[Nuclear1]

http://tpmmuckraker.talkingpointsmemo.com/2011/02/obama_doj_say_part_of_doma_is_unconstitutional_will_not_defend_it_in_court.php

The Obama Justice Department has decided that part of the Defense of Marriage Act is unconstitutional and will not defend it in court.

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," Attorney General Eric Holder said in a statement.

"The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional," Holder said. "Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President's determination."

w00t

[Scotty]

So.... is this establishing the precedent that the president can decide what is unconstitutional or not?

[General Battuta]

So.... is this establishing the precedent that the president can decide what is unconstitutional or not?

Nope, I don't think so. The President can give instructions to his Department of Justice on whether or not to defend the constitutionality of a law. Not the same thing as deciding constitutionality. The Attorney General has I think always answered to the President.

[Nuclear1]

The DoJ is part of the Executive Branch, and President is head of the same.  He can decide for himself what he thinks is unconstitutional and order the DoJ to stop defending it, but the constitutionality of the law is still up to the Judiciary.  If SCOTUS rules it unconstitutional, then it gets repealed.

The Attorney General has I think always answered to the President.

Yep.  AG is the head of the DoJ, which is a Cabinet position.

[Mars]

So.... is this establishing the precedent that the president can decide what is unconstitutional or not?

No, the executive branch is tasked with enforcement of the law; the Attorney General is the chief LEO of the United States.

The executive branch has declared it will no longer enforce this law. The senate could compel them to through the justice department, if the constitution is on their side.

EDIT
It's similar to the way Denver police have stopped enforcing marijuana laws in a majority of cases. If someone really challenged the legality of it, they would have no choice but to crack down on pot again, but the political will simply isn't there.

[MP-Ryan]

Mars, your interpretation isn't entirely accurate.

Enforcement of a statute is wildly different from legal defense of a statute during a court challenge.  The Department of Justice is the de-facto defendant in any Constitutional challenge to a federal statute.  Whether or not they choose to cease enforcement of the provisions of that statute during court proceedings is a separate matter from the decision to defend the Constitutionality of the statute itself, though one may flow from the other.

The administration is continuing to enforce the law until it is found to be unconstitutional or repealed, in this instance.  They are no longer defending the constitutionality of the law in court proceedings alleging it is unconstitutional - so unless a private group takes up the slack, the judge(s) hearing the case will not hear a defending argument.  Doesn't mean the law will automatically be ruled unconstitutional, of course.

[Bobboau]

basically our government is designed to give a law every opportunity to not be enforced, there are three parts of their government, one part makes the law, another decided what the law means and the third enforces it, if any of these three parts doesn't like a law it's like it doesn't exist.