In 1992, back when Congress could occasionally agree on something, there was bipartisan anger over a beverage called Crazy Horse Malt Liquor because it insulted the memory of a Native American chief who happened to frown on alcohol.
Congress quickly passed a law barring federal approval of any beer label that displayed the words "Crazy Horse." The brewer promptly sued, and not surprisingly a federal judge found the law unconstitutional under the First Amendment.
When the question of whether to appeal the ruling in Hornell Brewing Co. v. Brady arose, then-Solicitor General Drew Days III decided it would be futile; the law was beyond rescue. "Congress seemed to accept the decision not to go forward," Days wrote later.
So much for the vaunted governmental "duty to defend" acts of Congress, which has been invoked often in recent weeks in connection with the "don't ask, don't tell" law barring gays from the military -- a law that the Obama administration opposes but still is poised to defend. In cases much bigger than Crazy Horse -- think Buckley v. Valeo and INS v. Chadha -- SGs have been throwing provisions of federal laws under the bus for decades. And Senate records show that, 13 times in the past six years, during both the Bush and Obama administrations, the Justice Department has told Congress it is not defending an act of Congress.
Still, former SGs agree that defending statutes is a deeply valued tradition in the department, not to be tossed aside lightly. "I never did it," said Gregory Garre, chairman of the appellate practice at Latham & Watkins and an eight-year veteran of the SG's office, who was acting or confirmed SG for the last seven months of the Bush administration. "Defending statutes is a very important responsibility, and you'd have to pass an extremely high bar not to do it."
At the constitutional level, defending acts of Congress is viewed as part of the president's Article II duty to "take care that the laws be faithfully executed," presumably including laws with which the president disagrees. And allowing a law to die simply because a single judge strikes it down is also viewed as bad form -- a backdoor way for a president to veto a law.
"It shouldn't be that easy for a president to set aside an act of Congress," former acting SG Walter Dellinger said in a recent discussion of the issue sponsored by the American Constitution Society and the National LGBT Bar Association.
In spite of that view, Dellinger argues that, in the case of "don't ask, don't tell," President Barack Obama has a middle path he could pursue: continue the appeals while also telling the courts he thinks the law is unconstitutional. He wrote an op-ed column urging just that in The New York Times on Oct. 21.
Dellinger, now at O'Melveny & Myers, cited a 1946 case, U.S. v. Lovett, a challenge to a Cold War law that withheld the salary of certain federal officials for political reasons. The government withheld the pay but argued the law was an unconstitutional bill of attainder. Current Acting SG Neal Katyal has not officially spoken on the issue. But a footnote in an Oct. 20 filing with the 9th U.S. Circuit Court of Appeals in the case Log Cabin Republicans v. U.S., written by a lawyer in the Justice Department's Civil Division, stated, "The Administration does not support [the DADT law] as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes, as long as reasonable arguments can be made in support of their constitutionality."
THE DOJ STEPS ASIDE
But history shows that this "long-standing practice" is not always followed. Federal law requires the Justice Department to notify Congress when it decides not to defend a statute, and the list, while not lengthy, is significant -- 13 notifications since 2004.
For example, then-acting Solicitor General Paul Clement in 2004 told Congress "the government does not have a viable argument to advance" in defense of a federal law that barred mass-transit agencies receiving federal funds from allowing ads on buses and subways promoting the use of medical marijuana. The reason: The law amounted to viewpoint discrimination, which the U.S. Supreme Court was unlikely to permit.
Sometimes the reason is strategic. In 2008, the Justice Department reported it was not appealing a district judge's finding that certain provisions of the federal child pornography law were unconstitutional in the case of an Iowa man. The judge had allowed the rest of the prosecution to proceed, however, and the government decided that an appeal defending the rejected parts of the law would delay the trial too long. The letter promised that the department would defend the law in other cases.
More recently, Attorney General Eric Holder Jr. told Congress on June 16 that he would not appeal a ruling by the U.S. Court of Appeals for the D.C. Circuit that struck down two provisions of the Federal Election Campaign Act of 1971 limiting contributions to political committees. The circuit in SpeechNow.org v. FEC had invoked the Citizens United case in declaring the provisions unconstitutional. Because there was no circuit split on the issue and the ruling only affects "a small subset of federally regulated contributions," Holder said, "the department has decided not to seek Supreme Court review at this time."
Holder's action recalls a more high-profile case -- Buckley v. Valeo -- in which the government decided not to defend another part of FECA, a post-Watergate campaign finance law.
Among other things, the complex law created the Federal Election Commission and allowed the president, the House and the Senate to appoint its members -- a blending of two branches of government that was viewed by critics as an unconstitutional violation of separation of powers. One of those critics was then-Solicitor General Robert Bork, who in referring to the law played off its acronym and called it "fecal matter," according to a story told by then-assistant to the SG Frank Easterbrook.
Troubled by his obligation to defend statutes, however, Bork came up with a unique solution: filing three briefs. One, on behalf of the attorney general, attacked the provision on the composition of the FEC as unconstitutional. A second brief by the FEC defended the provision. A third, by both the AG and the FEC, defended the rest of the law. In the 1976 Buckley decision that resulted, the high court struck down the method of appointing the commission.
PROTECTING PRESIDENTIAL POWER
Another landmark case in which the government did not defend acts of Con gress was Immigration and Naturalization Service v. Chadha in 1983. In numerous laws, Congress had given itself, in effect, a one-house "legislative veto" over certain executive actions -- in this case, Justice Department decisions to delay deportations. Even though numerous presidents had acquiesced in the practice, and Ronald Reagan supported legislative vetoes, Reagan's SG Rex Lee argued successfully that they were unconstitutional. In recalling the episode at a 2002 conference, Bush SG Theodore Olson said, "Rex's experience with Chadha teaches that, as an executive officer, the solicitor general's constitutional duty to the president is paramount to his duty to Congress where core executive power is threatened."
Indeed, laws that infringe on executive power are one category in which tradition runs the other way: The SG is expected not to defend those laws. The classic case is Myers v. U.S. in 1926, in which the SG argued against a law that limited presidential power to remove postmasters. The Court invited a senator to argue in favor of the law.
Arguing against the constitutionality of a statute is even familiar to one of the current members of the Court. In the 1990 case Metro Broadcasting v. FCC, the Court, led by Justice William Brennan Jr., upheld FCC policies, backed by Congress, that gave minority broadcasters preference in obtaining licenses. The first Bush administration did not like the preferences, and it argued in the case that they were unconstitutional. The FCC defended the minority preference on its own.
The SG's brief argued that promoting diversity in programming was not a sufficient justification for minority preferences. "The notion that race or ethnicity is a valid proxy for programming choices is precisely the type of racial stereotyping that is anathema to basic constitutional principles," the brief states.
SG Kenneth Starr was recused in the case, so the counsel of record was his then-deputy, John Roberts Jr.