Defending challenges to the law

[swansont]

The DoJ will not defend the Defense of Marriage Act in two upcoming actions

 

http://whitehouse.blogs.cnn.com/2011/02/23/attorney-general-declares-doma-unconstitutional/

 

Interesting part about this to me is this:

 

In particular, in November 2011, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

 

The wording seems to imply that he government would be obligated to defend if there were legal precedent, and can only (or it's easier to)choose this path because there is no precedent in those jurisdictions. If that's the case, it sheds light on why the White House would defend positions that seem contrary to the ideology of the current occupant. Government representatives are obligated to enforce the law even if they don't agree with it — and DOMA will continue to be enforced — so it seems that the justice department is obligated to argue according to reasonable precedent. This appears to be confirmed in the letter.

 

As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government.

[Marat]

A 'longstanding practice' is not a legal rule and so it cannot be enforced; it is instead just a constitutional convention and so can be departed from when those with the power to make such a departure feel they have sufficient reasons.

 

All branches of government have a duty to uphold the values specified in the Bill of Rights, so if the executive comes across a statute which seems unconstitutional, it should expedite matters by declining to defend it from constitutional challenge -- unless the court's reasoning in such a challenge would clarify some important issue. Many legal systems allow the executive to make a reference to the Supreme Court, which just amounts to asking it a question about the constitutionality of some law or proposed legislation, even though there is no actual dispute. But the U.S. constitution only allows courts to review when they have a 'real case or controversy' before them, not just a reference.

[Pangloss]

I've been following this and it's an interesting problem, and I'm not rushing to judgment about the Obama administration's handling of this. But I am concerned about the potential trend. This is no federal regulation, changing with the winds of elections or unfunded during tough economic times (e.g. immigration enforcement). It's a fully-debated law of the land, passed by both houses of Congress and signed into law by a Democratic president less than 15 years ago. The vote wasn't even close.

 

The bill was passed by Congress by a vote of 85–14 in the Senate[1] and a vote of 342–67 in the House of Representatives,[2] and was signed into law by President Bill Clinton on September 21, 1996.

 

I understand that times (and public sentiments) change, but the danger here is that it amounts to selective enforcement according to ideology. What laws might a Republican president choose not to enforce?

[swansont]

I understand that times (and public sentiments) change, but the danger here is that it amounts to selective enforcement according to ideology. What laws might a Republican president choose not to enforce?

 

The letter is very clear that section 3 of DOMA will continue to be enforced, as the government is obligated to do.

[Marat]

The enforcement of any law is always selective, given that the state's resources of lawyers and policemen are limited. Not many people are prosecuted to the fullest extent of the law for spitting on the sidewalk. There is still a statute in Boston which makes taking a bath illegal, but since it is so cumbersome to clear out all the deadwood statutes in any code many such antique or ridiculous laws are simply ignored. Some countries have an official system to regulate the exercise of the discretion to prosecute, such as the Director of Public Prosecutions in England, and in Germany the Legalitaetsprinzip seeks to regularize this discretion by requiring the prosecutor to act if sufficient evidence of a crime is brough to his attention. Also, to make the justice system work effectively, it is necessary to make deals with some criminals so that they escape prosecution in return for their testimony against more significant criminals. Since any statute which is unconstitutional is not really law, the federal justice department would seem to be upholding the law in the essential sense of the term by refusing to enforce as constitutionally defective statute.

[Pangloss]

The letter is very clear that section 3 of DOMA will continue to be enforced, as the government is obligated to do.

Which is pretty odd, because what it basically means is that people will be arrested, charged, and prosecuted, but if they win and the case is appealed, they will then sit on their hands and do nothing.

 

The enforcement of any law is always selective, given that the state's resources of lawyers and policemen are limited.

So herein lies the real danger. By shrugging and saying "well, it's fine, liberal governments will enforce liberal laws, and conservative governments will enforce conservative laws, and that's just how it will be", the risk is pretty obvious.

 

But as I said before, I think people (and anti-Obama conservatives in particular) should refrain from rushing to judgment on this. The administration is testing the waters, just as the Bush administration often did with regard to issues related to civil liberties. Some of these waters need to be tested so that we'll know what works and what doesn't. Marat mentions a good example with regard to making deals with criminals -- somebody had to try that idea at some point to see what would happen, and thus a new approach was born.

 

I'm down with that, even if it does make me nervous.

[swansont]

Which is pretty odd, because what it basically means is that people will be arrested, charged, and prosecuted, but if they win and the case is appealed, they will then sit on their hands and do nothing.

