◼ The Supreme Court heard arguments over a federal law that defines marriage as the union of a man and a woman. The Times’s John Schwartz offered analysis of the arguments, with audio... - New York Times
Justice Antonin Scalia: It has not arisen very often in the past, because in the past, when I was at the Office of Legal Counsel, there was an opinion of the Office of Legal Counsel which says that the Attorney General will defend the laws of the United States, except in two circumstances: Number one, where the basis for the alleged unconstitutionality has to do with presidential powers. When the presidential powers are involved, he's the lawyer for the President. So he can say, we think the statute's unconstitutional, I won't defend it.
The second situation is where no possible rational argument could be made in defense of it. Now, neither of those situations exists here. And I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it, if we're in this new world, I -— I don't want these cases like this to come before this Court all the time.
And I think they will come all the time if that's — if that's — if that's the new regime in the Justice Department that we're dealing with.
Sri Srinivasan: Justice Scalia, one recognized situation in which an act of Congress won't be defended in court is when the President makes a determination that the act is unconstitutional. That's what happened here. The President made an accountable legal determination that this Act of Congress is unconstitutional.
