However, there are some issues with the characterization of what happened and what Funk argues:

This work claims that "the executive branch neglected its obligation to enforce or uphold the law. Regardless of President Obama's stance on the law, it was his responsibility, along with that of the DOJ, to implement and defend it (Funk, n.d.). Obama directed the DOJ not to intervene in the case, which constitutes a clear violation of the Constitution".

Contrary to what this work claims, the decision the Obama administration made to not defend DOMA in court "was not a clear violation of the Constitution"; if anything, it appears to have been constitutional in that case, but it should generally not be used in most other cases as then it might be unconstitutional (Funk, 2015, pp. 1490-1491).

Furthermore, Funk's view is not that critical of the Obama' administrations, either (2015). overall, this work appears to lay an erroneously disproportionate level of blame on Obama's handling of the situation as why the case had to be heard, when Funk principally blames the legislature for what happened, not the executive branch (2015).

As an illustration, Funk specifically stated that "the executive branch under Obama decided that it would no longer defend the law if DOMA was challenged in court, but would continue to enforce the law until the judiciary declared the law unconstitutional". (Funk, 2015, p. 1472). Thus the statement that "the executive branch neglected to enforce the law," is not correct, at least as presented here. If it was correct, then the basis for US v Windsor, which was the desire of Edith Windsor to receive legal martial rights, such as being treated as being married for tax purposes, especially in terms of the death of her long term partner, would not have been enforced and the cause for her case being heard would not have existed.

Furthermore, if the decision by the Obama administration to refuse to have the Justice Department defend the law in court was so unconstitutional, then why did "the Supreme agree to hear the case and strike it down" (Funk, 2015, p. 1487)? To be clear, the Court could have refused to hear the case, for while "it did not condone such as method of policy change on a regular basis" as supported by Obama, it did not argue that Obama did was unconstitutional in this case (Funk, 2015, p. 1487). Indeed, "the Supreme Court ratified the executive branch's decision to interpret DOMA in a manner in direct and open conflict with existing federal court decisions". That made the Obama administration's decision constitutionally correct and valid and not a violation in many key respects.

Overall, the Obama administration's decision in substantive terms, that it should not try to defend a law which violated individual constitutional rights making it unconstitutional, was cautiously vindicated, and it was vindicated while meeting the procedural Constitutional goal of continuing to enforce the law's denial of marital rights to same sex couples (Funk, 2015, p. 1472).

The Court's view on the executive branch's actions were that "it ultimately agreed with the President's legal position," but "it is the province and duty of the judicial department to say what the law is" (Funk, 2015, pp. 1490-1491). Moreover, the court said that the "'enforce, not defend' approach of the Obama administration would not be accepted on a regular basis," but that it would be accept here (Funk, 2015, pp. 1490-1491). In other words, while the approach taken by the President in this situation when it came to DOMA was accepted when it came to DOMA, normally it would not be (Funk, 2015, pp. 1490-1491). This represents a cautious reaction to the Obama administration's approach as "it is based on a constitutional theory which has not yet been established in case law via stare decisis or precedent," but there are rare cases such as with DOMA where it is acceptable (Funk, 2015 pp. 1490-1491). A key reason for this was because of the failure of Congress to fix a problem which both the executive branch and the judiciary felt was a violation of individual constitutional rights and which forced the executive branch to enforce a law it felt was unconstitutional (Funk 2015, pp. 1490-1491).

Essentially, the argument for why Obama's action were unconstitutional is that executive branch interpreted a law and then refused to defend it in court, which you may be arguing reflects an example of not upholding it (Funk, 2015). However, the executive branch does have discretion when it comes to the enforcement of a law. The obvious counterargument against the claim that the Obama administration was acting unconstitutionally was that it was exercising executive discretion by enforcing the law such that Edith Windsor had standing for a claim of discrimination and denial of constitutionally protected marital rights, while also choosing not to defend the law in court from legal challenges. From that perspective, the Obama administration's decision was completely constitutional, if unusual. Moreover, Funk (2015), once again, blames Congressional inaction for creating this controversy over the procedural constitutionality of the executive branch's reaction.

Furthermore, Funk argues that there are constitutional arguments both for and against what the Obama administration did (Funk, 2015). On pages 1478-1480, for example, he points to "scholars who argue that "the president has an independent duty to interpret and apply the constitution in the face of a lack of binding legal precedent" (Funk, 2015, 1478-1479). Further, other scholars point out that "'unwillingness to defend the Constitutionality of Acts of Congress' is a 'well entrenched feature of DOJ practice'" (Funk, 2015). This reflects how "the exact nature and extent of the President's obligations" have not bee definitively established (Funk 2015).

To conclude, moreover, this response appears to rely on Funk's (2015) work to lay a great deal of blame on the Obama administration's decision to not enforce the Defense of Mariage Act, and to criticize this decision as unconstitutional. However, Funk does not lay a principal level of blame on the Obama administration, not does he blame the administration for what happened or argue that its decision was clearly unconstitutional (2015). In reality, he lays principal level of blame on Congress for not going back and revising or fixing DOMA (Funk, 2015). While there are concerns with what the judiciary and the executive branch both did, he lays the main blame on Congress for what he sees as a breakdown in the workings of the separation of powers and the system of checks and balances (Funk, 2015).

Finally, in terms of Lincoln. it should be noted that the Emancipation Proclamation was not a piece of legislation passed by Congress, but rather an executive order passed in wartime. Any efforts to enforce fugitive slave laws relative to Southern states and areas of the Union in rebellion died with it. Further, even prior to that, many military commanders as part of their wartime measures had increasingly and often very quickly come to ignore any efforts to return fugitive slaves to their owners. Even more, these commanders often employed the escaping slaves as contraband and used them to support the war effort, especially in southern states in rebellion even prior to the Emancipation Proclamation. The pro-slavery Supreme Court that gave the United States the Dred Scott decision, one of the worst in American history, was frequently and with great justification, at this extraordinary time, ignored. Given that the Constitution gives Congress the power to suppress rebellions and insurrections under Article I, Section 8 of the Constitution, and the president is the Commander-in-Chief and given the power to implement these policies, Lincoln's acts were constitutional.

What do you think and why?