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Monday, March 28, 2011

DOMA, Immigration, and Switch in Time: A Dissenting View

Regarding Ari Waldman's valuable post, I am more troubled by this turn of events.

Let me begin by saying that I share 100% Ari's priors:  DOMA is unconstitutional, the Obama administration's recent position is both defensible and well-defended, and concerns of compassion and fundamental fairness make the immigration authorities' post-DOMA position hard to stomach.  That said, the line these two districts are endeavoring to walk is a shaky one at best.  The position of the administration is a problematic one, though not without logic.  That is, taking the strong position that DOMA is unconstitutional, in light of (1) the absence of clear legal authority against that position, and (2) the President's obligation to follow the Constitution leads more clearly to the position that the enforcement of the Act should be suspended than it does to the position that its enforcement should continue until a final court decides the constitutional question.  However, this line-splitting is a political compromise that the administration -- that is, the administration speaking from the top -- can legimately and credibly make.

Retail judgments by gov't officials down the chain of command is a rather different matter.  I suspect that steam would emerge from a wide swath of left-oriented law professors were the IJs to have taken a strong position on matters of political asylum where neither the President, nor the AG, nor federal courts had yet to weigh in.  While I share entirely the instinct that DOMA is an idea whose time has passed, death by a thousand cuts is not the answer.  Nor do these local immigration authorities appear to be doing the Obama administration any particular political favor by grandstanding in the midst of what is an intricate political and legal situation.

I predict (though not with unguarded confidence) that the administration will find its way to keeping this genie in the bottle while the DOMA issue percolates in the courts.  Wholesale justice for the LGBT community will be aided by such moves, despite the retail consequences (admittedly tragic) on particular couples. 

Posted by dan rodriguez on March 28, 2011 at 03:31 PM in Constitutional thoughts | Permalink

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