TightWind is written by Kyle Baxter. Stay Hungry. Stay Foolish.

The Obama administration decided not to defend Section 3 of the Defense of Marriage Act, which legally defines marriage as between a man and woman, because they believe it to be unconstitutional.

Orin Kerr explains why this could set a dangerous precedent:

If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

He continues:

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended.

Our constitutional system is stable in large part because although elections have consequences, as Democrats were wont to say after the 2008 election, they have limited consequences; electing a new president or Congress does not mean that the right to free speech is up for debate, or that the last people in power may be prosecuted. Because the serious things are off the table, we can have elections without worry that our society is going to be upturned.

If this does set a precedent, though, that may no longer be true. It’s not difficult to imagine a Republican administration deciding that Obama’s healthcare reform is unconstitutional, and thus refuse to defend it in court, or any other number of laws. If so, elections would be dramatically more important and contentious, because each new administration could substantially alter our laws.

This wouldn’t be a surprise, though. Increasingly, it seems like both sides are viewing power as a game of getting as much as you possibly can, no matter what traditions you break in the process and what consequences there are. Obama said as much when he took office, telling Republicans that he won and thus what he desires will be done; Republicans adopted it, too, abusing the filibuster in the Senate; and Democrats in Wisconsin have took it to an entirely new level by fleeing the capital to prevent a vote on a bill they don’t like. The ends justify the means, indeed.