News Obama administration will no longer defend DOMA

[BobG]

Thus, rather than setting a precedent, the DoJ is merely following the precedent set by previous administrations, and this ex post facto veto power predates the Obama administration's decision.

Furthermore, the decision does not usurp the role of the courts as opponents of DOMA will still have to convince federal judges that the law is, in fact, unconstitutional. No changes to the law will happen until this occurs. Consistent with the Constitution, the opinion of the courts--not the opinion of the DoJ--is the final arbiter of this issue.

They're following the precedent of failing to set a precedent? Bizarrely, that's probably the most accurate way to put it. The premise that the DoJ has to defend every law in court is flawed to begin with. They defend most laws. There's always been exceptions.

Just a recent exception: The Case of the Poisoned Lover. The administration changed its stance mid-case, leaving no one to defend the federal government's original position on the case. The USSC still found someone to represent that side.

Because after passionately defending the position that Bond had no standing to raise a 10th Amendment challenge in the lower courts, the Obama administration changed its mind and decided that she did. That put the solicitor general's office in the strange position of having 20 minutes today to argue that Bond has standing to sue at some times and not other times but should nevertheless lose on her constitutional claims, anyhow.

It also put the court in the doubly strange position of having to reach out and tap a lawyer to argue against standing. Enter Stephen McAllister, a former Supreme Court law clerk and the solicitor general of Kansas who comes into the case for the last 20 minutes to argue that Bond cannot get into a court on her 10th Amendment claims.

While the Obama administration choosing not to defend the DOMA act is an exception to an overall policy of defending federal laws, about the only thing really special about it is that the exception occurred in a highly visible case. Exceptions occur every once in a while on all kinds of lower priority cases.

 

[mugaliens]

Refocus. Please. Lots more at steak...

 

[CAC1001]

Okay I am a total amateur on this whole issue, but what if you had a Republican President who decided they would order their DoJ not to defend say abortion because they felt it was un-Constitutional? Or say the Affordable Care Act (Obamacare)? How is this different?

 

[Al68]

Okay I am a total amateur on this whole issue, but what if you had a Republican President who decided they would order their DoJ not to defend say abortion because they felt it was un-Constitutional? Or say the Affordable Care Act (Obamacare)? How is this different?

I'd say hypothetically that if congress had passed a law in 2008 that banned all abortions nationwide, and it was challenged as unconstitutional and reaching the Supreme Court now, that Obama would not be obligated to defend the law to Supreme Court. I would even go further and say that the President is perfectly free to take the other side and argue against the constitutionality of a federal law to the court. In fact, he is obligated to do exactly that if he believes "faithfully" that the law is invalid due to unconstitutionality.

Ditto for Obamacare if its challenge reaches the Supreme Court after Ron Paul gets elected President.

 

[TheStatutoryApe]

Okay I am a total amateur on this whole issue, but what if you had a Republican President who decided they would order their DoJ not to defend say abortion because they felt it was un-Constitutional? Or say the Affordable Care Act (Obamacare)? How is this different?

Someone else would defend the case.

 

[BobG]

Okay I am a total amateur on this whole issue, but what if you had a Republican President who decided they would order their DoJ not to defend say abortion because they felt it was un-Constitutional? Or say the Affordable Care Act (Obamacare)? How is this different?

This is unusual for a case to reach the US Supreme Court and not be defended by the administration because it almost requires a reversal of policy for the situation to happen. If the administration just chose not to enforce a law passed by Congress (a fairly common situation), the issue wouldn't reach the US Supreme Court.

For example, the Fair Housing Act of 1968 prohibits discrimination in housing except when the person renting will share living space with the person doing the renting (a roommate, for example). The Fair Housing Act also prohibits discriminatory advertising - in other words, you can't place an requesting a female tenant, adults with no kids, etc. There is no exception for shared living spaces. In other words, it's illegal to put an ad on the college bulletin board requesting a female roommate, a Christian roommate, etc.

In 1995, the Clinton administration thought that was just dumb and the http://www.fairhousing.com/index.cfm?method=page.display&pagename=hud_resources_hudguid2 directed HUD staff not to accept discrimination complaints for ads for roommates, etc. Three different Presidential administrations, both Democrat and Republican, have used the Actenberg memo as their policy on handling discriminatory advertising complaints. (Unfortunately, the law still is what it is and once in a while you see someone other than the federal government demand the law be enforced, usually unsuccessfully if the advertiser has the money to raise a fuss.)

