Gestures In Futility, 112th Congress Edition

This is a post about separation of powers and the proper scope and exercise of Presidential authority, Congress’ ability to attempt to direct the exercise of that authority, and a strange attempt by Congress to use its power of the pursestrings to arrogate judicial powers for itself. It is not, or at least does not have to be, about same sex marriage. Article II, section 3 of the Constitution states that the President “…shall take care that the laws be faithfully executed,” and when he (or, within our lifetimes, she) assumes office, the Constitution mandates that the President of the United States recite 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.

Consider now the “Huelskamp Amendment,” named after its author. This is a rider on a completely unrelated piece of legislation that if ultimately passed, would bar the use of appropriated government funds in the Department of Justice for uses in contravention of the Defense of Marriage Act, such as the fifteen-month-old decision of the Obama Administration to decline the opportunity defend DOMA’s constitutionality in court. This is among the most bizarre political gambits I’ve ever heard of.

Returning briefly to the issue of the Constitutional duties imposed on the President, presumably the manner of execution of the laws must be consistent with the President’s oath of office. This much is not in any sort of dispute; but what happens when Congress tries to tell the President how to go about doing that? And what happens when these duties are apparently in contradiction — as would be the case when a law which the President must faithfully execute is inconsistent with the Constitution? In fact, I’ve visited this territory before. My conclusion was then, and it remains now, described in three parts.

First, laws passed by Congress (like DOMA) enjoy a powerful presumption of Constitutionality and absent a very compelling showing to the contrary, the President should faithfully execute, enforce, and defend those laws against challenges in the court. When Congress passes a law, that must mean something; the President is not a king to decide for and by himself alone what is or is not the law.

Second, given the immense complexity of the law and the ways it can be enforced, the President is all but forced to give direction to those under his command about priorities and how they are to exercise their discretion. Giving such direction and exercising such discretion is inherent in being the executive. There is a reason we consider the President to be as powerful as he is, and this is a big part of that.

Third, in the highly unusual circumstance of a law being unconstitutional on its face, and after significant consideration, research, and seeking the opinion and counsel of his advisors, a President can legitimately decline to enforce or defend the laws. This is not lawless behavior because the Constitution is itself the highest law of the land. There is a hierarchy to which laws prevail over others, and the Constitution is on top of that list. It’s been that way for a long time here in these United States.

This issue of the executive’s purported affirmative duty, resident in the Constitutional clauses I’ve referred to above, to defend legislation from Constitutional attack has in recent memory only come up with any prominence in recent memory with respect to the issue of same-sex marriage. (It came up in California, too, when the Governor and Attorney General decided they would decline to defend Proposition 8.) In the past, Presidents of both parties have exercised discretion to not defend the law in cases involving immigration laws, discrimination, transportation, advertisements, and firearms, with the resulting challenges producing about a 50-50 track record of affirmation of the statutory laws at issue.

But as it plays out in terms of the Huelskamp Amendment, it would get stranger than this. Now, I haven’t found the text of the Huelskamp Amendment yet, but you can read the floor debate on the amendment here and that describes what the law would do. If it becomes law, this bill would reach in to the workings of the Justice Department and prevent its attorneys from filing particular briefs containing particular arguments with particular courts in particular cases.

Those particular cases are those cases in which there are Constitutional challenges to DOMA. In several of those cases, most notably Gill v. OPM and Golinski v. OPM, DOMA has already been ruled unconstitutional, in the Gill case after having been defended by the Department of Justice. Now, the Obama Administration has reached the opinion that those rulings are correct, that DOMA is unconstitutional. It has directed its attorneys to not defend DOMA and to indicate the Government’s assent to the prior rulings finding the law unconstitutional.

The Huelskamp Amendment implies the unchallenged postulate that the Federal courts are the appropriate forum in which to review DOMA’s constitutional. Congressman Huelskamp’s concern is not that; it is that the Obama Administration’s Justice Department has given up the fight, after losing the Gill case:

President Obama and the entire Executive Branch are supposed to enforce the laws, not write or erase them. It is not President Obama’s prerogative to decide which laws matter and which do not, nor his right to challenge constitutional amendments duly passed by the various States. The Justice Department is duty-bound to enforce DOMA and to not do so is a flagrant disregard for the Constitution and for the rule of law. The Justice Department does not exist to fulfill campaign promises – nor promote a radical agenda. Most importantly, Congress showed tonight it will not stand idly by while the Executive Branch picks and chooses which laws it wants to enforce and which ones it wants to ignore.

