DOMA, DOJ, Executive Power Grab

[Kathianne]

http://www.cato-at-liberty.org/the-non-defense-of-doma/



Posted by Jason Kuznicki

The Obama Administration's decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama's strategy here is both deep and cynical. Obama's locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.

The mood is anti-spending, and it's just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they'd like to be having...

...Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?

There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. One is about policy; the other is about procedure. Deciding a procedural question based on what it means for a one-time policy outcome is just bad governance. The questions we should be asking are -- How much power would this really give the president? Is this a particularly new power? (Arguably it's not.) And in any case, are we comfortable with the president having it, even if he or she has radically different views about policy?...

Related:

http://www.theatlantic.com/business/archive/2011/02/the-imperial-presidency/71632/


...


If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here's what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress's power. Again, it will be a power grab disguised as academic constitutional interpretation.

Maybe it was always thus, but it seems to me that both parties are increasingly resorting to procedural tricks rather than politics, and it worries me. Maybe this means that our political system is broken, maybe it means that the parties are getting increasingly ruthless--or maybe I'm overestimating the extent of the change. But as I say, it worries me. I think it would be disastrous on a whole lot of levels if the GOP managed to undo ObamaCare with this sort of thing. But if the precedent stands, I think you can expect them to try it the next time they have the presidency.

[logroller]

Changing your position on something to assuage the rhetoric of your opponant-- Sounds like politics to me. Not saying I like it, but it is what is. My take on DOMA has always been to ignore it. I don't want gays spoiling the sanctity of marriage, but I don't want the govt dictating morality more so. I'm glad he dropped it, its not a govt issue, its society's. Which begs the question; What is the purpose of govt sanctioned marriage?

[Kathianne]

Changing your position on something to assuage the rhetoric of your opponant-- Sounds like politics to me. Not saying I like it, but it is what is. My take on DOMA has always been to ignore it. I don't want gays spoiling the sanctity of marriage, but I don't want the govt dictating morality more so. I'm glad he dropped it, its not a govt issue, its society's. Which begs the question; What is the purpose of govt sanctioned marriage?

Personally never saw the reason for it, as marriage should be left to the states. Then again, so should have been abortion, neither stopped them though. With that said, I guess it will just depend on the party in power then to decide which laws to stand up for. Great plan.

[Indy]

Desperation to garner more support.There is nothing this administration won't do for power.http://www.salon.com/news/opinion/glenn_greenwald/2011/02/25/whistleblowers/index.html

[Psychoblues]

What kicks my ass from either article is that the gotta reduce the spending Republicans are only interested in "reducing already negligible foreign aid". And they call themselves adults? WTF?

And marriage should not be a state issue or a government issue at all. Marriage is a religious institution and should stay that way. Because marriage entitles people to certain legal rights and privileges then it is only to that extent that the government become involved. Marriage should remain a religious entity and performed in whatever manner the loving couple desires.

Psychoblues

[Kathianne]

What kicks my ass from either article is that the gotta reduce the spending Republicans are only interested in "reducing already negligible foreign aid". And they call themselves adults? WTF?

And marriage should not be a state issue or a government issue at all. Marriage is a religious institution and should stay that way. Because marriage entitles people to certain legal rights and privileges then it is only to that extent that the government become involved. Marriage should remain a religious entity and performed in whatever manner the loving couple desires.

Psychoblues

Marriage is definitely left up to the states, not the Federal government. What is means and doesn't mean, which are allowed is for them to determine.

[Psychoblues]

Marriage is definitely left up to the states, not the Federal government. What is means and doesn't mean, which are allowed is for them to determine.

Kath, even though we do already, our states should not be allowed to have different laws concerning marriage, divorce, child support, etc. I've seen all of that first hand and it's a damned nightmare that benefits many and condemns many more for no other reason than having entered another state. We are a country that happens to have 50 states, not a region that has 50 countries.

Psychoblues

[logroller]

Personally never saw the reason for it, as marriage should be left to the states. Then again, so should have been abortion, neither stopped them though. With that said, I guess it will just depend on the party in power then to decide which laws to stand up for. Great plan.

What interest does govt (state, local, fed or otherwise) have in sanctioning marriage? Why is marriage a matter of public license? To what end does society benefit? I believe the answers to these questions mustn't be based on moral foundation; for if they are, then publically licensed marriage should be abolished-- as morality isn't a public concern, but rather a personal one. ABortion is a weak comparison, polygamy would be a better one; but again, is this too society trying to force the majority's morals upon the whole? How can we stand for our rights whilst rejecting another's; that is not what our Constitution is meant to uphold.

