New York Mayor Michael Bloomberg's Response to a Same-Sex Marriage Ruling:
Should Executive Officials Defend Laws They Consider Unconstitutional?

By MICHAEL C. DORF

Monday, Feb. 14, 2005

Manhattan trial court judge Doris Ling-Cohan recently ruled that the New York State Constitution's Equal Protection Clause protects the right of same-sex couples to marry. In response, New York City Mayor Michael Bloomberg stated that although he personally supports same-sex marriage, he had nonetheless directed City attorneys to appeal the decision.

Is Bloomberg's position a mere political straddle, as his critics charge? Not necessarily. It is perfectly consistent to think that a given policy is desirable--and thus ought to be adopted by the legislature--but is not constitutionally required. And indeed, in speaking at a community center in Brooklyn last week, the mayor said as much, declaring that "it is up to the Legislature to change the law."

Yet Bloomberg also suggested last week--somewhat contradictorily--that he thinks it would also be appropriate, even desirable, for same-sex marriage to become legal in New York by court decree. In his own statements and those made through his spokespersons, the mayor indicated that he is appealing Judge Ling-Cohan's ruling solely to bring clarity to the law.

Bloomberg cites the example of San Francisco, where Mayor Gavin Newsom issued thousands of marriage certificates to same-sex couples, only to have them subsequently nullified by a judicial decision. Better to know for certain what the state high court thinks before raising hopes, then dashing them, Bloomberg says.

Is that position legally tenable? Can the mayor and city attorneys argue on appeal that the New York Constitution does not protect a right of same-sex marriage while simultaneously hoping that they lose? Under such circumstances, how can opponents of same-sex marriage trust the city not to put up a deliberately weak defense of the existing law?

More generally, what power do executive officials such as the mayor--or at the federal level, the President--have to enforce or defend laws based on their own views about their constitutionality?

These are profound questions that have been at the center of constitutional law for generations.

The Scope of Independent Executive Power to Interpret the Constitution

Readers interested in the details of Judge Ling-Cohan's ruling in Hernandez v. Robles would be well-advised to consult Joanna Grossman's Writ column from last week. In this column, I want to explore the more general question of executive power to engage in constitutional interpretation--a question that is raised by Bloomberg's attempt to have it both ways. I'll use federal examples, but the analysis is largely the same for state officials with respect to their state constitutions.

What power does the President, who takes an oath to "preserve, protect and defend the Constitution," have to interpret the Constitution according to his own lights, rather than simply following the courts in such matters?

Certainly if Congress passes a bill that the President thinks is unconstitutional, he can veto the bill--even if he is convinced that the Supreme Court would uphold the law.

But what happens if Congress musters the two-thirds vote of each house necessary to override the President's veto? Or if the law the President thinks is unconstitutional was signed by one of his predecessors in office? Must he vigorously enforce a law that he thinks is unconstitutional? How does the President reconcile his duty to preserve, protect and defend the Constitution with his equal duty to "take Care that the Laws be faithfully executed?"

At different times in American history, Presidents have given different answers. Perhaps the best-known statement of Presidential independence in matters of constitutional interpretation was given by President Abraham Lincoln in his First Inaugural. Echoing a position that had previously been espoused by Thomas Jefferson and others, Lincoln contended that decisions of the Supreme Court on constitutional matters are binding on the parties in the case before the Court, but not on co-equal constitutional actors such as the President and Congress. Accordingly, and having in mind the infamous 1856 Dred Scott case, Lincoln indicated that Congress and the President were free to disregard a Supreme Court decision in cases that involve different parties.

By contrast, the Supreme Court has taken a more expansive view of its own power, and a narrower view of the power of the political branches in matters of constitutional interpretation. In Cooper v. Aaron, a 1958 decision involving the desegregation of the Little Rock, Arkansas public schools, the Court announced that the duty of elected officials to respect the Constitution amounted to a duty that those officials respect the Supreme Court's interpretation of the Constitution. The Court seemed to allow no room for independent constitutional interpretation by elected officials.

The Difference Between Defying the Supreme Court and Supplementing Its Rulings

In the Cooper case, Little Rock officials had asserted a power to defy the constitutional rulings of federal courts. That power has rightly been rejected as a threat to the rule of law.