I wonder who Congressman Huelskamp endorsed in the Republican caucuses — for consistency’s sake, hopefully not Newt Gingrich, who seems to think that the President may defy the Supreme Court when he disagrees with what the Supreme Court says about the constitutionality of a law.

So — the Obama Administration defended DOMA in Gill, and then gave up for Golinski, and has declined to appeal. I suggest that even according to Congressman Huelskamp’s standard, having defended and for a time enforced DOMA, the President has discharged his duties, and then deferred to the ruling of the Courts. The Flag Protection Act of 1989 was declared unconstitutional, too, and law enforcement officials no longer attempt to enforce it. I wonder if Congressman Huelskamp thinks that is wrong of them. Or for that matter we might revive the Alien and Sedition Acts, which if enforced today would prove most inconvenient for many members of the Tea Party.

Now, here’s the interesting thing. Congressman Huelskamp would defund efforts of the Justice Department to argue that Gill and Golinksi were decided correctly. So no lawyer in the Justice Department could file any brief containing argument to that effect in the ongoing appeals by the Bipartisan Legal Advisory Group challenging those rulings, because no Federal money could go to support such a filing, including not only the lawyer’s salary but if you got right down to it, even the cost of the electricity used to run the computers that were used for the electronic filing of the brief written by volunteer lawyers would be excluded from the use of Federal funds.

But President Obama has instructed those same lawyers that he will not authorize nor allow them to argue that DOMA is constitutional. If a Justice Department lawyer were to file a brief argue that Gill and Golinski were decided incorrectly, she would be defying and contradicting instructions from the Attorney General and the President, imperiling her career, and likely subject to having her argument withdrawn by her superiors to her tremendous professional embarrassment.

So what should that lawyer do when served with the appellate documents and the deadline for filing briefs comes? She can do nothing — she’s trapped, because she can neither advocate for nor against the constitutionality of DOMA. Which leaves the Department of Justice paralyzed. The lawyer can file a brief advising the Court that the government takes no position whatsoever on the issue. This silence in the face of a challenge to the law would be interpreted by any judge as the government allowing itself to fall into default.

Now, that would not mean that the plaintiffs necessarily win automatically — as I mentioned above, the law is presumed Constitutional until proven otherwise. As a matter of law, the plaintiffs (Ms. Gill and Ms. Golinski, respectively) would still need to offer their legal and evidentiary arguments against DOMA, and the appellate courts would have to agree. The confluence of the Obama order and the Huelskamp amendment would necessarily leave the government silent in the face of such a challenge.

Fear not, DOMA fans, for there would still be a full-throated defense of DOMA offered to the courts. The House of Representatives is in fact actively defending DOMA in these cases. I’ve no objection to this; I favor a more expansive interpretation of the requirement for standing, at least in Constitutional cases where the validity of the law itself is at issue, because I see a testing and examination of the statutory law as a core function of the courts and a critical check on the power of the legislature in our tripartate Constitutional system — a check that I would argue was always intended to be there.

But under the prevailing application of the doctrine of Article III standing, I don’t think the House has a material interest in DOMA’s constitutionality. What legal (not political) interest does the House of Representatives of the United States have in the enforcement of DOMA (or any other law it passes)? The Constitution explicitly gives the duty to enforce the laws to the President, not to Congress. Whatever interest Congress might have in DOMA, how is that different from its interest in having had the obviously unconstitutional Flag Protection Act of 1989 declared valid, or its purported injury in having it struck down? Bear in mind that unlike literally any other litigant that would come before a Federal Court, Congress can pass a new law whenever it chooses to. And I’d further submit that Congress has no valid legal interest whatsoever in the passage of unconstitutional laws since as a matter of legal theory, it lacks authority to enact such laws in the first place.

Inherent in the notion of what a “judicial power” means, a court can issue something called an injunction: a command that the executive branch of government do something, that it take some kind of affirmative action. In common parlance, this is called a “court order,” in historical legal parlance, it would have been a “mandamus.” Congress cannot do this; it lacks the power to issue injunctions. Congress can pass laws instead.

By taking away the Justice Department’s funding to fail to defend DOMA in the Gill and Golinski cases, Congressman Huelskamp seems to be trying to order the Justice Department to file briefs defending DOMA. But when you don’t pay someone to do something, they tend not to do it, and that’s true in this situation too.

