Stop Defending the DOMA - Page 5 - PeachParts Mercedes-Benz Forum

MTI · #61 02-24-2011, 04:10 PM

With a Republican controlled House Judiciary Committee . . . had the Executive branch violated some law or duty . . . you'd expect a bit more reaction from Capitol Hill?

JollyRoger · #62 02-24-2011, 04:15 PM

Quote:

Originally Posted by aklim

And if he suddenly decides not to defend Roe V Wade because he doesn't feel it is constitutional after getting a huge packet of money from someone? Would you look at it in the same light?

That would be his choice, and in fact, if Mr. Huckabee were to be elected, I'm sure it will happen, and those are the breaks in a democracy. But I am comfortable in the knowledge that there would be a generous funding of his absent defense by others, who would do so because they know they have a sound constitutional case and a good chance to prevail in court.

In fact, the government has been doing the dirty work for religious fascists for free in the case of the DOMA, I think it's time they pick up their own tab on this, don't you? Perhaps they might tell us all what the compelling governmental issue is in their wish to deny civil rights to a group whose man failing seems to be in the where-they-stick-their-dingus-and-that-offends-me-department. Like many, I am tired of seeing the government carry water for these bigots and to pretend that bigotry has some sort of legitimate case.

kerry · #63 02-24-2011, 04:20 PM

Even Bob Barr who sponsored the DOMA legislation now thinks it it unconstitutional:

http://reason.com/blog/2009/01/05/bob-barr-recants-doma-very-pub

JollyRoger · #64 02-24-2011, 04:21 PM

Quote:

Originally Posted by kerry

Even Bob Barr who sponsored the DOMA legislation now thinks it it unconstitutional:

http://reason.com/blog/2009/01/05/bob-barr-recants-doma-very-pub

I'm finding that when any gay issue is framed in the context of Jeffersonian Natural Rights of Man, conservatives are finding it harder and harder.

aklim · #65 02-24-2011, 04:37 PM

Quote:

Originally Posted by kerry

Even Bob Barr who sponsored the DOMA legislation now thinks it it unconstitutional:

http://reason.com/blog/2009/01/05/bob-barr-recants-doma-very-pub

Norma McCorvey also thought her fight was wrong and tried to re-open the case.

http://www.nysun.com/editorials/roes-regrets/77677/

Honus · #66 02-24-2011, 04:50 PM

Quote:

Originally Posted by aklim

...So just to be clear, Alberto Gonzalez, by virtue of being a Republican appointee cannot be doing such things whereas Holder, a Democrat appointee can.

That is a preposterous distortion of what I said.

Honus · #67 02-24-2011, 05:01 PM

Quote:

Originally Posted by Botnst

Do you (all) think it's a good idea to allow the executive branch to decide which laws it should enforce?

I don't, and I would venture to say that Obama doesn't either.

As others have pointed out, there is a difference between deciding not to enforce a law versus deciding not to defend the law against a constitutional challenge, but I don't think that distinction addresses the core issue. The executive branch has the duty to enforce the laws and to defend laws against constitutional challenges. The problem arises when the enforcement or defense of a law requires the executive branch to do something that violates some other part of the Constitution or requires the executive branch to do something unethical, such as make a legally frivolous argument to a court. Fortunately, it is a rare statute that gets signed into law, but is so lacking in Constitutional merit that the smart lawyers at DOJ can't come up with a single argument in its defense. Obama saying that DOMA is such a law. His duty to the Constitution therefore requires that they abandon their defense of the law.

Honus · #68 02-24-2011, 05:11 PM

This GW law professor thinks that Obama is changing the rules:

Quote:

...Now, I wouldn’t in a million years compare torture and wiretapping with gay rights. Obviously, the subject matter is totally and completely different. But there’s an interesting analytical similarity between the DOJ’s position on DOMA and the Bush Administration’s reliance on its Article II theories. 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....

http://volokh.com/2011/02/23/the-executive-power-grab-in-the-decision-not-to-defend-doma/

aklim · #69 02-24-2011, 05:31 PM

Quote:

Originally Posted by Honus

but is so lacking in Constitutional merit that the smart lawyers at DOJ can't come up with a single argument in its defense. Obama saying that DOMA is such a law. His duty to the Constitution therefore requires that they abandon their defense of the law.

And we know this, how? The AG had best toe the Prez's line or he will be unemployed. As such, if the Prez says "You cannot come up with a defense.", it isn't a suggestion any more than if the Prez says "Defend this".

Honus · #70 02-24-2011, 05:45 PM

Quote:

Originally Posted by aklim

And we know this, how?

That's a tough call.

Quote:

The AG had best toe the Prez's line or he will be unemployed. As such, if the Prez says "You cannot come up with a defense.", it isn't a suggestion any more than if the Prez says "Defend this".

Perhaps that's the way you conduct yourself in your professional life. I wouldn't be so quick to accuse others. Read up on Elliott Richardson, for example.

aklim · #71 02-24-2011, 05:52 PM

Quote:

Originally Posted by Honus

That's a tough call.

Perhaps that's the way you conduct yourself in your professional life. I wouldn't be so quick to accuse others. Read up on Elliott Richardson, for example.

Doesn't say how you know it.

Lets talk of a more recent example. Gen Powell. Sorry, but when you serve at my pleasure, it is very hard to say that you are totally independent of my wishes. Akin to why we don't take a spouse's testimony if it is for his/her spouse.

Botnst · #72 02-24-2011, 06:11 PM

Quote:

Originally Posted by aklim

And if he suddenly decides not to defend Roe V Wade because he doesn't feel it is constitutional after getting a huge packet of money from someone? Would you look at it in the same light?

See, that's what I find disturbing. If we allow an administration to pick and choose what it wants to defend or not, we open the door to all sorts of mischief we might not like. I like the gov in a tightly fenced yard with minimum chance for free lancing it's own sense of what's right or wrong. The congress is in charge of legislating, not the exec.

MTI · #73 02-24-2011, 06:11 PM

Quote:

Originally Posted by aklim

Akin to why we don't take a spouse's testimony if it is for his/her spouse.

However, we do take such testimony; just as is any other witness and given the weight and credibility the trier of fact deems fit.

Botnst · #74 02-24-2011, 06:16 PM

Let me add, I don't believe the gov has any business dealing with marriage. I think it is a stupid invasion. But I also recognize taht it has a long tradition and that long traditions are not easily cat aside. This is why I think it should be done by act of Congress, not the courts. This is the same failure of leadership as abortion rights. What we ended-up with was unelected princes decreeing the law. That's a horrible precedent.

It should be an act of Congress, not the courts, to get the gov out of our private parts and where we put them.

MTI · #75 02-24-2011, 06:18 PM

Quote:

Originally Posted by Botnst

See, that's what I find disturbing. If we allow an administration to pick and choose what it wants to defend or not, we open the door to all sorts of mischief we might not like.

How so? Notice how the past governor of California and the attorney general (now governor) declined to appeal the ruling on Proposition 8. Was that "mischief?" Or might it also be the executive branch recognizing that the appeal would be unsuccessful in light of legal analysis?

Quote:

I like the gov in a tightly fenced yard with minimum chance for free lancing it's own sense of what's right or wrong. The congress is in charge of legislating, not the exec.

Again, the executive branch has not overturned the law or officially declared it unconstitutional. That would be the Judicial branch's call. What the executive branch is doing is stating that it will not make a legal argument that the DOMA is constitutional when it is invited to submit or take a position before a court.