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http://ssrn.com/abstract=2008400
 
 

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The Indefensible Duty to Defend


Saikrishna Prakash


University of Virginia School of Law

Neal Devins


William & Mary Law School

February 20, 2012

Columbia Law Review, Vol. 112, April 2012
Virginia Public Law and Legal Theory Research Paper No. 2012-17

Abstract:     
Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the DOMA, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By currying favor with the courts and Congress, the Department helps preserve its near-monopoly on government litigation authority. Third, our analysis of refusals to defend shows that the duty to defend only lightly constrains the executive, posing no real barrier to decisions not to defend the constitutionality of laws. Finally, the duty to defend serves no constitutional purpose. Its supposed benefits arise from getting the courts to opine on the constitutionality of laws. But courts typically have that opportunity as a result of executive enforcement of a law it believes is unconstitutional. Nothing further is gained by having the executive voice insincere and halfhearted arguments when others sincerely can advance strong ones. Or, we should say, nothing except enhancing the DOJ in the eyes of Congress and the courts at the expense of the President’s constitutional vision, which is what the duty to defend is all about.

Number of Pages in PDF File: 67

Keywords: Duty to defend, Duty to execute, DOMA, Obama, Holder, Office of Legal Counsel, Department of Justice, Office of the Solicitor General, Bureaucratic Theory, DOJ independence

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Date posted: February 20, 2012 ; Last revised: February 21, 2012

Suggested Citation

Prakash, Saikrishna and Devins, Neal, The Indefensible Duty to Defend (February 20, 2012). Columbia Law Review, Vol. 112, April 2012; Virginia Public Law and Legal Theory Research Paper No. 2012-17. Available at SSRN: http://ssrn.com/abstract=2008400

Contact Information

Saikrishna Prakash (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
Neal Devins
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3845 (Phone)
757-221-3261 (Fax)
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