News Obama administration will no longer defend DOMA

[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 If a law is bad, it should be repealed, not ignored as an end-run around the Constitution.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 If a law is bad, it should be repealed, not ignored as an end-run around the Constitution.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 If a law is bad, it should be repealed, not ignored as an end-run around the Constitution.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.

 

[BobG]

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.

Section 2 of DOMA:

`No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.'.

(bolding mine)

Article 4, Section 1 of US Constitution:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

(bolding mine)

Is it treasonous for Congress to pass a law in clear violation of the Constitution? And is it treasonous for the President to participate in those violations or is he cleared by the "Nuremberg Defense"?

Perhaps the second sentence of Art 4, Sec 1 provides some leeway for Congress? I have a lot of trouble seeing how, though.

Granted, the issue is Section 3 of DOMA; not Section 2 (which I think is clearly unconstitutional). Plus, those that see overuse of signing statements as a backdoor method of instituting line item vetoes do have a valid point. I don't think it's a very clear cut issue one way or the other.

 

[nismaratwork]

Section 2 of DOMA:



(bolding mine)

Article 4, Section 1 of US Constitution:


(bolding mine)

Is it treasonous for Congress to pass a law in clear violation of the Constitution? And is it treasonous for the President to participate in those violations or is he cleared by the "Nuremberg Defense"?

Perhaps the second sentence of Art 4, Sec 1 provides some leeway for Congress? I have a lot of trouble seeing how, though.

Granted, the issue is Section 3 of DOMA; not Section 2 (which I think is clearly unconstitutional). Plus, those that see overuse of signing statements as a backdoor method of instituting line item vetoes do have a valid point. I don't think it's a very clear cut issue one way or the other.

It's stupid for congress to pass an unconstitional law, but as long as nothing obstructs the legal process, that's why we have checks and balances. It's treasonous for any branch to take on the role of another; no one issue is more important than those checks which make what little democracy we have possible.

I think DOMA is absurd, and another sign of congress pandering, but it was never going to fly past The SCOTUS; that's the point!

Treason is pretty cut and dry... I'd say however that legislators who passed it should not be re-elected, but that's me.

 

[Al68]

There's very little debate; the only body that can determine the constitutionality of a law is the Judiciary, ultimately SCOTUS.

Incorrect according to the constitution. Both the President and congress not only can determine, but must determine according to their oath of office, that a law is constitutional prior to approving it.

Without such a ruling, failure to enforce a law is, frankly, treasonous.

Not only not treasonous, but a President is prohibited from enforcing a law he determines to be unconstitutional by his oath of office.

I would note that in this particular case, that's kind of moot, since as far as I can tell no action by the executive branch is required for this law to be fully in effect.

It's stupid for congress to pass an unconstitional law, but as long as nothing obstructs the legal process, that's why we have checks and balances. It's treasonous for any branch to take on the role of another

Incorrect. It's not just stupid, it's a violation of their oath of office. Abiding by the constitution is the "role" of every branch. The judiciary, and ultimately SCOTUS, is the last, but not the only, safeguard against constitutional violations. The fact that congress has a habit of violating the constitution doesn't make it legal.

Treason is pretty cut and dry...

Yes, it is: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." (http://www.usconstitution.net/const.html" , Art 3, Sec 3)

 

[nismaratwork]

Incorrect according to the constitution. Both the President and congress not only can determine, but must determine according to their oath of office, that a law is constitutional prior to approving it.Not only not treasonous, but a President is prohibited from enforcing a law he determines to be unconstitutional by his oath of office.

Citation?... I'm unaware of this view. I mean, we agree on the basics here, but I'm no constituional scholar, I could use some material to read.

I would note that in this particular case, that's kind of moot, since as far as I can tell no action by the executive branch is required for this law to be fully in effect. Incorrect. It's not just stupid, it's a violation of their oath of office. Abiding by the constitution is the "role" of every branch. The judiciary, and ultimately SCOTUS, is the last, but not the only, safeguard against constitutional violations. The fact that congress has a habit of violating the constitution doesn't make it legal.Yes, it is: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." (http://www.usconstitution.net/const.html" , Art 3, Sec 3)

In theory I agree, but we live in precedent and jurisprudence... so... are you wrong? No. Are you right? Sort of... although courts seem to either avoid these cases or rule in favor of what we both see to believe is treasonous.

 

[Al68]

Citation?... I'm unaware of this view. I mean, we agree on the basics here, but I'm no constituional scholar, I could use some material to read.

I'm not sure which view you're referring to, but if you're talking about the President's oath of office, Article 2, Section 1 specifies his oath of office, and requires he take it prior to his taking office: "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."

If you're referring to the President (or congress) "determining" what the constitution says, that's a logically necessary prerequisite to the job, given that the powers, and limits, of each are specified in the constitution, including the types of laws congress may and may not pass.

 

[nismaratwork]

I'm not sure which view you're referring to, but if you're talking about the President's oath of office, Article 2, Section 1 specifies his oath of office, and requires he take it prior to his taking office: "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."

If you're referring to the President (or congress) "determining" what the constitution says, that's a logically necessary prerequisite to the job, given that the powers, and limits, of each are specified in the constitution, including the types of laws congress may and may not pass.

