Defending challenges to the law

[swansont]

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.

 

Yes, it seems to make the same points. But any "trend" toward non-prosecution in this specific area has not happened, so you can't conclude that it has, or that it will. That's conjecture. That's the "fiction" the article mentions.

 

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.

 

But the government has not decided to refuse to enforce this law, much less arbitrarily. They have not decided to stop accepting cases. If you think otherwise, please cite some evidence that this is so. A specific passage from the AG's letter, for example.

 

What cases could be brought, other than constitutionality? How about a case connected with filing an improper return (claiming married, but it's not man+woman filing it)? Has the IRS been instructed not to do this?

 

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.

 

Why should the lawyers defend it if they (or the ones who make such a determination) feel there is no defense? In this instance there is no precedent to cite as an argument, as explained by the AG. The plaintiffs still have to make the case and convince the judge that the law is unconstitutional. If they fail at at that, no defense is necessary. Just as in a criminal case, if the prosecution does not make its case, the defense can rest without calling a single witness. The default mode of our system is that the laws are constitutional until proven otherwise.

 

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.

 

AFAIK that's one of the arguments against DOMA — that the federal government doesn't have the enumerated power to restrict the definition of marriage. And again, AFAIK, this won't legalize gay marriage anywhere that is isn't already legal. It just means where the federal government is involved, legally married gay couples can get federal benefits available to couples.

[jackson33]

Why should the lawyers defend it if they (or the ones who make such a determination) feel there is no defense? In this instance there is no precedent to cite as an argument, as explained by the AG. The plaintiffs still have to make the case and convince the judge that the law is unconstitutional. If they fail at that, no defense is necessary. Just as in a criminal case, if the prosecution does not make its case, the defense can rest without calling a single witness. The default mode of our system is that the laws are constitutional until proven otherwise.[/Quote]

 

swansont; Lawyers simply don't determine what's defendable, but will defend or prosecute any case, to the best of their ability, precedence set or not. That's what actually sets precedence. I don't believe any attorney, would go to court, not defend (if that's there duty) or argue the case and not expect to be disbarred for incompetency. If you or Holder are suggesting "legal standing" or that such State Laws have no merit being contested in the Federal Courts, that's nonsense IMO...

 

Governments, especially the Federal is supposed to support the Constitution and Laws of the US, not only those they feel are just. Any trial lawyer/attorney will tell you he/she has argued many cases, where the person or issue opposed their own morals, ideology or what have you. I'm having trouble understanding if your even aware of this and if you are, why would being part of the DoJ be any different.

 

Appeal Courts have the option to accept or deny review/hearing cases and Judges will make this decision in my opinion, based on the probability the Federal will not defend (in this discussion), possibly then choosing to let the lower courts ruling stand. Typically Appeal Courts will deny review/hearing a good many cases, usually on frivolous or standing grounds.

 

But the government has not decided to refuse to enforce this law, much less arbitrarily. They have not decided to stop accepting cases. If you think otherwise, please cite some evidence that this is so. A specific passage from the AG's letter, for example.[/Quote]

 

Nothing has happened and why I'm somewhat uncomfortable arguing hypothetical's, but this DoJ and Mr. Holder have already established possible precedence for future DoJ's;

 

"Think about that," Holder said. "When you compare what people endured in the South in the 60s to try to get the right to vote for African Americans, to compare what people subjected to that with what happened in Philadelphia, which was inappropriate....to describe it in those terms I think does a great disservice to people who put their lives on the line for my people," said Holder, who is black. [/Quote]

 

http://voices.washingtonpost.com/plum-line/2011/03/testifying_before_a_house_appr.html

 

I would also suggest recent actions taken against Arizona were inappropriate and I'm sure non compliance to Judge Vinson's "rulings" (involving 26 States) were not exactly wise.

 

In a harshly worded opinion, Judge Roger Vinson, the Florida federal judge who struck down the entire health care law in January, gave the Obama administration seven days from today to appeal his ruling with the 11th Circuit Court of Appeals.[/Quote]

 

http://blogs.abcnews.com/politicalpunch/2011/03/judge-vinson-clarifies-florida-ruling-maintains-that-entire-health-care-law-is-unconstitutional.html

 

Attorney General Eric Holder said, “This is a settlement that addressed a historical wrong, I mean something that this country is not and should not be about.”[/Quote]

 

http://thefightback.org/2011/02/a-bittersweet-settlment-for-black-farmers/

 

I was not a personal fan of Attorney General Gonzales, during the Bush administration and some items were carried over from them, but this tendency to pick and choose enforcement or aggressive litigation and for reasons given IMO have no legal grounds to stand on. By the way, there are only about 18k Black Farmers in the US today...

[Cap'n Refsmmat]

swansont; Lawyers simply don't determine what's defendable, but will defend or prosecute any case, to the best of their ability, precedence set or not. That's what actually sets precedence. I don't believe any attorney, would go to court, not defend (if that's there duty) or argue the case and not expect to be disbarred for incompetency. If you or Holder are suggesting "legal standing" or that such State Laws have no merit being contested in the Federal Courts, that's nonsense IMO...

A judge's decision sets precedent. Your argument has a flawed premise: that the attorney will go to court and then sit and not argue the case. I believe the government instead will simply not send any lawyers to defend the law.

 

Governments, especially the Federal is supposed to support the Constitution and Laws of the US, not only those they feel are just. Any trial lawyer/attorney will tell you he/she has argued many cases, where the person or issue opposed their own morals, ideology or what have you. I'm having trouble understanding if your even aware of this and if you are, why would being part of the DoJ be any different.

An individual has the right to representation in court, even if they are obviously guilty. I don't know that the same right extends to laws.

