Much has been made about the decision by the Justice Department to no longer defend section 3 of the Defense of Marriage Act as it pertains to gay marriages. Many Republicans have been lying and spreading false information including and unsurprisingly Glen Beck and Newt Gingrich.
So what is the requirement for the Justice Department to defend a law? According to Partick Leahy a Republican prior to November 2008 wrote:
The Attorney General’s duty is to uphold the Constitution and the rule of law, not to circumvent them. The president and the American people are best served by an Attorney General who gives sound advice and takes responsible action, rather than one who develops legalistic loopholes to serve the partisan ends of a particular administration.
I have been unable to find the original source of this quote, but my best guess based on the information available is this is from Senator Arlen Specter a Republican from Pennsylvania.
From this quote you could interpret that it is the duty of the Justice Department to responsibly defend laws. I would also say this means that if the Justice Department does not believe there is a reasonable argument to defend the constitutionality of the law it means that it would be irresponsible for the Justice Department to continue to defend it. However, as the Justice Department is doing it is the responsibility of the Justice Department to enforce it until the law is either repealed or overturned by the courts.
Even if you disagree and state that the Justice Department must always defend the law to what degree must they defend the law? Must they take every case all the way to the Supreme Court? I do not think so. I think a case should only go to the Supreme Court if there is a reasonable belief that the lower courts decision does not follow the rule of the constitution. So in this case the Justice Department defended the law in the lower courts, lost, and now do not believe there are any further compelling arguments they can make to defend the law. The lower court has already said there existing arguments were insufficient.
And there is precedent for the Justice Department to stop defending a law. In 1990 the Justice Department under President George H.W. Bush declined to defend a law that gave preference to minority owned broadcasters. And in 1996 under President Bill Clinton the department declined to defend a law that required the military to discharge HIV positive members.
This is also the reason we have our system of checks and balances. If Congress believes that the Justice Department is abusing their power and has made the wrong decision here Congress can choose to defend the law themselves.
So is the Justice Department required to defend every law all the way to the Supreme Court? No. However, it is very rare that the Justice Department does not do this.
Note: I am not a lawyer. These comments are based on my research and interpretation of the articles quoted and others that I reviewed and may not be correct in regards to the law.