[logroller]

Kath, even though we do already, our states should not be allowed to have different laws concerning marriage, divorce, child support, etc. I've seen all of that first hand and it's a damned nightmare that benefits many and condemns many more for no other reason than having entered another state. We are a country that happens to have 50 states, not a region that has 50 countries.

Psychoblues

Perhaps my argument that marriage is an inherent right, pursuant to life, liberty and the pursuit of happiness won't garner your support PB.:laugh:

[Kathianne]

What interest does govt (state, local, fed or otherwise) have in sanctioning marriage? Why is marriage a matter of public license? To what end does society benefit? I believe the answers to these questions mustn't be based on moral foundation; for if they are, then publically licensed marriage should be abolished-- as morality isn't a public concern, but rather a personal one. ABortion is a weak comparison, polygamy would be a better one; but again, is this too society trying to force the majority's morals upon the whole? How can we stand for our rights whilst rejecting another's; that is not what our Constitution is meant to uphold.

Ask Clinton. By what power does the executive branch decide on constitutionality of law passed by Congress, not struck down by SCOTUS? The DOJ says they will not defend the law but will enforce it? Why?

Pure power grab from other two branches and no one is concerned. Like I said, cool for the next President.

[Psychoblues]

Perhaps my argument that marriage is an inherent right, pursuant to life, liberty and the pursuit of happiness won't garner your support PB.:laugh:

I raised 2 stepchildren that included an 11 year old girl and a 5 year old boy to college graduates, lr. I never once complained and will not now but I will share just one thing with you. Their father, who had raped the 11 year old girl hauled ass to Texas to avoid prosecution and the payment of any child support whatsoever for all the years that I spent raising and educating those kids. It was not as if he couldn't afford child support but only that he didn't want to pay it and Texas would protect him from any out of state activities to compel him to simply do his duty as a father or extradite him to the state where he left the kids and his crimes to face justice there.. He was a tugboat captain out of Port Arthur and those cats make mucho dineros.

Marriage as opposed to legal and criminal issues are simply religious ceremonies for which the government has no rights or say in who, what, when or where.

Psychoblues

[Psychoblues]

Ask Clinton. By what power does the executive branch decide on constitutionality of law passed by Congress, not struck down by SCOTUS? The DOJ says they will not defend the law but will enforce it? Why?

Pure power grab from other two branches and no one is concerned. Like I said, cool for the next President.

I would think the rightwingers would be tickled pink with this decision by President Barack Hussein Obama, Kath. I believe it's more economic and efficiency minded than you might think. The government was simply setting themselves up for failure after failure attempting to defend the indefensible. How many millions do we have to waste to prove not one damned thing in the long run except DOMA was ill-conceived from the get go?

Psychoblues

[Kathianne]

I would think the rightwingers would be tickled pink with this decision by President Barack Hussein Obama, Kath. I believe it's more economic and efficiency minded than you might think. The government was simply setting themselves up for failure after failure attempting to defend the indefensible. How many millions do we have to waste to prove not one damned thing in the long run except DOMA was ill-conceived from the get go?

Psychoblues

I mean why should DOJ defend laws passed by Congress, signed by the then president and not declared unconstitutional by SCOTUS? You're quite correct, King Obama. Should we just forgo the next election, I mean what red tape.

Well the title and the last idea are not likely to fly. However, unless Congress or SCOTUS kicks up a fuss, the next President will also decide which laws to defend and which to just let go.

[Kathianne]

I raised 2 stepchildren that included an 11 year old girl and a 5 year old boy to college graduates, lr. I never once complained and will not now but I will share just one thing with you. Their father, who had raped the 11 year old girl hauled ass to Texas to avoid prosecution and the payment of any child support whatsoever for all the years that I spent raising and educating those kids. It was not as if he couldn't afford child support but only that he didn't want to pay it and Texas would protect him from any out of state activities to compel him to simply do his duty as a father or extradite him to the state where he left the kids and his crimes to face justice there.. He was a tugboat captain out of Port Arthur and those cats make mucho dineros.

Marriage as opposed to legal and criminal issues are simply religious ceremonies for which the government has no rights or say in who, what, when or where.