If he’d really wanted to reach the result of compelling a full-throated defense of DOMA, he’d have done something different. Threatened to defund the entire Justice Department. Offered a law mandating that the Justice Department defend all Constitutional challenges to all procedurally-valid pieces of legislation through all levels of the appeals process. But those would not be very good ideas, of course they would be politically futile, and they would almost certainly come back to be used to humiliate and embarrass Republican Presidents in the future.

Taking away the ability of the government to do nothing will result in the government… still doing nothing. Just in a different way. This is a recipe for paralysis, not a Congressional mandamus, which means the side of the dispute that favors inactivity wins. In this case, that would be the Administration. Why Congressman Huelskamp would serve up such a slow-pitch softball is beyond me, it’s not even particularly good political theater. Enjoy the ride, Congressman, but this trip doesn’t look to me like it ends anywhere you want to be.

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38 thoughts on “Gestures In Futility, 112th Congress Edition

  1. “Listen. This isn’t a damned bit of good. You’ll never understand me, but I’ll try once more and then we’ll give it up. When Congress passes a law you’re supposed to do something about it. It doesn’t make any difference what you thought of it. It’s a law and you’re supposed to do something abut it. Then it happens you’re in the government business. Well, when one of your laws gets broken it’s bad business to let the perp get away with it. It’s bad all round — bad for that one government, bad for all laws everywhere. Third, I’m a congressman, and expecting me to find my laws broken and look the other way is like expecting a dog to catch a rabbit and let it go. It can be done all right, and sometimes it is done, but it’s not the natural thing. The only way I could let it go is by letting DADT and the FMA go. That’s–”

    “You’re not serious. You don’t expect me to think that these things you’re saying are sufficient reason for–”

    “Wait till I’m though and then you can talk. Fourth, no matter what I wanted to do now it would be absolutely impossible for me to let it go without having getting myself primaried along with the others. Next, I’ve got no reason in God’s world to trust you and if I let you get away with this you’d have something on me that you could leak whenever you happened to want to. That’s five of them. The sixth would be that, since I’ve also got something on you, I couldn’t be sure you wouldn’t decide to double-cross me some day. Seventh, I don’t even like the idea of thinking that there might be one chance in a hundred that you’d played me for a sucker. And eighth — but that’s enough. All these on one side. Maybe some of them are unimportant. I won’t argue about that. But look at the number of them. And on the other side we’ve got what? All we’ve got is the fact that maybe it’s a stupid, bigoted, vicious law.”

    “You know whether it is or not.”

    “I don’t. It’s easy enough to figure it that way. But I don’t know what that amounts to. Does anybody ever? But suppose I do? What of it? Maybe next month I won’t. I’ve been through it before, when it lasted that long. Then what? I’ll think I played the sap. And if I did it and lost the general I’d know I was the sap. Well, if I grandstand now I’ll be sorry as hell, I’ll have a rotten conscience, but that’ll pass in a minute or so. Listen. If that doesn’t mean anything to you forget it and we’ll make it this. I won’t because all of me wants to — wants to say the hell with the consequences and do the right thing– and because — God damn you — you knew that.”

    “Look at me, and tell me the truth. Would you have done this if the polls showed that DOMA is unpopular?”

    “Well, that would have been at least one more item on the other end of the scales.”

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  2. Thanks for this post, Burt. This is indeed a strange strategy, forcing your opponent to do what he wants to do. The only way it actually makes sense is if Huelskamp actually doesn’t care about DOMA, but wants to pretend to his constituents that he does. But given that his website makes a big deal about his faith, that seems…not impossible by any means, but unlikely.

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  3. Consider now the “Huelskamp Amendment,” named after its author. This is a rider on a completely unrelated piece of legislation that if ultimately passed, would bar the use of appropriated government funds in the Department of Justice for uses in contravention of the Defense of Marriage Act, such as the fifteen-month-old decision of the Obama Administration to decline the opportunity defend DOMA’s constitutionality in court. This is among the most bizarre political gambits I’ve ever heard of.

    Every time I think our Congress can’t get any crazier….

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  4. That crazy SOB is my congresscritter. Full-throated Teabagger.

    It sucks being a liberal in western KS. I have to go all the way up to the President to find a politico that I can even half-way stand. (Well, Biden’s cool too.)

