Has anyone actually read the DOMA decision that they don't favor Obama appealing?

[BzaDem]

A large part of the decision invalidating DOMA (clarified: Massachusetts v. HHS) uses the Tenth amendment. That's right -- the same amendment tea partiers (and "tenthers") use to argue that all social welfare programs and most federal regulation is unconstitutional. The opinion says that marriage and family law is traditionally regulated at the state level, and can't be regulated at the federal level because of the Tenth amendment reserves power to the states.

Here is (very) liberal Yale law professor Jack Balkin on the opinion:

"Finally, Judge Tauro's attempt to limit federal power through the Tenth Amendment so that it does not interfere with state prerogatives might delight members of the contemporary Tea Party movement (at least if it wasn't aimed at DOMA), but it should give most Americans pause. The modern state depends heavily on the federal government's taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

There is much to admire in Judge Tauro's bravery in writing these opinions, and in his forthright declaration that the federal government's policy is unjust and unreasonable. His two opinions are wild, audacious, and fearless in their logic. But for the same reason, they will and should be quickly overturned. I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way."

To put it another way, would you favor not appealing a decision that simultaneously rules DOMA and Medicare unconstitutional? This decision does not rule Medicare unconstitutinal, but it has logic pointing in the direction of the unconstitutionality of social welfare programs that can be cited by tenthers again and again and again in future cases.

[Unvanguard]

Double post. n/t

[Unvanguard]

1. There are TWO opinions. One is Tenth Amendment, the other is Fifth.

Your argument might work for the Tenth Amendment case, Massachusetts v. HHS, though I'm not sure it does, since the opinion is predicated on an equal protection analysis rather than an aggressively anti-national one. Regardless, it certainly does not work for Gill v. OPM, which invalidates DOMA on straightforward Fifth Amendment equal protection grounds.

For the record, I have read both, and I object to neither appeal. This case does not even really present a balancing question: appealing Gill v. OPM advances both the anti-DOMA litigation (by broadening its scope of potential effect) and the rule of law (by not setting precedent for executive undermining of Congressional statutes.)

[Ineeda]

2. Thank you.

It pays not to jump to conclusions about this process. Do it, but do it right.

[RandomThoughts]

3. Wrong thread

:)

[BzaDem]

5. You are completely missing the point.

Tentherism would not say that providing for the general welfare is unconsitutional, or that Medicare is unconstitutional. It would say that the federal govermnet can't do it -- that only states could spend money on healthcare for their citizens.

The argument is bullshit. But it is the SAME argument that the judge ruled against DOMA here. This argument has nothing to do with any type of discrimination -- it simply says that the Federal government can't regulate various aspects of marriage, and that only states can. This same logic could be used to try to undermine any federal regulation or program.

[RandomThoughts]

21. Wrong thread

[BzaDem]

23. Um, this thread is about DOMA. Not DADT. n/t

[RandomThoughts]

31. Well that explains it, I was still on a different topic. Removed posts

LOL. That is funny.

:D

My comment on that topic was posted many months ago.

[MadHound]

4. Actually I have, and you're wrong

It is a First and Fifth Amendment case, not a tenth. Here, go look for yourself.

<http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/4f03e468a737002e8825779a00040406?OpenDocument>

[Unvanguard]

7. That's the DADT case, LCR v. United States. BzaDem is referring to one of the DOMA cases.

Namely, Massachusetts v. Health and Human Services.

[BzaDem]

8. This has already been covered upthread. See Massachusetts v. HHS. n/t

[Pirate Smile]

6. A lot of People here don't care if the legal precedent value of the ruling could damage the entire

foundation of all the social programs and the safety net Democrats have worked a century to create.

All you have to say is "Obama/Democrats Suck and don't really want to repeal DOMA or DADT" and you'll get dozens of dittos and exclamations bashing Obama/Democrats.

Actual legal justifications for not wanting a statute overturned this way??? Don't harsh their anti-Obama buzz.

I've obviously already OD'ed on anti-Obama/Dem/US talking points today. I should probably stay away from DU for a while. :)

[treestar]

9. Thank you so much

When it comes to the law around here, people would rather jump and react than realize that it would take time and effort to really understand any legal decision.

