President Obama, in response to the din calling for reducing the cost and size of government, decided this past week to eliminate the Supreme Court. It's not just the cost of the court itself, but the huge expense of legal actions progressing through the courts to the Supreme Court. The President simply proclaimed the "Defense of Marriage" law enacted by the legislative branch (Congress), "unconstitutional", and directed the Justice Department not to defend the law. See, that was easy..no need for legal action...no need to change the law...the President can just proclaim which laws he judges to be "constitutional" and which ones he decides are "unconstitutional". Come to think of it, we don't have to spend all that money on the legislative branch either. Authoritarian government is so much more efficient.
The Old Man
I am certainly no fan of DOMA—and it very well may be unconstitutional—but I must admit that Obama’s decision not to defend the recent DOMA cases gave me some pause. I still have not found any persuasive authority to justify Obama’s action, but the following article by former Solicitor General Seth Waxman sheds some light on the issue of when the executive is permitted to stop defending the challenged constitutionality of an Act of Congress. Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001), available at: www.law.stanford.edu/display/images/dynamic/events_media/Defending%20Congress.pdf
ReplyDeleteOne of the things I admire about Ryan is, he's intellectually honest, and sees the real point, instead of blindly following a political side. For what it's worth, although we surely see any number of issues differently, I think I probably see DOMA, and this issue the same way Ryan sees it. I'm not sure it's constitutional either. But the way to challenge that is to go through the legal system. And/or, if you want to change it, go through the legislative process.
ReplyDeleteBut it really should, as Ryan says, give one pause to have a president declare which laws will be enforced, and which will not.
The Old Man
Come on guys. The role of the President is to lead. He’s not supposed to be a Constitutional scholar.
ReplyDeleteOn a more serious note, what we are witnessing over and over and over again is outcome based decision-making – the ends justify the means. When it’s change you believe in any mechanism will do.
As an aside, I think DOMA was ill-advised and overreaching and hope it will be overturned.
The Old Man is making an enormous fuss over nothing. Until now, the Obama Dept. of Justice has defended DOMA on many occasions, even though Obama personally opposes DOMA. However, two high-level cases have rendered the unconstitutionality of DOMA Section 3 beyond all doubt. As the essay Ryan posted points out, in a number of circumstances, the DOJ has exercised a prudent discretion in directing its resources to defending laws that are remotely defensible. Aside from Section 3, the DOJ will continue to defend DOMA. And in the particular cases challenging Section 3, nothing will prevent Congress or other parties from appearing in court to oppose the rights of LGBT people.
ReplyDeleteThere's one more reason I feel underwhelmed by the arguments of the Old Man. When the Obama administration pursued repeal of the "Don't Ask Don't Tell" law through Congress, rather than opting to ignore the law by executive order, the Old Man complained Obama lacks guts and decisiveness as a leader. He won't take a stand on principle if it will create controversy. Now, Obama exercises his executive power and it's the opposite -- he's an authoritarian dictator. Apparently, Obama no longer is afraid of controversy -- and now it's a bad thing.
Conveniently, in neither case do conservatives put up any real defense of DADT or DOMA, nor do they choose to consider whether these policies contribute to "authoritarian government".
-Freyguy
Obama is the first president I've experienced that has chosen to verbally start fights with the judicial branch, though may presidents have disagreed with various judical decisions.
ReplyDeleteThe constitution establishes checks and balances. I hope they survive.
I see Obama building houses for Habitat for Humanity and trying to be an ambassador without portfolio (Jimmy Carter II trying to redeem his legacy).
There is no "Leadership" coming out of the White House.
The DOMA actions are relatively benign compared to other actions...but it builds upon the growing divide.