Obama administration will no longer defend DOMA

[turbo]

It's about time. the Defense of Marriage Act is not about defending marriage - it is about denying spousal relations and rights to same-sex couples.

WASHINGTON – In a major policy reversal, the Obama administration said Wednesday that it will no longer defend the constitutionality of a federal law banning recognition of same-sex marriage.
Attorney General Eric Holder said President Barack Obama has concluded that the administration cannot defend the federal law that defines marriage as only between a man and a woman. He noted that the congressional debate during passage of the Defense of Marriage Act "contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships - precisely the kind of stereotype-based thinking and animus the (Constitution's)Equal Protection Clause is designed to guard against."

http://news.yahoo.com/s/ap/us_gay_marriage;_ylt=AoRgmXMiMZ5WPKl3y55btT.s0NUE;_ylu=X3oDMTNmOWVsZGVyBGFzc2V0A2FwLzIwMTEwMjIzL3VzX2dheV9tYXJyaWFnZQRjY29kZQNtb3N0cG9wdWxhcgRjcG9zAzIEcG9zAzgEcHQDaG9tZV9jb2tlBHNlYwN5bl90b3Bfc3RvcnkEc2xrA2dvdnRkcm9wc2RlZg--

 

[Evo]

YAY! About time our laws started reflecting reality.

 

[russ_watters]

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President is bound by his oath of office to uphold the laws of the USA and I am disheartened that people think it is ok for him shirk his primary duty.

 

[Pengwuino]

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President is bound by his oath of office to uphold the laws of the USA and I am disheartened that people think it is ok for him shirk his primary duty.

Agreed. I lean towards the side of same sex marriage, but it is not his choice whether or not he wants to uphold the law.

I've been fairly on the fence about President Obama's performance, but stuff like this is making me really dislike him. It's not so much about what he believes in because presidents are free to believe and want to do whatever they want. However, he gives me this idea that he feels he is above the Presidency. It seems like he feels as if he is not so much a president, but a Roman dictator that has been called forth by the people with the task of reshaping society into what he wants.

Now, I don't mean that as an insult in the slightest as it is my understanding that Roman dictators were given unquestioned authority when serious problems faced the empire that simply could not be dealt with with the normal methods of governing. Personally I think the idea isn't all that bad (I'm sure most people here are egotistical enough to think 'This country would be fantastic if everyone would just let me fix everything...'). The thing is, this is America, we do not allow this form of governing. Obama has a job that he is under oath to do. For example, I applaud him for sticking to his guns when it comes to keeping the pressure on terrorists and keeping various aspects of Bush's policies in this area alive. That is his job, to protect Americans. However, it is NOT his job to defend only laws he likes. If he would like it repealed, then by all means set forth the motions as he is certainly capable of getting the wheels rolling on a repeal.

For everyone who thinks this is great, think of your favorite law. Then imagine a President just deciding on a whim that he will no longer defend it. Not encourage congress to begin a repeal of it. Simply no longer defend it.

 

[humanino]

I do not understand how "not defending a law saying something about marriage" is "saying something about marriage". It does not seem very logical to me. Does not the constitution say that he should not defend such a law ? The logic move it seems to me should appeal to proponents of "small governments". Does it not give more freedom to individual States to vote their own laws ?

 

[turbo]

DOMA is written to deny spousal benefits and visitation rights, etc to people who happen to be of the same gender and want to value each other and have some degree of respect. Is there any reason to think that the demise of DOMA will cause marriages across the US to collapse? If so, I'd like to hear from the people who think so, along with some cogent arguments in their defense.

 

[Containment]

Well just wait till a republican gets into office and starts passing laws on her own :( This is pretty twisted on one hand he is probably right that it should be gone away with. However the method he used to do it was fairly bold. Is this really a question of do the ends justify the means?