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  5. It’s not that I support DOMA. I’m not sure about the issue of constitutionality; but if the domestic relations exception means anything at all, then it’s a matter left to the States (Ninth Amendment, [although I’m aware that’s more or less the “teats on a boar hog” amendment]). But granted, the domestic relations exception is a discretionary abstention.
    I think DOMA should be overturned.
    But not like that.
    I don’t think it’s appropriate for a lower court to rule conclusively on issues of constitutionality without review, whether for or against.

    That said, the Huelskamp Amendment is pretty dumb.

    Would Congress have standing for declaratory relief, or no standing at all?

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    • According to Roll Call, the executive branch is actively opposing legitimate law.

      http://www.rollcall.com/issues/57_133/Obama-Shift-Thrusts-DOMA-Bill-Into-Spotlight-214397-1.html?ref=corg

      In the abstract, for each new administration to reassess whatever laws it likes and doesn’t seems an assault on continuity, an essential principle. Yes, I’m familiar that GOP admins have done it too, but that doesn’t mean anything. I understand a certain amount of discretion in enforcement, but we have the admin declaring war on an act of Congress—or at least that’s what the article indicates, that the DOJ is actively arguing against DOMA.

      This seems an overstep of executive power to me.

      [I suspect the Huelskamp Amendment has zero chance of passing the Senate, so this is all theater. Still, symbolism is part of the process as well: there’s also a doomed bill up from the other side about Trayvon Martin.

      This one at least passed one house of congress, and to me the principle is correct. The executive branch gets its bite at the apple with the veto process, and Bill Clinton signed DOMA. Legislation should not be in perpetual jeopardy from the exec branch.]

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      • I tend to agree with this. The executive is the institution tasked with enforcing laws. One clear way to act inconsistently with that purpose is to, well, not enforce the law. Another murkier way would be to not defend legal challenges to existing law. It seems to me that doing so is outside the scope of executive power – at least as its conventionally defined. It strikes me as permitting the executive to be the creator as well as enforce or law.

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      • This doesn’t seem right to me, Tom. To see why let’s do a little search & replace:

        “In the abstract, for each new [em]Congress[/em] to reassess whatever laws it likes and doesn’t seems an assault on continuity, an essential principle. ”

        or this:

        “I understand a certain amount of discretion in [em]interpretation[/em], but we have the [em]Court[/em] declaring war on an act of Congress…”

        or,

        “Legislation should not be in perpetual jeopardy from the [em]judicial[/em] branch.”

        I’m not arguing for anything like an Imperial Presidency (that’s more of a Dick Cheney thing), but you seem to want to make the Executive the decidedly junior partner among the three branches.

        You know, this really goes back to Marley v. Madison in 1803 when the Court arrogated to itself the power to declare constitutionally enacted laws invalid. This is NOT a power that was granted to the court in the Constitution. They’re really just supposed to be the court of last appeal and a few other things that make sense, but not to have a kind of veto power over laws passed by Congress and signed by the President.

        I also don’t understand the logic behind this remark,

        “The executive branch gets its bite at the apple with the veto process, and Bill Clinton signed DOMA.”

        So? It’s a well-known principle that one Congress cannot bind the next, that despite the fact that the vast majority of the individual members of the first will be serving in the next. They’re considered separate Congresses. Any Congress is perfectly free to reconsider any legislation passed by previous incarnations. So why would the Obama administration, separated by eight years of the Bush administration, just get lumped in with the Clinton administration as “the executive branch”? Really it’s only the judicial branch that is viewed (and views itself) as having anything like the kind of continuity that you’re ascribing to the executive here.

        Finally, I’m curious why enforcing and prosecuting a law is being conflated with defending the law when the law itself is being challenged. Those seem like two very different things. If anything it should be the Congress which has the duty to (or privilege) of defending the law. What if the law had been passed by Congressional override of a presidential veto? In what way would that be the administration’s law to defend?

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        • Rod, thx for yr well-considered reply. I mean that. You read my text with care and responded with care. To wit,

          “This doesn’t seem right to me, Tom. To see why let’s do a little search & replace:”

          I don’t think your searches and replace are fair. You go on to write:

          “So? It’s a well-known principle that one Congress cannot bind the next, that despite the fact that the vast majority of the individual members of the first will be serving in the next. They’re considered separate Congresses. Any Congress is perfectly free to reconsider any legislation passed by previous incarnations.”