For example, Intake staff should not accept a complaint against a newspaper for running an advertisement which includes the phrase female roommate wanted because the advertisement does not indicate whether the requirements for the shared living exception have been met. Publishers can rely on the representations of the individual placing the ad that shared living arrangements apply to the property in question. Persons placing such advertisements, however, are responsible for satisfying the conditions for the exemption. Thus, an ad for a female roommate could result in liability for the person placing the ad if the housing being advertised is actually a separate dwelling unit without shared living spaces. See 24 CFR 109.20.

In principle, there's not much difference between choosing not to enforce a law and choosing not to defend a law in court.

 

[Proton Soup]

Okay I am a total amateur on this whole issue, but what if you had a Republican President who decided they would order their DoJ not to defend say abortion because they felt it was un-Constitutional? Or say the Affordable Care Act (Obamacare)? How is this different?

you'd have a lot of the same people arguing the opposite of what they are now, that's what

 

[mugaliens]

Okay I am a total amateur on this whole issue, but what if you had a Republican President...

Yes, you are an amateur. This issue has nothing to do with party lines.

 

[BobG]

Another example would be the War Powers Act of 1973. The constitutionality of this law has been debated ever since it was passed. The only way this law could come before the USSC is if a President defied the act.

I think it would be a very bizarre scenario if an administration challenged the law and then represented both sides of the argument before the USSC court.

 

[NeoDevin]

Where did Russ go?

 

[CAC1001]

Yes, you are an amateur. This issue has nothing to do with party lines.

I think it does. Maybe I should have explained myself more though. You would never find a Republican administration refusing to defend DOMA and you would never find a Democratic administration refusing to defend/enforce Roe v Wade or the Affordable Care Act. My point (also because of my confusion) was that the reaction from many in government and the media (and even this forum) would probably be a lot more negative if a Republican president refused to defend the AFA or Roe v Wade as opposed to the current Democratic administration refusing to defend DOMA.

 

[TylerH]

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President is bound by his oath of office to uphold the laws of the USA and I am disheartened that people think it is ok for him shirk his primary duty.

law != constitution

I is my interpretation that, if he thinks the law is unconstitutional, he is bound to act against it. Or more generally that, if the executive branch sees a law as unconstitutional, it may choose to over rule the congressional branch, and not enforce it. But, I must admit, I don't remember much from civics & econ.

 

[russ_watters]

law != constitution

The Constitution makes the President the person responsible for carrying-out the laws passed by Congress. That's the title duty of the branch of government!

 

[ThomasT]

Maybe Obama is just following the sentiment expressed by his predecessor.

Families is where our nation finds hope, where wings take dream.

Or, maybe he's just posturing.


Maybe mugaliens got it right:

At this point, I think "Who cares? We have bigger fish to fry at the moment" applies quite well.

Refocus. Please. Lots more at steak...

Or, maybe he was just hungry.

 

[Al68]

The Constitution makes the President the person responsible for carrying-out the laws passed by Congress. That's the title duty of the branch of government!

Not exactly. The constitution makes the President responsible for carrying out all laws, not just those passed by congress, and specifically the constitution itself.

Regardless of whether you think the President can selectively enforce statutes, the constitution definitely imposes no burden on the President to defend the constitutionality of a law in court, nor prohibits him from arguing against a law in court.

For that matter, why couldn't the President be the petitioner to begin with?

 

[BobG]

One more example. In 1990, the FCC asked the first Bush administration to defend a policy aimed at encouraging more minority ownership of broadcast stations. The FCC's policy was at the urging of Congress, yet Bush's acting Solicitor General (Ken Starr had to recuse himself from the case) chose not to defend the FCC's policies against legal challenges, taking the position that the FCC's policies violated the equal protection clause of the 14th Amendment.

Even without the administration's help, the FCC wound up prevailing in the USSC by a 5-4 vote, although the Court wound up reversing its stand five years later in a different case.

Interesting trivia: the acting Solicitor General was John Roberts, who is now the Chief Justice on the Supreme Court (not that it means it was Roberts decision not to defend the FCC's affirmative action program in the Supreme Court, which is why it's merely trivia).

