When I learned about Marbury v. Madison in high school civics class I was taught that it allowed the Supreme Court to determine whether a law is “unconstitutional.” Apparently, my understanding is confused because former Constitutional law professor Barack Obama seems to think the White House should have that power too:
President Obama believes that the Defense of Marriage Act is unconstitutional and will no longer defend the 15-year-old law in federal court, the Justice Department announced today.
The decision, which stunned and delighted gay-rights activists, means that the administration will withdraw its defense of ongoing suits in two federal Appeals Courts and will leave it to Congress to defend the law, known as DOMA, against those challenges. It will remain a party to the lawsuits. The law itself remains in effect.
DOMA, signed by President Clinton in 1996, allows states not to recognize same-sex marriages preformed in other states and provides a federal definition for “marriage” that excludes same-sex couples.
Well, I guess it is easier to decide a law is unconstitutional than to defend and uphold the law as he has sworn to do as the chief executive. But if Obama wants to do Justice Kennedy’s job, why don’t they just trade places?
UPDATE: Okay, people took this a bit more literally than I intended.
Obviously, if Obama truly believed the law was unconstitutional he would have a duty to his conscience not to enforce the law. He doesn’t really believe it is unconstitutional because he’s not a complete idiot. There’s clearly nothing intrinsically unconstitutional about DOMA. (The fact that political activists on the Supreme Court may eventually say otherwise does not change that fact.)
All Obama is really doing it trying to use some legalese as a fig leaf to cover his flip-flop on this issue. He’s merely pandering to his base in his usual clumsy fashion.
February 23rd, 2011 | 3:35 pm
Obama is not acting as a Supreme Court Justice, he is exercising the discretion his office affords. A State’s Attorney can offer plea bargains to some criminals (which contradict mandatory sentencing statutes), and choose not to prosecute others, whether because of limitations on time and resources, or otherwise.
Similarly, when the executive has, in this case, determined that, given existing law, it cannot defend portions of the DOMA, and it would be a waste of taxpayer resources to defend an apparently unconstitutional provision in that law. The President is not required to unnecessarily waste taxpayer resources in order to delay the inevitable.
February 23rd, 2011 | 3:58 pm
Wait, isn’t Obama, as the head of the Executive Branch, in charge of making sure that our laws get enforced? If he’s refusing to enforce this law, isn’t he failing at his job? Isn’t this an impeachable offence?
February 23rd, 2011 | 4:04 pm
Actually Joe, the Supreme Court has never said it is the sole arbiter of constitutionality. It has said (falsely in my view) that it is the supreme and final arbiter of constitutionality. In principle, there is nothing wrong with what Obama has done. Indeed, one could argue that he has a duty to do what he has done. When he was sworn in as president Obama took the following oath: “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 Congress enacts a law that is contrary to the constitution, the president is oath bound to veto it. If a prior Congress were to enact an unconstitutional law that a prior president signed, the current president would be oath bound not to enforce it and certainly not to defend it in court.
For example, a prior Congress had passed a law that said that no one was allowed to own or possess a firearm of any kind in the District of Columbia, that law would be unconstitutional and Obama would have an obligation to do the same thing to that law that he is now doing to DOMA.
No, Obama is not wrong in principle. He is wrong in practice. The constitution is silent on the issue of whether people of the same sex have a right to marry. Not only is the constitution silent on this issue, but also such a right cannot be reasonably inferred from its structure, history or text. Accordingly, under our system of law, legislative majorities are free to deny the right to marry to people of the same sex. When he was a candidate Obama said he opposed same sex marriage. Either he was lying then (probable in my view) or he has changed his mind.
February 23rd, 2011 | 4:09 pm
Alexander,
Defending the law in federal court is different from enforcing the law. Obama is doing the latter, but not the former. It is nowhere near an impeachable offense.
For DOMA fans, don’t worry–the law will still get its fair hearing in court. And with the Obama Administration stepping aside, Republican congressmen (who I imagine would mount a more vigorous defense of the law, giving it a fairer shake) are better able to step in to fill this role.
Perhaps it would benefit the folks here if FT had a posting from a legal scholar speak to the implications of this decision. Equating the decision with the Supreme Court’s ability to declare laws unconstitutional is certainly not helpful.
February 23rd, 2011 | 4:12 pm
It’s interesting to see if this happen with more executives; I wonder what happens when more conservative governors (and state legislatures) simply choose to ignore the Federal law they don’t find appealing?
This stone may roll back on our President.
February 23rd, 2011 | 4:24 pm
Equating the decision with the Supreme Court’s ability to declare laws unconstitutional is certainly not helpful.
Okay, people took this a bit more literally than I intended.
Obviously, if Obama truly believed the law was unconstitutional he would have a duty to his conscience not to enforce the law. He doesn’t really believe it is unconstitutional because he’s not a complete idiot.
