I have a serious question about this.
The Obama administration decided on Tuesday to appeal a judge’s rulings that prevented the U.S. government from banning same-sex marriages, a move that could undermine support among President Barack Obama’s traditional liberal base ahead of a key election.
The Obama administration filed a notice of appeal with the U.S. District Court for the District of Massachusetts in support of the 1996 Defense of Marriage Act, or DOMA, that barred gay marriages, even though Obama had previously opposed the law.
Although Obama opposes the law, a Justice Department spokeswoman said that the administration was defending the statute because it was obligated to defend federal laws when challenged in court.
“As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed,” said Justice Department spokeswoman Tracy Schmaler. “The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged.”
I can’t remember any high profile case where an administration has failed to defend a congressional law all the way up to the Supreme Court. But it’s not like lower courts rule federal laws unconstitutional very often. It’s true that the administration isn’t legally obligated to fight for DOMA, but it’s not true that they could kill the statute by simply letting the lower court’s ruling stand. There is also an important precedent involved.
I am also unsure how letting the decision stand would play out. I think it would only apply in Massachusetts. As a strategic matter, it seems unwise to appeal it up to the Supreme Court because they will almost certainly overturn it. But, unless I am mistaken, letting it stand wouldn’t help anyone outside the state of Massachusetts. I think it has to be changed through statute or through gaining a majority on the Supreme Court.
Appealing the decision was obviously was not something the administration wanted to do. It wasn’t the politically smart thing to do.
“It wasn’t the politically smart thing to do.” Flip it. If the Obama Administration hadn’t appealed it, how much of a gift would it have been for the GOP a few weeks before an election in upstate New York, PA, OH, WI to say that it’s further evidence of Obama & Pelosi San Francisco liberalism taking over the country? Something tels me Sestak and Feingold are not complaining.
So you are worried about what the GOP is going to call you? They call Democrats baby-killers despite the fact that abortions are now more restricted under the recently passed HCR/HIR bill.
The question of same-sex marriages are really disputable. It’s hard to say whether it should be admitted or not. On one hand, I think, Obama tries to show that he is not against such marriages, but,on the other hand, he can lose the support of some common people who don’t admit it to be right. Well, this is a hard topic, as for me. Anyway, thank you for sharing.
So what’s your question?
Are you asking if we think this is a wise thing to do? If you let it die now, it will only affect Massachusetts, yes. If you take it higher, it will affect New Hampshire, Rhode Island, and Maine.
I’m not sure it is unwise. Is it a gamble? Yeah, probably. So was every Supreme Court case that ruled on civil rights.
I thought this would be their strategy with torture and stuff. I figured they’d release stuff every once in a while and then it would eventually get inside the courts somehow. Basically, I expected them to have the courts force their hand. I didn’t expect that with gay rights.
I just wish they could communicate their strategy somehow. Is this it? Do they realize that they can’t get this done through the Congress so they’re relying on the courts instead? It wouldn’t surprise me, but this isn’t being communicated in any way. If Obama was out there demanding DADT/DOMA be ended, I’d have more faith. But he’s not. He’s a fucking coward on this issue.
I am asking if anyone has an example of any administration letting a district court ruling that some federal law is unconstitutional stand without appealing.
I’m not really sure what the precedent would be if they did. We’re told they appeal everything now.
Well, it seems to be a kind of understanding between Congress and the Executive Branch. It’s a weakness in our Constitutional structure. Congress relies on the AG to enforce and defend its laws. If the AG refuses to do so, what recourse does Congress have?
I mean, I can imagine a different set of circumstances where a Republican administration got some crazy result out of a District Court that would never stand scrutiny in the Appeal Court or the Supreme Court, and they just accepted it because it’s the only way to get rid of a law they don’t like.
That’s a precedent. I’m not sure it’s one we want.
It’s kinda the inverse of Andrew Jackson’s fight with the Supreme Court, right?
One of the things we hated about Bush and half a century of GOP predecessors was the creation of the imperial presidency. Do we really want an executive that defends federal law based on its own ideological bent? That’s the kind of stuff that defines the banana republic and the outright dictatorship. I hate that the administration is doing this, and fear that this could tip the election to the bad guys, but can’t really see that there was a choice. I’d be very gratified if someone could define a credible alternative.
Actually congress relies on the Executive Branch to do that and provided it with the position of AG to do so. But the recourse seems simple enough: Reformulate the law so that it isn’t unconstitutional.
I also point out that this wont stop a Republican administration from doing that in the future anyway. Might as well use to get stuff for the good guys too.
Oh, BooMan!!! “…some crazy result…” ??????
We are talking about constitutional rights here!!!!!!!!!!!!!
I didn’t mean to create an equivalency.
I’m not saying that the ruling against DOMA was crazy. I’m saying that it is not going to be upheld. Maybe the Appeals Court will uphold it, but not Alito, Scalia, Kennedy, Thomas, and Roberts. There’s no chance that any of them will uphold it.
So, in a similar case, some Republican district judge could rule that the federal income tax is unconstitutional, and a Republican administration could say, “Hey, that’ll never withstand an appeal, but if we don’t challenge it, bye bye income tax.”
See what I mean?
Thanks for the clarification, BooMan.
And unfortunately, I do see what you mean. Your hypothetical case is a illustrative.
I would just point out that this is not only a constitutional issue, it is specifically a Bill of Rights issue. It is a civil rights issue. It is historical. As with the DADT case, President Obama has a unique opportunity to take a historic stand.
In the early sixties, Lyndon Johnson faced a similar challenge. He realized that the politics were tough. But he did the right thing. He went on TV, gave his “We shall overcome” speech and passed the Civil Rights Bill. I am still waiting for that level of leadership from President Obama.
