Defending Executive Nondefense and the Principal-Agent Problem

Abstract

Critics of the Obama Administration’s decision not to defend the Defense of Marriage Act argued that the President had a “duty to defend” the law and that the Executive Branch should serve as Congress’s agent in defending statutes in court. Both propositions are wrong. First, it does not make sense to think of the Executive Branch as Congress’s agent because, in the context of government action, there are multiple and changing principals and the Executive Branch is at once both principal and agent. Second, the President does not have an absolute duty to defend statutes in court. Proponents of the duty to defend argue that defense of the law is part of the President’s constitutional obligation to take care that the laws are faithfully executed and that it is untoward for the government to speak with more than one voice in court. This Article argues that defense is distinct from execution, and that in some contexts, it is helpful for the government to speak with more than one voice. The Article then argues that where the Executive Branch has questions about a statute’s constitutionality, it should not defend the law because nondefense better serves our adversarial system of justice and better enables the Executive Branch to protect its own interests. Moreover, where the Executive Branch does not defend, Congress or court-appointed counsel can do so in its place. Finally, this Article suggests that recognizing that classic principal–agent principles do not apply to executive branch action may have implications for other contexts.

Keywords: duty to defend, executive branch, separation of powers