 

No, that's not what it means at all. The letter is quite clear on this point.

 

I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.

(emphasis added)

 

They are not going to to defend two cases coming up in federal court that challenge the constitutionality of section 3.

 

So herein lies the real danger. By shrugging and saying "well, it's fine, liberal governments will enforce liberal laws, and conservative governments will enforce conservative laws, and that's just how it will be", the risk is pretty obvious.

 

The "risk" is based on a false premise.

[Pangloss]

Well you're welcome to your opinion. I disagree. The reasoning you're defending, that narrow parsing, is quite similar to the reasoning used by the Bush administration to defend warrantless wiretaps, the imprisonment of Jose Padilla, and other items that were roundly criticized by the left on a broader, more generalized basis, just as the right is doing to President Obama right now.

 

You can go and look up subtle nuances of difference between those cases and this one if you like, but most people don't really go there -- that's why we hire representatives to take care of these details for us. Which is why I think the right should stop bashing the administration and wait to see how this plays out.

 

The risk is real. But that doesn't mean the administration is throwing away the concept of defending all laws on the books any more than the Bush administration threw away civil liberties or ignored the rights of American citizens to due process.

[jackson33]

Section 3 of the law—the part that defines marriage for federal purposes as the union of a man and a woman—was ruled unconstitutional by a federal district court judge in July 2010.[1][2] This decision was appealed in October 2010.[3] On February 23, 2011, Attorney General Eric Holder announced that the Justice Department would cease legal defense of the Act's Section 3 at the direction of President Barack Obama, who had reached a conclusion that Section 3 was unconstitutional.[4] However, the administration is obligated to continue enforcing the law until it is either repealed by Congress or finally declared unconstitutional in court.[5][/Quote]

 

http://en.wikipedia.org/wiki/Defense_of_Marriage_Act

 

It's my understanding that if any *current* law is ruled unconstitutional in the inferior Federal courts, implication and or enforcement are curtailed, until resolved, provided the ruling judge has not indicated otherwise. A good example would be the HCB, which is theoretically dead pending appeals to the SC. Obama's declaration that he "reached a conclusion" is not relevant, nor can he legally tell the DoJ what it can or cannot do. I would think, since laws cannot normally be retroactive, any decisions made during the interim would not be involved and why that Federal Ruling Judge has the discretion...

[Cap'n Refsmmat]

Which is pretty odd, because what it basically means is that people will be arrested, charged, and prosecuted, but if they win and the case is appealed, they will then sit on their hands and do nothing.

Er. Who exactly is charged or prosecuted under the Defense of Marriage Act?

 

Nobody.

 

DOMA says that any state is not required to recognize a same-sex marriage made in another state, and it defines "marriage" under federal law. It is up to the states to continue obeying the first part of the law, and the IRS will continue preventing same-sex couples from filing joint returns as it always has. There is no prosecution under the act; the only law suits will be civil rights suits against states or against the IRS.

 

No selective enforcement. Part of the law is enforced by individual states, and the other part is still in full effect. The federal government is not arresting people and then letting them go upon appeal.

[swansont]

Well you're welcome to your opinion. I disagree.

You are entitled to your opinion, but you aren't entitled to your own facts. Do you have any that back up your claims?

 

(BTW, I don't see where I offered an opinion. I asked a legal question. So you can take your musings on my reasoning and, well, use your imagination)

[Pangloss]

You are entitled to your opinion, but you aren't entitled to your own facts. Do you have any that back up your claims?

You're so busy making me wrong you're overlooking the most obvious aspect of the problem: Not defending a law in court has precisely the same outcome as not enforcing it. That's a legitimate concern and opinion, and I'm entitled to state it without being dismissively accused of "having my own facts".

 

 

Er. Who exactly is charged or prosecuted under the Defense of Marriage Act?

Well no, that's true, in this case it's just failure to recognize the marriage. (shrug) The problem remains the same -- the government "enforces" the law, then ignores an appeal, with the same outcome: Defacto illegality.

 

And while I favor gay marriage, and oppose conservatives leaping to conclusions here about the Obama administration's willingness to enforce the law (this is a legitimate avenue for them to explore), I am concerned about the long-term repercussions of selective enforcement, which has come up before and will likely come up again.

[ydoaPs]

Swansont, you're so busy making me wrong you're overlooking the most obvious facet of the situation. Not defending a law in court has precisely the same outcome as not enforcing it.

I think cap'n's point is worth repeating:

 

Er. Who exactly is charged or prosecuted under the Defense of Marriage Act?