          I’m like so totally there. It’s that President Clinton signs DOMA, then President Obama used the [executive branch] Department of Justice to go to court to oppose it!

          [If that part of the RollCall report

          http://www.rollcall.com/issues/57_133/Obama-Shift-Thrusts-DOMA-Bill-Into-Spotlight-214397-1.html?ref=corg

          is true. I need to hide behind its skirts here—if that premise is wrong, I don’t want to be called an idiot or a liar or, you know, whatever… I can’t read every fishing word of every fishing bill and not get fishing paid for it. I need to learn the bridge to “Take Me to the River” for our next gig. Is that a C#m in the bridge or just a C# masquerading as an A chord? Hep me out here. Hold me, squeeeeeeeeeeze me.]

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            • Thank you kindly, MikeS: I shall poke through it. I keep a copy of the Abbey Road Studio logs

              http://www.amazon.com/The-Beatles-Recording-Sessions-1962-1970/dp/0517570661

              for all to browse in my studio. Our motto: If you want to do something different, first you have to do something different. Make a piano sound like a gtr, make a gtr sound like a piano. It’s liberating. Play a sitar like a mandolin, whatever. I trust you follow me here.

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                • Now we’re talking, Rod. I also play gtr synth, the GR-33. Core blues on a nylon Godin, backed by a GR Hammond organ. Since I play both insts, I am Thor, both a bluesgod and a bluesman. I split the earth between your legs; your balls can only but tremble, and say thank you sir, may I have another.

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                  • I can run my guitar through my drum machine, a DR-5, and get horns and such.
                    It requires a picking technique that’s a bit difficult. And it doesn’t like it if I go for a bend.
                    I used to be into that thing of making elephant sounds and bells and such. Not so much any more.
                    I can make a guitar wolf whistle pretty good though, and that one’s always won me a lot of favor. You know it’s good if the girl turns around and smiles.

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          • I just read the Rollcall report you linked and that’s not the sense of it that I got. Although I admit I’m a little vague on the specifics (as it sounds like you are) .

            To start off, what does it mean for the Justice Department to “enforce” a law like DOMA? Just so we’re sorta on the same page, here’s a summary on DOMA from Wikipedia:

            Under the law, no state or other political subdivision of the U.S. may be required to recognize as a marriage a same-sex relationship considered a marriage in another state. Section 3 of DOMA codifies the non-recognition of same-sex marriage for all federal purposes, including insurance benefits for government employees, Social Security survivors’ benefits, and the filing of joint tax returns. This section has been found unconstitutional in two Massachusetts court cases and a California bankruptcy court case, all of which are under appeal. The Obama administration announced in 2011 that it had determined that Section 3 was unconstitutional and, though it would continue to enforce the law, it would no longer defend it in court. In response, the House of Representatives undertook the defense of the law on behalf of the federal government in place of the Department of Justice (DOJ).

            So what happened was the law was challenged by some people (presumably married gay folk) who felt they were harmed by the law and undertook to challenge the law in court. Notice the last two sentences where the administration announced that it believed the law to be unconstitutional, but would continue to enforce it while declining to defend it against challenges. Whoever wrote that Wiki article, as well as the administration itself, seems to see some material distinction between “enforce” and “defend”. The press seems to conflate the two and the r/w punditry seems to intentionally do so.

            If section 3 specifically pertains to federal benefits then enforcing the law would seem to me, to simply be a matter of leaving things as they stand. Like just not having the IRS allow SS couples to file jointly or claim spousal retirement benefits. So if they haven’t made any administrative changes that would be disallowed under DOMA then they would indeed seem to be “enforcing” it while not “defending” it.

            I also don’t think you’re being entirely fair characterizing what I assume to be the filing of amicus briefs in a court case initiated by a citizen with “go[ing] to court to oppose it”. I certainly don’t get the sense that the Justice Department initiated the court challenge, and I’m not sure why the administration would necessarily be obligated to defend it if they disagreed with it.

            The flavor of this whole thing seems very sensitive to the precise wording used to describe it.

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            • Thx, Rod: I dunno and will wait for the Volokh Conspiracy blog to litigate it. [volokh.com—great law profs.]

              I don’t think the exec branch should be in court overtly and explicitly opposing the legislative branch unless it’s a constitutional question of separation of powers between the two branches, which gay marriage isn’t.

              My objection is formal, not who is cosmically wrong or right. Friend Likko is the lawyer here; I’m at best onto political philosophy a bit.