All he is really doing it trying to use some legalese as a fig leaf to cover his flip-flop on this issue. He’s merely pandering to his base in his usual clumsy fashion.
February 23rd, 2011 | 4:44 pm
“Obviously, if Obama truly believed the law was unconstitutional he would have a duty to his conscience not to enforce the law.”
The point is that enforcement vs. non-enforcement is a non-issue in this instance. The Administration is enforcing it until the Supreme Court rules with finality on the issue. What has changed is that they are no longer shepherding it through the court system as they were.
“All he is really doing it…to cover his flip-flop on this issue. He’s merely pandering to his base”
I don’t see how this is inconsistent with Obama’s previous statements on the issue. I would have to do some research to quote chapter and verse, but if I recall correctly, Obama has aligned himself with the Third Way “not marriage, but civil unions” perspective. He’s opposed constitutional amendments and the like and given tacit support to civil union bills, but not supported gay marriage as a civil right.
Finally, and I don’t want to overemphasize this point, but I think it is unfair to call this pandering–as if Obama were not a moral actor only thinking about his next public opinion poll–just because you disagree with the action. Can’t we at least “concede good faith” as Justin Paulette wrote on this site not two weeks ago?
February 23rd, 2011 | 4:48 pm
@Jack Hudson
Governors certainly have the right to challenge laws they disagree with in the state and federal court systems. But they cannot refuse to enforce Federal legislation–neither does Mr. Obama, nor is he doing so.
February 23rd, 2011 | 4:48 pm
Joe,
Two thoughts:
1) I have no idea whether Obama actually believes DOMA is unconstitutional. As a recent law school grad, I can promise you: Constitutional law professors have very weird and very malleable ideas about what the constitution means. I wouldn’t be surprised at all to find that he honestly believes DOMA to be deserving of strict scrutiny and to fail to meet that exacting standard.
2) I think this point has been made above, but it bears repeating: our founders intended the executive not to enforce laws he thought to be unconstitutional, and we have a long long history of presidents doing so. It is also in one of the federalist papers, though I forget which right now. So, no, Alexander, even deciding not to enforce a validly passed law is not an impeachable offense. It is a built in mechanism to help create limited government.
February 23rd, 2011 | 4:51 pm
csiems I don’t see how this is inconsistent with Obama’s previous statements on the issue.
Really? For the past two years the Obama’s DoJ has defended DOMA’s constitutionality.
There is no question that he has been inconsistent. The only question is why the sudden change of heart.
Finally, and I don’t want to overemphasize this point, but I think it is unfair to call this pandering–as if Obama were not a moral actor only thinking about his next public opinion poll. . .
To my knowledge, the Constitution hasn’t changed in the last two years. So Obama went from recognizing it was constitutional to deciding it was not. Perhaps there is an explanation for his action that is not based on political pandering. But I can’t think of any. Can you?
February 23rd, 2011 | 5:08 pm
“The constitution is silent on the issue of whether people of the same sex have a right to marry. Not only is the constitution silent on this issue, but also such a right cannot be reasonably inferred from its structure, history or text.”
The Supreme Court has previously ruled, in Loving v. Virginia (1967), that the right to marry is a fundamental right protected by the liberty element of the due process clause. This means that denying marriage to same-sex couples is a denial of rights based on sexual preference. Further, the Constitution specifically states that any power not explicitly enumerated to Congress shall be left to the states (10th Amendment). This is one of the reasons DOMA has previously been found unconstitutional, in Commonwealth of Massachusetts v. United States Department of Health and Human Services (2010).
“It’s interesting to see if this happen with more executives; I wonder what happens when more conservative governors (and state legislatures) simply choose to ignore the Federal law they don’t find appealing?”
He’s not ignoring the law or choosing not to enforce it. He’s ordered his Justice Department not to defend, in the federal courts, the constitutionality of an unconstitutional law.
I would expect a state governor who feels the same about in a similar situation to act accordingly.
February 23rd, 2011 | 5:22 pm
“If a prior Congress were to enact an unconstitutional law that a prior president signed, the current president would be oath bound not to enforce it and certainly not to defend it in court.”
Are you aware of any instances where a president refused to defend in court leigislation signed into law by an earlier president?
February 23rd, 2011 | 5:23 pm
“Perhaps there is an explanation for his action that is not based on political pandering. But I can’t think of any. Can you?”
I’m sorry, but that kind of “prove my accusation of my opponent’s bad faith wrong” argument should be thrown out, even if it is a staple on blog message boards. This is why I would like to hear a legal scholar weigh in on the issue–I am sure Mirror of Justice and others will speak to the issue eventually.
Though I am NOT such an expert, I could point you in part to the brief statement released by the attorney general:
“The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one…Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional.”