 

[Gokul43201]

Back in the Summer of 2009, the Obama Justice Department successfully deflected a challenge against DOMA, even though it (the Justice Dept) essentially admitted that DOMA was discriminatory and ought to have been repealed. The lawsuit was dismissed on a curious jurisdictional technicality. It seems, that over the past couple years, the administration has hardened it's opinion on DOMA, going from "unwise" to "unconstitutional".

http://blogs.findlaw.com/courtside/...ugh-everyone-involved-seems-to-hate-doma.html

The present position of the Justice Dept seems to be in agreement with the verdict from last Summer of a MA Fed Court that found some of the provisions in DOMA to be unconstitutional.

http://writ.news.findlaw.com/grossman/20100719.html

Does anyone know if a challenge of DOMA has ever made it to the USSC?

 

[nismaratwork]

Gokul: It hasn't made it The SCOTUS yet, and now it may not.

AFAIK, and nothing posted here says otherwise except for opinion, a president can make whatever directive he wants, he can't enforce it however. He can keep firing USAG's, but he can't make them do this; it is in short, a false dillemma to bring this into question, and a distraction.


As far as I'm concerned, this is a good move to prevent the needless waste of tax dollars in a failed attempt to impose a religious view of marraige on the tax code. A president should be aware of such matters, and to make this partisan is so laughable... truly it destroys even shreds of credibility.

 

[russ_watters]

Not exactly. The constitution makes the President responsible for carrying out all laws, not just those passed by congress, and specifically the constitution itself.

I don't think you disagreed with me.

Regardless of whether you think the President can selectively enforce statutes, the constitution definitely imposes no burden on the President to defend the constitutionality of a law in court, nor prohibits him from arguing against a law in court.

Do you have a source for that? I sourced my claim of the opposite.

For that matter, why couldn't the President be the petitioner to begin with?

He could be, if the law relates to him! That doesn't affect his duty. How is it dealt with when a police officer or prosecutor is arrested/tried with a crime?

 

[russ_watters]

(Unfortunately, the law still is what it is and once in a while you see someone other than the federal government demand the law be enforced, usually unsuccessfully if the advertiser has the money to raise a fuss.)

In principle, there's not much difference between choosing not to enforce a law and choosing not to defend a law in court.

Agreed - and I don't like attempts to circumvent the normal function of government. If a law is bad, it should be repealed, not ignored as an end-run around the Constitution.

One more example. In 1990, the FCC asked the first Bush administration to defend a policy aimed at encouraging more minority ownership of broadcast stations.

And also just to be clear, I'm not a hypocrite here: I think it's wrong when the Bush administration did it too.

 

[nismaratwork]

Agreed - and I don't like attempts to circumvent the normal function of government. If a law is bad, it should be repealed, not ignored as an end-run around the Constitution. And also just to be clear, I'm not a hypocrite here: I think it's wrong when the Bush administration did it too.

As a country, not states, our laws are based on precedence. Your argument, while not hypocritical, establishes that precedent.

 

[NeoDevin]

Agreed - and I don't like attempts to circumvent the normal function of government. If a law is bad, it should be repealed, not ignored as an end-run around the Constitution.

He's not ignoring it, he's just refusing to defend it. There's a big difference between not enforcing a law, and not defending it.

 

[turbo]

He's not ignoring it, he's just refusing to defend it. There's a big difference between not enforcing a law, and not defending it.

I think that's an important distinction. Obama's administration won't defend the law in front of the SCOTUS. That's a whole lot different from Bush's refusal to enforce the Clean Air Act.

 

[nismaratwork]

I think that's an important distinction. Obama's administration won't defend the law in front of the SCOTUS. That's a whole lot different from Bush's refusal to enforce the Clean Air Act.

Bingo!

 

[TheStatutoryApe]

Agreed - and I don't like attempts to circumvent the normal function of government. If a law is bad, it should be repealed, not ignored as an end-run around the Constitution. And also just to be clear, I'm not a hypocrite here: I think it's wrong when the Bush administration did it too.

If you read the release from the AG's office they are not "ignoring" the law, only refusing to defend the constitutionality of the law which they have specifically outlined the legal rationale for doing. The release also says that they have notified congress in the event that they wish to assign counsel to defend in the AG's place. As far as I can tell this is no where near the big deal you are making it out to be.

