Jeremy Hooper points to this video of Sen. Jeff Sessions (R-AL) arguing that the Solicitor General should resign over President Obama’s decision not the defend Section 3 of the Defense of Marriage Act (DOMA). “It’s unacceptable, it cannot be justified. It was direct interference politically by the President of the United States,” Sessions said during Donald Verrilli, Jr’s confirmation hearing to the position, before falsely claiming that Obama had supported DOMA. From the hearing:
SESSIONS: I would suggest what should have have happened. The Solicitor General should have told the Attorney General, ‘we cannot not defend that statute. It does not comply with the law.’ And the Attorney General should have told the President, ‘I know you may have changed your mind, Mr. President, but this is a statutory law passed by the Congress of the United States, it’s been upheld Constitutionally and it has to be defended. We cannot fail to defend that statute. And then what happens? I think what happens is the President says, ‘okay, I wish we could….’ And I think he would have backed off. If not, then you have to resign.
But if we are to take Sessions’ suggestion seriously, then we would also need to impeach conservative Chief Justice John Roberts. As Ian Millhiser explains, “in 1990, then-acting Solicitor General Roberts refused to defend a federal affirmative action law after he successfully convinced the George H.W. Bush Administration that the law was unconstitutional. He failed to convince the Supreme Court, however, and the law was upheld. By declining to defend DOMA, the Obama Administration is following the exact same approach embraced by Roberts.”
Several Republicans have also asked for Attorney General Eric Holder’s resignation, despite the long history of past administrations choosing not to defend legislation. In fact, the administration argues that two new challenges to DOMA in November of 2010 brought about the change. As the New York Times explained, “Unlike previous challenges, the new lawsuits were filed in districts covered by the appeals court in New York — one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.” The administration decided that sexual orientation deserved a higher level of constitutional scrutiny and that under that standard of review, Section 3 of the law was unconstitutional.