Hmmmm... defend, protect... OK, I'm going to see if I can get a friend to let me use LexisNexis and see what SCOTUS rulings have been on cases that touch this.

If I find anything interesting, I'll post it.

It's... interesting... I'm used to thinking in terms of realpolitik, but here... the ideal may be correct. I need to think about this.

 

[BobG]

A couple of new twists on defending DOMA.

Since the Department of Justice won't defend the act in court, House Republicans hired a private firm, King & Spalding led by Paul Clement, to defend the act. Supposedly, a group called Human Rights Campaign (HRC), the nation's largest advocate for gay, lesbian, bisexual and transgender rights, mounted a campaign against King & Spalding that included calling clients of King & Spalding.

HRC took credit for forcing King & Spalding to withdraw from the case, which prompted Clement to resign from the law firm and to continue as the primary lawyer defending DOMA, a move that was defended by Eric Holder, the same person that announced the DoJ would not defend DOMA.

HRC's campaign was already unethical and, if their campaign was truly the cause of King & Spalding withdrawing, then the law firm abandoning their client due to public pressure was unethical. While the issue might be DOMA in this particular case, it brings the entire justice system into question if one group can prevent another from obtaining legal representation in court by an orchestrated campaign of this nature.

(On the other hand, there may have been a http://metroweekly.com/poliglot/2011/04/news-analysis-what-actually-ha.html completely unrelated to the HRC.)

And California's Prop 8 backers are taking a similarly bizarre strategy in saying the judge that struck down Prop 8 should have recused himself because he, himself, was homosexual. This strategy has some problems in that, using the same line of logic, a heterosexual judge would also have to recuse themselves from the case, making it really hard to get this case heard in court, period.

 

[NeoDevin]

While the issue might be DOMA in this particular case, it brings the entire justice system into question if one group can prevent another from obtaining legal representation in court by an orchestrated campaign of this nature.

The problem with this is that they haven't prevented anyone from obtaining legal representation. Clement was the lawyer who was going to defend it, and he still is. Not to mention that there are probably at least a thousand other law firms and/or independent lawyers who would be willing to take on the case.

You're proposing the the HRC could effectively campaign every single law office in the country and prevent all of them from working on the case.

Put another way, their campaign was so inconsequential that it didn't even change the individual lawyer who would be defending DOMA. All they caused was some internal restructuring at a law office, not prevent DOMA from being defended.

 

[BobG]

The problem with this is that they haven't prevented anyone from obtaining legal representation. Clement was the lawyer who was going to defend it, and he still is. Not to mention that there are probably at least a thousand other law firms and/or independent lawyers who would be willing to take on the case.

You're proposing the the HRC could effectively campaign every single law office in the country and prevent all of them from working on the case.

Put another way, their campaign was so inconsequential that it didn't even change the individual lawyer who would be defending DOMA. All they caused was some internal restructuring at a law office, not prevent DOMA from being defended.

(bolding mine)

No. The HRC only needs to campaign the law office that accepts the case and it only needs to campaign them one at a time as each one accepts the case and subsequently withdraws due to the threat of its other clients disassociating themselves from the law firm. It's a highly unethical practice that could damage a law firm for doing what it's supposed to do - represent each of their clients on an individual basis.

But there is some question as to whether it was effective or not. As also mentioned, there may have been a legitimate problem with the contract. That problem possibly could have been resolved by deleting the problem clause or by withdrawing if the client refused to remove the problem clause - or having a problem clause may have provided a legitimate way to ease out of a contract that could cause monetary damages in the form of lost clients. At this point, it's unknown what impact the HRC had.

Paul Clement has a large enough public reputation that he can choose who he works for, which is one reason the law firm's withdrawal didn't change the lawyer working on the case. In fact, the loss of such a high profile lawyer damages the law firm more than it damages Clement. It would be a lot harder for the average lawyer to resign from his law firm in protest.

Regardless, the actual impact on this case doesn't change the ethical issues.

 

[NeoDevin]

Regardless, the actual impact on this case doesn't change the ethical issues.

I never claimed that the actions of either HRC or K&S were ethical, just that they don't "bring the entire justice system into question".

 

[BobG]

I never claimed that the actions of either HRC or K&S were ethical, just that they don't "bring the entire justice system into question".

True. It only brings the system into question in instances where a group has enough money to have a major influence.

For example, making sure three of the Iowa Supreme Court justices that voted to uphold same-sex marriage in an Iowa Supreme Court case were dismissed - the first justices ever to not be retained since Iowa's current procedures for retaining/dismissing justices was implemented in 1962.

Or, more common, if you're about to inititiate a divorce in a small town, it doesn't take much money to have initial consultations with all of the most worrisome divorce attorneys in the town. And any attorney you have an initial consultation with is barred from representing your spouse, regardless of whether you hire them or not. Obviously, this is legal, since only the person interviewing lawyers knows whether he's really considering hiring them or just making sure his spouse doesn't hire them, but it's still a workable, if unethical, strategy if you live in a small enough town and have at least enough money for the initial consultations.