Which brings us to what Obama has done by stating that he will not defend the law of the land. There is no doubt either through precedent or Constitutional requirement that a president is supposed to enforce and defend the laws of the land as is spelled out in Article 2 Section 3 of the Constitution.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Of course a President can choose not to faithfully execute laws which he does not agree with, without saying anything at all. I'm sure they do or don't actively enforce laws based on their political beliefs all the time. However when a law is challenged it is the duty of the president to defend it, like it or not.
What makes all this so intriguing is that not only has Obama publicly declared that he is not going to faithfully execute his duties under the constitution, the reason he states for not doing so is that he believes the law itself unconstitutional.
Now this brings up several very interesting points. First it is common belief that only the Federal Courts and ultimately the Supreme Court can deem a law unconstitutional commonly known as judicial review. However the entire concept of judicial review is a matter of precedent not an actual constitutional duty of the courts spelled out in the constitution itself. As Wikipedia puts it:
In the United States, judicial review is considered a key check on the powers of the other two branches of government by the Judiciary, (although the power itself is only implicitly granted)
In fact there have been cases where presidents have simply ignored the Supreme Court altogether. When the Supreme Court ruled against Andrew Jackson regarding his decision to remove the The Cherokees of Georgia from the their ancestral homes precipitating the infamous "Trail of Tears", Jackson famously replied of Chief Justice John Marshall's order,"Mr. Marshall has made his decision. Now let him enforce it!" The decision that the court had made was that the Federal Government did not have the Constitutional authority to remove the Cherokees, he did it anyway. Similarly when Lincoln suspended Habeas Corpus in the first days of the Civil War Chief Justice Taney ordered him to cease and desist from arresting people without warrant, Lincoln ignored him. There are less famous cases but it is not unheard of for the President to ignore courts or their rulings, though it is not a common practice and certainly not in modern American history.
That being said what Obama has done is not only ignore a ruling, he has actually declared a law unconstitutional and is setting national policy based on his sole belief about a law which has not yet been ruled on by the Supreme Court and is deemed to be constitutional. In affect what Obama is doing is nullifying a dully enacted law. This is not using his veto power, Clinton already signed the law, he is for all practical purposes vetoing a law two presidents removed solely on his own initiative.
As has been pointed out, what if a future president decides not to defend a law he disagrees with, such as Roe vs. Wade? Or taking it not to much further what if Republicans take back both houses of Congress in 2012 and a Republican President is elected and they pass and enact a law saying that the Roe v. Wade ruling is void? What could the Supreme Court do ? Nothing.
The possibilities are endless. What if the Supreme Court rules Obamacare unconstitutional and Obama says that he is going to enact it anyway, he just does not agree with the Supreme Court ruling. Or the SC rules it is constitutional but he next president just ignores any legal challenges to it because he doesn't think it is constitutional, so he does not defend it even though it has been declared constitutional.
Now here is where it gets even more intriguing. Since the President for all practical purposes has nullified a law which is constitutional by all previous standards, why can't individual states enact nullification laws against Federal Laws they do not consider constitutional? If a single person can make such weighty decisions, over riding the determination of both Houses of Congress and a previous President (in this case Clinton) why can't a state legislature and governor who are the elected representatives of a state make such a determination?
You see the slippery slope we are on here. once a president determines that he is above the law and is not restrained either by the constitution or even precedent then you are on the road to either dictatorship or anarchy. A republic such as ours can only survive if those elected to govern, adhere to the law of the land. This is why all government officials take an oath to preserve, protect and defend ....the what? their political party? no. The citizens? no. The United States? no. They (Obama) swore to preserve and protect and defend the Constitution because if they do not do that, we are headed towards anarchy.
This is what Jefferson meant when he said “ In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
Anarchy
a state of lawlessness or political disorder due to the absence of governmental authority
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