By the Positions of Two or Three Branches of Government

[Analytics]

In a six-page letter to House Speaker John Boehner yesterday, Attorney General Eric Holder announced that President Obama believed Section 3 of the so-called Defense of Marriage Act is unconstitutional and that his administration would no longer defend the repugnant statute in court. The president and the attorney general came to this conclusion after determining that gays and lesbians deserved a higher level of scrutiny in two new lawsuits challenging DOMA, which were filed in jurisdictions "without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny."

http://voices.washingtonpost.com/postpartisan/2011/02/obamas_historic_action_against.html

The move, which comes just two months after the repeal of the military's ban on openly gay service members, was seen as a monumental shift in the battle over gay rights. Sen. Orrin Hatch, R-Utah, called it "deeply disturbing" and Sen. Mike Lee, R-Utah, said the decision was "indefensible." Leading gay rights advocate Jon W. Davidson, legal director for Lamdba Legal, told the Los Angeles Times Wednesday that the new stance was a "turning point in the quest for equality."

http://www.deseretnews.com/article/700112651/Obama-reignites-battle-over-gay-marriage.html

[Analytics]

Here is a link to the Department of Justice's press release, which includes a copy of the Attorney General's letter. In the letter, Holder goes into the specific legal reasons he believes DOMA is unconstitutional.

If the U.S. Attorney General comes to the sincere conclusion that a law is unconstitutional, does he somehow have a moral obligation to defend an unconstitutional law in court?

http://www.justice.gov/opa/pr/2011/February/11-ag-223.html

[Jason]

Are we supposed to be surprised that the Obama Administration is trying to do what is the Congress and Supreme Court's job?

[thesometimesaint]

There are a whole boat load of differences in between believing a statute is unconstitutional and the USSC ruling that it is.

[Deborah]

Talk about trying to sidetrack what's going on in the world.

[frankenstein]

The President, a Constitutional Law Professor, and The AG, reached a decision that the Government must show that DOMA section 3 is

"narrowly tailored" to serve a "compelling" government interest. In addition, there cannot be a "less restrictive" alternative available to achieve that compelling interest.

OR they determined that the Government must show DOMA Section 3:

is "substantially related" to an "important" government interest

In Court the Government would have to argue the legal test by which DOMA section 3 should be applied. The President and the AG determined that DOMA section 3 should have to met a high standard. This high standard being their determination, the President and the AG would also have to determine whether DOMA section 3 would survive a higher standard review. It would seem they determined that DOMA section 3 could not withstand a higher standard. So they opt not to waste tax payer money on what they consider, in their legal opinions to be a loosing cause.

Prosecutors, make similar decisions all the time. DOMA section 3 can still be defended by members of Congress. Time for all the family values members of Congress to send the checks their mouths wrote.

[Jaybear]

Here is the letter.

For those of you taking offense by this decision, please identify a single statement of fact in the letter which is inaccurate, or a conclusion of law that is unsupported by case authority.

Otherwise you are all simply spewing empty rhetoric, like the Utah politicians cited in the article.

[frankenstein]

Here is the letter.

For those of you taking offense by this decision, please identify a single statement of fact in the letter which is inaccurate, or a conclusion of law that is unsupported by case authority.

Otherwise you are all simply spewing empty rhetoric, like the Utah politicians cited in the article.

though there is no case precedent in the Circuit at issue, it is not uncommon for Circuit to request briefs on how other Circuits approach and issue, so there likely is case law from secondary sources for a lesser standard of review.

[ttribe]

Here is the letter.

For those of you taking offense by this decision, please identify a single statement of fact in the letter which is inaccurate, or a conclusion of law that is unsupported by case authority.

Otherwise you are all simply spewing empty rhetoric, like the Utah politicians cited in the article.

Why are you assuming anyone is "taking offense"? It's a question of law and will be decided in the appropriate venue(s). Whatever the outcome, both supporter and opponent will need to abide by it.

[Jason]

The issue is not whether the law is consitutional. It is not the President and Attorney General's job to determine if a law is constitutional. Making such a determination violates the seperation of powers between the branches of government.

[Jaybear]

Why are you assuming anyone is "taking offense"?

Well those who called the decision "deeply disturbing" and "indefensible" seemed to take offense at the decision.

It's a question of law and will be decided in the appropriate venue(s). Whatever the outcome, both supporter and opponent will need to abide by it.

There is no venue to determine whether the AG's decision was appropriate. I don't think we are talking about the same thing.

[frankenstein]

The issue is not whether the law is consitutional. It is not the President and Attorney General's job to determine if a law is constitutional. Making such a determination violates the seperation of powers between the branches of government.

it there job to determine what is the likelyhood of success and it would be wise use of tax payer funds.

They determined that they could not successfully defend law. And thus, they did not waste tax payer funds on a suit the determined they could not win. Every wonder why a Lawyer can say "I win 100% of the time" because that lawyer gets to pick and choose what cases to take.

It is their opinion that the law is unconstitutional.

There is no violation of powers in stating an opinion.

