Congressional involvement in the DOMA case (almost) has standing, IMHO

[cthulu2016]

Last edited Wed Mar 27, 2013, 02:10 PM - Edit history (1)

This is a separation of powers issue, to me.

If a President refuses to enforce a law, Congress must have a way to force the Executive to do so short of impeaching the President. Congress must be able to go to court to compel the Executive to implement a law.

If Romney had been elected and just decided to not implement Obamacare then that would be an offense to Congress (institutionally) and Congress should be able to get the Judiciary to join Congress in ordering Obamacare go forward as long as that is what the law on the books says. (Judiciary + Congress is greater than Executive)

A peculiarity of the Executive enforcement role is that the executive has the job of defending laws in court. If the executive branch declines to do so that should not be an after-the-fact veto. That discretion would give he executive too much power.

It makes sense that Congress can defend an act of Congress in court if the executive does not.

There is another side, in that one could say the Executive is joining the Judiciary in saying the law is unconstitutional. (Judiciary + Executive > Legislative) but that gives undue power to an individual, IMO. Again, if some wing-nut judge had struck down Obamacare in circuit court I wouldn't want President Romney to decide that was the end of it. That would give President Romney multiple shots at a post-facto veto... if it were struck down in circuit court or in district court, Romney could simply stop action and the verdict he desired would stand... even if the Supreme Court would overturn that lower court ruling they would never get the chance.

And the form that ongoing defense takes should up to Congress... they can hire a lawyer, appoint someone from Congress, appoint a panel of Congressmen, whatever.

HOWEVER... the House of Representatives is not Congress.

So if I were a justice I would rule that Congress does have the right to pursue a legal defense of an act of Congress if a) The executive will not do so, or does an intentionally bad job of doing so, and b) the pursuit of defense of the law is authorized by, at bare minimum, a simple majority of but the House AND THE SENATE.

Congress should have the right to defend an act of Congress in an extreme situation because the executive shouldn't retain a practical veto. But that is an institutional right of Congress as a co-equal branch of government. So it takes an action of the whole congress.

So I would dismiss the current challenge with the advice that they need to come back with a vote in both houses that Congress wants to defend the law by appealing a lower court ruling.

Adding this as a practical example of the problem I see.

Say Congress passed Obamacare with veto-proof majorities.

President Romney says, "I think this is unconstitutional, and will not implement it."

The President and Congress both do constitutional interpretation every day -- nothing wrong with that. But the judiciary is the final arbiter of that question when dispute exists.

So somebody says, "We call bullshit. This law is constitutional. This should go to the courts."

So they go to court, and the court says, "You have no standing to argue that this law is constitutional. That prerogative is reserved solely and exclusively to the President of the United States. Only the President can argue this is constitutional."

In that scheme the executive is empowered to thwart any judicial review of the President's unilateral determination as to the constitutionality of the bill.

[pinto]

1. Implementation is not the case. DOMA is still implemented. The Administration chose not to

defend the constitutional challenge to DOMA made by the plaintiffs.

The plaintiff is Edith Windsor, now 83, who married Thea Spyer, her partner of more than 40 years, in Canada in 2007. Both were residents of New York. When Spyer died in 2009, she left her estate to Windsor. At that time, the state of New York recognized the marriage. But because the marriage was not recognized by the U.S. government, Windsor paid a federal estate tax bill of more than $360,000, which would not have been assessed if she were married to a man.

http://www.washingtonpost.com/politics/on-the-second-day-supreme-court-considers-doma/2013/03/26/331bb5ae-966e-11e2-9e23-09dce87f75a1_story_1.html

[cthulu2016]

3. Yes. I am saying that legal defense is part and parcel of enforcement.

If we sever to two it can lead to nonsensical results, like a President shopping for a lower court verdict he likes and then refusing to appeal.

Ms. Windsors surely has standing here. Congress is against her... on the opposite side. The question the Court was asking was about the standing of Congress, not about her standing.

[pinto]

5. Disagree. The appeal was made by the plaintiff, not the government. Admin didn't refuse to appeal,

they chose not to put up a defense of the appeal - which was made by the plaintiffs on constitutional grounds, not enforcement grounds. DOMA remains in place and enforced as law.

Yes, Congress chose to present a constitutional defense of the law before SCOTUS. It's not about enforcement, it's about constitutional standards.

And, yeah, SCOTUS had to determine if it was the role of Congress to present a defense or not. They could have chosen not to hear the case at all, and leave DOMA in place. Apparently they've chosen to hear the case.

I think your dislike of the President may be misplaced in how it's played out so far.

[X_Digger]

2. That's another check and balance between the leg and exec branch

For example, if congress passed a blatantly unconstitutional law with a supermajority, making it veto-proof, then the exec branch can refuse to enforce it.

It's not explicit, but it's implied by the powers of the branches.

[cthulu2016]

4. Step through this...

Say Congress passed Obamacare veto-proof.

President Romney says, "I think this is unconstitutional, and will not implement it."

The President and Congress both do constitutional interpretation every day -- nothing wrong with that.

However, the judiciary is the final arbiter of that question when dispute exists.

So somebody says, "We call bullshit. This law is constitutional. This should go to the courts."

So they go to court, and the court says, "You have no standing to argue that this law is constitutional. That prerogative is reserved solely and exclusively to the President of the United States."

See the problem?

In that scheme the executive is empowered to thwart any judicial review of the President's unilateral determination as to the constitutionality of the bill.

[pinto]

6. What a stretch. (nt)

[Bluenorthwest]

8. DOMA is implimented and fully enforced. Comparison is specious.

nt

[X_Digger]

9. That's the other leg of the check and balance, yes.

Each group is tasked with upholding the constitution in one form or fashion- the leg in passing laws in accordance with, the judiciary in interpreting it, and the exec in enforcing the constitution and laws passed in accordance with.

It's not a power reserved to one branch- every soldier, oathbound state officer, police officer, and congressperson- all are tasked with upholding the constitution.

[Bluenorthwest]

7. The law is enforced, enforcement and defense are not the same thing

nt