What’s up at the Department of Justice?

Whatever one might think about the Defense of Marriage Act (the legal invalidity of same-sex marriage), one should be critical of Attorney General Eric Holder's departmental policy to defend it, indeed propound it, in deportation cases while declaring that it is unconstitutional.

Immigration law allows an individual to petition for residency of his or her spouse so long as that spouse is not the same sex. Federal law does not recognize same-sex marriages. The attorney general stated in February that the administration deemed the act unconstitutional and determined as a matter of policy that the Justice Department would cease defending the act in courts. But it will continue to enforce the law? So he is not going to defend the law, but is going to invoke it?

Excuse me? It is OK to throw people out of the country if they partake in same-sex marriage, a law the administration deems unconstitutional, but will continue to enforce? When Southern states and judges took this position about segregation after Brown, the public and the Justice Department I served in screamed hypocrisy and bad faith. Every defense attorney in these immigration cases (under the supervision of the Justice Department) can now argue in appealing any deportation that the basis for the case is unconstitutional, citing the attorney general's February statement.

This kind of hydra-headed policy is similar to other Justice Department policies, like defending extreme rendition even after the president stated that he was against continuing the Bush administration’s policy of state secrets covering up extreme rendition. Or the legitimate complaints that the Senate is dragging its feet by not confirming judicial appointments, while the department has not sent the Senate nominees for half of the vacancies. There are 113 vacancies on the understaffed federal courts, and 65 seats do not have nominees! The department has failed to design and execute a strong prosecutorial policy going after the culprits in the business community who brought us to the brink of economic disaster, while deploring those same corporate vices and the damages they caused.

The Justice Department needs to 1) design and implement good prosecutorial policies, and 2) enforce them with vigor and consistency.

That should not be too hard to comprehend. The old canard about equal justice under law should begin with equal application of policy and execution.
 
 
Ronald Goldfarb is a Washington attorney and author who served in the Justice Department in the Kennedy administration.