Obama and Defense Of Marriage Act

[quantumfireball2099]

http://abcnews.go.com/Politics/crit...ecision-newt-gingrich-calls/story?id=12992207

ABC News- "In a letter to members of Congress Wednesday, Attorney General Eric Holder explained that Obama determined that DOMA, which defines marriage for federal purposes as only between one man and one woman, "violates the equal protection component of the Fifth Amendment" and therefore is not obligated to defend it.

The Obama administration has moved the goalposts of the usual role of the Executive Branch in defending statutes," he wrote.

Kerr says the president's action could undermine the role of the impartial court system if the Justice Department can conduct its own constitutional reviews of challenged laws, and then exercise discretion in whether to defend them.

The executive branch's "duty to defend" a law, even if the administration finds it politically unpopular, has been tradition for decades. If Obama can choose not to defend DOMA on constitutional grounds, some critics say, a future Republican president may be able to do the same to Democrats' controversial health care reform law.

While I agree with Obama on the basis that I feel it is unconstitutional, the last sentance is what gets me thinking. I'm wondering if there are limits to what the President can decide to not enforce.

Thoughts?

 

[quantumfireball2099]

Actually I think I answered my own question.

http://helenbukulmez.com/2011/02/24/can-attorney-general-not-refuse-enforce-law-doma-doj-ag-mean-obama-executive-bill/

First, the Attorney General is an executive branch office. As such, it cannot refuse to enforce laws that have been determined to be constitutional. What this means is that if a particular state or a federal district court has determined a federal law to be constitutional and created a precedent in a particular case, the Attorney General has a clear duty to enforce that law. As such, in almost every federal district, the Attorney General, in representing the government, still has to enforce DOMA as these districts have established court decisions in which they have declared the DOMA to be constitutional. The two cases that triggered the release of the statement yesterday, however, came from the Second Circuit of United States Court of Appeals, where there was no precedent on the issue and the Circuit had not declared the DOMA's constitutionality. In such cases, the Attorney General can declare its own position and ask the United States Supreme Court to examine the constitutionality of the law. Thus, declaring that the Attorney General will not defend DOMA in the Second Circuit does not mean that it has the liberty to do the same in the other circuits where the law has been declared constitutional and the courts have established a clear precedent.

What DOMA, as a federal law, does is that it bans the federal recognition of same-sex marriages even though a particular state has allowed it. In the states who have established relevant precedent and held DOMA to be constitutional, the Attorney General will continue to defend the law. The statement applies only and only to the cases in the Second Circuit. In fact, in a separate statement to Congress, the Attorney General affirmed that by stating that

"Notwithstanding this determination, the President has informed [the Attorney General] that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised. Letter from the Attorney General to Congress."

Second, the statement by the Attorney General is an executive decision and it is not binding on the judicial branch, i.e., the courts. It simply explains the position taken by the Obama Administration and encourages the courts to look at the same-sex marriage in light of Equal Protection Clause to the U.S. Constitution. The final say will be by the United States Supreme Court, which may review the cases involving same-sex marriages and DOMA in light of contradictory enforcement of DOMA.

Finally, the statement makes its argument very clear: Section 3 of DOMA as applied to same-sex couples who are legally married under state law violates the equal protection component of the Fifth Amendment. What this means is that the Attorney General has declared that it will not defend DOMA in the Second Circuit and only in those states that have allowed same-sex couples to be legally married. Thus, its scope is very limited and will not cause the states or courts to change their position on the issue.

So I guess it's not as big of a deal as my co-worker led me to believe. Ah well.

 

[calvinhobbesliker]

Since it is the President's job to "enforce" the laws, why is it that the Judicial branch tries and punishes criminals?

 

[ArthurWilborn]

Since it is the President's job to "enforce" the laws, why is it that the Judicial branch tries and punishes criminals?

Separation of powers.

 

[RichardMNixon]

Since it is the President's job to "enforce" the laws, why is it that the Judicial branch tries and punishes criminals?

Separation of powers.

Yes, but what he's asking is which power is allotted to the executive enabling it to enforce laws and what does this responsibility entail if not trying criminals? Are the police considered part of the executive branch?

 

[AdmiralPeacock]

Interesting. Apparently the rightwing nitwits are screeching like a cat caught in a lawnmower over something nearly every president has done at one stage or another.

 

[borrofburi]

Interesting. Apparently the rightwing nitwits are screeching like a cat caught in a lawnmower over something nearly every president has done at one stage or another.

It's worse than that: they're flat out lying. Obama says "I'm not going to defend it in court because I can't think of any good defenses... it seems pretty damn unconstitutional to me..." and the right wing says "Obama said he won't enforce it!!!1one1!111!1one1!1!" Except Obama said "not defend" not "not enforce". And even when corrected they respond with incredulity and declarations that regardless of what he said he's not going to enforce it now.

I'm not one to accuse the "right wing" of lying much. They seem to exaggerate sometimes, and misunderstand others, as does the "left wing". But this is too far... Oh also that one event where they said obama was spending billions to go on some diplomatic mission (which was called a "vacation").