[GodlessBiker]

10. Since when has healthcare been traditionally regulated at the state level? Drugs have been ...

regulated by the feds for quite some time.

If the federal government started to decide that gay people could not be doctors, then, yes, qualifications for doctors are traditionally decided at the state level and the feds should not interfere.

This argument is bogus.

[BzaDem]

13. The "traditionally regulated at the state level" is a malleable standard that Republicans use to

attack social programs. The Supreme Court overruled this standard awhile back, yet the court here used it anyway. It is bogus.

Anyone can come up with an argument that specific aspects of laws have traditionally been regulated at the state level, shooting holes in our entire regulatory framework and social safety net. Furthermore, even marriage has not traditionally only been regulated at the state level -- tons of federal laws depend on families and marriage.

This part of the decision is extremely poorly reasoned, provides fodder for tea partiers attacking federal government action in general, and should be appealed.

[GodlessBiker]

14. Anyone can come up with an argument to support anyting using the Constitution. So what?

Tons of federal laws depend on families and marriage, but they depend on it in so far as they are defined by the states.

And there are plenty of other opportunities for teabaggers to attack social programs; they are not confined to the 10th Amendment.

Do not yield the power of the 10th to teabaggers. We should use it to our own advantage by fashioning arguments within its confines to support policies and programs we support.

[BzaDem]

17. I do not want to yield the power of the 10th to teabaggers, but this opinion does

as Jack Balkin (a liberal constitutional scholar) points out.

[GodlessBiker]

24. No it doesn't. Here, the judge is telling the federal government that ...

the 10th Amendment forbids it from denying to gay married people the same rights it provides to straight married people.

That is an excellent use of the 10th Amendment.

[BzaDem]

26. That is not true, and your justification is bogus.

It is not true, because the opinion has to do with whether this aspect of marriage can be regulated AT ALL by the federal government (as opposed to the states). It is a federalism argument.

Your justification is bogus, because it is of the form "I like the result, so it's an excellent use of the amendment." That is never (under any circumstances) valid Constitutional reasoning. Teabaggers are going to cite this amendment for its principles, not the policy preferences of you.

[GodlessBiker]

33. Of course it's valid Constitutional reasoning. Just look at Bush v. Gore. If they do it, so am I.

[DaveinJapan]

11. I find Jack Balkin's opinion to be a specious one for the following reason...

"These programs have regulatory effects on state family policies just as much as DOMA does"

This is incorrect because the programs he cites fall clearly under "promoting the general welfare" of America.

I would like for him to explain exactly how DOMA does such a thing.

If he were to invoke ridiculous population growth arguments, they are easily shot down by any number of scientific studies (not to mention the fact that physical procreation is no longer medically necessary at all when it comes to making babies).

Aside from that, how does DOMA promote the general welfare?

It's abundantly clear how medicare, medicade, social security, and other social safety nets function for the benefit of the whole society. DOMA is nothing of the sort.

I'd love to hear from Jack Balkin regarding my reply here, is he a member of DU? (if not, anyone can feel free to forward my comments and I'd be HAPPY to talk to the guy!).

[BzaDem]

15. The general welfare clause applies to spending. There are many aspects of the regulatory state

and the social safety net that are not direct payouts. Medicare regulates hospitals, financial reform regulates the financial industry, etc. All social safety net programs intersect laws relating to marriage and families, which the opinion specifically rules is traditionally regulated by the states. If the tenther logic in this opinion were taken seriously, these aspects of our federal government would be suspect.

[Unvanguard]

16. There is an interpretative issue here.

Jack Balkin takes Judge Tauro to be saying that DOMA is unconstitutional because it is interference with a long-recognized sovereign right of states (family law.) He objects to this reasoning on the grounds he mentions. This argument has little as such to do with the General Welfare Clause; it is long-standing precedent that family law is the province of states.

But Judge Tauro's opinion is actually cleverer than that. He acknowledges that the government could try to justify family law regulations by reference to the General Welfare Clause, and dismisses it in the case of DOMA specifically because DOMA is a violation of equal protection, and a legitimate exercise of General Welfare Clause power (he calls it the "Spending Clause") must not be independently barred by other constitutional provisions.