Psychoblues

Seems TX wouldn't do the same regarding child support orders today:

https://www.oag.state.tx.us/CS/about/index.shtml

[Psychoblues]

Seems TX wouldn't do the same regarding child support orders today:

https://www.oag.state.tx.us/CS/about/index.shtml

Puh-leeze, Kath. The laws were similar back when but Texas then, as now, is a haven for those that wish to hide from the laws of marriage and criminal activities in other states. This has been well known about for decades, Kath. I know 2 guys over there right now hiding from ex wives, their children and probably the Mississippi law enforcement as well.

Psychoblues

[Kathianne]

Puh-leeze, Kath. The laws were similar back when but Texas then, as now, is a haven for those that wish to hide from the laws of marriage and criminal activities in other states. This has been well known about for decades, Kath. I know 2 guys over there right now hiding from ex wives, their children and probably the Mississippi law enforcement as well.

Psychoblues

Ok, the state doesn't enforce federal law and the feds do nothing about it. Perhaps they think it's unconstitutional? :laugh: PB, sometimes you seem to have your own reality.

[Psychoblues]

Ok, the state doesn't enforce federal law and the feds do nothing about it. Perhaps they think it's unconstitutional? :laugh: PB, sometimes you seem to have your own reality.

Lot's of things happen in your precious states that you obviously don't have a clue about, Kath. I could educate you but I just can't go back to a,b,c and 2 + 2 every damned time we talk, don't you know?

:laugh2:

Psychoblues

[Kathianne]

Lot's of things happen in your precious states that you obviously don't have a clue about, Kath. I could educate you but I just can't go back to a,b,c and 2 + 2 every damned time we talk, don't you know?

:laugh2:

Psychoblues


I swear PB, :bang3::banana2: What color is the sky in your world? :laugh2::laugh2:

[Psychoblues]

I swear PB, :bang3::banana2: What color is the sky in your world? :laugh2::laugh2:

Hell, Kath, it's whatever color I want it to be!!!!!!!! Got 'cha, didn't I?!?!?!??!??!?!

:salute::laugh2::salute:

Psychoblues

[red states rule]

Ask Clinton. By what power does the executive branch decide on constitutionality of law passed by Congress, not struck down by SCOTUS? The DOJ says they will not defend the law but will enforce it? Why?

Pure power grab from other two branches and no one is concerned. Like I said, cool for the next President.

More out of desperation (as well as a power grab) as Obama sees his approval numbers continue to sink, and his polices fail

He has to find ways to appease his far left base as he gears up for his re-election

[logroller]

I think we've gotten off the point. Of course there exists struggles between fed and state authority, but re:marriage, how is whom one marries any business of the govt, state or otherwise, assuming of course they're both willing adults. From what i've found, it seems the proponants of state sanctioned marriage are compelled by eugenics.

[Psychoblues]

I think we've gotten off the point. Of course there exists struggles between fed and state authority, but re:marriage, how is whom one marries any business of the govt, state or otherwise, assuming of course they're both willing adults. From what i've found, it seems the proponants of state sanctioned marriage are compelled by eugenics.

That's where you get in trouble, lr. "From what I've found" or "it seems the proponants" or "compelled by eugenics" all without foundation. Not to be disrespectful but mumbo jumbo in my honest opinion.

Psychoblues

[logroller]

Personally never saw the reason for it, as marriage should be left to the states. Then again, so should have been abortion, neither stopped them though. With that said, I guess it will just depend on the party in power then to decide which laws to stand up for. Great plan.

So the state has the authority to decide upon the validity of marriage, I dont remember "serve the best interest of society and the Constitution of the state govt" as one of my vows, and yet by the authority vested in me[the official] by the state of... my marriage was legitimized??? By that same authority a state could refuse to grant a marriage license to a felon, a foreignor, an interracial or same-sex couple. This is not a state issue, its a question of liberty-- and to this end, :salute:"I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.":salute: That's FOR ALL, not just heteros.

[logroller]

That's where you get in trouble, lr. "From what I've found" or "it seems the proponants" or "compelled by eugenics" all without foundation. Not to be disrespectful but mumbo jumbo in my honest opinion.

Psychoblues

Then give me an alternative reason for the state legitimizing marriage. I've asked repeatedly, and received no reason whatsoever. If you can't refute my position, it stands.

And "without foundation", dare i go describe eugenics movements and a govts role in state sponsored marriage as support? I shall.


