We have been down this road for more than a year, regarding the limits to the Department of Justice's obligation to defend the constitutionality of laws which it does not favor -- and how this applies to legal challenges to DOMA and DADT.
And as you know if you've been following these arguments for a while you know there are generally three areas in which DOJ has felt no such obligation: (a) statutes which cannot be defended as constitutional with any reasonable arguments; (b) statutes which intrude on the inherent power of the executive branch; and (c) if John Roberts is the acting Solicitor General and there's a federal agency in place to defend the statute. (See above link.)
As to DOMA, then, this administration's more recent arguments have defended Congressional desire to proceed incrementally and avoid patchwork results while avoiding arguments about procreation and child-rearing.
With DADT, while focusing largely on standing the administration's arguments did rely in part on a claim that Congress could "rationally have believed that the DADT policy serves to preserve unit cohesion, accommodate personal privacy, and reduce sexual tension," while nevertheless stating that as a matter of policy they'd like to repeal it. As for the stay of Judge Phillips' injunction, they're arguing "we're about to do it ourselves; it's complicated, but just give us time."
But do they even have to make any case for these laws? Kudos to John Aravosis of AMERICAblog, who last week revealed an incredibly on-point example of an administration not defending such laws.
The year was 1996, and as part of the Defense Authorization bill Rep. "B-1" Bob Dornan inserted a provision requiring the military to discharge any HIV-positive person, regardless of the cause of the affliction or the person's ability to physically and medically perform his or her military duties. And back in 1996, not only did President Clinton vow to repeal the policy legislatively, he refused to defend or enforce it. From the press briefing by White House Counsel Jack Quinn and Deputy Solicitor General Walter Dellinger:
[T]he President has determined that this provision is unconstitutional. He's, therefore, directed the Attorney General not to defend it in court. The President has been informed in this regard by the Department of Defense that in its judgment the Dornan Amendment serves no legitimate military purpose; that it is arbitrary, unwarranted, and unwise....
Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not.
Q Jack, is there any precedence -- do you know of a precedence for a President refusing to enforce a -- to defend a law?
MR. DELLINGER: Let me give you just one example. In 1943, President Roosevelt signed the Urgent [Deficiency] Appropriation Act notwithstanding his reluctance because of a provision that in his view violated the Constitution by depriving named individuals who were singled out by Congress of the right to ever receive any pay from their government jobs. The President directed the Attorney General not to defend the constitutionality of the provision. The Senate, in fact, defended in the Court of Claims through counsel, and the court ruled in United States v. Lovett that the President was correct in his conclusion and held that provision of the Urgent Efficiency Appropriations Act unconstitutional.
There are, to be fair, tenable arguments that in the absence of Congressional action, proponents of equality are better off having this cases appealed so as to have broader application (assuming those courts are favorably disposed), as well as arguments wholly separate from the issue of gay equality (such as the need for uniformity in federal benefits, or the Commander-in-Chief's control over the military or the need for a phased-in end to DADT) which could be made here. Still, that doesn't mean it sits right to have the Obama administration making these arguments. Let someone else.
And indeed, that has happened in other cases. When the Reagan White House challenged the constitutionality of the independent counsel statute in the late 1980s, the Office of Senate Counsel, as amicus curiae, defended the statute (as did the independent counsel). Other times, Congress has hired outside counsel to do so. (It's more complicated here, because there's no majority in either chamber which wants to defend DADT, so I don't know how this plays out. Perhaps Senate Republicans could participate in an amicus capacity.)
Still, in the meantime, the President need not enforce DADT. I was lucky in my law school days to have The Hon. Abner Mikva as my Legislative Process professor; just two years earlier as White House Counsel he wrote this to President Clinton, which provides fodder for both sides of the argument:
As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.
Where the President's independent constitutional judgment and his determination of the Court's probable decision converge on a conclusion of unconstitutionality, the President must make a decision about whether or not to comply with the provision. That decision is necessarily specific to context, and it should be reached after careful weighing of the effect of compliance with the provision on the constitutional rights of affected individuals and on the executive branch's constitutional authority. Also relevant is the likelihood that compliance or non-compliance will permit judicial resolution of the issue. That is, the President may base his decision to comply (or decline to comply) in part on a desire to afford the Supreme Court an opportunity to review the constitutional judgment of the legislative branch.
In other words, if you don't believe Congress will repeal a law and fear some future President enforcing it, a President may have to defend it in order to enable the Supreme Court to kill it dead.
It has some logic to it. But if President Obama wants to stop having a military which discharges members on the basis of sexual orientation, he needs to put on his Commander in Chief cap and order it to stop discharging members on the basis of sexual orientation. And there's a bonus: once he does that, all these cases go away. If no one's being harmed by DADT, no one has legal standing to pursue these lawsuits. Win-win all around.