The explanation, as far as I understand it, is that as arguments have been decided by lower courts, the original defense of the Defense of Marriage Act have become legally untenable. While the Constitution hasn’t changed, the issue of DOMA’s constitutionality is still undecided. The situation is fluid, much as we would like there to be a final decision on the matter.
I am not enough of a legal mind to decide how valid that argument is, but with about five minutes worth of research I found a non-pandering related reason for the reversal. But again, I didn’t want to over-emphasize this point like it has been. I am just concerned about the tone of the arguments.
February 23rd, 2011 | 5:29 pm
Governors certainly have the right to challenge laws they disagree with in the state and federal court systems. But they cannot refuse to enforce Federal legislation–neither does Mr. Obama, nor is he doing so.
He isn’t ‘challenging’ the law at all, he is refusing to defend it – and if someone does challenge this (or any law) on constitutional grounds and it isn’t defended, the effect is the same as not enforcing it.
For example, if someone challenged in court various civil rights laws they didn’t want to adhere to and the government simply refused to defend them, it would be tantamount to not enforcing those laws.
February 23rd, 2011 | 5:30 pm
“Finally, and I don’t want to overemphasize this point, but I think it is unfair to call this pandering–as if Obama were not a moral actor only thinking about his next public opinion poll–just because you disagree with the action. Can’t we at least “concede good faith” as Justin Paulette wrote on this site not two weeks ago?”
DOMA has been on the books for 15 years. Obama the law professor just figured out now that it is unconstitutional?
February 23rd, 2011 | 5:43 pm
Enforcing the letter of the law, and defending its very existence, are two very different things. It’s no different than a police officer who dutifully arrests suspects for minor drug offenses, yet publicly argues against such laws. There is no contradiction.
All Obama has said is that he will no longer send attorneys into court for the purpose of defending the constitutionality of this law. That’s probably because he believes it to be unconstitutional (shocking, I know). Seeing as the DoJ is under Executive purview, that’s his prerogative.
People seem to have trouble understanding how checks and balances work. This is one of the ways these things balance. Maybe it enrages you — that’s okay, we’re a vast and varied nation and not all of us are going to like the way things turn out all the time.
February 23rd, 2011 | 5:47 pm
Joe Carter – “To my knowledge, the Constitution hasn’t changed in the last two years. So Obama went from recognizing it was constitutional to deciding it was not.”
To my knowledge, natural laws didn’t change in 1905. But Einstein (and many other physicists) went from Newtonian physics to Relativistic physics.
Something doesn’t have to change, itself, for a person to change their own mind about that thing.
February 23rd, 2011 | 5:56 pm
csiems While the Constitution hasn’t changed, the issue of DOMA’s constitutionality is still undecided.
Not according to Obama. According to his Press Secretary, Obama says that it is clearly unconstitutional. Yet he will also continue to enforce a law that he claims to be unconstitutional and a violation of citizen’s rights.
Now there are two ways to read this: (1) Obama doesn’t really believe it is unconstitutional but thinks he can pander by hiding behind lower court rulings on other issues, (2) Obama really does think it is unconstitutional but is too cowardly to take action and say that he will not enforce the law.
Since option #1 is the most charitable, I’ve chosen to go with that interpretation.
February 23rd, 2011 | 5:58 pm
I am about 99% sure that President Obama has not actually changed his mind on this issue. Even back when he was campaigning to be elected and expressed private discomfort with same-sex marriage, did anyone seriously think he would express that opposition for very long?
February 23rd, 2011 | 6:10 pm
It would seem a more apt analogy would be a governor instructing the state attorney general to simply stop prosecuting those who broke laws he or she didn’t like. If the police officer arrests drug offenders and the state doesn’t prosecute them, then how would that be different than if they simply weren’t arrested to begin with?
February 23rd, 2011 | 6:19 pm
I think Joe Carter dioesn’t undertand the civics of the situation very well.
First, the Supreme Corut is not the final arbiter of constitutionality. It is “an” arbiter. Other arbiters include Congress and the President.
Second, continuing to carry out an arguably unconsitutional law while it’s being submitted to the courts for a legal decision is not immoral illegal or even underhanded. It’s how we do things in this country.
You’ll notice that certain other countries (i.e., Egypt, Libya and Bahrain) have a diferent way of settling constitutional issues. I prefer our way.
Third, the President has had a lot to do in the past few years: Rescue our banking system from total collapse, deal with two wars, prevent other wars, institute healthcare reform, repair a economy and handle the normal raft of natural disasters. Tha’t spretty much a full plate.
Addressing a pretty crappy two-bit federal law of symbolic value only that did not affect the ecomony or national security that should never have been enacted in the first place, and soon to die of its own accord, just may not be high on his priority list, even if it was high on other people’s priority lists.
