconstitutional; and then the
challenges to the legislation will go undefended. Winning the
Presidency will come with a great deal of power to decide what
legislation to defend, increasing Executive branch power at the
expense of Congress?s power. Again, it will be a power grab
disguised as academic constitutional interpretation.

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