Judge Tauro's rhetoric about states' rights presupposes his equal protection analysis, in my view. So, in other words, you are right: his reasoning does not reach social welfare programs. Jack Balkin disagrees not because he thinks DOMA is constitutional (he does not), but because he has a different view of what Judge Tauro is saying.

[sinkingfeeling]

22. Thanks for your clarification on these things.

[DaveinJapan]

25. ditto. nt

[Unvanguard]

12. Links to the opinions, for those interested:

Gill v. Office of Personnel Management (this is the Fifth Amendment ruling, not exploitable by the Tea Partiers, but perhaps too "audacious" for the higher courts)
Commonwealth of Massachusetts v. Health and Human Services (this is the Tenth Amendment ruling to which BzaDem and Jack Balkin are referring)

[joeybee12]

18. Happy to un-rec this totally worthless POS...n/t

[BzaDem]

19. Thank you for your detailed rebuttal to the quoted liberal Yale law constitutional scholar. n/t

[zipplewrath]

20. The tenth amendment does have meaning

Just because the baggers/birther/birchers use it for all manner of silliness, doesn't mean that the tenth is meaningless. It is exactly the DOMA situation that it does apply. The feds have no business in telling the states that they can violate the constitution and not recognize the contracts (marriages) of other states. The 14th comes in with respect to whether the feds can ignore these contracts on a state by state basis.

Medicare and other similar programs extend through a variety of means, including the rather generous interpretation of the commerce clause. One is hard pressed to find a means to suggest that the feds are exercising their authority in DOMA based upon the commerce clause. You'll even get conservatives (well, "originalists") that will suggest that DOMA is flawed on a tenth basis.

There is no doubt that the 14th negated much of the reach of the 10th. I'm not sure anyone made the case that it completely obliterated it.

[BzaDem]

29. Under his logic, any aspect of the regulatory state or social safety net that at all interfered with

state family law and state regulations of marriage could be struck down as violating the tenth amendment.

That is bogus, and that is what Jack Balkin is referring to.

[zipplewrath]

32. His logic has been argued before, and struck down

The argument here is that regulation, and definition, of marriage is a state level function, in which the feds can't interfere. The feds attempted to usurp that authority. That, in and of itself, doesn't threaten the other programs or taxing authority. DOMA didn't tell them the SHOULD recognize other states, it told them they didn't have to, despite the constitution insisting that contracts need to be recognized between states. The feds didn't have that authority, because under the 10th, they don't have the authority to define marriage, and they are also prevented from providing relief between the states.

The attempts to undermine the social programs mentioned based upon the 10th has been tried for decades, and never won. They also don't SOLELY rely upon the 10th to exist. I don't really see that this decision would undo all of those others. Predominately because those other issues don't rely upon an authority uniquely limited to the states.

[Overseas]

27. K&R!

Hadn't realized it was a 10th amendment pitch.

[Luminous Animal]

28. Link please?

[Unvanguard]

30. Here:

http://balkin.blogspot.com/2010/07/be-careful-what-you-wish-for-department.html

[Better Believe It]

34. Bzadem: Do you think President Obama should not appeal Judge Virginia Phillips DADT decision?

It's a different ruling in a different case but I'd like to hear your opinion on it.

[Statistical]

35. I don't see a problem with the ruling just because the 10th leave potential for abuse doesn't mean .

the 10th doesn't exist.

The 10th exists and marriage is one of those institutions (right or wrong) which has been regulated at the state level.

Judge is simply casting a wide net and saying the federal govt lacks the authority to regulate marriage at all (and thus that includes DOMA).

The federal govt shouldn't have unlimited power. The county was founded on concept of federalism and delegated vs reserved powers. If we want to change that and make states little more than the geographical equivelent of football teams that if fine... however there is a mechanism to do that. Amend the Constitution so that all powers not prohibited by the Constitution are reserved by the federal govt and only powers delegated by the govt to the states becomes the domain of the states.

Until then the 10th (no matter how "dangerous") is valid Constitutional restraint on the federal govt.