Laws forbidding marriage between people of different races were common in America from the Colonial period through the middle of the 20th century. By 1915, twenty-eight states made marriages between "Negroes and white persons" invalid; six states included this prohibition in their constitutions.
http://www.eugenicsarchive.org/html/eugenics/essay7text.html

There's heaps of historical data.

[Psychoblues]

Then give me an alternative reason for the state legitimizing marriage. I've asked repeatedly, and received no reason whatsoever. If you can't refute my position, it stands.

And "without foundation", dare i go describe eugenics movements and a govts role in state sponsored marriage as support? I shall.


http://www.eugenicsarchive.org/html/eugenics/essay7text.html

There's heaps of historical data.

What you just said to Kathianne just above says plenty to me, lr. Thanks for that grounding. You always impress me.

Psychoblues

[logroller]

What you just said to Kathianne just above says plenty to me, lr. Thanks for that grounding. You always impress me.

Psychoblues


Glad to hear it. I just think its worth pointing out that if a law doesn't apply to everybody, pursuant to equal protection, then it shouldn't apply to anyone. I've said all along, I'm opposed to same-sex marriage, but by my own admonition, it should then be abolished- it's an archaic institution that stems from the oppression by a ruling authority in the society's best interests. This can be extended to drinking alcohol, smoking, personal appearance, foul language, bad eating habits, spitting in the street, health insurance, etc etc. To what degree should govt, as a function of society and its majority interests, be allowed to limit our personal freedoms? If the basis for such laws rest upon personal, rather than public, welfare-- I'd prefer my own path to damnation over another's. That's liberty, by the God that made me.

[Psychoblues]

Glad to hear it. I just think its worth pointing out that if a law doesn't apply to everybody, pursuant to equal protection, then it shouldn't apply to anyone. I've said all along, I'm opposed to same-sex marriage, but by my own admonition, it should then be abolished- it's an archaic institution that stems from the oppression by a ruling authority in the society's best interests. This can be extended to drinking alcohol, smoking, personal appearance, foul language, bad eating habits, spitting in the street, health insurance, etc etc. To what degree should govt, as a function of society and its majority interests, be allowed to limit our personal freedoms? If the basis for such laws rest upon personal, rather than public, welfare-- I'd prefer my own path to damnation over another's. That's liberty, by the God that made me.

I think they call that the "your freedom stops where my nose starts" theory. Again, lr, thanks.

Psychoblues

[Kathianne]

Then give me an alternative reason for the state legitimizing marriage. I've asked repeatedly, and received no reason whatsoever. If you can't refute my position, it stands.

And "without foundation", dare i go describe eugenics movements and a govts role in state sponsored marriage as support? I shall.


http://www.eugenicsarchive.org/html/eugenics/essay7text.html

There's heaps of historical data.

I'm not answering because many will find fault, but bottom line, I don't see, nor ever saw any reason for DOMA. As for marriage? Pfft. I could care less who sleeps with whom, as long as of age.

Now you riddle me this. Selective defense of laws passed by Congress, signed by the executive, and not found unconsititutional. Now Obama thinks it is, but last I checked he doesn't have the power of judicial review, no? So from now on the President can de lare laws unconstitutional by sole fiat and tell the DOJ not to defend. Mind you, his argument is not that it's a stupid law, though I believe there's a process for that too, which isn't his to exercise. He decided, on his own that it's suddenly unconsitutional.

[logroller]

I'm not answering because many will find fault, but bottom line, I don't see, nor ever saw any reason for DOMA. As for marriage? Pfft. I could care less who sleeps with whom, as long as of age.

They will find fault based upon your reasoning, so you choose not to share. Taking a play card from the Wisconsin dems I see. And sexual intercourse isnt the issue; the individual liberty of sexual perversion among consenting adults has already been ruled upon by scotus.


Now you riddle me this. Selective defense of laws passed by Congress, signed by the executive, and not found unconsititutional. Now Obama thinks it is, but last I checked he doesn't have the power of judicial review, no? So from now on the President can declare laws unconstitutional by sole fiat and tell the DOJ not to defend. Mind you, his argument is not that it's a stupid law, though I believe there's a process for that too, which isn't his to exercise. He decided, on his own that it's suddenly unconstitutional.