February 23rd, 2011 | 6:40 pm
Second, continuing to carry out an arguably unconsitutional law while it’s being submitted to the courts for a legal decision is not immoral illegal or even underhanded. It’s how we do things in this country.
So you would suggest the administration cease implementing Obamacare as it makes it’s way through the courts?
February 23rd, 2011 | 6:50 pm
For the umpteeth time:
Obama was never a law professor.
He was an adjunct teacher: a temporary instructor assigned to fill gaps in the teaching assignments at U of Chicago Law School. His assignments were specifically related to his racial identity: voting rights, due process, and a course on racism and law (http://wiki.answers.com/Q/What_subject_did_Barack_Obama_teach_at_University_of_Chicago_Law_School). So he was doubly an affirmative action hire: a black man hired to teach courses about legal aspects of racism.
I’m keenly aware of the difference between professor and adjunct, because I’m an adjunct myself. No one who knows anything about convoluted bureaucracy that is academia would confuse me with a professor.
To quote from one of my contracts, that I sign every semester:
“I understand that this scheduling assignment is limited, subject to approval of the President of the College, and temporarily implying no commitment on behalf of the College for future employment and specifically does not provide eligibility for tenure.”
February 23rd, 2011 | 6:55 pm
“Now there are two ways to read this: (1) Obama doesn’t really believe it is unconstitutional but thinks he can pander by hiding behind lower court rulings on other issues, (2) Obama really does think it is unconstitutional but is too cowardly to take action and say that he will not enforce the law.”
I don’t think this is how the executive branch works? Obama’s oath as president is to “preserve, protect and defend the Constitution of the United States.” He is obligated to enforce legislation until it has been changed or ruled unconstitutional. He does not have the authority to choose not to enforce the law. If presidents did have that authority, I’m sure President Bush would have halted ICE deportations while he pushed for immigration reform.
One shouldn’t bad faith and/or cowardice to President Obama for doing what he is required by oath and law to do.
February 23rd, 2011 | 7:10 pm
“It would seem a more apt analogy would be a governor instructing the state attorney general to simply stop prosecuting those who broke laws he or she didn’t like.”
I don’t see how this is a preferable analogy to mxlong’s. Enforcement vs. non-enforcement is not what this decision is about. DOMA is still the law of the land and will be enforced accordingly despite this decision. Nobody has instructed anyone not to enforce it.
As I stated before, this is actually good news for DOMA supporters. Whether you believe that Obama is an immoral flip-flopper, or honestly disagrees that the law is constitutional, why would you want him defending DOMA in court if you wish it to continue? Let the law get a full hearing in the court room. And let the people who actually defend it.
February 23rd, 2011 | 7:45 pm
To clear up Joe Carter’s confusion, Eric Holder sent a letter to John Boehner (here: http://www.justice.gov/opa/pr/2011/February/11-ag-223.html) outlining exactly why the DOJ is not defending the constitutionality of the Act in the Second Circuit as it has done in other jurisdictions. In sum, the Second Circuit has not decided what by what standard they should judge the constitutionality of the Act (i.e. whether the Act is subject to a “rational basis” or “heightened scrutiny” test). The DOJ has also never had to take a position on this question until now. Previously, they said the Act is constitutional if the rational basis test applies. But because they have determined the “heightened scrutiny” standard is more appropriate, they have concluded that the Act fails this test.
Now if this sounds like some kind of “legalese,” it’s because it is. It’s a complicated legal question. I understand you disagree with Obama’s decision, but it doesn’t mean the man is pandering. Although, I get the impression you don’t exactly understand what is going on here (your knowledge of Marbury v. Madison notwithstanding).
February 23rd, 2011 | 7:52 pm
Joe: It isn’t his job to decide, as you noted. Even if he THINKS it is unconstitutional, if it is a law, he should defend it in court. Otherwise, we cease to be a nation of laws, but of men and women who decide to enforce or defend the laws depending on whether they agree or disagree with the policy.
This is a very worrying trend that is being deployed in gay marriage cases, but goes way beyond that issue. The State of California is refusing to defend Proposition 8, and the case against 8 is now in the CA Supreme Court to determine whether the private parties that defended the law at the trial level have “standing” to defend on appeal.
If not, the state merely defaults on a voter-backed constitutional amendment and the rule of law is obliterated. It is a veto by non action.
The same with Obama. If the Feds won’t defend a federal law in court, does any private citizen have standing to do so? That’s an open question. This is an anti democratic development that bodes ill for the future–regardless of what one believes about gay marriage.
February 23rd, 2011 | 8:12 pm
Joe Carter – “To my knowledge, the Constitution hasn’t changed in the last two years. So Obama went from recognizing it was constitutional to deciding it was not.”
Ooh! Ooh! I thought of an even better analogy than Newtonian vs. Relativistic physics!
Joe, have you never changed your mind about what God wanted or was saying to you?
