It’s not necessarily common, but it does happen occasionally, and for those who follow the law, there’s nothing all that notable about it from a constitutional point of view.
The executive branch is not constitutionally obligated to argue that a law is constitutional, if it does not believe it to be so. That’s within the executive’s powers. The executive is not subordinate to the legislature and while it is obligated to enforce duly passed laws, it is not obligated to defend their constitutionality in court.
Federal judges are serious. They won’t throw out a law just because the attorney general isn’t standing there to defend it. On the other hand, they will take seriously the administration’s position on constitutionality, as they should.
According to the Attorney General, who is charged with the task of determining which cases do and do not merit the expenditure of finite Justice Department resources.
Please cite the words in the constitution that make DOMA unconstitutional. Since you can’t do that, please cite the Supreme Court decision that holds orientation is a protected class.
In some cases, yes, as it’s a matter of public interest. Depends on what kind of challenge is presented. They’re free to file amicus briefs regardless, though.
Romer v. Evans, 517 U.S. 620 (1996). While on the one hand claiming to not make sexual orientation a protected class, I don’t think any lawyer thinks that rational basis review was applied in this case.
Maybe so. I think this was an issue where they felt they had to go slowly rather than going from 0 to gay marriage in 4.6 seconds. They were wrong, and like I said upthread, the gradual approach got them nothing from Republicans and flack from Democrats, so it makes sense to finally drop it.
I wonder if this would hold true if Justice doesn’t bother to defend certain laws.
So you are justifying this action based on what you believe Republicans will do later?
So, if a lower court finds it unconstitutional, and the DOJ does not defend the law, presumably it will not be appealed and the lower court ruling is the law of the land. Since there are usually opposing decisions in the lower courts, the administration simply ignores any court that rules that the law is unconstitutional. The law dies right there unless Congress takes it up. This is overstepping bounds.
I don’t see any inconsistency there.
I consider this type of action to be a dangerous precedent for any future adminstration…Dem or Pub. It’s not about the law…it’s about the what any administration can do with this option. I really am surprised that many on the left are not up in arms about this. So, from that state of mind, yes, it seems like that is what you and others here are saying.
Would the supreme court ever get the case? Regardless, presumably there would be no briefs from previous cases defending the constitutionality of the law.
No, I am not. Where are you getting this? I am responding to your hypothetical: you said you don’t think a Republican president would do this on the health care law, I said I think they would. It’s not a justification. The justification is that the law is discriminatory and wrong, and I think it’s unconstitutional.
I think villa explained why it doesn’t have to work that way.
I’m not sure it’s precedent at all. People who know more about the law than you or I don’t seem to think it’s any kind of earth shaking change, and I think there’s a reason for that.
I think this will wind up before the Supreme Court, yes. They’re the final arbiters of whether or not a law is Constitutional, and they’ll know what the federal government argued when it defended the Constitutionality of the law.
You seemed to be suggesting exactly that by bringing up what you think the Republicans will do. My hypothetical was based on what any future administration could do with laws they feel are unconstitutional and why I am opposed to this. I used republican/obamacare in order to make the point that those who just wish DOMA to be gone by any means necessary should be careful what they wish for. My apologies if your opinion of this tactic has nothing to do with how you feel the “other side” will act.
Regardless, just because you don’t think the law is constitutional is not reason enough for the DOJ to abandon it. Hell, just because the President thinks the law is unconstitutional is not enough for DOJ to abandon it. This is politicizing the DOJ. Their job is to defend laws on the books. They are suppose to operate from the assumption, since Congress passed and the President signed a particular law, that the laws on the books are constitutional. DOJ needs to leave legislating to the legislators and ruling a law unconstitutional to the judiciary.
I read elsewhere, but can no longer find it, that Congress is the only entity that can now defend DoMA. If this is incorrect I stand corrected.
Perhaps you are right. It seems to me the chances of a law being ruled unconstitutional would increase without DOJ defending it. I’m sure the fact that the administration does not want to defend the law will have some bearing on the court
I only brought up what the Republicans might do in response to your hypothetical. It’s not part of my reasoning here.
They didn’t abandon it because I think it’s unconstitutional.
I don’t agree. The law remains in force, so it’s not being circumvented. The government is no longer sponsoring a defense of the law because the president and the AG have concluded it’s not Constitutional.
I’m going to have to bite my tongue very hard here. Earlier this decade we got a good idea of what politicizing the Justice Department looks like, and this isn’t it.
Their job is law enforcement.
This is the first time I’ve heard they are supposed to operate from that assumption.
They have not changed the law and they have not ruled it unconstitutional. Those are the functions of other branches of government. It is their opinion that the law is unconstitutional, and they’re acting accordingly. They’re not doing anyone else’s job.
Maybe it will. Then again, the Roberts court has shown no hesitation in doing whatever the hell it feels like.
Can you give some examples? I’m not aware of any, and maybe the newspapers are sensationalizing this, but they sure seem to like calling it unprecedented.
Can you cite the SCOTUS ruling that declares gays to be a protected class awarded intermediate or strict scrutiny? Because if you can’t, then your statement is of questionable veracity.
