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Take Care That the Laws Be Faithfully Litigated

In this Comment, I argue that the framework Presidents use to decide whether to defend arguably unconstitutional statutes should be elaborated for statutes that the President believes violate the Constitution’s guarantee of equal protection–specifically where he believes that the courts should apply heightened scrutiny where they currently do not. After surveying the constitutional authority and arguments for presidential nonenforcement and nondefense, I discuss the nonenforcement decisionmaking framework established in 1994 by Walter Dellinger, then–Assistant Attorney General at the DOJ’s Office of Legal Counsel. But, I argue, in equal protection cases where the President believes the statute should be struck down under heightened scrutiny, he has a weightier duty not only to decline to defend the constitutionality of the statute, but further to instruct the Department of Justice to attack it in litigation. His effort should focus as much on influencing the Supreme Court as predicting its eventual decision. To this end, I offer my own modified framework for presidential nondefense decisionmaking, elaborated for the equal protection context. Finally, I apply this model to evaluate President Obama’s decision not to defend the Defense of Marriage Act.