February 23rd, 2011 | 8:20 pm
Tiberius Now if this sounds like some kind of “legalese,” it’s because it is. It’s a complicated legal question.
Actually, it’s not that complicated. DOMA is so obviously constitutional that it would take a “legal scholar” to find a reason why it isn’t.
If Obama had a bit more integrity and courage he’d simply say that while he wants DOMA to be repealed, he’s not going to go along with all the silly games that activist judges want to play and he’ll defend the constitutionality of the law while working through the proper channels to have it repealed.
Of course, that would require Obama putting core American principles above short-term political and tactical interests. That’s asking a lot from any politician, much less a mediocre one like our president.
February 23rd, 2011 | 8:47 pm
President Obama is doing what presidents have done since George Washington, namely, reaching judgments as to the constitutionality of the laws he is called upon to enforce. Indeed, the veto was used prior to President Jackson only to veto laws that were seen as unconstitutional. The President takes an oath to defend the Constitution, so he must consider what the document means in order to understand his responsibilities. President Reagan believed, rightly, that Roe v. Wade was wrongly decided, and he acted to limit its effect.
I cannot let the “doubly an affirmative action hire” go. President Obama was the editor of the Harvard Law Review; it is hardly that he was unqualified. In addition, to teach about race and the law is not to talk about one’s racial identity. This is a serious subject that is taught by distinguished scholars of a variety of ethnic and racial backgrounds.
DOMA may be constitutional or not, but it is certainly within the domain of the President to reach his own independent judgment about its constitutionality. The debate should be focused on the quality of the arguments he puts forth in support of his view, not on his putting forth arguments.
February 23rd, 2011 | 10:12 pm
Jack Hudson, I have no idea what you are talking about.
1. Ordering DoJ to no longer defend DOMA means the attorneys will no longer present arguments in favor of the law when the law is challenged in the Supreme Court. It has NOTHING to do with enforcing the law. It’s like prosecuting a drug offender, vs. arguing in court that drug laws are unconstitutional. If you can’t see the yawning chasm between these two things…
2. Should Obama also suspend Obamacare while it goes through the courts? No, because first of all, nothing has been “suspended” in the first place. And second of all, why should the man abandon the policies he favors? It’s almost as if the man is… making decisions. Such odd behavior for a leader, I know.
February 23rd, 2011 | 11:07 pm
The legal scholars are Volokh Conspiracy are making similar (i.e., better) arguments as mine:
David Bernstein:
Orin Kerr:
February 23rd, 2011 | 11:34 pm
“The Supreme Court has previously ruled, in Loving v. Virginia (1967), that the right to marry is a fundamental right protected by the liberty element of the due process clause. This means that denying marriage to same-sex couples is a denial of rights based on sexual preference.”
You forgot to add “in my opinion” to that last sentence. To my knowledge, the Supreme Court has never extended the reasoning behild Loving v. Virginia to “same-sex marriage.” Of course, there are lots of logical arguments as to why interracial marriage and “same-sex marriage” are not one in the same. (See George, Robert, “What is Marriage?” available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722155##.)
“Further, the Constitution specifically states that any power not explicitly enumerated to Congress shall be left to the states (10th Amendment). This is one of the reasons DOMA has previously been found unconstitutional, in Commonwealth of Massachusetts v. United States Department of Health and Human Services (2010).”
Don’t hold your breath on this reasoning behing upheld. I would recommend a brief review of 10th Amendment jurisprudence. Very few challenges of Congressional legislation under the 10th Amendment have been successful, to say the least.
February 24th, 2011 | 3:34 am
Wesley J Smith asks a very important question:
“ If the Feds won’t defend a federal law in court, does any private citizen have standing to do so? That’s an open question.”
The answer, surely, is that anyone whose rights under that law are or have been infringed and who has been injured in his person or his pocket in consequence would have such a right. Civil rights legislation affords an obvious example.
It is only where a failure to enforce the law caused no identifiable harm to a single individual that the decision would go by default.
February 24th, 2011 | 6:40 am
The Republicans have demanded that Obama not enforce “Obamacare” because they feel it’s unconstitutional. A few Republican governors have stated that they intend to deliberately refuse to follow the new health care law. But here is the case of Obama simply refusing to CHALLENGE a law that is most likely unconstitutional, and the Republicans are going NUTS.,..
February 24th, 2011 | 8:28 am
One of the toxic developments in our political system is the idea that the Supreme Court is the only place where the constitutionality of laws can be, or should be, reviewed.
The Constitution itself gives it no such power, and clearly expects all branches to follow its stipulations.
By this noxious consensus that it all must be referred to the Supreme Court, we have gradually become an oligarchy in which 5 unelected men have sway over the whole law of the land.
Having said that, Obama in this instance is just doing what he does–pursuing harmful policies, and uttering false apologia. The truth is not in him.
