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| We don't want a regal presidency, do we? |
But imagine if, as Attorney General Eric Holder has announced regarding the Defense of Marriage Act (DOMA), the executive refused to defend the constitutionality of settled laws (DOMA, signed by Clinton, has been on the books since 1998) based on whether the current president agreed with them?
When a plaintiff (recruited by the president's party) filed suit and the AG refused to defend it, lacking a defense, the court would enter a default judgment for the plaintiff. Without an appeal, the issue would never even get to the Supreme Court; individual federal judges might throw out major pieces of legislation without appellate review.
A president would suddenly gain, in effect, the power to overturn laws he didn't like without Congress having to repeal them.
Liberals should be careful how they applaud this choice by the Obama administration. What if a future Republican president were to refuse to defend the constitutionality of the Social Security Act? Or the Income Tax Code?
Presidents shouldn't have this sort of power by themselves.
OTOH, perhaps Republican presidential candidates should be rushing to microphones to be the first to announce that, if elected, they will appoint an Attorney General who will not defend the constitutionality of Obamacare.
12 comments:
A president would suddenly gain, in effect, the power to overturn laws he didn't like without Congress having to repeal them.
Does anybody other than the federal government have standing to appeal a judge's decision that a law is unconstitutional?
That would be a question that the court would decide. If the president had appointed the judge, probably not.
I am in marriage restricted by DOMA and I still believe this was inappropriate and impractical.
From what I've read, Congress will be allowed to defend the law. The President will still enforce the law until it is struck down "definitively" by the courts or repealed by Congress.
I believe "definitively" means a Supreme Court decision since a Mass. Fed. Judge struck the federal restriction part last year and I've heard the law will remain enforced in Mass.
Besides opening the can of worms about the executive branch's role in lawsuits, this will probably set the repeal of DOMA back even further. It will likely delay the appearance of the case in the Supreme Court (which I think would strike it down 5-4). However, by the time it gets to SCOPUS, there could be several personnel changes which might cause it to go the other way.
Meanwhile that leaves only Congress to repeal DOMA which I doubt is happening anytime this decade.
Though I think this gives all voters cause for concern over the role of the executive branch in lawsuits, it is not a back door for the President to override the law. And as far as social conservatives are concerned, it probably works in their favor to delay the case while Kennedy and Ginsburg are on the bench.
From what I've read, Congress will be allowed to defend the law. The President will still enforce the law until it is struck down "definitively" by the courts or repealed by Congress.
Oh, sure, if the court condescends to grant someone else standing, they could defend it. But what if Nancy Pelosi were still Speaker? Would a Demoratic Congress defend this law? Perhaps, I grant, since they failed to repeal it when they could have.
And what if the federal court judge (appointed by the president) refuses to grant standing to Congress to defend the holding that that is the duty of the Executive.
I believe "definitively" means a Supreme Court decision...
"Definitively" means until it's no longer being litigated. That's after one adverse decision that's not appealed.
Constitutional crisis, anyone? What do you do with a president who selectively refuses to carry out his Constitutional duties?
This analysis by John Culhane, a law professor at Widener University, who clearly supports what he calls "marriage equality" and what I call "changing marriage to mean something it never has before," seems to reinforce my points:
But who will defend DOMA now? Does Congress have standing? Do its members? And what if they don’t?
I spent much of yesterday afternoon reading opinion pieces, law review articles, Supreme Court cases, and talking to experts on federal courts trying to figure this out. Here’s what I’m coming up with, in an area where the degree of difficulty is ten:
It’s the job of the DOJ to defend these laws, not the job of Congress. Think about this from the separation of powers perspective: Congress enacts the laws; the Executive defends them. One colleague said: “The more I think about it, the more convinced I am that Congress can’t defend the law.”
The letter was conciliatory on this point – expressing DOJ’s “interest in providing Congress with a full and fair opportunity to participate in the litigation” – but it’s the courts that will decide whether Congress (or its members) have standing.
There have been occasions when Congress had standing to defend a law, but the cases I’ve seen in support of this right involve power struggles between the two branches of government: Does Congress have the power to do something, or does the President? This isn’t such a case.
But in any case, expect the courts to do something to make sure the law is defended. Amicus briefs might be one way to achieve this, even at the Supreme Court level. After all, the DOJ is still in the case, and might be asked by the courts to articulate the arguments for constitutionality, even if it doesn’t actually agree with them.
If this is your point, then your point and my point are the same.
That is that the Justice Department's move is against the duties understood by the separation of powers....
"But in any case, expect the courts to do something to make sure the law is defended."
There is plenty of reason to oppose this move, but fear this will prevent the defense of DOMA in court is not one of them. I haven't read a single prominent legal scholar even mention failure of defense as a real possibility. Some say all 30+ states with DOMA laws or amendments also have standing. Not to mention, any litigation over standing will end up at the Supreme Court.
Although many are disturbed, like I am, by the actions of the DOJ, the overwhelming consensus is this law will reach the Supreme Court.
Stephanie, you seem very sure that this action by the administration will not short-circuit the defense of DOMA.
What, then, do you suppose is the intent of this action?
If this is constitutionally meaningless, then Obama is probably doing it for PR purposes. That's reasonable - whatever else you say, he is good at PR to his base.
So, wait, are we saying that Obama has made a meaningless gesture simply to endear himself to gays, while the true effect will be to delay the day they're hoping will come?
This guy must think gays are pretty stupid.
Paul: This guy must think gays are pretty stupid.
Ori: I suspect Obama thinks most voters are pretty stupid. Considering the mismatch between his resume and the job he got, I tend to agree.
I don't see how changing counsel will do anything but delay this appearing in front of the Supreme Court.
Stupid is as stupid does. And I've also come to believe that stupidity does not discriminate by political affiliation or sexual orientation.
It looks like the House has grabbed the reins. John Boehner will appoint an attorney. I bet the pro-DOMA organizations will favor this change since they weren't too thrilled with the DOJ defense.
Defense of Marriage Act will be defended by House-appointed lawyer, John Boehner says
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