 

Nobody.

 

DOMA says that any state is not required to recognize a same-sex marriage made in another state, and it defines "marriage" under federal law. It is up to the states to continue obeying the first part of the law, and the IRS will continue preventing same-sex couples from filing joint returns as it always has. There is no prosecution under the act; the only law suits will be civil rights suits against states or against the IRS.

 

No selective enforcement. Part of the law is enforced by individual states, and the other part is still in full effect. The federal government is not arresting people and then letting them go upon appeal.

[Pangloss]

We cross-posted.

[Pangloss]

This article in Forbes attacks Newt Gingrich for calling President Obama's stance on DOMA “a dereliction of duty and a violation of his constitutional oath that cannot be allowed to stand.” Gingrich should have refrained from this rush to judgment and sought the full history of these cases, but instead he blazed a trail straight to the nearest Fox News camera to tell everyone how scary it is.

 

This author found several parallels in recent Republican administrations:

In 1982, the Reagan Administration refused to defend a case where the IRS denied tax exemptions to Bob Jones University, rejecting the IRS’s argument that the exemption should be denied because the university was practicing racial segregation for religious reasons. In 1983, the Reagan DOJ joined with the plaintiff petitioning the Court of Appeals for review of a deportation order that the plaintiff believed to be unconstitutional.

 

In both these instances, the Reagan Administration believed that the laws that the government was attempting to enforce were unconstitutional.

 

Pres. George H.W. Bush did the same in Metro Broadcasting vs. FCC and Bush the second did it ACLU vs. Mineta. In the ACLU case, the Solicitor General explained the administration’s decision in a letter to Congress where he wrote, “the government does not have a viable argument to advance in the statute’s defense and will not appeal the district court’s decision.”

 

In fact, as there exists a federal law requiring the President to inform Congress when the Department of Justice chooses not to support the constitutionality of a particular act of Congress, we know that this has happened thirteen times.

 

The legal justification for these actions has long been accepted law and goes to the very oath of office that Newt seems to feel the president is violating in his DOMA decision.

While the details of these cases do vary, this is a well-considered reflection on the history of these cases, and supports the notion that this is not an extreme event.

 

That having been said, here is where my hackles rise:

While I agree with the President that it is far more desirable to solve problems such as this with Congressional action, when Congress refuses to do so it falls to whomever happens to be sitting in the Oval Office to oppose laws that he or she believes to be in violation of the Constitution.

That is indeed what has been happening, but given the political nature of the Executive Branch, it boggles the mind that anyone in their right mind would think that this is a good idea. It's a horrendously awful idea that just hasn't backfired... yet. Or so it seems to me.

[swansont]

You're so busy making me wrong you're overlooking the most obvious aspect of the problem: Not defending a law in court has precisely the same outcome as not enforcing it. That's a legitimate concern and opinion, and I'm entitled to state it without being dismissively accused of "having my own facts".

 

No, I don't think it does (see below), and the facts you conjured are that the government won't enforce the law, and that people would be tried and prosecuted and appeals would be ignored. You never cited anything that showed those to be true, and they are not. Subsequently acknowledging the latter is wrong (at least about tried and prosecuted) and changing the argument of the former (from "not enforcing" to "same outcome") is not the same as never having made the arguments in the first case. I didn't make you wrong, you were wrong and I pointed it out.

 

Well no, that's true, in this case it's just failure to recognize the marriage. (shrug) The problem remains the same -- the government "enforces" the law, then ignores an appeal, with the same outcome: Defacto illegality.

 

Here are the reasons I think you are wrong about this:

 

You have not come up with any evidence to support the notion that the US would ignore court cases that do not focus on the constitutionality; the only evidence is that they will not defend the two constitutionality cases in question. Anything beyond that has been purely conjecture on your part. The point Cap'n made still holds. Until you can show otherwise, you're just making it up.

 

As to the constitutionality argument, the plaintiffs still have to make their case. They still have to convince a judge that the law is unconstitutional. If they don't make their case, the government wouldn't have to put on a defense, even if (as is usually the case) they disagreed.

[Pangloss]

You have not come up with any evidence to support the notion that the US would ignore court cases that do not focus on the constitutionality

I don't have to -- it defies common sense.

 

Murder is only illegal because there's a law on the books that says so. Failure to enforce any murder appeal produces a defacto state of allowing murder. The government could state that it still enforces the law by continuing to arrest suspects and putting them on trial. Then they would be automatically appealed by their lawyers and their clients immediately set free.

