Jason Posted February 24, 2011 Posted February 24, 2011 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.Let's turn it around. What sort of action do you think would be a violation of the seperation of powers between the branches of government?
ttribe Posted February 24, 2011 Posted February 24, 2011 Let's turn it around. What sort of action do you think would be a violation of the seperation of powers between the branches of government?Can we first agree on a framework for the discussion to make sure we have a mutual understanding of what the respective branches can actually do? I submit this for consideration: http://www.usconstitution.net/consttop_cnb.html
frankenstein Posted February 24, 2011 Posted February 24, 2011 So, two violations of seperation of powers make a right?you have not established a seperation issue. Standard procedure for a prosecutor is to determine how likely a case is win. The President and AG determined that section 3 of DOMA, would not pass a the Constitutional Test they apparently would argue is needed. it is their OPINION that section 3 of DOMA is unconstitutional, and therefore not a good case to defend in Court.The US SUPREME COURT gets the final say on what is Constitutional and what is not. where is the separation of power issue? You have not shown one, and you do not have anything (the law, case law, etc.) to support your posistion.
Daniel2 Posted February 24, 2011 Posted February 24, 2011 Another update:Prop 8 Lawsuit Lawyers Ask Ninth Circuit to Lift Stay and Allow California Same-Sex MarriagesPosted by Chris Geidner on February 23, 2011 6:01 PM Moments after the U.S. Department of Justice announced that it would no longer be defending challenges to Section 3 of the Defense of Marriage Act, Ted Olson announced that the legal team in the Perry v. Schwarzenegger challenge to Proposition 8 was asking the U.S. Court of Appeals for the Ninth Circuit to lift the stay of the trial court ruling striking down Proposition 8 -- a move that would allow same-sex marriages to begin in California immediately. Olson is the lead attorney for the Perry plaintiffs, who argue that California's 2008 marriage amendment is unconstitional.The reason for the request given by the Perry legal team is that three "materially changed circumstances" justify the court reversing, or vacating, its earlier stay of U.S. District Court Judge Vaugn Walker's order prohibiting enforcement of Proposition 8.Two of the three changes -- the Ninth Circuit's certification request and the California Supreme Court's decision to accept that order -- are a part of the case itself. The Ninth Circuit, in resolving whether the proponents of Proposition 8 have standing to appeal the loss at trial, has asked the California Supreme Court to assess whether, under state law, the proponents of an initiative have legal rights to defend initiatives -- a request the California Supreme Court accepting and will be considering in coming months (although the Olson team, in a separate filing, asked that court to expedite that consideration).Although these two actions, arguably, present changed circumstances, they are changes of which the court could have conceived, at least, when they sent the certified question to the California Supreme Court on January 4.The request to lift the stay of the trial court order that was put to the Ninth Circuit today by the Perry legal team notes, however, "This Court's January 4 order and the California Supreme Court's response make clear that the stay can no longer be justified and the 'additional delay' it imposes will not be fleeting. Given these changed circumstances, the stay pending appeal should be vacated."In other words, while marriage equality is not reality in California as the Perry case makes its way through the appellate courts, Olson and the Perry legal team argue -- as they did previously -- that it should be.The third changed circumstance is outside of the case and, technically, irrelevant to it, yet Olson argues should have a major impact on it. As Olson and the lawyers wrote, the third changed circumstance is that "the Attorney General of the United States announced the view of the United States that 'classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of [DOMA]
frankenstein Posted February 24, 2011 Posted February 24, 2011 the DOJ opinion does not have much to do with prop 8. the attorneys argued and made their points about what the standard of review should be, as I recall Judge Walker address both a rational basis and a heightened scrutiny. The 9th is to decide what the proper test should have been, the US Supreme will tell the 9th Circuit what the review test should have been. So I don't see the urgency based on a opinion which is not binding on the Court.
Daniel2 Posted February 24, 2011 Posted February 24, 2011 the DOJ opinion does not have much to do with prop 8. the attorneys argued and made their points about what the standard of review should be, as I recall Judge Walker address both a rational basis and a heightened scrutiny. The 9th is to decide what the proper test should have been, the US Supreme will tell the 9th Circuit what the review test should have been. So I don't see the urgency based on a opinion which is not binding on the Court.I certainly would agree that the DOJ opinion is unlikely to cause any more urgency to overturning the stay of same-sex marriages (and the justice being denied to LGBT couples in California)--though it will likely have some influence on the court's eventual ruling on the matter.Darin
LDS Guy 1986 Posted February 25, 2011 Posted February 25, 2011 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?Yes, he is the people's attorney it is his job to defend our laws regardless of whether he like them or not. If a man commits murder and tells his attorney does that mean the attorney can refuse to represent his client because he doesn't believe that murder is constitutional?No, he can't if he quits on his client he can lose his right to practice law, it's his duty to defend his client!the AG is violating his duty to defend the laws of this nation! He should lose his license to practice law, and stand trial for dereliction of duty.
USU78 Posted February 25, 2011 Posted February 25, 2011 This is a horrific usurpation by a lawless administration.Happily, the Writ of Mandamus was invented for just such events.No . . . wait . . . this tyrannical administration is already ignoring inconvenient court rulings.Just so they can cynically pander to a vocal and brutal special interest . . . that just happens to contribute a ton of money to the DNC.Just sayin'
frankenstein Posted February 25, 2011 Posted February 25, 2011 usu78, I'll keep going with the belief that you are a attorney, perhaps you can articulate how it is a usurpation. ldsguy, i would wager you don't understand the role of attorneys that well. the attorney in you example could most certainly refuse to represent.
