Rep. Steve King (R-IA) told conservative radio talk show host G. Gordon Liddy yesterday that Attorney General Eric Holder should probably resign for advising President Obama not to defend the constitutionality of the 1996 Defense of Marriage Act (DOMA). King also reiterated his pledge to defund the Department of Justice division responsible for upholding the law:
KING: I don’t necessarily put this at the feet of Eric Holder, although an Attorney General with a constitutional conscience would resign before he would go along with a directive to refuse to enforce the law…What I intend to do, and there are other solutions that are offered and I believe that the Speaker is focused on this as well, Speak Boehner. But what I intend to do is to offer an amendment on an appropriations bill that would cut the funding to the Department of Justice in an amount yet to be determined that would be equivalent to that amount that they would otherwise use to defend the Defense of Marriage Act.
“This is a constitutional issue of significant proportions and I’m a bit surprised that I haven’t heard from some of my other colleagues,” he complained. House Republicans have remained relatively muted on the matter, but hinted that they will announce their intentions to defend DOMA before the end of the week. Rep. Trent Franks (R-AZ) recently told ThinkProgress’ Scott Keyes that he supports Kings’ defunding drive and would also “absolutely” favor impeaching President Obama and Attorney General Eric Holder if such a move “could gain collective support.”
In a letter to Congressional leadership explaining the administration’s decision, Holder pointed to the long history of past administrations choosing not to defend legislation. “[T]he Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a ‘reasonable’ one,” Holder wrote. “[T]he Department has declined to defend a statute ‘in cases in which it is manifest that the President has concluded that the statute is unconstitutional,’ as is the case here.”
In 1996, Justice Department officials informed the Senate that the DOJ did not uphold the law “in 1946, 1963, 1979, 1980, 1983, 1988, 1990 and 1992.” In 1990, as the number two man in the solicitor general’s office, Chief Justice John Roberts “declined to defend federal laws which set a preference for awarding broadcast licenses to entities with a certain level of minority ownership,” arguing that “the FCC’s policy violated the 14th Amendment’s equal-protection clause because it unfairly discriminated based on race.” President George W. Bush similarly didn’t defend a law prohibiting the display of marijuana policy ads in ACLU et al., v. Norman Y Mineta and President Clinton did not uphold a law “barring HIV-positive men and women from serving in the armed forces because they deemed it unconstitutional.”