Litigation

The Obama administration, Gill v. OPM, and the politicization of the Department of Justice

By Ted Frank

One of the supposed great crimes of the Bush administration was the "politicization" of the Department of Justice, a drumbeat we heard repeatedly from the mainstream media (even as a politically-motivated criminal investigation eventually found no wrongdoing). But nothing the Bush administration did compares to what the Obama administration is doing openly.

In the D. Mass. case Gill v. Office of Personnel Management, plaintiffs are suing over the constitutionality of the Defense of Marriage Act, which defines "marriage" for purposes of federal statutes to exclude gay marriages and civil unions. DOMA is both a burden and a benefit to gay couples: on the one hand, they're excluded from certain government benefits; on the other, two-income couples save thousands of dollars a year in federal taxes from the marriage penalty. I'm not a huge fan of DOMA, and I imagine Obama DOJ officials like it even less.

Nevertheless, it is accepted that the executive branch is to defend the constitutionality of laws previously passed, even if the executive branch does not like the law.

Yet that is exactly what the Obama DOJ civil division did in Gill. Ed Whelan has been detailing the issue. Sure enough, the district court, thanks to the government's brief, declared DOMA unconstitutional, something it could not have done if the government's brief had not explicitly argued that there was no rational basis for the statute.

I'm not unhappy with the end result, but I'm disheartened by the lawless process with which that end result was achieved. And I'm astonished that there hasn't been a huge scandal over the politicization of the Civil Division. President Bush was criticized for signing statements, but when push came to shove, it defended the laws. See, for example, then-Deputy Solicitor General Paul Clement's able efforts on behalf of McCain-Feingold during the Bush administration. Imagine the scandal if the Bush administration had tried to undermine the statute by arguing that it violated the First Amendment.

The double standard isn't just troubling for its evidence of media bias; it serves to shift the judicial system to the left. Conservatives uphold the laws; liberals undermine them when it serves their political purposes. This is a problem that goes far beyond matters like the New Black Panther Party, a case that the mainstream media can easily dismiss pace Thernstrom. There needs to be scrutiny of how the Obama administration is systematically politicizing the Justice Department. One potentially fruitful investigation would be asking how many Federalist Society members were hired by the Honors program in the last two summers.

Full post as published by Point of Law on July 26, 2010 (boomark / email).