LBJ had ML King in tandem with an activist population pushing for real change and posing a threat to social stability. What does Obama have? Nothing. It wasn’t all about LBJ and it isn’t all about Obama.
I’m not so sure about Kennedy.
Lawerence v. Texas
So I wonder, is there any Dem interest group he hasn’t alienated?
Isn’t there an argument to be made that Obama is doing what he’s supposed to do without trying to massage it for political purposes? He must have ways to delay this until after the election, but apparently chose not to, and to take the political consequences. I don’t know that that’s true, but can’t believe this couldn’t have been manipulated to his advantage. He’s certainly aware that this is bad politics.
I seem to recall that even the Bush administration appealed rulings that went against its ideology but had to be defended as the law of the land. He no doubt used every trick of timing and obfuscation to blunt any reaction from his base, and of course had the Village to make sure no conflicts came to light.
The Justice Department is supposed to be the nation’s lawyer, not an administration political flak. It is obligated to defend federal law. It’s just possible that we got the integrity in the White House that we asked for, and now that it’s come back to bite us we don’t want it anymore. In which case, shame on us.
I seem to recall that even the Bush administration appealed rulings that went against its ideology but had to be defended as the law of the land.
Which was? Was there ever such a case? Because they’d just not enforce it, if it was counter to their ideology.
Just a faint recollection, I’m afraid. I think there was stuff involving EPA/endangered species maybe. Or I could be imagining things. They of course routinely sabotaged laws they didn’t like, but that’s another issue. Not an option in this case, unfortunately.
Sure, there’s an argument to be made, but I find it to be a poor one. It’d be nice to imagine an independent AG, but there’s really no such thing for the most part. It’s like imagining SCOTUS nominees aren’t partisan and will just “interpret” the Constitution. Bullshit. They’re politicians just like anyone else, and should be scrutinized as such. Like Armando, I think of all the nominees that are nominated, they should be scrutinized the most and should be filibustered often.
I can imagine overall that the AG defends the US laws, but where they focus is a political decision.
Where I find this argument losing ground is with regard to Bush and Cheney’s torture brigade. It violated the law, and quite frankly, is one of the most important things that the AG should be focusing on. And, evidence has shown, that if Holder had his way, Bush would be on trial right now.
Jane Mayer: The Secret History; Can Leon Panetta move the C.I.A. forward without confronting its past?
Holder and Panetta pushed for this, Rahm and Obama vetoed in favor of politics.
You’re mixing apples and oranges. Deciding who to prosecute of course involves political and ideological leanings. Whether to set up commissions even more so. Defending federal laws in the courts is much more cut-and-dried, as far as I know. Unless you have examples of administrations allowing lower court nullifications to stand unchallenged?
Is it apples and oranges really? I don’t think so. Why aren’t they enforcing federal drug laws? They’re picking and choosing there, mostly because of political reasons. So you’re saying the only time is when the laws get challenged in court, every time, you expect them to defend the law no matter what it is? Is that the case for every political official, because Arnold just said he wasn’t going to appeal.
On the whole, though, I agree with you. I want this appealed.
Well, unless you have a counter example, it seems to be what the executive branch does. I’ve looked for cases where they didn’t, but nobody seems able to come up with any. It’s a hard thing to search for, so maybe you can do better.
But back to the point, enforcing a law is a judgment call that’s going to be influenced by opinion, just as with any prosecutor. There’s inevitably a gray area.
Defending a law in court is not enforcing. It’s what the DOJ has always done, far as I know. Again, unless you have examples to the contrary.
Also, that makes us homophobes, Dave:
It’s sure getting personal now. Ugh!!!
BTW, I think the decision not to prosecute was tragically wrong and bad, but don’t see its political upside. If the DOJ or commission had gone ahead we’d still be seeing headlines reminding voters of the horrors of Republican rule. Seems to me the problem was too much idealism and not enough politics.
He has 60 days to appeal. I suspect he will appeal it after the elections. Not being a legal scholar I have no idea if he has to appeal it or not, according to the DOJ job function.
Him waiting for Congress to do this is futile. Never gonna happen, especially after Nov. 2nd. If he does fight it it will be political suicide for him as we all know. I get the feeling he doesn’t care about that though. But in 2011 when he starts campaigning for re election, he can forget about the base and millions of others-the unemployed, folks facing foreclosure, the indies, the homeless and starving,the gay community, small business owners–the list goes on and on.
So he needs to decide. imho he will appeal-to his own political peril.
The administration has already decided, according to the article. If you’re right and depending on Congress is futile, and there’s nothing the executive branch can do on its own, it follows that the only option is to bring it to the Supreme Court and take his chances. If your premises are correct, there is only one possible path to repeal, and that’s the one he’s taking.
The Supreme Court path worries me. If he loses it becomes settled law and we’ll never ever get a chance of repealing it.
What I never got was why he won’t do an eo halting all discharges. This would carry him to 2012 (I think) and he wouldn’t have to make it a big political thing and make millions happy. But of course, Gates has him running in circles, wanting to wait for some report. And I do believe Gates is running the military instead of Obama.
An EO is not the way to do this. If you were in the military and the EO put in place, then removed several years later, what happens to you?
It is the law that has to be repealed.
Otherwise, the gays in the military get jerked around like puppets on a string.
The DOJ is doing what it is supposed to do, unlike the nonsense of the Bush years.
It’s still better than the current situation even if it only lasts for a few years. Isn’t it supposed to be about doing what you can? Isn’t that what we here every single day on this blog?
You said depending on Congress is futile anyway, so how would a bad SC decision make any difference? Either we can get a law passed or we can’t.
Who the fuck really wants a Presidency that interferes with the justice department? This is one of those things where the integrity of the system is worth more than politics. Maybe I’m naive but the justice department is not the place to ask for political favors.