Attorney General Eric Holder plans to announce Saturday that the Department of Justice will grant “lawful same-sex marriages full and equal recognition, to the greatest extent possible under the law.” This statement, which will come at a speech at a gala held by the Human Rights Campaign, represents the next step of Obama’s “pen and phone” strategy, which consists of trying to accomplish with executive action what the President cannot through the legislative process.
The DOJ will grant same-sex couples in all 50 states thesame benefits currently enjoyed by those in traditional marriages in thecriminal justice system and other programs administered by Attorney General. This means, for example, that one same-sex spouse cannot becompelled to testify against the other, prisoners in federal prison with asame-sex spouse will have spousal visitation privileges, treat same-sexmarriages like heterosexual ones in federal bankruptcy proceedings as well asgrant federal death benefits to same-sex couples where one member is a publicsafety officer killed or badly wounded in the line of duty.
These benefits are relatively limited. After all, not many people are in same-sex marriages with a murdered law enforcement agent or to a federal prisoner. With Washington DC increasingly marked by partisan gridlock and Congress having difficulty passing even the most basic budget, this seems to exemplify the “pen and phone” approach announced by Obama in advance of his January State of the Union address. Bills pending in Congress, like the Employment Non-Discrimination Act or ENDA, which is currently stalled in the House after passing the Senate in November would have a more significant impact in everyday life. But those bills are not likely to pass. Instead, Holder's announcement simply makes a difference around the edges, slowly advancing an important policy goal for the White House.
Holder’s announcement Saturday marks the first major use of executive power by the administration since the immediate aftermath of January’s State of the Union. While this “pen and phone” strategy as been attacked by conservatives as leading the United States down the road to rule by executive fiat, this order hints that the administration’s approach to using executive action will be far more restrained. After all, the policies announced by Holder only applies to the DOJ and does not expand to include cherished goals of the LGBT community, like an executive order prohibiting discrimination based on sexual orientation by all federal contractors.
There are always limits to how much can be accomplished solely by the executive branch under the United States Constitution. While the growth of the administrative state has greatly widened the ability of the executive to make and influence policy, federal laws still have to pass Congress. This does still leave a broad scope for the Obama administration to act but at least, for now, the White House is not pushing its powers to the limit.