 

[russ_watters]

Now, I don't mean that as an insult in the slightest as it is my understanding that Roman dictators were given unquestioned authority when serious problems faced the empire that simply could not be dealt with with the normal methods of governing. Personally I think the idea isn't all that bad (I'm sure most people here are egotistical enough to think 'This country would be fantastic if everyone would just let me fix everything...'). The thing is, this is America, we do not allow this form of governing.

Yes, I've fantasized about it, but that doesn't mean I think it is a good idea. It's a terrible idea and there couldn't be an idea any more anti-American. This country was founded primarily as a rejection of that idea.

This isn't the only example of Obama using such tactics. He's currently holding the nuclear power industry hostage by violating the 1982 law that requires the US government to build a repository for nuclear waste by unilaterally shutting down the Yucca Mountan repository(he doesn't have the power to actually shut it down so what he actually did was cut its funding, which has the same effect). Interestingly, the crafters of the law forsaw that politicians might try to illegally squash it and built-in a mechanism for defending it:

In late February 2010 multiple lawsuits were proposed and/or being filed in various federal courts across the country to contest the legality of Chu's direction to DOE to withdraw the license application. [16] These lawsuits were evidently foreseen as eventually being necessary to enforce the NWPA since Section 119 of the NWPA provides for federal court interventions if the President, Secretary of Energy or the Nuclear Regulatory Commission fail to uphold the NWPA.

http://en.wikipedia.org/wiki/Nuclear_Waste_Policy_Act#cite_note-15

 

[russ_watters]

I do not understand how "not defending a law saying something about marriage" is "saying something about marriage". It does not seem very logical to me.

That quote doesn't appear in any of the preceding posts. Who/what are you arguing against?

Does not the constitution say that he should not defend such a law ?

Certainly not. The Constitution and his oath of office say the US is a country of laws and lays out responsibilities and procedures for passing, executing, challenging, striking down, and repealing those laws. The overriding component of his approach to his job needs to be adherence to that process. That's his primary responsibility - a responsibility that governs how he approaches all the individual problems he faces.

The logic move it seems to me should appeal to proponents of "small governments". Does it not give more freedom to individual States to vote their own laws ?

I'm not following.

 

[russ_watters]

DOMA is written to deny spousal benefits and visitation rights, etc to people who happen to be of the same gender and want to value each other and have some degree of respect. Is there any reason to think that the demise of DOMA will cause marriages across the US to collapse? If so, I'd like to hear from the people who think so, along with some cogent arguments in their defense.

No one has suggested any such thing. Neither I nor Penguino have defended the law on its own merrits and neither of us have any intention to. You completely missed the point of our posts.

 

[Ygggdrasil]

There is an important point to be made here. The Obama administration will still enforce DOMA and not recognize any same sex marriages. The administration has just stated that when DOMA is challenged in the courts, the government, as defendants in the case, will recommend repeal of the law. That is not to say that judicial challenges to the law will automatically succeed: congress can appoint lawyers to defend the law in the courts:

While it is rare for an administration not to defend the constitutionality of a statute, it happens occasionally. Congress may opt to appoint its own lawyers to defend the law, or outside groups may try to intervene. And while the Justice Department’s lawyers will no longer defend the law in court, Mr. Holder said the administration would continue to enforce the act unless Congress repeals it or a court delivers a “definitive verdict against the law’s constitutionality.”

(http://www.nytimes.com/2011/02/24/us/24marriage.html)

Because the Obama administration will continue to enforce DOMA, I do not see the current move as an abdication of the administrations' constitutional responsibility to enforce the laws of congress. Furthermore, as the administration has made the judgement that DOMA is unconstitutional, arguing for the law in court would go against the President's oath to uphold the Constitution.

 

[humanino]

Who/what are you arguing against?

I am not "arguing". I am trying to understand other people's opinion here.

I'm not following.

They consider the law unconstitutional, and more precisely do not want to defend it as constitutional anymore. It seems quite illogical to reproach him with "shirking his primary duty".

Anyway, it is relatively insignificant to me and the rest of the world right now. It should be quite clear that two people in love willing to spend their life together should at least have some form of legal recognition (and I am not advocating complete indiscrimination either).

