Constitutionality Queries Dog Obama

BY Kerry Eleveld

October 20 2010 10:35 AM ET

Over the past week the White House has been besieged by a persistent line of questioning about President Barack Obama’s view on the constitutionality of “don’t ask, don’t tell” and, as yet, has continually failed to supply an answer that satisfies the nagging question, Does the president of the United States believe the law is constitutional?

White House press secretary Robert Gibbs stammered through a response to four separate inquiries last week, giving the final dodge Sunday on NBC’s Meet The Press.

“You know, David, he thinks it's discriminatory and it's unjust and most of all it harms our national security,” Gibbs told NBC’s David Gregory after being asked point-blank whether the president believes the law is unconstitutional.

When Gibbs faced the query once again from The Advocate Tuesday during what will be his only official briefing this week due to the president’s travel schedule, he appeared a bit beleaguered by the topic.

“Again, I have enumerated for you the belief, the President's belief that it's unjust, it's discriminatory, and that it harms our national security,” he offered.

The Advocate responded, “Well, you’ve never enumerated for us his belief on the constitutionality of it,” to which Gibbs conceded, “I haven’t,” before hustling along to the next reporter.

The answer is important, of course, because it’s the linchpin to understanding both whether and potentially how the Department of Justice should defend the law. Though the Justice Department is charged with defending laws passed by the Congress in most cases, it is not compelled to do so in cases where the law in question is deemed to have violated the constitution. In fact, the commander in chief holds the power to instruct his Justice Department not to defend such a law.

President Obama addressed the matter once in 2009, during a July interview with CNN, where he suggested that the law is constitutional but stopped short of affirmatively saying he personally believed it was.

“If Congress passes a law that is constitutionally valid, then it’s not appropriate for the executive branch simply to say, we will not enforce a law,” Obama told CNN’s Anderson Cooper.

Although one could seemingly reasonably deduce the president’s belief based on the fact that his Justice Department filed an appeal last week of Judge Virginia Phillips's ruling that the policy is indeed unconstitutional, it is not necessarily predictive, according to some legal scholars.

During a conference call Monday, Walter E. Dellinger III, solicitor general for the Clinton administration in 1996 and 1997, explained that government lawyers could agree to “nominally defend” the law even as they argue that the government finds it unconstitutional.



















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