              I don’t know what’s in the Huelskamp Amendment except that Congress—and that includes Pres Bill Clinton signing, not vetoing—duly enacted DOMA. If it’s unconstitutional, that should be decided by the Supreme Court, not the Department of Justice, not the executive branch.

              I’m hoping you can hear me on this. It’s a formal argument. I don’t think a Repub administration should come in and disestablish Social Security theough the exec branch alone. That would be bogus bogosity.

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              • Oh, I’m not accusing you of partisanship on this because that’s not how I’m reading you. My argument is formal as well; I disagree with judicial review for constitutionality. But that’s what we have since 1803.

                In any case, I don’t see what the administration is doing as “deciding the constitutionality” of the law. They’re simply expressing an opinion to the court like any other party filing an amicus brief. Perhaps they should simply stay out of it, but somehow I don’t think that would satisfy some people who insist they must actively defend it.

                Interestingly enough, if you want some separation-of-powers fun, take note that the Constitution explicitly gives Congress the power to regulate the affairs of the S.C. They could simply take away the power of constitutional judicial review by passing a law. Now THAT would be a fight worth watching.

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                • Rod: “In any case, I don’t see what the administration is doing as “deciding the constitutionality” of the law.”

                  We’re discussing this formally—I believe that’s precisely what the admin’s position is. They won’t defend DOMA because they have decided it’s unconstitutional. This should not be a point of dispute between us.

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                  • I think that’s where it gets murky. The administration hasn’t decided the constitutionality of the, however. They’ve come to the determination that the law is unconstitutional and they’re willing to let the courts decide the same thing without arguing one way or the other. It’s that abnegation of responsibility which is problematic here, since it’s part of the purpose of the executive and the DOJ to defend existing laws from challenge.

                    I think it sets a bad precedent, myself (if it is a precedent). The admin ought to be defending the law even if they believe, and even hope, that the law is overturned in court. I mean, even the dirtiest hippy drug offender gets his day in court, no?

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                    • “It’s that abnegation of responsibility which is problematic here, since it’s part of the purpose of the executive and the DOJ to defend existing laws from challenge.”

                      That’s what I’m disputing. Where is that in the Constitution? I’ll grant you that that may very well be the custom and ordinary practice, but is it actually a part of the written job description of the Executive?

                      “I think it sets a bad precedent, myself (if it is a precedent).”

                      Well, according to the OP, it isn’t:

                      “This issue of the executive’s purported affirmative duty, resident in the Constitutional clauses I’ve referred to above, to defend legislation from Constitutional attack has in recent memory only come up with any prominence in recent memory with respect to the issue of same-sex marriage. (It came up in California, too, when the Governor and Attorney General decided they would decline to defend Proposition 8.) In the past, Presidents of both parties have exercised discretion to not defend the law in cases involving immigration laws, discrimination, transportation, advertisements, and firearms, with the resulting challenges producing about a 50-50 track record of affirmation of the statutory laws at issue.”

                      I guess I’m just agreeing with Burt. Of course, I’m not a lawyer, so my opinion doesn’t mean much.

                      Would it be okay for the J.D. to formally defend the law, but just do a really crappy job of it on purpose so it gets overturned?

                      Actually, what seems to me should happen, is actually happening. The Legislature has hired its own lawyers to defend the law.

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                    • Too much deference to lawyers here and too much deference to the OP. Lawyers you may not be but citizens and autodidacts and scholars you are. The Constitution is for all, not just those with Jurist Doctorates. Certainly lawyers have a depth of expertise to which it is reasonable to take notice and consider. At the same time the issue of separation of powers is not so arcane that the topic is best delegated to subject matter experts.

                      Your opinions count. And matter.

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                    • Would it be okay for the J.D. to formally defend the law, but just do a really crappy job of it on purpose so it gets overturned?

                      I think that would be better than not appealing the lower court decision at all. But it also sorta misses the point I was trying to make: that the executive is supposed to be silent on the content of a legitimately passed law because it’s purpose is limited to enforcing and defending those laws. Doing a crappy job of defending it is therefore also inconsistent with the purpose of the executive. What they are required to do, it seems to me, is defend the legitimacy of a Congressional act in front of the SC. What they cannot do, or ought not do, is a) decide that the law is illegitimate or b) decide that the law is unconstitutional. Those two powers are reserved for other branches of government.

