Supreme Court conservatives target Obama on marriage law

[hue]

Source: chicagotribune.com (Reuters)

WASHINGTON (Reuters) - Midway into a second day of tackling the gay marriage issue, conservatives on the Supreme Court said on Wednesday they were troubled by President Barack Obama's decision in 2011 not to defend in court a ban Congress had approved.

The decision by Obama to abandon the legal defense of the 1996 Defense of Marriage Act (DOMA) called into question his willingness to defend other laws passed by Congress and challenged in court, several conservative justices said.

"It's very troubling," said Justice Anthony Kennedy.

While the criticisms may not affect how the justices eventually rule on whether the 1996 law violates U.S. equal protection rights, it showed frustration with how Obama has walked a difficult political line on gay marriage.

Obama and his attorney general, Eric Holder, said in February 2011 they would cease defending the law because they believed it to be invalid under the Constitution.

In the place of the Justice Department, Republican lawmakers have stepped in to argue for the law.

Read more: http://www.chicagotribune.com/news/sns-rt-us-usa-court-gaymarriagebre92p048-20130325,0,2692695.story

[CBGLuthier]

1. The JD did the SC's job for them. They know the law is unconstitutional

I know the law is unconstitutional, Everyone here knows the law is unconstitutional.

WTF do those idiots on the SC not see it for the blatant piece of unconstitutional shit it is?

[neverforget]

9. One word

Politics

[primavera]

13. They're right wing zealots

What does the Constitution have to do with anything? You don't seriously imagine that Mad Dog Scalia bases his opinions on law, do you?

[bemildred]

2. Buffoons.

Kennedy, the swing vote on Selection 2000, is troubled by Obama taking a political stance on marriage equality for all.

[Kolesar]

3. They were grumpy because they had to challenge their standing

Which is, apparently, the responsibility of Chief Justice Roberts
according to NPR/otc yesterday

[Richardo]

4. As I understand it, the role of the Executive Branch is to enforce the laws passed by Congress...

...which they are doing.

Not sure that 'defend' is required.

[TupperHappy]

5. I think it can be reasonably implied

Consider this hypothetical. For the sake of argument say that the Supreme Court votes to uphold Section 5 of the Voting Rights Act. Further assume that in either 2016 or 2020, Rand Paul is elected President (I know, I know, snowballs, hell, but bear with me). A new challenge to the entire Voting Right Act is filed, and makes it all the way to the Supreme Court. And then President Rand decides to instruct the Solicitor General to not defend the law.

Would he be right in doing so? And how would that scenario be any different than what is happening now? Acts of Congress are presumed to be in accordance with the Constitution, and the President does swear an oath to uphold that Constitution. It seems to me that a President that refuses to defend a law that was lawfully passed by Congress (and signed by a previous president) is violating their oath of office.

[onenote]

11. It is a widely accepted principle of constitutional law that the executive branch may opt not

to enforce or defend a law that the executive believes is unconstitutional.

Some examples:

 In 1976, Nixon Solicitor General Robert Bork argued in Buckley v. Valeo that the
provision of the Fair Election Campaign Act (FECA) that allowed the President and
Congress to each appoint members of the Federal Election Commission (FEC) was
unconstitutional, leaving the FEC to defend itself on that point. But he also jointly filed a
brief with the FEC defending other parts of FECA. (The Supreme Court agreed with his
opinion about the appointment of FEC members.)
 In 1983, Reagan Solicitor General Rex Lee argued in INS v. Chadha against the
constitutionality of Congress's grant to itself of a "legislative veto," specifically regarding
Justice Department decisions to delay deportations. (The Supreme Court agreed with
him.)
 In 1990, stepping in for George H.W. Bush’s Solicitor General Ken Starr (who had
recused himself), then-Deputy SG John Roberts refused to defend FCC policies, backed
by Congress, providing minority broadcasters preference in obtaining licenses, in Metro
Broadcasting v. FCC. (The FCC defended itself, however, and the Supreme Court
upheld the preferences.)
 In 2004, Solicitor General Paul Clement refused to defend a federal law prohibiting mass
transit agencies that receive federal funds from permitting ads on buses and subways
supporting medical marijuana. Clement concluded that the law violated the First
Amendment and that the government had "no viable argument to advance."

[elleng]

12. I sincerely appreciate this discussion, Tupper,

and hope/wish many DUers would read your post and the following one, by onenote, further discussing this issue. DUers (and many) often become either stuck in the weeds of legal matters or don't go that far and just slam judges and Justices. I appreciate this.

Thanks

[EC]

6. It's not like he's not enforcing it still.

Why would they be troubled? Shouldn't they be more troubled if he said he'd defend a law he doesn't believe to be Constitutional? How can you defend something you believe is wrong?

[SpartanDem]

7. It's about checks and balances

to what degree does the President have the ability to circumvent congress by not defending a law it has passed. The Constitution requires faithful execution of the laws, does that require that the president defend it court? There are legal arguments on both sides of what that means some say enforcement is enough. For DOMA the issue is standing, is it proper for Congress to be defending the law and not the President.

[joeglow3]

8. If it is not proper, what is the result?

Appears to me any president can effectively invalidate any law signed into law by a prior president. That is not a power I would like a Republican president to have.

[Bandit]

10. I do not understand your logic

The Administration/Justice Dept is enforcing the Law as written. It has not arbitrarily decided the Law is not valid..An outside Party has questioned the validity of the Law and taken it to court. The Administration is under no obligation to defend the Law, however as long as the Law remains on the books, it does have the obligation of enforcing the Law...In no way does the Administration invalidate any Law. That is up to the Court to do if they find the Law unconstitutional.

[joeglow3]

14. Would u say the same about healthcare

If a president says he will not enforce any penalties associated with healthcare reform and will not prosecute any company that violates it, would I be okay?

Regardless, the court will rule the right way, but that is their job.