 

You're parsing a narrow definition and demonizing my opinion in the process. I'd appreciate it if you'd stop. There's no particular reason for you to respond to an opinion by stating that I'm not entitled to my own facts, or that I'm just "making it up". That's appeal to ridicule.

[Cap'n Refsmmat]

The difference is that enforcing DOMA does not involve prosecutions. What it involves is not allowing gay married couples to file joint IRS returns. That will continue to be the case until someone files a civil rights lawsuit against the IRS and wins.

 

That is to say, in criminal cases like murder, legal defense occurs automatically; lawyers are appointed and a defense is mounted before conviction ever happens. On the other hand, in DOMA, legal defenses only occur should the affected individuals file their own lawsuit. One does not automatically go to trial when filing taxes.

[swansont]

I don't have to -- it defies common sense.

 

Murder is only illegal because there's a law on the books that says so. Failure to enforce any murder appeal produces a defacto state of allowing murder. The government could state that it still enforces the law by continuing to arrest suspects and putting them on trial. Then they would be automatically appealed by their lawyers and their clients immediately set free.

 

You need to justify why your example is anything but a strawman for the situation with DOMA. Appealing a conviction is not the same as contesting the constitutionality of the law. In your example, the person found guilty would be held in jail pending the outcome of the constitutionality case.

 

You're parsing a narrow definition and demonizing my opinion in the process. I'd appreciate it if you'd stop. There's no particular reason for you to respond to an opinion by stating that I'm not entitled to my own facts, or that I'm just "making it up". That's appeal to ridicule.

 

You keep misusing the word "demonize."

 

You did make things up. I listed them. Do you deny making the statements?

 

Your position is basically a slippery-slope argument. The government has declared that it will not defend two cases regarding the constitutionality of the law. That's a fact — one can read it in the Holder letter. The claim that they will not enforce the law is untrue; the opposite is stated in the letter, so that's not a fact. The claim that they will not defend civil court cases is not justified by any facts you have presented. If there are no facts to support it, one must conclude that you did, in fact, just make that up. It appears as if you have taken the non-defense of the two cases as an indication that the US would not pursue any other cases involving DOMA. That's the slippery slope.

[jackson33]

You keep misusing the word "demonize." [/Quote]

 

swansont; Frankly I have trouble understanding your position myself, but you have been going after a fellow MODERATOR, in a public manner for quite awhile, IMO. It would be my opinion, this fight should continue in private messages, not demeaning one, whom simply is trying to discuss an issue. Us occasional posters are not interested in the internal politics of a forum and this appears to me, what's going on.

 

The Department of Justice is charged with defending the US Constitution and US Law, regardless the PRESIDENT or Attorney Generals personal opinion. What I believe their saying is, they will direct Federal State Courts not to accept (hear) cases coming up through State Courts. It's unclear to me whether that in itself is legal or that State Federal Courts are bound to oblige, but it certainly reaps of politics. Technically and as I understand it, if any appeals court or superior court refuses to hear a case, the lesser courts ruling stands. From this then, Pangloss may be correct and that by refusing to hear Federal Legal cases, any law could be subverted.

[Cap'n Refsmmat]

The Department of Justice is charged with defending the US Constitution and US Law, regardless the PRESIDENT or Attorney Generals personal opinion. What I believe their saying is, they will direct Federal State Courts not to accept (hear) cases coming up through State Courts. It's unclear to me whether that in itself is legal or that State Federal Courts are bound to oblige, but it certainly reaps of politics. Technically and as I understand it, if any appeals court or superior court refuses to hear a case, the lesser courts ruling stands. From this then, Pangloss may be correct and that by refusing to hear Federal Legal cases, any law could be subverted.

This is not the case; every defendant is entitled to appeals in federal criminal cases and in most civil cases. The Department of Justice does not have direct control over federal justices in that way. However, if a civil case is filed against the government in federal court, the Solicitor General's office must represent the government in court. The Justice Department is saying that it will no longer defend itself against certain civil cases regarding the Defense of Marriage Act. The federal judge will still carry out the trial and make a ruling, but the government will not present a case to defend the law.

[swansont]

The Department of Justice is charged with defending the US Constitution and US Law, regardless the PRESIDENT or Attorney Generals personal opinion. What I believe their saying is, they will direct Federal State Courts not to accept (hear) cases coming up through State Courts. It's unclear to me whether that in itself is legal or that State Federal Courts are bound to oblige, but it certainly reaps of politics. Technically and as I understand it, if any appeals court or superior court refuses to hear a case, the lesser courts ruling stands. From this then, Pangloss may be correct and that by refusing to hear Federal Legal cases, any law could be subverted.

emphasis added.