                      Actually, what seems to me should happen, is actually happening. The Legislature has hired its own lawyers to defend the law.

                      See, I think that’s the worst case scenario. It may be best case given that the executive has rejected its duties to both enforce and defend legitimate laws. But the situation is easily rectified by the executive doing what it’s supposed to do.

                      Here’s how it looks to me: if the argument for the unconstitutionality of DOMA is so crystal clear and decisive the ruling they apparently desire will come about in any event, even if they muster a robust, principled defense of the legitimacy of DOMA. ANd if there is any doubt about that argument – which I think there is, right? – then it really needs to be made before the SC.

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  6. Aren’t the three branches of government supposed to be co-equal?

    The Legislature can act on a law they decide is unconstitutional by simply repealing it.
    The Supremes can declare such a law unconstitutional and strike it down.
    The Executive should be able to do the same by simply not enforcing it. But barring that, exercising the discretion of declining to defend it in court seems pretty reasonable.

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    • I think the issue is a bit murky due to the fact that this is DOMA we’re talking about here.
      Were we to examine a law near and dear to my heart, everyone would likely be in unanimous agreement.
      The law in question is codified in 18 U.S.C. 1512, styled Tampering with a witness, victim, or informant.
      There is no domestic relations exception at issue here. There are no activists petitioning the courts to have the law overturned. There is, however, selective enforcement.
      You may recognize this as the statute which David Kernell, who hacked into the e-mail account of Sarah Palin, was prosecuted under (rather than 18 U.S.C. 2701(a), Unlawful access to stored communications).
      You may also recognize this as the statute which Ronita Bell and Willie “Little Man” Tyler were prosecuted under for the kidnapping, rape, torture, and murder of Doreen Proctor– but only after the local prosecutor had failed to get a conviction on murder charges.
      That’s about the standard for the federal authorities.
      Their policy (which is at the discretion of the executive) is (as one FBI said to me) to “let the local authorities deal with it.”
      At issue is the fact that the local authorities are ill-prepared to deal with such matters– and especially so in instances where the local authorities are party to the action.
      In the best of circumstances, the local authorities are likely to tell someone wishing to file a complaint for witness tampering in a federal matter to report the incident to the US Attorney (who, frankly, couldn’t care less about it). Or they might say that this is a civil matter– in which case, it would then be, as an action under 42 U.S.C. 1983 (violation of civil rights under color of law). In the worst case, as in instances where the local authorities are themselves party to the federal action in question, they might try to build a case against the witness for attempting to file a complaint for witness intimidation.
      Hence my motion, entered into the docket in the US District Court of Western Missouri on May 8, 2012 (responses are due on the 25th).

      Now, can you think of other cases where the witness intimidation statutes should be selectively enforced by the executive?
      If there is any way to make a man a king in these United States, it would be through allowing the executive such powers.
      What if he decided not to enforce that thing about holding an election every four years for the Office of the President?
      Where would you draw the line?

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      • I’m thinking about writing another motion to the same court.
        This motion will be titled:

        Motion to Officially Declare the Federal Statutes
        as Contained in the Unites States Code
        Not Worth the Paper They Are Written On
        Other than for Use as Toilet Paper
        and Perhaps Kindling

        I need to come up with some good stuff to use at the end.

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      • Perhaps where this is getting particularly murky is that DOMA isn’t a criminal statute like the witness intimidation statute you are talking about here. How would a private citizen such as you or me actually violate DOMA and face prosecution? It wouldn’t ever happen because DOMA restrains the Federal and State governments. So I’m not sure I follow how the DOMA kerfuffle is equivalent to the situation you just described above.

        Actually, if I’m reading all this half-way correctly, it does two things primarily. First, it enjoins Federal agencies from recognizing same-sex marriages and extending relevant marital benefits to such couples. Second, it seems to nullify the “full faith and credit” clause, as well as parts of the 4th amendment, of the constitution wrt to marriage law in the particular case of SSM.

        This is sort of analogous to the idea that soldiers have to follow all lawful orders but can actually be held liable for following unlawful ones. It’s tricky.

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        • It’s also always going to be a political football because it’s going to be a case where the executive and the legislature disagree on what the law is. Will Truman has some thoughts to share on why SSM does not implicate the Full Faith and Credit Clause which I cannot conveniently locate at the moment but it came up within the last five days or so. I’m also not sure I agree with them but haven’t given the argument due consideration yet.

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