What law are you speaking of? And is it unconstitutional or not worth enforcing? Might I remind you that laws, even amendments, have been repealed, not based upon unconstitutionality but rather the viability of enforcement. Off the top of my head I can think of Obama's instruction not to take federal action against individuals who have medical marijuana prescriptions in states which allow it. I live in a such a state, I don't use it, but I appreciate the opportunity should I need such a thing. My mother has MS, she has used it to control spasms-- I don't think reefer madness has set in just yet, but she is in violation of federal law for possessing a schedule one narcotic; the same as LSD and heroin, WTF. Not worth enforcing in her case, wouldn't you agree? J edgar hoover wouldnt! Its easy to attack the ruling party, but quite different to be in their shoes; consider all the ramifications of your actions, what you'd hope would happen inevitably doesnt. I dont defend all Obama does, but any govt official (especially fed) deciding to not enforce a federal law because a state wishes to engage in an experiment, so long as the state law is equally enforced- I would likely favor it!

[Kathianne]

They will find fault based upon your reasoning, so you choose not to share. Taking a play card from the Wisconsin dems I see. And sexual intercourse isnt the issue; the individual liberty of sexual perversion among consenting adults has already been ruled upon by scotus.



What law are you speaking of? And is it unconstitutional or not worth enforcing? Might I remind you that laws, even amendments, have been repealed, not based upon unconstitutionality but rather the viability of enforcement. Off the top of my head I can think of Obama's instruction not to take federal action against individuals who have medical marijuana prescriptions in states which allow it. I live in a such a state, I don't use it, but I appreciate the opportunity should I need such a thing. My mother has MS, she has used it to control spasms-- I don't think reefer madness has set in just yet, but she is in violation of federal law for possessing a schedule one narcotic; the same as LSD and heroin, WTF. Not worth enforcing in her case, wouldn't you agree? J edgar hoover wouldnt! Its easy to attack the ruling party, but quite different to be in their shoes; consider all the ramifications of your actions, what you'd hope would happen inevitably doesnt. I dont defend all Obama does, but any govt official (especially fed) deciding to not enforce a federal law because a state wishes to engage in an experiment, so long as the state law is equally enforced- I would likely favor it!

and there you go. This isn't some 'blue law' that hadn't seen the light of day for many years, this is a law, passed by Congress, etc., that has cases on dockets...

[logroller]

and there you go. This isn't some 'blue law' that hadn't seen the light of day for many years, this is a law, passed by Congress, etc., that has cases on dockets...

Which law? marijuana? You cant with any sincerity consider pot to be as harmful as lsd and heroin. Enforcing it as such is wasteful use of precious resources.

[logroller]

and there you go. This isn't some 'blue law' that hadn't seen the light of day for many years, this is a law, passed by Congress, etc., that has cases on dockets...

so is obamacare. but should something which is law be enforced/applied with no regard to its viability? DOMA is unconstitutional, IMO and the opinion of many others including the potus. The right to marry seems overtly private in nature, of no concern to our govt, state fed whatever.

I am married, I couldnt tell you where my license is, but I could tell you where my wedding picture is hanging. I was married a year after the birth of my first child; is this too not evidence to immoral behavior. Certainly there is a great deal of evidence that indicates couples who aren't married and have children have are lower std of living and may raise children who are less likely to be upstanding citizens; broken homes as well. Would not a law prohibiting divorce in defense of marriage and in support of nuclear families be advantageous for society? How far are we willing to go defend the upright moral character of our society?

so far as it not being a blue law, take a guess who funded prop8 in CA? If you guessed religious factions, you're right!

[fj1200]

DOMA is unconstitutional, IMO and the opinion of many others including the potus. The right to marry seems overtly private in nature, of no concern to our govt, state fed whatever.

Are you missing the point on purpose? Since when does the executive branch have the option of just dropping the defense of a law because they don't like it/don't agree with it?

[Kathianne]

Are you missing the point on purpose? Since when does the executive branch have the option of just dropping the defense of a law because they don't like it/don't agree with it?

My guess is yes, he is. I think it's nice that he's letting his fans know that if the next President agrees with him, there will be no need to worry about DOJ defending Obamacare, if the courts don't strike it down first.

[logroller]

Are you missing the point on purpose? Since when does the executive branch have the option of just dropping the defense of a law because they don't like it/don't agree with it?

Come now fj, I thought you had a better history background than I. Off the top of my head, I know Andrew Jackson did so re: Cherokee Nation vs Georgia. Its by no means unprecedented.

