DOMA Defense
Feb. 24th, 2011 07:15 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
rhuY'know, as much as I agree that DOMA is unconstitutional, it worries me that the Executive Branch is making that decision. Obama doesn't have the right to a retroactive veto, and I don't think we want to relitigate Marbury v. Madison at this point.
Here's a thought experiment: In 2013, based on the DOMA precedent, newly-inaugurated President Huckabee announces that in his opinion, the Environmental Protection Act is an unconstitutional taking, violating the principle of just compensation for eminent domain and also violating the Interstate Commerce Clause, and that he has instructed the DoJ to not defend it. Two days later, the Koch brothers sue the Federal government....
Here's a thought experiment: In 2013, based on the DOMA precedent, newly-inaugurated President Huckabee announces that in his opinion, the Environmental Protection Act is an unconstitutional taking, violating the principle of just compensation for eminent domain and also violating the Interstate Commerce Clause, and that he has instructed the DoJ to not defend it. Two days later, the Koch brothers sue the Federal government....
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(no subject)
Date: 2011-02-25 12:22 am (UTC)Basically, the Department of Justice does have the responsibility to defend the constitutionality of any Federal law for which there is a constitutional justification.
However, at least one of the challenges to DOMA's constitutionality was so solidly constructed that the DoJ felt that there really was no reasonable chance that this would be found constitutional. As long as there was a reasonable argument to be made, they'd be required to make it. But in this specific case, there wasn't.
(no subject)
Date: 2011-02-25 12:25 am (UTC)(no subject)
Date: 2011-02-25 12:58 am (UTC)(no subject)
Date: 2011-02-25 04:22 am (UTC)(no subject)
Date: 2011-02-25 11:45 am (UTC)(no subject)
Date: 2011-02-25 01:14 am (UTC)First, this is not setting a new precedent: the executive branch has in the past chosen not to defend statutes that it believes to be unconstitutional. E.g., during the Reagan Administration, the IRS stopped defending Bob Jones v. United States, and another lawyer stepped in to argue the side that the IRS had previously taken.
Second, other parties, including Members of Congress who voted for DOMA, have standing to defend DOMA’s constitutionality, and if they’re more motivated than the Obama Administration, so much the better for the legal process.
(On these two points, see Volokh.)
Third, no matter what course President Obama takes, President Huckabee will do whatever he wants, and his apologists will find some way to argue that the Democrats did it first.
(no subject)
Date: 2011-02-25 01:45 am (UTC)(no subject)
Date: 2011-02-25 02:08 am (UTC)(no subject)
Date: 2011-02-25 02:12 am (UTC)(no subject)
Date: 2011-02-25 02:26 am (UTC)(no subject)
Date: 2011-02-25 02:42 am (UTC)(no subject)
Date: 2011-02-25 05:11 am (UTC)