The Justice Department has determined that it cannot make a Constitutional defense for DOMA, and it has no obligation to try.
Wait… so you decry the Republicans for doing the dirty tricks first, in general (at least, that’s what I think your first sentence says)… then want Obama to do it, on the assumption that the GOP will do even worse somehow down the road?
Is that the way our government is supposed to work?
And again, to the group: is there any precedent for this? Has a president just unilaterally decided to ignore a law because he didn’t like it?
Frankly, this reminds me a little of the complaining about W’s ‘signing statements’ he used to implement, which were his unique interpretations of laws. I seem to remember people on this board complaining, calling him King George, The Decider In Chief, not following the law/process, etc.
This seems 100x worse.
PS Not that I’m against gay marriage or anything - why shouldn’t they be as miserable as the rest of us. But that’s completely besides the point.
I wonder how common this is-- for an administration to refuse to defend a law in court. It must not be that uncommon for an administration to think certain laws are unconstitutional.
Is this something like signing statements that everyone was aghast at and then we all found out that every president since George Washington had used them?
Not that I’m asking **Dio **to answer those questions… just using his post as a jumping off point.
He’s not ignoring the law. He’s still enforcing it. The JD has just determined that it can’t defend it against a Constitutional challenge. That’s not a “dirty trick,” it’s just the result of the law being factually unconstitutional.
I think it’s fairly uncommon for laws to actually BE unconstitutional.
I’ve never heard of an administration doing this before, but most laws aren’t this high profile.
Factually unconstitutional? According to whom?
The Constitution does not say anything about marriage, and the Supreme Court has never found orientation to be a protected class. Obama tried and failed to get Congress to pass the Employment Non-Discrimination Act, which would have done that. DOMA passed with wide bipartisan support.
And Marley, when you say
Are you saying that if one side unilaterally lays down, that won’t affect the court’s likely decision, making it more likely that it will be overturned? Really? Then why show up at all, ever, to defend any law?
Again, whether this bill is about Gay Marriage or the possibility of life on Mars is completely irrelevant. And I can’t help but think that if this were a GOP president pulling this kind of stunt, that this board would be all over her 
While not totally similar, the federal stance on medical marijuana leaps to mind: Attorney General’s position
>>And again, to the group: is there any precedent for this? Has a president just unilaterally decided to ignore a law because he didn’t like it?<<
Apparently there is precedent. For different reasons, as outlined in this piece:
http://balkin.blogspot.com/2005/09/john-roberts-and-sgs-refusal-to-defend.html .
Interestingly, the example the author focuses upon involves today’s SCOTUS Chief Justice, John Roberts.
This has been a really useful filter to me in these discussions. The moment anyone says to me “but a future Republican won’t defend Roe” I immediately know they don’t get it.
That’s funny…I recall they already have made a Constitutional defense:
The vast majority would be treated as matters of settled law.
I think we’ll have to agree to disagree on that. Many of the legal challenges to the law (if not all of them) were brought by Republican governors and AGs, and many Republican legislators pushed hard for a repeal. Since that failed, I find it easy to believe they’d also take this tack if they had to.
Neither do I.
Proponents of the move are saying it will make it easier for courts to declare the law unconstitutional. We’ll see. I imagine the legal theory in defense of the law has already been established and I don’t know how much difference it makes if the government doesn’t argue for it. I don’t agree with the theory that the White House overstepped its bounds and interfered with the legislature here.
If it’s wrong for a president and the AG to stop defending a law, is it wrong for a governor and a state AG to challenge it in the first place? I’m wondering if this is an inconsistent position.
[quote]
So, for you, the ends justify the means?/QUOTE]
Ah yes, the ultimate argument. 
I never said the ends justified the means, and I don’t think I even implied anything close to it. I said I support the end and I don’t have a problem with this means. DOMA was where Clinton last me, and it’s an outdated, discriminatory law.
I don’t think it affects what the Supreme Court will do, and that’s where this is going to wind up. Even some of the justices think oral arguments are unnecessary since they can read briefs from the previous cases, and they can rule on whatever basis they choose.
Because that’s what’s done.
This is, as ever, an argument free of facts and any meaningful content.
According to the Constitution.
It’s about equal protection, son. Look up the phrase “rational basis.”
Not in the slightest.
You don’t have to.
It’s not a “stunt.” The AG just can’t devise a constitutional defense where none exists. Blame the law. No adminsitration is required to field constitutional challenges against any law anyway. DOMA is going to get struck by the courts, regardless.
And if a Republican President decided not to defend an unconstitutional law, he/she would be applauded by me.
Nope. They failed.
- The case was made by Holders DOJ
- How did they fail? The suit was dismissed and the SCOTUS refused to take up the case.
Did you even read your own link? The JD made no attempt to defend Constitutionality. They moved to dismiss based on standing. The motion and the dismissal had nothing to do with constitutionality and did not even address it. The JD just said the plaintiff didn’t have standing, not that the law was Constitutional.
That’s not true. They said the plaintiff had no standing, but went on to argue the law is Constitutional. Those arguments start on page 22 of the document (page 32 in the document viewer in the link). The government says DOMA doesn’t violate the plaintiffs’ due process or equal protection under the Fifth Amendment, does not violate the right to privacy found in Griswold v. Connecticut, does not infringe on their freedom of speech, and does not violate the Ninth Amendment.
That still had nothing to do with why the complaint was dismissed, and Holder himself admits the law is unconstitutional, so I’ll stand by my position that he “failed” to make that case.
He may have failed to make the case, but yorick73 said the administration had previously defended the Constitutionality of the law. They have, which is why it matters that they are now saying it’s unconstitutional and they won’t defend it.
I said they failed, I didn’t say they didn’t try.
My understanding of legal ethics is that a lawyer is not required to take a case where he thinks his client is in the wrong, but is required to defend that case if he does take it. If Holder believes the law is unconstitutional, why should he be required to get someone whose legal judgment he would consider suspect? If he were not defending it due to lack of resources, that would be another case.
If Congress had passed a law abridging freedom of the press, and overrode a presidential veto, would the AG be forced to find an extremist lawyer to defend it?
If you remember in the suit on Prop 8 there is still an open question of whether the Prop 8 supporters had standing to defend it when the government did not. They were not plaintiffs to the suit. Congress has more of a connection with this law than the Prop 8 supporters do with that case, so the result of one case will not determine the other, but the Prop 8 case doesn’t have a separation of powers issue.