February 24th, 2011 | 8:59 am
If Obama believes a law is unconstitutional he should not enforce it. Under those circumstances the DOJ should make the strongest possible case for the law in the courts because there is no constitutional barrier to the executive doing so. It behooves him to do so because when the courts confirm his decision not to enforce he will have done his best to make the case against his position.
The executive may also have a duty to make that case.
The need for DOMA arises from the full faith and credit clause. State X marries two men. State Y considers that marriage to be incompatible with the definition of marriage. How can this issue be resolved without someone determining what marriage IS? There is also a need for the federal government to determine what marriage IS so that its laws can be implemented. The analogy with interracial marriage does not hold because no one seriously denied the possibility of mixed race marriages, just it’s desirability.
February 24th, 2011 | 9:38 am
This post tells me little that I didn’t already knew—Joe Carter loathes and utterly disrespects the President of the United States. How weird of him to choose a subject on which he evidently knows little to express these feelings. Their are more straightforward ways to detest people.
February 24th, 2011 | 10:10 am
This question is not as cut and dried as it seems. It is acknowledged that the state has prosecutorial discretion (it can choose not to charge someone with a violation of the law), but is that the same thing as discretion not to defend the law from challenge? I’m not a lawyer, so I can’t say.
From a moral perspective, it would seem the issue would depend on the law. Would, for example, Mr. Carter or anyone else here have challenged James Buchanan if he had ordered his Solicitor General NOT to defend the Fugitive Slave Act against a constitutional challenge?
It’s clear what Mr. Obama is doing here: unable to muster the votes needed to overturn DOMA, unwilling to endure the political fallout from campaigning to build support for its repeal, he is doing what he does best–punting. He seems to feel if the Solicitor General opts to mount only a token defense of DOMA, this will be enough to sway a majority of the Supreme Court to rule against the law.
Extremely cynical, indeed, but also amateurish in the extreme, for it is certain that if the law is challenged, most of the states and a host of third parties will bring amicus curiae briefs, and from what I’ve seen of the current Solicitor General’s work, these are likely to carry more weight with the court than the brief brought by the United States.
February 24th, 2011 | 10:13 am
“This post tells me little that I didn’t already knew—Joe Carter loathes and utterly disrespects the President of the United States.”
Well, the man is pretty loathsome, and has not earned my respect as a man–but I still respect the office which he holds, and am saddened by the disrepute into which he brings it.
“Their are more straightforward ways to detest people.”
Thanks for the demonstration, Charlie.
February 24th, 2011 | 10:16 am
1. Ordering DoJ to no longer defend DOMA means the attorneys will no longer present arguments in favor of the law when the law is challenged in the Supreme Court. It has NOTHING to do with enforcing the law. It’s like prosecuting a drug offender, vs. arguing in court that drug laws are unconstitutional. If you can’t see the yawning chasm between these two things…
Perhaps it was the word ‘tantamount’ that was confusing. What isn’t being discussed much here is what DOMA actually compels the Feds to do, i.e., what does ‘enforcement’ look like?
It’s not the sort of law an individual can break – it basically protects states who wish to define marriage as between a man and a woman from recognizing a gay marriage acquired in another state. ‘Enforcement’ in this case would seem to include some sort of defense by the Federal government of a state who chooses to employ the protections of this statute – what else could it be? I think this is where the administration is being negligent.
2. Should Obama also suspend Obamacare while it goes through the courts? No, because first of all, nothing has been “suspended” in the first place. And second of all, why should the man abandon the policies he favors? It’s almost as if the man is… making decisions. Such odd behavior for a leader, I know.
I was responding to the statement by another poster that the administration is justified in refusing to “carry outan arguably unconsitutional law while it’s being submitted to the courts” . As Obamacare is being submitted to the courts, then it would follow (based on the poster’s statement) that it not be carried out. That is a point that others are now seeing as well, based on Joe’s latest post on the front page.
February 24th, 2011 | 10:17 am
“Third, the President has had a lot to do in the past few years: Rescue our banking system from total collapse, deal with two wars, prevent other wars, institute healthcare reform, repair a economy and handle the normal raft of natural disasters. Tha’t spretty much a full plate.”
And look how well he’s done with those! Obviously, we need an administration that can walk AND chew gum at the same time. Above all, we need to put the grown ups back in charge.
February 24th, 2011 | 11:46 am
Mr. Carter: You wrote, “DOMA is so obviously constitutional that it would take a “legal scholar” to find a reason why it isn’t.”
Your above sentence about DOMA being “obviously constitutional” displays a certain lack of understanding of the law. Especially because you then followed it with a retort that, “it would take a “legal scholar” to find a reason why it isn’t.” Yes, Mr. Carter, it would take a legal scholar to find a reason why it isn’t, BUT it also would take a legal scholar to find a reason why it is. Let me explain.