Even Lincoln's view--which would allow the political branches to defy the courts' rulings each time a new party were involved--would make the orderly administration of justice nearly impossible: The Executive Branch could continually attempt to enforce laws already ruled unconstitutional, necessitating fresh litigation each time.

Accordingly, although I and many other constitutional scholars find the judiciary-aggrandizing rhetoric of Cooper excessive, we understand that, taken in the context of outright defiance of a court order, it expresses a practical necessity: If the courts have definitively ruled that some type of law is unconstitutional, and if there is no reasonable likelihood that they can be persuaded to change that view, then political actors should be understood as lacking the power to adopt or enforce that type of law.

But what about the converse situation posed by the New York same-sex marriage case? To date, New York's highest court has not invalidated the state statute restricting marriage to opposite-sex couples, and there is at least a reasonable probability that it will uphold the law on appeal.

In these circumstances, if Mayor Bloomberg were to instruct City Hall clerks to issue marriage licenses to same-sex couples, he would not in any way be defying judicial authority. At the most, he would be interpreting the New York Constitution more generously to same-sex couples than the courts ultimately would.

Does the mayor--or in the federal context, the President--have the power to treat constitutional interpretations by the judiciary as merely establishing a floor, while permitting (or perhaps even requiring) the exercise of independent executive judgment to afford greater protection than the judicial minimum?

Two episodes in recent constitutional history suggest that there is no perfect answer to this question.

The First Episode: Can Congress Overrule Miranda?

As anybody who has ever been arrested or seen a cop show on television knows, before the police may interrogate a suspect held in custody, they must read the suspect his rights. That was the famous holding of the 1966 case of Miranda v. Arizona.

Or was it? Seizing on language in the Miranda opinion that suggested that the now-well-known warnings were merely one possible safeguard to avoid coerced confessions, in 1968 Congress enacted a statute that purported to overrule Miranda. That law said that a confession could be admitted in federal prosecutions even if the interrogating officers neglected to read the suspect one or more of the Miranda warnings, so long as the confession was, all things considered, "voluntary."

The statute largely lay dormant until 1999, when a federal appeals court ruled that it was valid, and accordingly held that Charles Thomas­­ Dickerson, whose confession was the product of an unMirandized interrogation, could be convicted on the basis of that confession.

Dickerson took his case to the Supreme Court, leaving President Clinton's Justice Department in a pickle. For years, the Justice Department had taken the position that the law purporting to overrule Miranda was unconstitutional. The Solicitor General was prepared to argue that Dickerson himself could be convicted (for unrelated reasons). But he would not stand before the Supreme Court and tell the Justices that Congress had validly overturned Miranda via the 1968 law, when in the best judgment of the Executive Branch, that law was invalid.

The Justices hit upon a clever solution. They appointed a kind of special prosecutor to argue the case--selecting law professor (now federal judge) Paul Cassell, a longtime critic of Miranda who sincerely believed that the statute purporting to overturn that decision was constitutional. Cassell, they knew, would zealously argue that the law was valid, just as Dickerson's attorney would zealously argue that it was not.

After a spirited contest, Dickerson won. The Court ruled that whatever wiggle room Miranda and subsequent cases allowed for alternative safeguards, its core was a constitutional decision, and Congress cannot simply erase what the Court deems constitutionally required. To do so would be open defiance of the sort that the Court does not allow. Chief Justice Rehnquist wrote the majority opinion in the 7-2 decision in Dickerson v. United States.

Are Special Prosecutors Always the Answer?

The procedure used in the Dickerson looks like a promising way around the problem faced by Mayor Bloomberg and other executive officials when they are asked to defend laws they think invalid, but for which a colorable case of constitutional validity can be made.

The solution goes as follows: Instead of the executive branch offering a half-hearted defense of the law on the books, or worse, conceding the case, it ought to find some qualified attorney who will eagerly do the job. In the sorts of contentious cases in which this issue is likely to arise, there is usually no shortage of organizations that file friend-of-the-court briefs. Why not designate one of these groups as lead counsel when the official administration steps aside?

There will indeed be circumstances where the Dickerson procedure can work, but difficulties may also ensue. For example, what if there are multiple candidate organizations for taking over the law's defense, each with its own qualifications and agenda?

