The Times suggests that some in the White House feared this, and that is why the President chose to enforce the law, but not defend it.
When President Obama decided that his administration would no longer defend the Defense of Marriage Act in court, he was presented with an obvious question with a less obvious answer: Would he keep enforcing a law he now deemed unconstitutional?
A debate in the White House broke out. Some of his political advisers thought it made no sense to apply an invalid law. But his lawyers told Mr. Obama he had a constitutional duty to comply until the Supreme Court ruled otherwise. Providing federal benefits to same-sex couples in defiance of the law, they argued, would provoke a furor in the Republican House and theoretically even risk articles of impeachment.
Two years later, that decision has taken on new prominence after Chief Justice John G. Roberts Jr. accused Mr. Obama from the bench on Wednesday of not having “the courage of his convictions” for continuing to enforce the marriage law even after concluding that it violated constitutional equal protection guarantees. The chief justice’s needling touched a raw nerve at the White House. “Continuing to enforce was a difficult political decision,” said an aide who asked not to be identified discussing internal deliberations, “but the president felt like it was the right legal choice.”
It’s funny. Today a student asked me if the President could be impeached for failing to defend the law and I kinda chuckled at his question. Is failing to defend a law violating the “take care” clause in the circumstance where he is still enforcing it? Probably not.
Some at the Justice Department argued that the administration should continue to defend the law. But Attorney General Eric H. Holder Jr. decided the law did not meet the higher standard. He talked the issue through with Mr. Obama, who once taught constitutional law at the University of Chicago, and the president agreed. They would no longer defend the law against court challenges.
But administration lawyers researched the matter and concluded that the president should still enforce it while the courts deliberated. Even then, not every lawyer agreed. One Justice Department lawyer thought the administration should refuse to enforce the law as well.
Of course, if the President failed to enforce it, and Edie Windsor got her tax refund, there would be no suit.
“I’m sure there are people in our community who would agree with the chief justice that the president should go farther and not enforce” it, said one leader in the fight forsame-sex marriage, who declined to be named while the case was pending. But leaders in the fight came to accept the decision “because without enforcement, there’s no means to challenge the law” in court.
If the President doesn’t enforce the law, then it goes into some bizarre state of limbo.
I’m looking forward to the Windsor opinion to see what the Court does here.