Presidential Constitutionalism and Marriage Equality

Abstract

Administrative constitutionalism, broadly understood, entails normative efforts by executive officials to apply the law in light of (1) its public-regarding purposes, liberally applied to advance the common good; (2) the Large "C" Constitution, as interpreted purposively by the executive officials; and (3) the nation's small "c" constitutional culture of historical, foundational commitments. As Professor Sophia Lee has explained, the engines of administrative constitutionalism have normally been agencies and their officials. But some of the greatest examples of administrative constitutionalism have been led by American Presidents and the White House and not by agency heads and administrators.

Presidential constitutionalism has a distinctive origin in the duties of the President laid out in the Constitution. First, the President has a specified duty to "take Care that the Laws be faithfully executed . . . ." For superstatutes, congressional measures seeking to transform the status quo, the President's charge is to implement the statute in a manner that advances the big goals set forth in the law. Second, the President's oath of office commits her or him to "preserve, protect and defend the Constitution of the United States." This entails the President's obligation to enforce constitutional values and limits, including limits on the President's authority. That obligation, in turn, requires the White House to deliberate about the meaning of the Constitution. Third, like other public officials, the President ought to act to "promote the general Welfare, and secure the Blessings of Liberty" forall citizens, goals laid out in the Constitution's Preamble.

Even this general description of presidential constitutionalism suggests its complexity. Is the President bound by constitutional rulings from the Supreme Court with which she or he disagrees? Should the President vigorously apply super-statutes that she or he thinks misguided? How does the President gauge the "general Welfare" and balance competing "Liberty" interests? However these issues are resolved by different administrations, the concept of presidential constitutionalism is a powerful and pervasive one. The modern Presidency has expanded opportunities for Large "C" as well as small "c" constitutional leadership by the officeholder. The President and Vice President are the only officials elected by the entire country, and Presidents take their elections as popular mandates for big normative moves. As the head of a political party and armed with a veto authority, the President enjoys a great deal of legislative power. As the person who appoints federal judges, the President influences the judiciary as well. Not least important, everything the President says and does commands media attention and public comment. The bully pulpit of the office invites big policy and moral initiatives.

This article will consider a particularly powerful example of presidential constitutionalism: the Obama Administration's leadership on the issue of marriage equality for lesbian, gay, bisexual, transgender, queer, and similar (LGBTQ+) persons. Presidential constitutionalism was effective because the chief executive articulated a robust principle (equal citizenship for sexual and gender minorities), application of that principle to the marriage issue was deeply deliberative within the executive branch and invited involvement by the judicial and legislative branches, and the process allowed the electorate to express its views. The combination of a robust principle, institutional deliberation, and popular feedback created conditions for immediate and powerful entrenchment of new rights for sexual and gender minorities.