Mr. Carter, NOTHING is ever “obviously constitutional” from a court’s perspective. That’s not how courts analyze laws. The topics of judicial review, constitutional standards of review, equal protection analysis and due process analysis are fully articulated in very large multi-volume treatises. Naturally, the following is but a scratch of the surface:
First, when analyzing any statute (for example DOMA) a standard of review must be established. That standard of review ranges from minimal review to maximum. On the minimal side is the “rational basis” review which presumes the law constitutional and places the burden on the plaintiff to prove otherwise. On the maximal side is “strict scrutiny” which presumes the law unconstitutional and places the burden on the government to prove otherwise.
In other Circuit Courts of Appeal, there is already precedent establishing the standard of review for DOMA cases. In those circuits, the Obama Justice Department has been AND will continue to defend DOMA.
The standard of review has not been established, however, in the Second Circuit for laws that single out LGBT persons as a class. The court, therefore, ordered the parties to submit legal briefs to advocate for what the standard of review should be.
There is plenty of strong legal precedent across the country adopting heightened scrutiny for laws that single out LGBT persons as a class. There is no “pandering” necessary to reach the legal conclusion that laws that single out LGBT persons as a class should have their constitutionality reviewed under a heightened scrutiny standard of review. One could just as easily say that President Bush (were he still in office) was pandering by making an argument to the Second Circuit that the minimal rational basis test should be used. But that charge of pandering would be just as empty and wrong as it is now with President Obama’s Justice Department. They are not making this up out of whole cloth, and when the briefs are filed I urge you to read them and you will see that there is ample precedent to support either argument.
That’s my point, Mr. Carter, that there exists enshrined in binding court cases across the country ample valid precedents for arguing for one form of scrutiny or another.
And, that’s just step one — establish a standard of review (which may involve oral arguments as well). Step two is to have each party make its case on the equal protection and due process analysis under that standard of review. This too will have lengthy legal precedents that either side will draw from in buttressing their arguments.
I hope you appreciate from all this that NO LAW is “obviously constitutional” from a court’s perspective. Even laws that may seem to be obviously constitutional still deserve under our judicial system their full hearing and analysis.
By the way, you are simply wrong on one other point: you wrote, “There’s clearly nothing intrinsically unconstitutional about DOMA. (The fact that political activists on the Supreme Court may eventually say otherwise does not change that fact.)”
Yes it does, Mr. Carter. Yes, it does. And, it will change it permanently, unless or until a future set of political activists on the Supreme Court overturn it.
February 24th, 2011 | 11:57 am
Stuart,
From what I know about Joe Carter, he’s a smart and funny, committed evangelical. I’ve appreciated things he’s had to say in the past. I loathe neither him nor his positions, though I disagree with him much of the time.
It’s quite telling that you say Obama is a loathsome man. Such a basic failure to distinguish between the politics you don’t like and the man who pursues them is indicative, in my view, of much that’s wrong with American political culture.
I couldn’t stand the politics of George W. Bush. I think they were genuinely destructive, and I’m flabbergasted that Bush is so lacking in political self-awareness that he finds it prudent to write a book celebrating the awful decisions he made. I don’t think history will judge W. kindly. But you know what? I not only do not loathe Bush the man, I find him quite likable. He’s funny and charming, and from what I can tell he’s been a good husband and father.
I respectfully disagree with conservative objections to Obama’s policies. Loathing Obama the man is much harder to take seriously. In fact, it’s much harder to respectfully disagree with.
February 24th, 2011 | 12:01 pm
The Left sincerely believes they are not obliged to obey any law they find offensive.
That is why it annoys me so much when they act all outraged at conscience law protections.
They don’t need conscience law protections. They just claim a total right to pick and choose which laws, which obligations they feel like honoring.
February 24th, 2011 | 4:11 pm
All same-sex couples are denied marriage. This is no more denial of rights based on sexual preference than the ban on marrying close relatives is.
February 24th, 2011 | 4:41 pm
“It’s quite telling that you say Obama is a loathsome man. Such a basic failure to distinguish between the politics you don’t like and the man who pursues them is indicative, in my view, of much that’s wrong with American political culture.”
Obama’s politics are odious, but it is the man himself–his character or lack thereof–that I find loathsome. That you can’t understand the difference says much more about you than about me, or American politics.
“I couldn’t stand the politics of George W. Bush. I think they were genuinely destructive, and I’m flabbergasted that Bush is so lacking in political self-awareness that he finds it prudent to write a book celebrating the awful decisions he made. I don’t think history will judge W. kindly. But you know what? I not only do not loathe Bush the man, I find him quite likable. He’s funny and charming, and from what I can tell he’s been a good husband and father.”
George W. Bush is a pillar of reticence as compared to Barack Obama. As a man, he towers above his successor.
