Obama and Holder Refuse to Defend DOMA

[michael32]

Is anyone really surprised by this?


The decision by the the Department of Justice to refuse to defend the Defense of Marriage Act is a massive power grab by the Executive Branch. -- legalinsurrection.com, Februaru 23, 2011

The Justice Department is tasked with representing the "government" is the broad sense in legal matters coming before the courts. There is no congressional Justice Department. Whether it likes a law or not, the Justice Department traditionally has fulfilled the role of arguing for the constitutionality of a law if there were any good faith basis for doing so, because someone has to represent the will of the legislative branch in the courts.

But, in a crass political move, Holder in consultation with Obama has decided to stop defending a key section the law in the courts, although the law will be enforced until the courts rule definitively.



High Crimes & Misdemeanors?-- gaypatriot.net, February 23, 2011


I don’t want to debate the “right” or “wrong” of the Obama Administration’s latest gymnastics over gay rights issues.

The Justice Department announced Wednesday that, at Obama’s direction, it would not defend the Defense of Marriage Act in a court case where it’s being challenged.
​

Spokesman Jay Carney said Obama has always opposed the Defense of Marriage Act as “unnecessary and unfair.” But I would like to offer this provocative question: Should a President who both knowingly signs a law that is unconstitutional (Obamacare) AND who refuses to defend a law (DOMA) passed by Congress and signed by a President that he deems to be unconstitutional be charged with impeachment?

And they told me that if I voted for McCain, there would be an Imperial Presidency. They were right!

 

[Belk]

Is anyone really surprised by this?

No. In point of fact I applaud it. I know many commited gay couples and I see no reason why they should not be as miserable as the rest of us married folks.

 

[Marek]

the Justice Department traditionally has fulfilled the role of arguing for the constitutionality of a law if there were any good faith basis for doing so

And the DoJ has determined that there's no good faith basis for arguing that Section 3 is constitutional. Don't worry, third parties will certainly take up the cause. Also, the impeachment suggestion is laughable.

 

[michael32]

No. In point of fact I applaud it. I know many commited gay couples and I see no reason why they should not be as miserable as the rest of us married folks.

I understand that you might like to have DOMA eventually changed, but please don't overlook the negative conswquences that can result from compromising MEANS to accomplish ENDS. Reread Bruce's comment on gaypatriot, he always makes a great deal of good sense.

 

[Marek]

I understand that you might like to have DOMA eventually changed, but please don't overlook the negative conswquences that can result from compromising MEANS to accomplish ENDS. Reread Bruce's comment on gaypatriot, he always makes a great deal of good sense.

Except Bruce offered nothing of substance, so I'm wondering what we should take away from that

 

[michael32]

Except Bruce offered nothing of substance, so I'm wondering what we should take away from that

I should have included Prof. Jacobson of legalinsurrection as suggested rereads. Bruce offers the opinion of a gay conservative, Jacobson offers the opinion of a law professor.

 

[religious&reasonable]

Is it the right thing to do? im not sure

should he be impeached? lol no

 

[michael32]

Except Bruce offered nothing of substance, so I'm wondering what we should take away from that

Additional legal reasoning.


The Executive Power Grab in the Decision Not to Defend DOMA


If you look at AG Holder’s reasons for why DOJ won’t defend DOMA, it is premised on DOJ’s adoption of a contested theory of the constitutionality of laws regulating gay rights. The letter says that “the President and [the Attorney General] have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law then, from that perspective, there is no reasonable defense of DOMA.” This theory is not compelled by caselaw. Rather, it’s a possible result, one that is popular in some circles and not in others but that courts have not weighed in on much yet.

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

 

[HerbieHeadley]

'Someone hasn't been reading thier Bible lately'

Correct me if I'm wrong, but doesn't the SCOTUS and Congress have a say so?

What happened to seperation of powers?

 

[michael32]

'Someone hasn't been reading thier Bible lately'

Correct me if I'm wrong, but doesn't the SCOTUS and Congress have a say so?

What happened to seperation of powers?

Herbie, you know that whatever Obama wants Obama gets. The Constitution is nothing but a speed bump.

There's a reason Obama schmoozes with Hugo Chevez. Birds of a feather.

 

[Ton80]

'Someone hasn't been reading thier Bible lately'

Who?

Correct me if I'm wrong, but doesn't the SCOTUS and Congress have a say so?

What happened to seperation of powers?

Do you expect the Supreme Court to say something? That isn't how they operate. Now, members of Congress can defend the law if so desired. I believe that this is a political move by Obama to throw the gay issue back into the ring to mess with republicans. This isn't about gays anymore than Walker's union busting is about Wisconsin's budget.

