Obama To Court: Please Enforce This Unconstitutional Law
How does the Administration's back-flip on DOMA play out in real life? In a brief filed yesterday, the Obama DOJ said that the federal courts had no authority to order the government to provide health insurance coverage for a federal employee's same-sex spouse because DOMA forbids any such coverage -- even though the Administration considers the law unconstitutional. (ht: Scotusblog).
I can't improve on the excellent posts by Richard and John explaining the danger posed by the administration's decision on DOMA. But yesterday's brief I think illustrates the utter folly of the Administration's position that it continues to "faithfully execute" the laws because it will enforce DOMA, even though it won't defend it. What is a federal judge to make of such an argument? The court isn't bound to uphold a law just because the Adminstration says (with great, weary reluctance) that it must continue to enforce DOMA. Rather, a judge might just say "since both parties agree that DOMA is unconstitutional, I won't enforce it." If the state has pre-emptively conceded the main argument against enforcement .... well, in what sense is the state enforcing DOMA?
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Jul '10
Re: Obama To Court: Please Enforce This Unconstitutional Law
Not my field, so I am at a complete loss here. Is there a mechanism for the judge to find the prosecution negligent? Is this any different than a public defender failing to provide minimally adequate service, aside from an alleged prestige of office? Can the judge compel the alleged Attorney General to arrange alternative counsel to defend DOMA? Of course Congress can impeach and try the Attorney General for incompetence. Not quite futile if it provides a platform for vividly illustrating the Constitutional crises Holder has created with his failures to perform.
Re: Obama To Court: Please Enforce This Unconstitutional Law
I don't think the judge can compel the AG to provide alternative counsel, but in its filing, the Administration suggested that members of Congress could step in and argue the pro-DOMA case. Maybe that will happen, but it still doesn't excuse the Administration in my opinion. As for impeachment, I'm no expert, but the criteria are "Treason, Bribery, or other high Crimes and Misdemeanors." As bad as Holder is, I'm not aware that he's guilty of any of those things. Well, unless one construes "treason" rather broadly....
Oct '10
Re: Obama To Court: Please Enforce This Unconstitutional Law
Violating the oath of office to uphold the laws under the Constitution could and should be considered treason. We usually associate treason with an act of comission (eg Benedict Arnold). But, failure to act is an act, of omission. I believe that the Founders would have considered it so.
In a postmodern culture, we have lost the full meaning of oath. In covenental or compactual societies (which the United States is) breaking an oath is treason.
Edited on Mar 1, 2011 at 3:03pmJul '10
Re: Obama To Court: Please Enforce This Unconstitutional Law
Good Berean: Violating the oath of office to uphold the laws under the Constitution could and should be considered treason. We usually associate treason with an act of comission (eg Benedict Arnold). But, failure to act is an act, of omission. I believe that the Founders would have considered it so.
In a postmodern culture, we have lost the full meaning of oath. In covenental or compactual societies (which the United States is) breaking an oath is treason. · Mar 1 at 2:49pm
Edited on Mar 01 at 03:03 pm
I'm thinking I would not push that last point without a very careful review of the facts. Being people functioning in a republic of laws run amok, no officer of the federal government would be safe from a charge of treason.
Oct '10
Re: Obama To Court: Please Enforce This Unconstitutional Law
Sisyphus
Good Berean: Violating the oath of office to uphold the laws under the Constitution could and should be considered treason. We usually associate treason with an act of comission (eg Benedict Arnold). But, failure to act is an act, of omission. I believe that the Founders would have considered it so.
In a postmodern culture, we have lost the full meaning of oath. In covenental or compactual societies (which the United States is) breaking an oath is treason. · Mar 1 at 2:49pm
Edited on Mar 01 at 03:03 pm
I'm thinking I would not push that last point without a very careful review of the facts. Being people functioning in a republic of laws run amok, no officer of the federal government would be safe from a charge of treason. · Mar 1 at 4:22pm
Which is why impeachment is a defined legal process similar to trial by jury. Articles of impeachement should never be drawn up without a full investigation to determine whether or not there is a preponderance of evidence sufficient to warrant a trial.
Jul '10
Re: Obama To Court: Please Enforce This Unconstitutional Law
Good Berean
Sisyphus
Good Berean:
Which is why impeachment is a defined legal process similar to trial by jury. Articles of impeachement should never be drawn up without a full investigation to determine whether or not there is a preponderance of evidence sufficient to warrant a trial.
The impeachment process, prosecution by the House and verdict by the Senate, is a fascinating blend of judicial and political elements, but is fundamentally a political procedure, ruled by politicians. Better that it is underused rather than overused, but we can all point to an exception we would like to make.
If I wanted to argue this one, I would go straight to "misdemeanors." which translates to felonies.
Holder's latest explanation on the New Black Panthers' case is risible:
"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.