Courts have some experience designating counsel in class actions when this issue arises, but there, the question is simply which lawyer or firm is best able to pursue the interest of the class. Where a law's validity is challenged, the choice among candidates to stand in the shoes of the executive will implicate more politically charged issues, and may embroil the court in the very questions it is supposed to adjudicate neutrally.

Moreover, even if a satisfactory procedure for designating substitute government counsel can be devised, it will do no good in cases in which the executive makes a decision not to enforce a law--rather than a decision, as in Dickerson, not to defend a law. Another recent example illustrates this point.

The Second Episode: A Question about Enforcing Gun Laws

A recent memorandum by the Justice Department takes the view that the Second Amendment protects an individual right to own and possess firearms, and not a collective right of the people to be organized in state militias. The Justice Department's position strongly echoes the view expressed by the U.S. Court of Appeals for the Fifth Circuit in the 2001 case of United States v. Emerson.

The new Justice Department position is plausible, but it has also been rejected by other courts, most notably the U.S. Court of Appeals for the Ninth Circuit in the 2002 case of Silveira v. Lockyer.

Moreover, although the Supreme Court has not squarely faced the question, it has strongly indicated that it favors the collective right interpretation. Indeed, former Chief Justice Burger went so far as to describe the position now espoused by the Justice Department as a "fraud on the American public."

Although the Justice Department believes that the Second Amendment protects an individual right, the new memo does not address the question of whether existing federal gun laws infringe that right. It is thus possible that implementation of the memo would not prevent enforcement of any federal gun laws. For the most part, those laws ban particular classes of weapons, regulate purchase conditions, and keep firearms out of the hands of convicts and other dangerous individuals; they permit law-abiding citizens to obtain and keep guns. Accordingly, one might think that the Second Amendment protects an individual right, but that federal gun control laws are valid.

Nevertheless, it is possible that the Bush Administration solicited the Second Amendment memo in order to provide intellectual support for a policy decision not to enforce some class of federal gun control laws.

Suppose then, that the Justice Department has sufficient information to obtain an indictment against a prospective defendant, call him Pistol Pete, for violating a federal gun control law. Under the collective right view, the Second Amendment would provide Pete with no defense. However, under the Justice Department's new view, let us suppose further, Pete cannot be constitutionally prosecuted. Invoking their respective oaths to uphold and defend the Constitution, Justice Department attorneys decline to prosecute Pete.

Gun control groups--which adhere to the collective right view of the Second Amendment--are predictably incensed at what they regard as the Justice Department's dereliction of its duty. Can they seek a Dickerson-like special prosecutor to go after Pistol Pete and his ilk? The answer is almost certainly no.

At the federal level and in most states, citizens do not have legal standing to sue the government to demand that the latter enforce the law. Why not? Because to give them such a right would interfere with the prosecutorial discretion that is widely regarded as essential to the effective functioning of government administration.

Prosecutors do not have infinite resources and so they must prioritize among the possible cases they could bring, selecting only the ones they deem most important. The decision to concentrate prosecutorial resources on one category of cases at the expense of another is thus not a dereliction of executive duty, but the carrying out of that duty.

It's Political After All

Of course, one might object that the decision not to prosecute a category of firearms offenders on asserted constitutional grounds differs substantially from a decision about allocating scarce resources. The latter is a necessary evil, while the former smacks of politics.

Yet it is difficult to disentangle that objection from views on the merits. Unless we are prepared to say that executive officials must enforce all laws on the books and completely cede the responsibility for constitutional interpretation to the courts, each of us will find ourselves on both sides of this question--depending on the underlying substantive issues.

If you think laws barring same-sex marriage are unconstitutional, you will applaud executive officials who decline to enforce them. If you think the Second Amendment protects only a collective right, you will denounce executive officials who decline to enforce gun control laws. And vice-versa.

In an important sense, then, the critics of Mayor Bloomberg who condemn his straddle on same-sex marriage have it both right and wrong. They are right that he is making a political judgment, but they are wrong to condemn him for that fact.

Because the exercise (or non-exercise) of prosecutorial discretion is inevitably political, so is the remedy: Citizens unhappy with the way in which executive officials enforce or don't enforce the law, can vote against those officials. In New York City, they'll have that opportunity later this year, when Mayor Bloomberg runs for re-election.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

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