 

[HerbieHeadley]

And the DoJ has determined that there's no good faith basis for arguing that Section 3 is constitutional.

Correct me if I'm wrong, but since when did the DoJ decide was is Constitutional and what is not? Is this the same DoJ that has Eric Holder, Mr. There was nothing unconstitutional about the Black Panthers holding "night sticks" outside a voter facility telling people they better vote for 'Barry' the Hussein Obama? Holder and Nappy and Obama who all said the Arizona bill was unConstitutional, even though no one read the bill?

Don't worry, third parties will certainly take up the cause. Also, the impeachment suggestion is laughable.

Yes, you can't impeach a usurper...

 

[HerbieHeadley]

Who?

Barry.

Do you expect the Supreme Court to say something? That isn't how they operate. Now, members of Congress can defend the law if so desired. I believe that this is a political move by Obama to throw the gay issue back into the ring to mess with republicans. This isn't about gays anymore than Walker's union busting is about Wisconsin's budget.

Walker is getting real with the budget. It's time people start waking up to the fact that ALL government pensions and budgets are based on bankrupt and criminally inept solutions.

There has to be a case brought before the SCOTUS, but after SCOTUS rules, the Pres--ent or the AG does not get to decide.

 

[michael32]

Who?


Do you expect the Supreme Court to say something? That isn't how they operate. Now, members of Congress can defend the law if so desired. I believe that this is a political move by Obama to throw the gay issue back into the ring to mess with republicans. This isn't about gays anymore than Walker's union busting is about Wisconsin's budget.

How does Congress defend the law in the courts? That's the function of the Justice Department.

Your belief that Obama's motive is to mess with the Republicans politically is precisely the corruption of the process that the law prfessors have objected to.

 

[Ton80]

Barry.

Bonds?

Walker is getting real with the budget. It's time people start waking up to the fact that ALL government pensions and budgets are based on bankrupt and criminally inept solutions.

Real with the budget? Were the previous budgets fake?

There has to be a case brought before the SCOTUS, but after SCOTUS rules, the Pres--ent or the AG does not get to decide.

Then you understand that the Supreme Court does not come out and tell us what they think. Then why did you ask the question in the first place?

What is a Present?

 

[Ton80]

How does Congress defend the law in the courts? That's the function of the Justice Department.

Either the house of representatives or the senate have the legal authority to intervene in pending lawsuits to defend the federal doma statute - GLAD Lawyer Expects Members Of Congress To Defend DOMA In Court

Your belief that Obama's motive is to mess with the Republicans politically is precisely the corruption of the process that the law prfessors have objected to.

I don't care. I gave an opinion. Politicians play these games all the time. Proving is another story.

 

[HerbieHeadley]

Bonds?

Soetoro.

Real with the budget? Were the previous budgets fake?

They were, and still are boosted with this "job saving stimulous" and are only pushing the unfunded government pensions into the future.

But the people are beginning to wake up to this scam. Thank the Lord.

Then you understand that the Supreme Court does not come out and tell us what they think.

The decide what is Constitutional. Not Holder and Soetoro.

Then why did you ask the question in the first place?

Didn't I say correct me?
I'm still waiting...

What is a Present?

pResident. Actually Pres--nt.

 

[Ton80]

Soetoro.

Still drawing a blank.

 

[michael32]

Either the house of representatives or the senate have the legal authority to intervene in pending lawsuits to defend the federal doma statute - GLAD Lawyer Expects Members Of Congress To Defend DOMA In Court

I don't care. I gave an opinion. Politicians play these games all the time. Proving is another story.

So your comment is that Congress can defend DOMA by...filing an amicus brief? While the DOJ, whose role is to defend legislation, stands on the sidelines as a disinterested observer, or worse yet, is hostile to legislation?

Your response makes me believe you made no attempt at all to read the linked articles. If you had, you would have found the following, and would know what an attempt at usurping the legislative authority of Congress this move is.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation

 

[Ton80]

So your comment is that Congress can defend DOMA by...filing an amicus brief? While the DOJ, whose role is to defend legislation, stands on the sidelines as a disinterested observer, or worse yet, is hostile to legislation?

Your response makes me believe you made no attempt at all to read the linked articles. If you had, you would have found the following, and would know what an attempt at usurping the legislative authority of Congress this move is.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation

Gays deserve every right to marry. People who stop them are enemies to freedom. Justice will be served, and gays will ultimately receive equality regardless of the actions from knuckle-dragging conservatives.