I had originally drafted, and might still post a general piece responding to the Obama/DOMA issue explaining the Department of Justice's historical obligation to defend federal statutes challenged on the basis of their constitutionality unless such an argument is clearly foreclosed by governing constitutional analysis or the statute infringes on the powers of the Executive Branch.
But as it turns out, there may be another exception to that obligation out there, and it's exceptionally on point. Back in 1990, an ambitious young acting Solicitor General maintained before the Supreme Court of the United States that the DOJ was not obligated to defend the constitutionality of what he deemed to be a discriminatory federal statute -- the type of discrimination that his President had campaigned against. He indeed argued that the statute his President had himself signed into law should be struck down as unconstitutional, urging the Court to employ a stricter level of scrutiny than what existing constitutional analysis actually required for laws of that sort.
The case was Metro Broadcasting v FCC, and if you're wondering why others have cited it in the past 24 hours without telling you the details, this may explain:
See, that young acting Solicitor General was named John Roberts, and he was making the types of arguments many of you wish Obama's DOJ had made against DOMA in order to argue against a federal preference program for minority broadcasters.
Here's the brief (PDF), and I'll let Marty Lederman (who wrote this in 2005, and is now part of Obama's DOJ in the Office of Legal Counsel) tell the tale:
What is (as far as I know) unique about Metro Broadcasting is that it appears to be the only case in recent memory that does not fall into any of these [traditional categories for refusing to defend the constitutionality of a statute]. The case arose as a result of a longstanding FCC policy of awarding licensing preferences to broadcast stations having a certain level of minority ownership or participation. The FCC initiated a review of this policy under the Reagan Administration, in response to which Congress passed three appropriations riders, in 1988-1990, forbidding the FCC from using appropriated funds to examine or change its preference policies. In their signing statements, both President Reagan and President Bush raised constitutional objections to other provisions of the bills in question, but did not object to the minority-preference provisions. In a subsequent lawsuit challenging the preferences -- Metro Broadcasting -- the SG permitted the FCC to appear in Court through its own attorneys to defend the constitutionality of the preferences and the federal laws requiring them. The arguments in favor of the statutes were certainly "reasonable," especially in light of the view of several Justices in Fullilove v. Klutznick that congressionally authorized affirmative action programs should not be subject to the strict scrutiny that the Court had (in Croson) applied to state and local affirmative action programs.
The FCC Commissioners and General Counsel unanimously urged the Department to defend the statutes as well, emphasizing that the U.S. Court of Appeals had upheld the central policy and that "there is a solid foundation in the Supreme Court's precedents for the government to argue that the FCC's policies are constitutional." But, as the Post story today reports, a memo in the files of Associate White House Counsel Fred Nelson (see the back page of this) reveals that Roberts was "[r]eluctant to defend [the] commission's position." In the Supreme Court, the Department of Justice not only did not defend the federal statutes -- it urged the Court to declare them unconstitutional. Acting Solicitor General Roberts, appearing on behalf of the United States as amicus curiae, argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. The Acting SG's amicus brief went further still: It urged the court to reject the deference to Congress suggested in Fullilove, and to apply strict scrutiny to federal affirmative action programs (a position that would, of course, restrict Congress's future legislative prerogatives -- i.e., that would substantially limit federal power).
Acting SG Roberts took this position attacking the federal enactments even though (i) there were more-than-reasonable grounds for defending them; (ii) they did not implicate the President's constitutional powers; and (iii) the President had not (publicly) indicated any constitutional objection to the provisions. (Not only had President Bush signed one of the laws -- he had also appointed three new FCC commissioners who each had expressly supported the diversity preferences in their confirmation hearings.)
The Supreme Court rejected the Acting SG's arguments by a 5-4 vote, although it would later hold in Adarand that strict scrutiny does apply even to federal affirmative action programs.
I should make clear that I although I do not agree with the substantive equal protection argument that John Roberts made in Metro Broadcasting, I do not think it was plainly inappropriate for the Acting SG to file a brief attacking the statutes, assuming the President had concluded that they were unconstitutional and that it was in the best interests of the United States that the Court apply strict scrutiny to federal affirmative action plans.
So call it the Roberts Exception: if you believe that Obama's DOJ should have argued against DOMA's constitutionality, then you have to support the right of Bush I's DOJ (via Roberts) to make parallel arguments against the constitutionality of a federal affirmative action program.
Or, on the other hand, if you find the idea of Bush's DOJ arguing against a federal statute protecting diversity in broadcasters (because they saw it as discrimination) to be noxious, then you have to restrain Obama's DOJ against arguing against what we see as discrimination.
Dizzy yet?