Mordecai Posted February 25, 2011 Posted February 25, 2011 ...a "turning point in the quest for equality..."LOL Like getting gov't recognition makes you equal. When the gov't starts giving congressional medals of honor to people who buy "green" vehicles, that will not make their behavior equal to actual heroes. Similarly, a gay union is never going to be a real marriage.
ERayR Posted February 25, 2011 Posted February 25, 2011 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.htmlYes. It is the job of the nine judges on the USSC to decide constitutionality not the AG's.
Nofear Posted February 25, 2011 Posted February 25, 2011 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?If the U.S. Attorney General finds himself with duty to defend a law his office obligates him to defend which he personally finds lawfully reprehensible (such as being clearly unconstitutional) I think the most appropriate course would be to resign his post.
Jaybear Posted February 25, 2011 Posted February 25, 2011 LOL Like getting gov't recognition makes you equal.You are missing the point. What they are asking for is equal treatment under the law. Broader acceptance will follows naturally, as people come to know, love and support gay couples and their families.
Doctor Steuss Posted February 25, 2011 Posted February 25, 2011 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.I'm admitedly no expert on this sort of thing, but last night I found the following interresting (and helpful): The Executive's Duty To Disregard Unconstitutional Laws - Georgetown Law JournalTalk about trying to sidetrack what's going on in the world.Just that. It is a side track.I apologize for my daftness, but exactly what events going on in the world is this meant to attempt to sidetrack?
USU78 Posted February 25, 2011 Posted February 25, 2011 I apologize for my daftness, but exactly what events going on in the world is this meant to attempt to sidetrack?I'm guessing the Iran-sponsored uprising in other regional states, from the Pillars of Hercules to the Indus.
Jaybear Posted February 25, 2011 Posted February 25, 2011 I'm guessing the Iran-sponsored uprising in other regional states, from the Pillars of Hercules to the Indus.The purpose of the protests is to get attention to a cause. Why would Obama want to detract attention away from the protesters? And if he did, why would conservatives complain?
frankenstein Posted February 25, 2011 Posted February 25, 2011 can no one here articulate how, the Head Prosecutor, acting in Prosecutorial discretion has usurped power?Any party in Court, who wants to have case judged by a certain standard MUST show the Court WHY the standard suggested by the party is the appropriate standard.District Courts are not bound by the DOJ letter.The 9th circuit is not bound by the DOJ letter. The Supreme Court is not bound by the DOJ letter.Congress is not bound by the DOJ letter.NO COURT is bound by the DOJ letter. All branches of Gov. have their power in tact; so where is the usurption of power when a prosecutor has discretion?
Analytics Posted February 25, 2011 Author Posted February 25, 2011 I'm admitedly no expert on this sort of thing, but last night I found the following interresting (and helpful): The Executive's Duty To Disregard Unconstitutional Laws - Georgetown Law JournalI apologize for my daftness, but exactly what events going on in the world is this meant to attempt to sidetrack?From the article in the Law Journal, The critics are correct in supposing that the President lacks a discretionary power to disregard unconstitutional statutes; instead, the Constitution is best read as obliging the President to disregard statutes he regards as unconstitutional. First, the Constitution never empowers the President to enforce unconstitutional statutes. He no more has the power to enforce such statutes than he has power to enforce the statutes of Georgia or Germany. Second, the President
frankenstein Posted February 25, 2011 Posted February 25, 2011 Jefferson, that scoundrel"The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution."
Jason Posted February 25, 2011 Posted February 25, 2011 Can we first agree on a framework for the discussion to make sure we have a mutual understanding of what the respective branches can actually do? I submit this for consideration: http://www.usconstitution.net/consttop_cnb.htmlAll right. So what sort of action do you think would be a violation of seperation of powers?
Jaybear Posted February 25, 2011 Posted February 25, 2011 All right. So what sort of action do you think would be a violation of seperation of powers?Extraordinary rendition of a suspected criminal from the streets of Germany to a prison in Egypt, where he is held indefinately without access to a judge.
ttribe Posted February 25, 2011 Posted February 25, 2011 All right. So what sort of action do you think would be a violation of seperation of powers?Usurping the Executive Branch's role as Commander In Chief.
Jason Posted February 25, 2011 Posted February 25, 2011 Usurping the Executive Branch's role as Commander In Chief.So, Congress voting on a law that orders the military to follow their orders, or some such?So what's the difference between that and Congress legislating that they get to defend one of their own laws in court?
Jason Posted February 25, 2011 Posted February 25, 2011 Extraordinary rendition of a suspected criminal from the streets of Germany to a prison in Egypt, where he is held indefinately without access to a judge.How is this a violation of the seperation of powers? Are you arguing that the Judiciary branch should have done it?
ttribe Posted February 25, 2011 Posted February 25, 2011 So, Congress voting on a law that orders the military to follow their orders, or some such?No - Congress taking direct control of the military.So what's the difference between that and Congress legislating that they get to defend one of their own laws in court?Uhhh, this still goes through the court right? And it's still going to be decided by the Judicial Branch, right? Near as I can tell, there is no Constitutional mandate on who defends the laws (but I could be wrong).
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