Since we be riddlin'-- If there was law on the books that said you cant talk bad about the president, and he failed to enforce it; would we attack him or the law first? The law right, were the law sound, we would then turn our attn towards the lack of enforcement. Why should this differ?

SO far as purpose, I guess I've skipped over the overt purpose of villifying the president and wish to consider the policy itself. To this end, what again was the response to my question as to the purpose of state sanctioned marriage...thats right-- nothing.

[logroller]

re: Cherokee Nation v Georgia, see also Worcester v. Georgia, 31 US 515 (1832)

[Kathianne]

and history regards Jackson's unilateral treatment of Native Americans how? His decision to let a personal vendetta against an individual control his actions on the Bank of US? I mean since you are speaking historically and all.

[logroller]

and history regards Jackson's unilateral treatment of Native Americans how? His decision to let a personal vendetta against an individual control his actions on the Bank of US? I mean since you are speaking historically and all.

You are correctKath, I was merely responding to fj's "since when" argument. Accordingly, might the DOMA also be subject to such criticism. Just as there were those who opposed Jackson's actions re: treatment of Native Americans in their time, to which history vindicated their cause well after the damage was done, so too do many oppose the DOMA based on equal treatment. The difference between Jackson and Obama is Obama has chosen not to enforce said law, rather than enforce a law which furthers inequality -- whereas Jackson expounded upon it. Not to infer Obama's infallibility, he has a fair share of bad policy decisions, but not enforcing DOMA isn't one them, not directly anyways. Perhaps if he weren't so consumed with Obamacare he could challenge DOMA, rather than ignore it.

[fj1200]

Come now fj, I thought you had a better history background than I. Off the top of my head, I know Andrew Jackson did so re: Cherokee Nation vs Georgia. Its by no means unprecedented.

Since we be riddlin'-- If there was law on the books that said you cant talk bad about the president, and he failed to enforce it; would we attack him or the law first? The law right, were the law sound, we would then turn our attn towards the lack of enforcement. Why should this differ?

SO far as purpose, I guess I've skipped over the overt purpose of villifying the president and wish to consider the policy itself. To this end, what again was the response to my question as to the purpose of state sanctioned marriage...thats right-- nothing.

So it's justifiable because it's happened before? Maybe that be the problem and the legislative branch should have its own division that will take up the defense of its own laws. Not that that wouldn't be subject to new ownership.

[Kathianne]

You are correctKath, I was merely responding to fj's "since when" argument. Accordingly, might the DOMA also be subject to such criticism. Just as there were those who opposed Jackson's actions re: treatment of Native Americans in their time, to which history vindicated their cause well after the damage was done, so too do many oppose the DOMA based on equal treatment. The difference between Jackson and Obama is Obama has chosen not to enforce said law, rather than enforce a law which furthers inequality -- whereas Jackson expounded upon it. Not to infer Obama's infallibility, he has a fair share of bad policy decisions, but not enforcing DOMA isn't one them, not directly anyways. Perhaps if he weren't so consumed with Obamacare he could challenge DOMA, rather than ignore it.

It's not the prerogative of the executive branch, (police powers) to decide which laws to enforce and which not. That doesn't preclude them from choosing not to mount a vigorous defense of the law before a court, opening the possibility of the court acting the way the executive wishes.

[red states rule]

http://www.newsbusters.org/sites/default/files/imagecache/cartoon_500/cartoons/obama_civics.jpg

[logroller]

It's not the prerogative of the executive branch, (police powers) to decide which laws to enforce and which not. That doesn't preclude them from choosing not to mount a vigorous defense of the law before a court, opening the possibility of the court acting the way the executive wishes.

Look, I get it. The pres should enforce the law of the land, but the policy itself is at the root of the issue, and in the spirit of this site-- I wish to debate said policy. I don't agree with the presients actions on this, but I dont agree with the policy itself, so its hard for me to accept what I see as a blantant miscarriage of justice through its enforcement. Can you understand this? I've expounded upon this issue on several threads, asked repeatedly what purpose state sanctioned marriage is meant to serve, and how it can be enforced in a constituional manner-- to which I receive little to no explanation or justification for DOMA's enforcement, beside "its law", well so's Obamacare-- and its totally fucked, and so is, IMO, gay marriage. However, I cant let my moral beliefs be the sole support for a policy, lest one day I see my morals challenged by a different law, to which I would be forced to accept the primafacie argument of "its the law". It seems so plainly obvious to me, why do feel this is being ignored?

