By the Positions of Two or Three Branches of Government

[Jason]

No - Congress taking direct control of the military.

That's basically what I said. If Congress makes a law that allows them to give orders to the military, that is "taking direct control of the military".

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).

It's not explicit in the Constitution. The cabinet position of Attorney General was created in 1789, and when the Department of Justice (a part of the Executive branch, which the Attorney General heads) was created in 1870 it was officially given the duty to represent the US in all criminal and civil suits in which the United States has an interest.

That means that yes, the Executive branch has the mandate to defend the law, and if some other branch of the government is defending the law then that is a violation of speration of powers.

[ttribe]

That's basically what I said. If Congress makes a law that allows them to give orders to the military, that is "taking direct control of the military".

I had something else in mind, but whatever.

It's not explicit in the Constitution. The cabinet position of Attorney General was created in 1789, and when the Department of Justice (a part of the Executive branch, which the Attorney General heads) was created in 1870 it was officially given the duty to represent the US in all criminal and civil suits in which the United States has an interest.

That means that yes, the Executive branch has the mandate to defend the law, and if some other branch of the government is defending the law then that is a violation of speration of powers.

So, would you prefer that the Executive Branch become de-facto lawmakers by picking and choosing which laws to defend? Also, are we now skipping over the Judicial Branch's role?

[Jason]

So, would you prefer that the Executive Branch become de-facto lawmakers by picking and choosing which laws to defend? Also, are we now skipping over the Judicial Branch's role?

?

Perhaps I should recap:

My beef with the Obama Administration deciding that DOMA is unconsitutional and refusing to defend it in the future is two-fold:

1) The Executive branch doesn't have the power to determine which laws are constitutional and which aren't. Refusing to defend a law in court has the same practical effect as declaring it unconsitutional. Either instance is a violation of seperation of powers of the Executive branch encroaching on Judicial branch territory.

2) This same excuse could be theoretically used for any law the President decides he doesn't like, allowing him to legislate (by effectively repealing laws normally outside the reach of his veto power) - a violation of seperation of powers with the Legislative branch.

The idea that "it's okay, because Congress wrote into the law that they can defend it if the President refuses to," is itself a violation of seperation of powers, only this time it's the Legislative encroaching on the Executive's turf. The excuse "the Executive isn't doing it's job so we have to do it" doesn't mean it's not a violation and doesn't make it right to do so.

So no, I don't want the Executive to become de-facto law makers. I want them to do the job they took an oath that they would do and defend and enforce all of the laws regardless of whether they personally agree with any specific law.

No, I'm not in favor of skipping the Judicial branch's role - but the current President apparently is interested in short-circuiting the system in order to get rid of a law he doesn't like, and I find it shameful.

[frankenstein]

My beef with the Obama Administration deciding that DOMA is unconsitutional and refusing to defend it in the future is two-fold:

1) The Executive branch doesn't have the power to determine which laws are constitutional and which aren't. Refusing to defend a law in court has the same practical effect as declaring it unconsitutional. Either instance is a violation of seperation of powers of the Executive branch encroaching on Judicial branch territory.

How is the Prosecutorial discretion violating a separation, when, the Law is still the law, and the law only becomes unconstitutional when the Supreme Court says so. Another way for the law to no longer be law is that Congress can repeal it.

DOMA Section 3 is still the law; since DOMA section 3 law, how can there be a separation of powers issue?

Do you agree with the statement of Thomas Jefferson, that a President should not (and theoretically is not authorized to) enforce unconstitutional laws?

[ttribe]

?

Perhaps I should recap:

My beef with the Obama Administration deciding that DOMA is unconsitutional and refusing to defend it in the future is two-fold:

1) The Executive branch doesn't have the power to determine which laws are constitutional and which aren't. Refusing to defend a law in court has the same practical effect as declaring it unconsitutional. Either instance is a violation of seperation of powers of the Executive branch encroaching on Judicial branch territory.

2) This same excuse could be theoretically used for any law the President decides he doesn't like, allowing him to legislate (by effectively repealing laws normally outside the reach of his veto power) - a violation of seperation of powers with the Legislative branch.

The idea that "it's okay, because Congress wrote into the law that they can defend it if the President refuses to," is itself a violation of seperation of powers, only this time it's the Legislative encroaching on the Executive's turf. The excuse "the Executive isn't doing it's job so we have to do it" doesn't mean it's not a violation and doesn't make it right to do so.