 

[russ_watters]

There is an important point to be made here. The Obama administration will still enforce DOMA and not recognize any same sex marriages. The administration has just stated that when DOMA is challenged in the courts, the government, as defendants in the case, will recommend repeal of the law...

Because the Obama administration will continue to enforce DOMA, I do not see the current move as an abdication of the administrations' constitutional responsibility to enforce the laws of congress.

Imagine you are arrested and charged with a crime you aren't guilty of. You don't have the money to defend yourself, so you use a public defender. The public defender decides you aren't worth defending and pleads you guilty because he can't be bothered to do his job and defend you. That's what the DoJ is doing here.

The DoJ is required to defend this law regardless of if it actually believes the law is Constitutional.

Furthermore, as the administration has made the judgement that DOMA is unconstitutional, arguing for the law in court would go against the President's oath to uphold the Constitution.

No. The President is not the arbiter of the Constitutionality of the law - that's the USSC's job. The President is not entitled to usurp the power of the USSC.

 

[russ_watters]

I am not "arguing". I am trying to understand other people's opinion here.

Ok...well who'se opinion are you trying to understand? Who'se words were in those quotes?

They consider the law unconstitutional, and more precisely do not want to defend it as constitutional anymore. It seems quite illogical to reproach him with "shirking his primary duty".

The Constitution lays-out responsibilities and powers of the branches of government. Deciding on Constitutionality is not one of the President's powers.

Anyway, it is relatively insignificant to me and the rest of the world right now.

So the President should only have to enforce and defend the important laws and the unimportant laws he can just ignore?

 

[humanino]

Who'se words were in those quotes?

It was nobody's quote. Again, I do not wish to argue. If you want to go and pinpoint every single possible item that I said 12 messages ago, I have no care for that. Please forgive me but let us forget about that older quote and concentrate on a reformulation of my question entirely as

They consider the law unconstitutional, and more precisely do not want to defend it as constitutional anymore. It seems quite illogical to reproach him with "shirking his primary duty".

The Constitution lays-out responsibilities and powers of the branches of government. Deciding on Constitutionality is not one of the President's powers.

Thank you for this precision. As you say, they are not supposed to decide on the constitutionality. We agree on that. My understanding is that they want to stop defending it as constitutional. I still do not get where I am (and they are) illogical.

it is relatively insignificant to me and the rest of the world right now.

So the President should only have to enforce and defend the important laws and the unimportant laws he can just ignore?

Non sequitur. I should have nothing to add. Your question does not logically follow the preceding quote. For instance you say "the president" whereas you should say "my president". When I said "I do not care", please take it "as did not put much thought into it, so I welcome your help". I did not read about this issue before this thread.

 

[russ_watters]

Thank you for this precision. As you say, they are not supposed to decide on the constitutionality. We agree on that. My understanding is that they want to stop defending it as constitutional. I still do not get where I am illogical.

The logic goes like this:

1. They are not supposed to decide on its constitutionality.
2. They have decided on its constitutionality.
3. Therefore, they have violated their mandate.

When I said "I do not care", please take it "as did not put much thought into it, so I welcome your help". I did not read about this issue before this thread.

Fair enough.

[edited]

 

[humanino]

It is probably best to concentrate on the http://www.justice.gov/opa/pr/2011/February/11-ag-222.html
Although it does say

The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.

one should not stop at this bit and realize that there is no final decision at this time (which would be against the constitution). That is a mere opinion.

They are appropriately careful it seems to me

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

[...]

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

So I do not think they claim to make a final decision on the constitutionality, and leave that question to the appropriate power.

 

[Ygggdrasil]

Imagine you are arrested and charged with a crime you aren't guilty of. You don't have the money to defend yourself, so you use a public defender. The public defender decides you aren't worth defending and pleads you guilty because he can't be bothered to do his job and defend you. That's what the DoJ is doing here.

