That’s what the Amicus Brief filed by the Claremont Institute in the case United States v. Windsor is claiming.
It touches on this admittedly interesting question:
Whether the President can deprive this Court of jurisdiction to consider the constitutionality of an act of Congress by refusing to defend the act when it is challenged?
A strange situation useful perhaps to consider in certain con-law classes focused on issues like “standing”, but note well. In my essay below calling for Democrat Leaders who are Forthright Supporters of the Constitution, I said that such leaders “will shy away from acts of questionable constitutionality.” Well, that’s not Obama.
And I said that the bad So-to-Speak-Supporters of the Constitution “take… dubiously constitutional actions…that are difficult or impossible to apply a “check or balance” to, and…difficult or impossible to successfully challenge in court.”
Well, that is.
The Claremont brief reminds us at one point of what is at stake:
The Bipartisan Legal Advisory Group, as the duly authorized representative of the House of Representatives, also has standing to intervene as a party to defend statutes adopted by Congress, particularly when the President abrogates his duty to “take care that the laws be faithfully executed.” To hold otherwise would give the President a de facto authority to suspend the law, the very concern that the Take Care Clause was designed to protect against.