[swansont]

swansont; Lawyers simply don't determine what's defendable, but will defend or prosecute any case, to the best of their ability, precedence set or not. That's what actually sets precedence. I don't believe any attorney, would go to court, not defend (if that's there duty) or argue the case and not expect to be disbarred for incompetency. If you or Holder are suggesting "legal standing" or that such State Laws have no merit being contested in the Federal Courts, that's nonsense IMO...

 

That's not the point. Lawyers decide HOW to defend the cases. They go and figure out what the legal argument is in support of their side. Government lawyers decide if there's enough evidence to move forward with cases all the time. Isn't that one of their jobs?

 

 

Governments, especially the Federal is supposed to support the Constitution and Laws of the US, not only those they feel are just. Any trial lawyer/attorney will tell you he/she has argued many cases, where the person or issue opposed their own morals, ideology or what have you. I'm having trouble understanding if your even aware of this and if you are, why would being part of the DoJ be any different.

 

This isn't the argument. Whether I understand it is moot (though I do). Holder didn't write that the law is unjust, he wrote that it's unconstitutional. Those are very, very different things. The current administration had defended the law in Nancy Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services (and perhaps others).

 

But the decision not to defend is tied in with a different legal argument (heightened scrutiny) than the other cases, and there is no precedent in that circuit to say that the law is constitutional on those grounds. So what defense do you make, when there is no precedent to guide you or use as an argument?

 

Appeal Courts have the option to accept or deny review/hearing cases and Judges will make this decision in my opinion, based on the probability the Federal will not defend (in this discussion), possibly then choosing to let the lower courts ruling stand. Typically Appeal Courts will deny review/hearing a good many cases, usually on frivolous or standing grounds.

 

The government has made no indication that they would not defend other cases, which carry with them different arguments, so it is purely conjecture that they wouldn't.

[jackson33]

A judge's decision sets precedent. Your argument has a flawed premise: that the attorney will go to court and then sit and not argue the case. I believe the government instead will simply not send any lawyers to defend the law.[/Quote]

 

CR; Of course the Judge sets precedence with the ruling. In fact cases that have vague, questionable or no previous rulings, generally will make it to the SCOTUS and will be heard. DOMA fits right in with the following explanation.

 

Lower courts are bound by precedent (that is, prior decided cases) of higher courts within their region. Thus, a federal district court that falls within the geographic boundaries of the Third Circuit Court of Appeals is bound by rulings of the Third Circuit Court, but not by rulings in the Ninth Circuit, for example. (The Circuit Courts of Appeals have jurisdiction defined by geography.) The Circuit Courts of Appeals can interpret the law how they want, so long as there is no binding Supreme Court precedent. One of the common reasons the Supreme Court grants certiorari (that is, they agree to hear a case) is if there is a conflict among the circuit courts as to the meaning of a federal law.[/Quote]

 

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

 

Again, not knowing what Holder will actually do, it's difficult to argue. Again, he and/or the DoJ are Constitutionally charged to defend US Laws and are not supposed to pick what portions are or are not Constitutional, purpose for defending. I'm suggesting it would be to their political or ideological advantage to defend these cases in a speedy manner to get the issue settled. Frankly, doing what you suggest, could IMO be judged contempt of Congress, which enacted the law. I don't believe Holder will do as he said....in the end.

 

An individual has the right to representation in court, even if they are obviously guilty. I don't know that the same right extends to laws. [/Quote]

 

Laws pertain to people or they never make it to court. All cases are represented by some case over a person(s), often test cases set up by attorneys or organizations to further a point.

 

That's not the point. Lawyers decide HOW to defend the cases. They go and figure out what the legal argument is in support of their side. Government lawyers decide if there's enough evidence to move forward with cases all the time. Isn't that one of their jobs? [/Quote]

 

swansont; Lawyers do decide "HOW" to defend a case and do have some leniency on what cases to accept. The DoJ does not have that prerogative (apparently IMO) when it comes to defending National Laws nor in many cases do attorneys when Court Appointed or directed by their District Attorney. I'm sure there are a good many Government Attorneys that would gladly defend DOMA. Evidence to move forward is their job to find or argue to the best of their ability.

 

This isn't the argument. Whether I understand it is moot (though I do). Holder didn't write that the law is unjust, he wrote that it's unconstitutional. Those are very, very different things. The current administration had defended the law in Nancy Gill v. Office of Personnel Management and Massachusetts v. Department of Health and Human Services (and perhaps others). [/Quote]

 

To my knowledge, at best "Unconstitutional" is a Holder opinion, he has not been confirmed to make such decisions by Congress, unjust a milder version of an opinion, nor has the President whom he has laid the blame on.

 

But the decision not to defend is tied in with a different legal argument (heightened scrutiny) than the other cases, and there is no precedent in that circuit to say that the law is constitutional on those grounds. So what defense do you make, when there is no precedent to guide you or use as an argument?[/Quote]

That's up to Congress, since it's them that are being denied proper defense from the Executive over a Law they wrote and is being contested. New law on controversial legislation, has a good deal of precedence in the courts. "Prohibition" would be a good example, where it was finally defeated by an Amendment, DADT which was settled by Legislation and Abortion which might be again contested, in all cases defended by Government.

 

The government has made no indication that they would not defend other cases, which carry with them different arguments, so it is purely conjecture that they wouldn't. [/Quote]

 

From the letter to Congress;

 

but will not defend the law in jurisdictions such as the Second Circuit where its constitutionality has not heretofore been tested. [/Quote]

 

IMO; If a US Law has not been tested, this is a specific reason for the DoJ, to defend the Law. It's in the test, arguments are formed and of all laws, one this administration should want to preserve, at least for the Congress that enacted it. Also as said earlier, a reason for an amendment is being set up and this would not be good for our society as it exist today.