Gideon v. Wainwright determined that the Sixth Amendment to the Constitution guarantees the right to a public defender in criminal cases. As lawsuits challenging DOMA are not criminal cases and as the Sixth Amendment guarantees only individual rights, this argument does not apply here.

The DoJ is required to defend this law regardless of if it actually believes the law is Constitutional.

Although it is common practice for the DoJ to defend acts of congress that have been challenged as unconstitutional, I do not think that the executive branch is required, by the constitution or the law, to defend these laws in court. Indeed, Mr Holder has been quoted as saying "The department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the department in the past has declined to defend statutes despite the availability of professionally responsible arguments" (http://www.foxnews.com/politics/2011/02/23/obama-administration-drops-defense-anti-gay-marriage-law/), indicating that there is precedent for the administration's actions.

Please find a source that explains why the administration's decision to stop defending DOMA is unconstitutional or illegal.

 

[Al68]

The President is not the arbiter of the Constitutionality of the law - that's the USSC's job. The President is not entitled to usurp the power of the USSC.

Which part of the constitution assigns that responsibility exclusively to the USSC? Voluntarily declining to violate the constitution is "usurping the power" of the USSC? Is this a joke? (I thought only delusional left-wingers made that claim.)

The President's oath of office, as mandated by the constitution, prohibits him from enforcing unconstitutional laws, just like congress is prohibited from passing them. And his obligation to enforce laws, when he determines that two laws contradict each other, obviously forces him to pick one over the other. And picking an invalid statute passed by congress over the constitution isn't exactly the right choice.

This whole notion that congress and the President are free to pass and enforce any law they want, regardless of what the constitution says, is complete nonsense, propagated by power hungry politicians to justify their treachery. The USSC is the last layer of protection, not the first.

 

[Proton Soup]

the executive has the option to exercise discretion from the president, all the way down to the law enforcement officer. they don't arrest every speeder or jaywalker, and they don't have to defend every law. it has always been this way, and it always will because resources are limited.

executive is also expected to operate at a higher level as prosecutor than what is expected of defense attorneys. the defender is expected to defend someone he knows is guilty, but the prosecutor is not expected to prosecute someone they think is innocent.

 

[russ_watters]

Gideon v. Wainwright determined that the Sixth Amendment to the Constitution guarantees the right to a public defender in criminal cases. As lawsuits challenging DOMA are not criminal cases and as the Sixth Amendment guarantees only individual rights, this argument does not apply here.

Um...it's an analogy. Obviously, there is no public defender in this case.

Although it is common practice for the DoJ to defend acts of congress that have been challenged as unconstitutional, I do not think that the executive branch is required, by the constitution or the law, to defend these laws in court. Indeed, Mr Holder has been quoted as saying "The department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the department in the past has declined to defend statutes despite the availability of professionally responsible arguments" (http://www.foxnews.com/politics/2011/02/23/obama-administration-drops-defense-anti-gay-marriage-law/), indicating that there is precedent for the administration's actions.

Please find a source that explains why the administration's decision to stop defending DOMA is unconstitutional or illegal.

Sure - why don't we ask the last administration to defend DOMA (the Obama administration):

In a brief filed this morning, it stated that it "does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal," and specifically knocks down the argument that children raised by gay couples will grow up to be super-gay, or something. But at the same time, Justice still maintains that it’s their unfortunate duty to defend DOMA in court regardless, since it "has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality."

http://nymag.com/daily/intel/2009/08/justice_department_now_grudgin.html

It would appear they changed their mind about what their duty is...or they changed their mind about what a "reasonable argument" is. They took a lot of flak over this issue. Should there be any doubt that their opinion changed due to that flak? Regardless, they cannot make that judgment. If the law is unconstitutional, the USSC will strike it down, as is their duty. It is not up to the President and DoJ to make that decision. Doing so injects an easy to manipulate political element into one of the more serious functions of the government.

More:

Nevertheless, White House spokesman Jay Carney said Wednesday, the administration “had no choice” but to drop its defense, separate from President Barack Obama’s opposition to the law.