[fj1200]

... I wish to debate said policy... but I dont agree with the policy itself, so its hard for me to accept what I see as a blantant miscarriage of justice through its enforcement.... to which I receive little to no explanation or justification for DOMA's enforcement...

Because DOMA defends the rights of the individual states to determine their own policy on the issue.

[logroller]

Because DOMA defends the rights of the individual states to determine their own policy on the issue.

OK. totally for state freedom~ how exactly do you enforce freedom?

[fj1200]

OK. totally for state freedom~ how exactly do you enforce freedom?


??? I didn't say freedom.

[Kathianne]

Look, I get it. The pres should enforce the law of the land, but the policy itself is at the root of the issue, and in the spirit of this site-- I wish to debate said policy. I don't agree with the presients actions on this, but I dont agree with the policy itself, so its hard for me to accept what I see as a blantant miscarriage of justice through its enforcement. Can you understand this? I've expounded upon this issue on several threads, asked repeatedly what purpose state sanctioned marriage is meant to serve, and how it can be enforced in a constituional manner-- to which I receive little to no explanation or justification for DOMA's enforcement, beside "its law", well so's Obamacare-- and its totally fucked, and so is, IMO, gay marriage. However, I cant let my moral beliefs be the sole support for a policy, lest one day I see my morals challenged by a different law, to which I would be forced to accept the primafacie argument of "its the law". It seems so plainly obvious to me, why do feel this is being ignored?

Because the thread was on the actions of President and DOJ. Start a thread on DOMA if you like. Whether others wish to join you or not, you can have your say.

In this thread you are giving the argument that the President doesn't have to enforce the law, which is not just about DOMA, but all laws and all Presidents.

[logroller]

??? I didn't say freedom.

My bad. How does the federal govt "defend the state right to determine their own own policy on the issue", specifically from whom does said state right endure a challenge which necessitates federal protection? It own people, calling upon their enumerated rights under the COTUS? This just out--Case: 10-16696 03/01/2011



The President and the United States Attorney General have determined that they will not continue to defend the Defense of Marriage Act (“DOMA”) because sexual orientation classifications warrant heightened scrutiny and, under that standard, the law is unconstitutional. While it lacks the force of law, Attorney
General Holder’s reasoned analysis is entitled to consideration. See Schick v. Reed, 419 U.S. 256, 275 n.12 (1974).It is also consistent with the California Attorney General’s long-standing position, convincingly validated after a full trial on the merits, that Proposition 8 violates the equal protection clause of the Fourteenth Amendment of the United States Constitution.
For 846 days Proposition 8 has denied equality under law to gay and lesbian couples. Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied. The preconditions for a stay are lacking on this record. The stay should be vacated.

http://www.ca9.uscourts.gov/datastore/general/2011/03/01/10-16696_attrny_gen_amndd_stmnt.pdf

[fj1200]

My bad. How does the federal govt "defend the state right to determine their own own policy on the issue", specifically from whom does said state right endure a challenge which necessitates federal protection? It own people, calling upon their enumerated rights under the COTUS? This just out--Case: 10-16696 03/01/2011

I guess I missed the part where the POTUS and the Attorney General were an interim substitute for the Supreme Court when it suits their purpose. It doesn't change the issue at hand. Does the next POTUS have the option of dropping defense of BO Care on the basis of one of the "full trials on the merits"? The fact that it's a CA case in the 9th circuit makes a statement on its own doesn't it?

How does the Federal government defend states rights? Good question, the courts I imagine but what if the Federal government is the one doing the infringing and then the Feds want to drop that case?

[logroller]

How does the Federal government defend states rights? Good question, the courts I imagine but what if the Federal government is the one doing the infringing and then the Feds want to drop that case?

It was challenged in court and found unconstitutional. Same as Obama care. Would you be so defensive if Obama had decided not to defend his healthcare plan...I thought not.

[Kathianne]

It was challenged in court and found unconstitutional. Same as Obama care. Would you be so defensive if Obama had decided not to defend his healthcare plan...I thought not.

and what do you think the reaction would be by many, though not necessarily yourself, if another president chose such a way to deal with it? My guess is we'd be hearing a lot more about Jackson and the Native Americans and the Second Bank of the United States. Once again people would think, 'Who the hell is Nicholas Biddle?'