 

Where did they actually say that they will not hear state court cases? That's precisely the issue. When I did a search of the Holder letter, I found no instances of "state court," "appeals" or "superior," so I don't understand how one draws the conclusion you have drawn. How do you justify that conclusion? It seems to me to be a slippery-slope extrapolation, based only on conjecture. i.e. a fabrication, and contrary to what is stated in the letter, namely

 

the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.

[jackson33]

CR/swansont; What swansont emphasized, was my underlying point and as said, a guess. I am completely aware I'm out on a limb in trying to explain a declaration/purpose which is probably political to begin with and what's actually intended. The intent not to vigorously defend and actually not defend, would have different meanings. Then it's my opinion and maybe a great many others, that the DoJ, the Attorney General nor the President has any option to what can or cannot be enforced, IF IT'S ALREADY LAW.

 

The current idea in the House will somehow replace the Justice Department, whatever their intension's, by defending DOMA themselves. We're getting to a point the Constitution is meaning little, legislate/Congress and enforce/Executive are separate duties, not being followed and some people I've talked with, actually believe Obama can declare anything Constitutional or not and the third separation of powers.

[swansont]

CR/swansont; What swansont emphasized, was my underlying point and as said, a guess. I am completely aware I'm out on a limb in trying to explain a declaration/purpose which is probably political to begin with and what's actually intended. The intent not to vigorously defend and actually not defend, would have different meanings. Then it's my opinion and maybe a great many others, that the DoJ, the Attorney General nor the President has any option to what can or cannot be enforced, IF IT'S ALREADY LAW.

 

Right, they have no option but to enforce the law. Which they have declared they will do. What they will not do is send lawyers to defend the constitutionality of the law in court, because they think it's unconstitutional. But the decision on that must come from a judge.

 

The current idea in the House will somehow replace the Justice Department, whatever their intension's, by defending DOMA themselves. We're getting to a point the Constitution is meaning little, legislate/Congress and enforce/Executive are separate duties, not being followed and some people I've talked with, actually believe Obama can declare anything Constitutional or not and the third separation of powers.

 

 

What Holder said is that there are two paths that would get rid of that section of DOMA: either congress can repeal the law, or the courts can make a determination that it's unconstitutional. Both of those are well-established actions within the constitution. The executive branch will continue to enforce. So I don't see what the objection is.

[jackson33]

The administration, however, will no longer defend challenges in the courts to the constitutionality of a specific section of DOMA. In particular, the administration will no longer defend challenges to Section Three of DOMA, which provides that, for federal purposes, the only legally acceptable definition of marriage is that of a legal union between one man and one woman.[/Quote]

 

Read more: http://blogcritics.org/politics/article/more-fiction-than-fact-in-conservative/#ixzz1FebzXvGE

 

swansont, above is an article, you or CR could have written, from your understanding of law and it's important you note, I disagree on this particular issue and am seeing a trend toward subjective prosecution of the duties of the DoJ (any), which I feel was Pangloss's point of discussion.

 

On DOMA, as I see it, is Federal Legislation designed (clarification) for administrative and legal purposes for ALL Agencies and the Courts to follow, when and if States have different laws. DOMA reflects a position only for Federal approachment to the issue and since enacted, enforced. I further contend, that it's not the position of the Federal to arbritarily refuse to enforce any law, certainly NEVER for personal or political reasons and believe in this case and recent others cases, is the case. As for Section Three, it's the meat of the Legislation and I have no idea what "other" cases that could be *accepted* by any Federal Court to hear might be based on, ie. my comment on stopping the acceptance of such cases as the motive.

 

If you feel the Courts should determine the Constitutionality of DOMA, I would think you would suggest the DoJ defend DOMA to SCOTUS, not interfere, possibly in a half heartedly manner, which no authentic attorney would ever do. On Congressional Action DADT, confused the issue, but weakened DOMA as for Federal administrative purposes.

 

I'd rather not see an Amendment come from Congress on this or one that either confirms or denies States from treating how marriage or my prefered wording Domestic Contracts, will be treated by the Federal. Frankly, I'd rather see the Federal and States get out of determining what any people constitute as "legal domestic contracts" all together. The Federal has no means to enforce any amendment any direction they take it, in the first place and since 39 States already have "One Man/Woman" in their Constitutions, it's likely not going to be popular by a minority.