Jordan Sekulow, attorney and director of policy for the American Center for Law and Justice, said the administration had a choice.

“This was political spin,” Sekulow told CNSNews.com. “This is existing federal law. It is getting tougher and tougher to defend in the current environment. But it is the law of the land. I am certain the administration will keep fighting the challenges to Obamacare. You don’t get to pick and choose which laws to defend.”

http://www.cnsnews.com/news/article/doj-shirking-duty-not-defending-doma-cri

Tony West, the top official in the Justice Department's Civil Division, was telling reporters that the issue was a difficult one for the administration.

West said in November that, while the administration disagreed with DOMA, the Justice Department "has an institutional responsibility to defend the constitutionality of congressional statutes, whether we agree with them or not."

http://tpmmuckraker.talkingpointsme...nes_to_defend_doma_congress_could_step_in.php

A detailed discussion of the implications and danger of this:

The grand effect of this precedent would be to give each successive presidential administration an effective veto on the legislation passed under previous congresses and presidents. Whenever a president of one party signed into law a bill opposed by the opposition party (which currently would be all of them), opponents could simply wait until a president from the opposition party is elected, challenge the law in court, and sit back assuming that the current president would support their challenge. Without standing to oppose these challenges, no parties outside the federal government could stand up to prevent the invalidation of law after law, and then reinstatement of an opposed legal regime by each successive administration...

Even if President Obama opposes DOMA, which he does, and even if the arguments supporting DOMA are weak, which they are, the Obama Justice Department should still make those arguments. Some of the more extremely facially discriminatory arguments could be avoided, but overall a sitting administration has a responsibility to defend a law currently on the books.

http://harvardcrcl.org/2011/02/14/ny-times-wrong-on-doma-defense/

In effect, it provides future presidents with ex post facto veto power.

 

[Al68]

In effect, it provides future presidents with ex post facto veto power.

No, just the same power the last 43 Presidents had. The constitution does not require the President to defend the constitutionality of a law to the USSC.

 

[Ivan Seeking]

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President is bound by his oath of office to uphold the laws of the USA and I am disheartened that people think it is ok for him shirk his primary duty.

As has been shown, your argument is a strawman. When this was shown to be true, you changed the argument and now ignore precedence.

 

[DevilsAvocado]

Welcome back Ivan, we’ve missed you!

 

[DevilsAvocado]

Imagine you are arrested and charged with a crime you aren't guilty of.

You mean like being gay??

 

[Jack21222]

So the President should only have to enforce and defend the important laws and the unimportant laws he can just ignore?

Correct.

Since you like analogies so much, here's one for you.

Do you think police officers should have discretion to decide what laws to enforce and what laws to ignore? Or should everybody going 1 mph over the speed limit be pulled over?

 

[turbo]

Democrats in both the House and Senate Judiciary committees intend to draft and introduce legislation overturning DOMA. Good luck getting that through the GOP-controlled House, or even getting a hearing for such a bill since the Chairman is dead-set against such repeal, and has sweeping powers regarding which legislation even GETS a hearing.

http://www.huffingtonpost.com/2011/02/24/house-dems-to-push-legisl_n_827573.html

 

[Al68]

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President is bound by his oath of office to uphold the laws of the USA and I am disheartened that people think it is ok for him shirk his primary duty.

Who thinks that? The constitution is the law of the USA. In fact it's the supreme law of the USA, superseding any contradictory subordinate law.

You seem to be the only person advocating that the President shirk his duty to uphold the supreme law of the land.

 

[Ygggdrasil]

In effect, it provides future presidents with ex post facto veto power.

While I agree with some of the points in the Harvard Civil Rights-Civil Liberties Law Review piece, they err when they characterize the administration's actions as setting a precedent. From the Talking Points Memo piece you cited:

Back in 1996, Justice Department officials wrote a letter to Sen. Orrin Hatch explaining why they declined to defend another statute. As they explained in the letter, the Solicitor General has declined to defend laws passed by Congress in the past -- including in 1946, 1963, 1979, 1980, 1983, 1988, 1990 and 1992.

