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Edited on Wed Oct-13-10 06:07 PM by Unvanguard
It is true, of course, that ultimately the executive branch has some discretion over how it enforces and defends laws. It is true also that the Obama Administration is no exception to this, and has used its power to that effect (including with reference to gay rights issues, though not to the extent that many advocates hope). But it does not follow from this that there is no general obligation for the executive branch to enforce and defend federal law, or that the Obama Administration and everyone else should be comfortable with a simple refusal to defend or enforce anti-gay laws.
The obligation to "faithfully execute" laws passed by Congress is part of what makes the United States a democratic republic and not a dictatorship. It is not absolute, but it is important. We ought to be very hesitant about supporting executive attempts to undermine federal law, even if there is some precedent for it.
Furthermore, the evidence freelancewoman points to does not necessarily shed that much light on these specific cases. For instance:
1. It's true that appealing or not appealing is always a matter of discretion. But the fact that it is discretionary does not mean that absolutely any reason should be relevant. "We would just lose on appeal" is a good reason; "This limited loss does not interfere enough with public policy to be worth appealing" (presumably the logic of the Justice Department in Witt) is a good reason. "We like this outcome" is more dubious. The DOJ is supposed to represent the government of the United States, not the personal political views of the President of the United States.
2. It's true that not every single case ever brought against a federal law or policy has been defended by the DOJ. But exceptions do not disprove a rule; they only limit it. The rule here is not "The DOJ does not defend any federal law the president strongly dislikes"; the rule is, the DOJ does not defend a law when they can find no reasonable basis for defending it, a far narrower standard, and one also narrower than "if it is probably unconstitutional." A proper determination of a law or policy's unconstitutionality requires a full-throated litigation process and resolution by the judiciary, not by executive decree. In a society where numerous issues of constitutionality are controversial, letting the President's views always win out when it comes to federal law is a dangerous policy. What "no reasonable basis" usually involves is cases where there is clear-cut precedent militating against the law or policy: there is none as pertains to DADT or DOMA (indeed, if anything, most extant lower-court precedent at the moment is negative.) None of this is to say that presidents have not sometimes stretched this rule, or that Obama couldn't do the same. But it is a distortion to pretend that this is something about which the DOJ typically exercises policy-based discretion.
Furthermore, one thing not mentioned in the post is that generally the government only declined to defend the law or policy at the higher stages of litigation. In the two cases mentioned there I know something about, Dickerson v. United States and Metro Broadcasting v. FCC, they got all the way to the Supreme Court, and were defended there by other parties. Metro Broadcasting specifically involved an independent federal agency (the Federal Communications Commission), so it hardly is in the same category as a law the executive branch directly under the President is required to enforce. I don't think any of those, with the exception perhaps of the first, actually brought about a policy change without a Supreme Court ruling to that effect; that, however, is precisely what is sought with respect to DOMA and DADT.
3. Many of the times when the President simply refuses to obey the law, it is a matter of separation of powers, i.e. the President believes that a Congressional statute intrudes upon his or her constitutionally-protected powers. Other times, it is a means of preventing some harm while legislative slowness (rather than genuine substantive opposition) prevents Congress from acting--this was the justification for the widow's exception mentioned in the post you link to. Still other times, it is a matter of treaty obligations, which the President is also obliged to uphold. It is an area of legal dubiousness, and I don't know all that much about it, but I don't believe there's much precedent for an invalidation by executive order of a long-standing statute because it violates equal protection or free speech. Making some exceptions to a general statutory rule, or assigning enforcement priorities in a particular way, are not really equivalent.
I don't know how much legal justification there could be for refusing to appeal the DADT and DOMA rulings; I don't know if this is a topic on which there are clear answers. (For the record, my own view is that DADT needs to end within the next few months, one way or another, and if the administration cannot end it legislatively or by executive order, then they ought to not appeal. The DOMA rulings, on the other hand, should be appealed, because that is in the best interests of both parties.) Regardless, however, and importantly, it is simply not fair to suggest that a willingness to defend and appeal a statute is equivalent to a substantive agreement with that statute. There are good, principled reasons for supporting Congressional repeal rather than executive decree. Whether they suffice as a justification, in the midst of Congressional failure, is another question, but it is a distinct question from whether DOMA or DADT are good things, and disagreement on one does not entail disagrement on the other.
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