The issue here isn't the legislation, rather limitations on the executive.

[fj1200]

It was challenged in court and found unconstitutional. Same as Obama care. Would you be so defensive if Obama had decided not to defend his healthcare plan...I thought not.

What was that about forum shopping? :rolleyes:

Besides, they found Prop 8 to violate equal protection but we're talking about DOMA. I might have missed it but can you combine the two for me?

[logroller]

What was that about forum shopping? :rolleyes:

Besides, they found Prop 8 to violate equal protection but we're talking about DOMA. I might have missed it but can you combine the two for me?

Sorry for the confusion, there were two separate cases. In the latter post I was speaking about the federal district court case which struck down section 3 of DOMA.(quote and source below) I don't see how you consider that forum shopping, as states typically have their grievances addressed first by their local federal district court, to which it was ruled as unconstitutional-- the DOJ just agreed. Does the DOJ only respect the ruling of the Supreme Court?


The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid."
http://newyorklawschool.typepad.com/leonardlink/2010/07/doma-section-3-held-unconstitutional.html

[fj1200]

Sorry for the confusion, there were two separate cases. In the latter post I was speaking about the federal district court case which struck down section 3 of DOMA.(quote and source below) I don't see how you consider that forum shopping, as states typically have their grievances addressed first by their local federal district court, to which it was ruled as unconstitutional-- the DOJ just agreed. Does the DOJ only respect the ruling of the Supreme Court?

http://newyorklawschool.typepad.com/leonardlink/2010/07/doma-section-3-held-unconstitutional.html

"Forum shopping" referenced using a CA court to find DOMA unconstitutional; but you cleared that up. Still not a surprise Prop 8 would be struck down in CA though.

Interesting, from Wiki (http://en.wikipedia.org/wiki/Defense_of_Marriage_Act):

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, Congress may defend the law in court in place of the administration, and on March 4, 2011, Speaker of the House John Boehner announced he was taking steps to defend Section 3 in place of the Department of Justice.[5] Additionally, the administration intends to enforce the law unless it is either repealed by Congress or the courts render "a definitive verdict against the law's constitutionality."[5]
I think BO is overstepping his bounds by just reaching a "conclusion of constitutionality." That still is the whole import of this thread, I don't believe that's his prerogative. Also interesting that the House is planning on defending section 3.

Also interesting:

Section 2. Powers reserved to the states
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
Section 3. Definition of marriage
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
It seems to me they could have left out the definition of marriage and just state that the states do not have to recognize marriage from other states. I think you could wipe out Section 3 and not change the impact of DOMA. Where are our resident lawyer(s) on this subject? :laugh:

EDIT:
Oops, may have answered my own question.

DOMA's Section 3 prevents the federal government from recognizing the validity of same-sex marriages. The General Accounting Office issued a report in 1997 identifying "1,049 federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor".[9] In updating its report in 2004, the GAO found that this number had risen to 1,138 as of December 31, 2003.[10]

[logroller]

"Forum shopping" referenced using a CA court to find DOMA unconstitutional; but you cleared that up. Still not a surprise Prop 8 would be struck down in CA though.

Interesting, from Wiki (http://en.wikipedia.org/wiki/Defense_of_Marriage_Act):

I think BO is overstepping his bounds by just reaching a "conclusion of constitutionality." That still is the whole import of this thread, I don't believe that's his prerogative. Also interesting that the House is planning on defending section 3.

Also interesting:

It seems to me they could have left out the definition of marriage and just state that the states do not have to recognize marriage from other states. I think you could wipe out Section 3 and not change the impact of DOMA. Where are our resident lawyer(s) on this subject? :laugh:

EDIT:
Oops, may have answered my own question.

I have to disagree regarding an overstepping of bounds as I don't think Obama or the DOJ have reached their conclusion on their own; for there is a federal judicial ruling which was reached prior to their decision. So far as not enforcing other sections of the law- it seems to me, that by omitting section 3, it renders the law moot- as marriage and laws of reciprocity are already state rights( not federal- ergo a state right). Perhaps this is what you meant by "answering your own question", if so, forgive my clarification.

In CA, the courts have taken a similar approach regarding the defense of prop8, whereby the CA-DOJ has decided not to defend the law, but invited proponants/supporters to do so. Seems fair to me, why waste taxpayer dollars on something which doesn't have constitutional merits.