[Jason]

it there job to determine what is the likelyhood of success and it would be wise use of tax payer funds.

They determined that they could not successfully defend law. And thus, they did not waste tax payer funds on a suit the determined they could not win. Every wonder why a Lawyer can say "I win 100% of the time" because that lawyer gets to pick and choose what cases to take.

It is their opinion that the law is unconstitutional.

There is no violation of powers in stating an opinion.

What is to prevent the President from taking this position on any law that Congress passes that he doesn't agree with?

[thesometimesaint]

Jason:

He can always veto any proposed law passed by the House, and Senate. They can override his veto though. The courts are the ones who have the say in what is Constitutional. But they can be overridden by Constitutional Amendment or Convention.

[Jason]

Jason:

He can always veto any proposed law passed by the House, and Senate. They can override his veto though. The courts are the ones who have the say in what is Constitutional. But they can be overridden by Constitutional Amendment or Convention.

I know this, but it doesn't answer my question.

The reason this President didn't veto this particular law, of course, is that it was passed before he was in office.

So, to repeat and clarify: If this is not in fact a violation of the seperation of powers, what is to prevent a President from taking this position on any law that Congress passes that he doesn't agree with?

[ttribe]

Well those who called the decision "deeply disturbing" and "indefensible" seemed to take offense at the decision.

Those are opinions, not evidence of "offense".

There is no venue to determine whether the AG's decision was appropriate. I don't think we are talking about the same thing.

Sure there is. It will be challenged by lawmakers who will likely attempt to draft something similar that patches "holes" in the old law and test the legal environment; those laws will also be challenged. Come now Counselor, you don't really thing that that just because the current AG has chosen not to defend the law, that the legal battle is over? I assume you know better than that.

[Jaybear]

So, to repeat and clarify: If this is not in fact a violation of the seperation of powers, what is to prevent a President from taking this position on any law that Congress passes that he doesn't agree with?

Congress can attach a rider to the legislation that authorizes congress to defend the legislation if the President opts not to.

Congress did that with DOMA.

The AG sent a letter to Bohner advising him of his decision.

There you go, problem solved. Check, balance, mate.

You should be thankful that he didn't do this while Pelosi was the speaker.

[Jason]

Congress can attach a rider to the legislation that authorizes congress to defend the legislation if the President opts not to.

Congress did that with DOMA.

The AG sent a letter to Bohner advising him of his decision.

There you go, problem solved. Check, balance, mate.

You should be thankful that he didn't do this while Pelosi was the speaker.

So, two violations of seperation of powers make a right?

[Jaybear]

So, two violations of seperation of powers make a right?

How is it a violation of the separation of powers, if the legislation specifically anticipates such a decision and provides a remedy?

[ttribe]

So, two violations of seperation of powers make a right?

That looks a further check in support of the separation of powers; not a violation thereof.

[Mola Ram Suda Ram]

Talk about trying to sidetrack what's going on in the world.

Just that. It is a side track.

[Jason]

How is it a violation of the separation of powers, if the legislation specifically anticipates such a decision and provides a remedy?

Anticipating a potential violation of seperation of powers doesn't mean it isn't a violation.

If Congress can assign itself the duties normally carried out by the President if he decides not to, what's to prevent them from doing so anytime they don't agree with what the President is doing?

[ttribe]

Anticipating a potential violation of seperation of powers doesn't mean it isn't a violation.

If Congress can assign itself the duties normally carried out by the President if he decides not to, what's to prevent them from doing so anytime they don't agree with what the President is doing?

I must be missing something...isn't that kind of the point of the checks and balances system? I'm not seeing the violation issue here.

[Jason]

I must be missing something...isn't that kind of the point of the checks and balances system? I'm not seeing the violation issue here.

A checks and balance system doesn't mean that if one part of the government doesn't do its job another part takes over for it. It means that one part of the government limits the power of another - for intance, the Legislative doesn't have the ability to enforce it's own laws - the Executive branch has that power. Likewise the Executive doesn't have the ability to declare a law unconstitutional - that is the Judicial's job. When one branch does the job of another that is a violation of seperation of powers.

[ttribe]

A checks and balance system doesn't mean that if one part of the government doesn't do its job another part takes over for it. It means that one part of the government limits the power of another - for intance, the Legislative doesn't have the ability to enforce it's own laws - the Executive branch has that power. Likewise the Executive doesn't have the ability to declare a law unconstitutional - that is the Judicial's job. When one branch does the job of another that is a violation of seperation of powers.

But, if one branch refuses to defend a certain law (in this case, the Executive has refused to defend a law created by the Legislative), then that is an exercise of power by virtue of inaction. The fact that the Legislative branch can then step in and defend the law itself (if it so chooses) appears to be a limitation on the Executive's ability to unilaterally decide which laws the government will defend. I'm sorry, I still see this feature to be a proper check to keep the Executive Branch from becoming a de-facto Legislative branch by virtue of decisions to act or not act in the defense of any given law.

ETA: I'm not an attorney; perhaps someone with more formal training can chime in.