By Sam Baker - 03/27/13 04:46 PM EDT
The Supreme Court's conservative justices on Wednesday were sharply critical of President Obama's approach to a federal law on same-sex marriage.
Obama and Attorney General Eric Holder decided in 2011 that the federal Defense of Marriage Act is unconstitutional. They quit defending it in the courts, but directed federal agencies to continue to comply with the law.
Conservatives on the Supreme Court criticized that approach Wednesday during oral arguments over whether DOMA is constitutional.
Justice Antonin Scalia said the legal system appears to be "living in this brave new world" in which the Justice Department can simply opt out of its traditional responsibility to defend federal laws in the courts.
He questioned who has the power to decide the government will not defend a particular law.
"It's only when the president thinks its unconstitutional?" Scalia asked. "Or could the attorney general, or the solicitor general, impose the same determination?"
Citing his own experience as a lawyer in the Office of Legal Counsel, Scalia said DOMA does not meet the criteria for laws the Justice Department can opt not to defend.
The Justice Department's decision to quit defending DOMA has raised complex questions about whether the Supreme Court can rule on the law's constitutionality.
The justices seemed open to reaching a decision on the merits, but vented frustration at the way the administration has handled the case.
Paul Clement, the attorney defending DOMA, said the executive branch has "vacated the premises" on the case. Justice even filed a motion to dismiss the case in a lower court that encouraged that court not to dismiss the case.
"That does give you intellectual whiplash," Justice Anthony Kennedy said.