In fact, when he was the nation's solicitor general, now-Chief Justice John Roberts, declined to defend federal laws which set a preference for awarding broadcast licenses to entities with a certain level of minority ownership.

(http://tpmmuckraker.talkingpointsme...nes_to_defend_doma_congress_could_step_in.php)

Thus, rather than setting a precedent, the DoJ is merely following the precedent set by previous administrations, and this ex post facto veto power predates the Obama administration's decision.

Furthermore, the decision does not usurp the role of the courts as opponents of DOMA will still have to convince federal judges that the law is, in fact, unconstitutional. No changes to the law will happen until this occurs. Consistent with the Constitution, the opinion of the courts--not the opinion of the DoJ--is the final arbiter of this issue.

 

[mugaliens]

At this point, I think "Who cares? We have bigger fish to fry at the moment" applies quite well.

 

[BobG]

Thus, rather than setting a precedent, the DoJ is merely following the precedent set by previous administrations, and this ex post facto veto power predates the Obama administration's decision.

Furthermore, the decision does not usurp the role of the courts as opponents of DOMA will still have to convince federal judges that the law is, in fact, unconstitutional. No changes to the law will happen until this occurs. Consistent with the Constitution, the opinion of the courts--not the opinion of the DoJ--is the final arbiter of this issue.

They're following the precedent of failing to set a precedent? Bizarrely, that's probably the most accurate way to put it. The premise that the DoJ has to defend every law in court is flawed to begin with. They defend most laws. There's always been exceptions.

Just a recent exception: The Case of the Poisoned Lover. The administration changed its stance mid-case, leaving no one to defend the federal government's original position on the case. The USSC still found someone to represent that side.

Because after passionately defending the position that Bond had no standing to raise a 10th Amendment challenge in the lower courts, the Obama administration changed its mind and decided that she did. That put the solicitor general's office in the strange position of having 20 minutes today to argue that Bond has standing to sue at some times and not other times but should nevertheless lose on her constitutional claims, anyhow.

It also put the court in the doubly strange position of having to reach out and tap a lawyer to argue against standing. Enter Stephen McAllister, a former Supreme Court law clerk and the solicitor general of Kansas who comes into the case for the last 20 minutes to argue that Bond cannot get into a court on her 10th Amendment claims.

While the Obama administration choosing not to defend the DOMA act is an exception to an overall policy of defending federal laws, about the only thing really special about it is that the exception occurred in a highly visible case. Exceptions occur every once in a while on all kinds of lower priority cases.

 

[mugaliens]

Refocus. Please. Lots more at steak...

 

[CAC1001]

Okay I am a total amateur on this whole issue, but what if you had a Republican President who decided they would order their DoJ not to defend say abortion because they felt it was un-Constitutional? Or say the Affordable Care Act (Obamacare)? How is this different?

 

[Al68]

Okay I am a total amateur on this whole issue, but what if you had a Republican President who decided they would order their DoJ not to defend say abortion because they felt it was un-Constitutional? Or say the Affordable Care Act (Obamacare)? How is this different?

I'd say hypothetically that if congress had passed a law in 2008 that banned all abortions nationwide, and it was challenged as unconstitutional and reaching the Supreme Court now, that Obama would not be obligated to defend the law to Supreme Court. I would even go further and say that the President is perfectly free to take the other side and argue against the constitutionality of a federal law to the court. In fact, he is obligated to do exactly that if he believes "faithfully" that the law is invalid due to unconstitutionality.

Ditto for Obamacare if its challenge reaches the Supreme Court after Ron Paul gets elected President.

 

[TheStatutoryApe]

Okay I am a total amateur on this whole issue, but what if you had a Republican President who decided they would order their DoJ not to defend say abortion because they felt it was un-Constitutional? Or say the Affordable Care Act (Obamacare)? How is this different?

Someone else would defend the case.