The president cannot declare a law unconstitutional

The Constitution of the United States grants certain powers and responsibilities to the President, chief among them the power to execute our national laws. He does not have the power to unilaterally declare a properly enacted law unconstitutional. This law was properly passed by the U.S. House of Representatives and the Senate and properly signed into law by then-President Bill Clinton. It is therefore the President’s constitutional duty to execute that law up to and including defending that law before the courts.

By declaring the law unconstitutional, the President is in essence attempting to legislate through the courts. Much as the Constitution does not grant the President the power to legislate – rather, simply to execute legislation – neither does the Constitution of the United States grant courts the power to legislate (although many activist judges have attempted to twist the judicial process to do just that). The power to legislate was given specifically to the Congress. If the President feels that the American people no longer believe that marriage is a union between a man and a woman, he has the right to submit legislation to Congress to repeal the “Defense of Marriage Act.”

However, the truth is that marriage has always, since the foundation of this nation, been defined as that special union between one man and one woman. And to this day, as the President knows full well, most Americans support the traditional definition of marriage. In fact, thirty-one of our fifty States have defined marriage in traditional terms within their State constitutions and nearly forty states have enacted laws similar to the federal Defense of Marriage Act. While countless people have claimed that the majority of Americans are supporters of “gay marriage,” no state–not one–not even the state of California (which is certainly not a bastion of conservatism) has ever passed a constitutional re-definition of marriage through popular referendum.

The Defense of Marriage Act does nothing to prohibit the people of any state from defining marriage as they please; if anything, it reinforces that right of the state and the people to decide this issue in accordance with the 10th Amendment to the Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or the people.” The regulation of marriage properly belongs to the people of the various states to decide, and it is time for us to return that power to the people.

That is why I, along with a number of my colleagues, reintroduced the “Marriage Protection Act of 2011.” This bill simply states that no courts created by an Act of Congress – meaning Federal courts – will have jurisdiction to hear cases regarding same-sex marriage. Additionally, the Supreme Court will not have appellate jurisdiction to hear these cases. In short, the bill makes same-sex marriage an issue to be determined by the people through their state legislatures or via referendum, not by Federal judges.

Americans support the traditional definition of marriage – a union between one man and one woman. If there comes a day that this is no longer the case, it is up to the American people either through referendum or through their elected and accountable representatives in the state House to make that change. But until that day, the Defense of Marriage Act is the law of the land and the President is bound by his oath of office to defend this law.