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When The Executive Flouts The Law

In comments here yesterday, Edward Hamilton remarked that the SCOTUS ruling on Prop 8 — which Scalia joined, and from which Kennedy dissented — was actually more significant that the DOMA ruling. Hamilton said that SCOTUS basically gave the executive branch at the state level the power to ignore the popular will. You will recall that SCOTUS said that the only entity that had standing to litigate on Prop 8 was the California executive branch … and if the Governor didn’t want to defend Prop 8, then too bad for the majority of California voters. Hamilton cited the liberal commenter Kevin Drum on this point. Drum:

One way or another, if the people of a state approve a ballot initiative, then they ought to be allowed to defend that initiative all the way to the Supreme Court if necessary. That’s just basic judicial fairness.

Drum, a same-sex marriage supporter, isn’t that bothered by it. But I think we all should be. Do we really want to live in a polity in which the executive branch has the freedom to decline to enforce or defend laws with which it doesn’t agree? You might not care because you support overturning Prop 8, but what if the shoe were on the other foot? What if California voters passed a proposition granting same-sex marriage, but the executive branch refused to defend it in court?

Todd Zywicki at Volokh.com, quoting an e-mail US Attorney General Eric Holder wrote to his agency, celebrating the overturning of DOMA, writes:

Leaving the merits of the final judgments in these cases aside, I am clearly not alone in being concerned about the unwillingness of state and federal officials to defend the duly-enacted laws of their states.  Indeed, refusing to defend the law and acquiescing in an adverse judgment against it seems tantamount to a retroactive veto by the Executive Branch.  If Eric Holder is “delighted” that the law is invalid, wouldn’t the appropriate response in our system of government be for the President to propose the repeal of the law with which he disagrees, rather than effectively retroactively vetoing it?

The SCOTUS Prop 8 decision grants a veto to the California executive over any ballot measure it doesn’t wish to defend. This is pretty stunning.

Here in my Louisiana parish, we’re currently dealing with a police jury (= parish council) that is refusing to implement a law that passed last fall with a comfortable majority. Voters disgusted by the dysfunction of the police jury drafted a “home rule” charter, campaigned for its adoption — and won. But a bare majority of the sitting police jurors don’t like home rule, and are not only refusing to implement it, but voted last week to have a re-vote, hoping this time to get a result they like. People are fighting mad about it. Indeed, I was so cut off from the whole process that I didn’t have an opinion about home rule — but when I heard that the police jury was refusing to enact a law voted on by the people in a free and fair election, I got involved. Though we don’t have a legislative and executive branch in our parish governmental system (the home rule charter gives us one), you cannot have a democracy in which elected officials feel at liberty to refuse to enforce or to defend laws they don’t like. It is infuriating.

We’re now organizing to recall at least some of the police jurors who refuse to do their duties. And a lawsuit has been filed.

On the Prop 8 thing, the lesson is that if a political cause or faction captures the executive branch, they can ignore the popular will as expressed in a valid election, and SCOTUS will let them do it. The ballot initiative process in California has been gutted.

UPDATE:The libertarian constitutional lawyer Richard Epstein says:

Rather, Kennedy’s lead argument (in this age of boundless federal power) was that the definition of marriage is properly left to the states. And why: “By history and tradition the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.” Oh. What, then, of Proposition 8?

Epstein adds:

As I have said previously, my own libertarian instincts lead me to think that same-sex marriage is a legislative matter. After all, the states are often called laboratories of democracy. But now, those experiments are on a shorter leash. Now that the constitutional stampede is underway, the issue ducked in Perry will surface again at the Supreme Court once some state has the temerity to uphold its traditional definition of marriage against an equal protection analysis.

When that happens, the same five-to-four majority that decided Windsor will strike again. On an issue that is this close to the personal identity of so many people, constitutional passions will win out over constitutional principles no matter what the doubters say.


about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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