As to your capacity as a political and historical analyst, I say don’t quit your day job.
February 24th, 2011 | 4:52 pm
Charlie Collier This post tells me little that I didn’t already knew—Joe Carter loathes and utterly disrespects the President of the United States.
There are a some people I do loath but Obama isn’t one of them. I think he is mediocre and ineffectual, but those are qualities I tend to prefer in a politician whose positions I disagree with.
However, I do think in this instance he is acting cowardly. If he believes a law is unconstitutional and believes he has the authority to make such a determination, then he has the obligation to not enforce that law. He took an oath to defend the constitution which means he will not enforce unconstitutional laws. If I were one of his supporters, I’d be livid at his weasely behavior.
February 24th, 2011 | 5:05 pm
You cannot claim that President Obama is setting any precedent here.
In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. And in 1989, the Bush administration refused to defend the constitutionality of federal affirmative action preferences in the Metro Broadcasting case.
There are other examples as well:
http://www.law.com/jsp/article.jsp?id=1202473959808&slreturn=1&hbxlogin=1
February 24th, 2011 | 7:30 pm
Building on something Joe Carter said about preferring a political mediocrity if one opposes his policies–
maybe it’s best that the Obama administration just forthrightly drop any pretense of defending this law, rather than defend the law ineptly and lose the case for lack of committed belief in it.
Maybe by being clear about his toxic preferences, and idiotic ideas of jurisprudence (ie, that the law is unconstitutional) Obama is simply cementing the case against his own second term.
February 24th, 2011 | 10:45 pm
“George W. Bush is a pillar of reticence as compared to Barack Obama.”
Very very funny, funny. Compared to Obama, yes, indeed, Bush is the epitome of reticence. Considering his Bushisms, prehaps more reticence woudl have been in order.
Rectitude, however, is a different matter altogether.
Well played, sir.
February 25th, 2011 | 9:36 am
Now that you mention it, Bush is also a pillar of rectitude in comparison with Obama. Bush’s reticence–his fundamental modesty and reserve–cannot be questioned. Whereas Obama is possibly the world’s greatest user of the first person singular pronoun.
Neither can one deny Bush’s rectitude: his personal behavior, his moral focus, his fundamental decency, also put the current occupant of the White House to shame. One need look no further than the manner in which each man has treated and spoken of the other over the past several years.
History’s verdict on Bush will be quite positive. Already we see a revision of opinion, bolstered, ironically, by his successor’s adoption of the bulk of his national security policies. The current turmoil in the Middle East shows Bush was not incorrect in believing the United States should take a leading role in encouraging political reform in the region, and in comparison, Obama’s embrace of tyrants around the world looks positively reactionary–not to mention short-sighted and ultimately futile.
February 26th, 2011 | 12:44 pm
Let’s see: Obama refuses to obey the decision of a Federal judge which orders him to cease and desist the implementation of Obamacare because it is unconstitutional, and now he unilaterally refuses to enforce a valid law???!!! This man, who once said on a talk show that the “…Founders made a mistake by not including the redistribution of wealth as part of the Constitution”, is now determining what laws of the United States are Constitutional; and which aren’t? Why aren’t impeachment hearings happening already? The rule of law in the US is D-E-D dead!
February 26th, 2011 | 4:52 pm
“Let’s see: Obama refuses to obey the decision of a Federal judge which orders him to cease and desist the implementation of Obamacare because it is unconstitutional, and now he unilaterally refuses to enforce a valid law???!!! ”
Not unprecedented. A famous quote from Andrew Jackson, regarding the writ of the Supreme Court:
“Marshall has made his decision. Now let him enforce it”.
February 26th, 2011 | 11:59 pm
Nomination for mist instances of first person singular pronoun in one sentence by a sitting U.S. president.
And the winner: George Bush.
“I’m the commander — see, I don’t need to explain — I do not need to explain why I say things. That’s the interesting thing about being president.”
George Bush has secured his place in history as one of the worst presidents ever.
His incompetent decision to fund the Iraq war through deficit, his ineptitude in evaluating Iraq’s weapons of mass destruction as a cause of that war, and his inexcusable dereliction of duty in failing to anticipate an entirely predictable disaster resulting in the preventable deaths of thousands of Americans have set the bar by which future presidents will be measured.
February 27th, 2011 | 8:44 am
“George Bush has secured his place in history as one of the worst presidents ever.”
As Chou En-Lai said about the impact of the French Revolution, “It is too early to tell”. But, as an historical prognosticator, I’m sure you’re a very competent carpenter (or whatever it is you do). Again, don’t quit your day job.
March 1st, 2011 | 1:04 pm
After you brush up on your vocabulary, you may want to reconsider using “carpenter” as an insult on a Christian website.
March 8th, 2011 | 3:37 pm
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