 

[nismaratwork]

If you read the release from the AG's office they are not "ignoring" the law, only refusing to defend the constitutionality of the law which they have specifically outlined the legal rationale for doing. The release also says that they have notified congress in the event that they wish to assign counsel to defend in the AG's place. As far as I can tell this is no where near the big deal you are making it out to be.

Making a mountain out of a molehill for the sake of anti-Obama politics? HERE?! Surely you jest sir!...

Heh... Ahhh you know I'm kidding, of course it's a load of ideology and either ignorance of the law, or a fanciful view of it.


The thing that gets me: the president doesn't have the POWER to do what is being claimed by Russ, unless everyone around him including the DoJ agrees... or by shirking duties as Executor of the laws.

Simply saying that he recommends not pursuing this, doesn't stop it from being pressed. Now, failing to execute laws without a court injunction is actually ILLEGAL.

 

[Al68]

Regardless of whether you think the President can selectively enforce statutes, the constitution definitely imposes no burden on the President to defend the constitutionality of a law in court, nor prohibits him from arguing against a law in court.

Do you have a source for that?

Yes: http://www.usconstitution.net/const.html

I sourced my claim of the opposite.

Your source doesn't substantiate such a claim. Not even close.

 

[nismaratwork]

So... in this position, one of us would have to retract our claim, and possibly receive an infraction or warning. That would be for an honeset mistake...


...What to do here... what to do...

Russ: Do you have another leg to stand on here?

 

[BobG]

If you read the release from the AG's office they are not "ignoring" the law, only refusing to defend the constitutionality of the law which they have specifically outlined the legal rationale for doing. The release also says that they have notified congress in the event that they wish to assign counsel to defend in the AG's place. As far as I can tell this is no where near the big deal you are making it out to be.

I agree there is a distinction between failing to defend a law and failing to carry out a law.

However, it's not clear that failing to enforce a law is a constitutional violation either. There's two possibly conflicting provisions in the Constitution affecting Presidential behavior. The President has to both "preserve, protect, and defend" the Constitution and "take care that laws be faithfully executed. Generally, a law being unconstitutional has been considered the only acceptable reason for failing to execute a law.

Obviously, there could be heated debate over whether the law could reasonably be considered unconstitutional or whether the President is deliberately obfuscating to avoid executing a law he disagrees with. At least prior to the 80's (when signing statements became much more prevalent*), it's an issue that Presidents have rarely abused.

I think this http://www.justice.gov/olc/nonexcut.htm provides a pretty good history and analysis of the issue regardless of whether or not you agree with his conclusion. Even if one disagrees with the idea of a President refusing to enforce provisions he finds unconstitutional, it does have a long history - especially in regard to provisions that are seen to intrude on the authority of the Executive Branch.

Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).

*Signing statements have become so prevalent and detailed over the last 30 years that many legislators have developed the sentiment that signing statements have turned into line item vetos - something that is verifiably unconstitutional.

 

[nismaratwork]

I agree there is a distinction between failing to defend a law and failing to carry out a law.

However, it's not clear that failing to enforce a law is a constitutional violation either. There's two possibly conflicting provisions in the Constitution affecting Presidential behavior. The President has to both "preserve, protect, and defend" the Constitution and "take care that laws be faithfully executed. Generally, a law being unconstitutional has been considered the only acceptable reason for failing to execute a law.

Obviously, there could be heated debate over whether the law could reasonably be considered unconstitutional or whether the President is deliberately obfuscating to avoid executing a law he disagrees with. At least prior to the 80's (when signing statements became much more prevalent*), it's an issue that Presidents have rarely abused.

I think this http://www.justice.gov/olc/nonexcut.htm provides a pretty good history and analysis of the issue regardless of whether or not you agree with his conclusion. Even if one disagrees with the idea of a President refusing to enforce provisions he finds unconstitutional, it does have a long history - especially in regard to provisions that are seen to intrude on the authority of the Executive Branch.



*Signing statements have become so prevalent and detailed over the last 30 years that many legislators have developed the sentiment that signing statements have turned into line item vetos - something that is verifiably unconstitutional.

There's very little debate; the only body that can determine the constitutionality of a law is the Judiciary, ultimately SCOTUS. Without such a ruling, failure to enforce a law is, frankly, treasonous.

edit: I'd add, when you have laws that are defunct, and conflicts between federal and state law, you get the medical marijuana issue, and this DOMA crud. It's quite destructive.