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A lawyer questions the Obama decision not to defend the Defense of Marriage Act.

My central premise could not be simpler.  We have a system of checks and balances for a reason.  Constitutional interpretation is, in all but the broadest sense, the province of the judicial branch.  Meanwhile, one of the checks on executive power is obliging that branch to execute (and, correspondingly, defend) laws duly passed by Congress.  Until the judiciary renders binding authority that casts significant doubt on whether execution of that duty is improper on constitutional grounds, that duty remains intact.  The executive branch fails to fulfill its responsibilities when it fails to defend still-valid law, whether that law is DOMA or Obamacare.

I hope that this is a historical hiccup and not a false loophole to be exploited by future administrations.  Given the tenor of partisan discourse over the last twenty years, my hope in that regard is not substantial.


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