So no, I don't want the Executive to become de-facto law makers. I want them to do the job they took an oath that they would do and defend and enforce all of the laws regardless of whether they personally agree with any specific law.

No, I'm not in favor of skipping the Judicial branch's role - but the current President apparently is interested in short-circuiting the system in order to get rid of a law he doesn't like, and I find it shameful.

Look, I get the argument from principle; I really do. But, given the circumstances where there's a clear lack of any enforceable "requirement" to make the E-Branch defend the law, I'd rather have a backup in the form of Congress reserving the right to do just that. It's a practical solution to the problem at this stage.

[Jason]

How is the Prosecutorial discretion violating a separation, when, the Law is still the law, and the law only becomes unconstitutional when the Supreme Court says so.

Refusing to defend a law that is going to be challenged in court has the same practical effect as repealing it.

Do you agree with the statement of Thomas Jefferson, that a President should not (and theoretically is not authorized to) enforce unconstitutional laws?

I agree that the President cannot enforce unconstitutional laws, however the President cannot determine what laws are unconstitutional - that would be a violation of seperation of powers (judicial review - determining if a law is constitutional - is a power of the Judicial branch).

He therefore cannot refuse to defend a law on the basis that he believes it will be found to be unconstitutional (though he might conceivably find other reasons to refuse to defend a law).

[blackstrap]

If a law is declared unconstitutional by the USSC ,then how long does that law remain on the books so as to be enforced by the Executive branch? Days,weeks,years? It seems logical that the President not enforce a law that has been declared unconstitutional.What about laws that the President thinks are unconstitutional? Can he avoid enforcing them until and unless they are declared one way or another by the USSC? What is the history pertaining to the laws around the time of the civil rights turmoil in the 60's ?

[USU78]

The purpose of the protests is to get attention to a cause.

In Cissy and Mindy's tea party world maybe.

Do your cui bono analysis. What does it tell you.

USU "Hint: Who was in charge of Egypt before the noise . . . and who's in charge of Egypt today -- 2nd Hint: It ain't the people who took to the streets" 78

[Deborah]

If a law is declared unconstitutional by the USSC ,then how long does that law remain on the books so as to be enforced by the Executive branch?

A federal judge ruled the health care plan unconstitutional but he's doesn't seem to care about that.

[BCSpace]

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?

The law has yet to be determined to be unconstitutional so he has an obligation to defend it. And it's not just him, but the POTUS who campaigned in favor of the law and swore an oath to uphold the constitution and the laws of the land and it was ultimately his decision not to do so in this case. What if a conservative president and his/her administration had determined that Roe v Wade was unconstitutional and therefore would no longer defend anyone's right to an abortion? You can bet the "msm" would be all over that and the reason why they are not in this case shows that not only is the POTUS and his administration not in favor of the US Constitution and upholding the law, but it also shows that the "msm" is not as well. So the real question is what should we do with a POTUS who acts as if he is a one man Supreme Court?

[Daniel2]

In related news:

Marauding Gay Hordes Drag Thousands Of Helpless Citizens From Marriages After Obama Drops Defense Of Marriage Act

February 25, 2011 | ISSUE 47

[Jaybear]

What if a conservative president and his/her administration had determined that Roe v Wade was unconstitutional and therefore would no longer defend anyone's right to an abortion?

I think you are confused. In Roe, the court struck down as unconstitutional state laws which banned abortions. There was no federal legislation involved.

A better analogy would be if a conservative president refused to defend a constitutional challenge directed at a federal gun control legislation passed by congress.

So the real question is what should we do with a POTUS who acts as if he is a one man Supreme Court?

We already have a remedy available. Congress can choose to defend DOMA in court. Problem solved.

[Mordecai]

...In Roe, the court struck down as unconstitutional state laws which banned abortions. There was no federal legislation involved...

Except the Constitution only mentions things like illegal searches and seizures and not the "right" to an abortion. Nothing in the Constitution gave those judges authority to dictate such a corrupt law. Roe represented an egregious example of the Supreme Court legislating from the bench. Apparently, we have dictator-judges, and we are an oligarchy, not a constitutional republic. The Supreme Court decided it's more important and more powerful than Congress, and who is Congress to decide they are not? Apparently, elected officials mean nothing in the face of the all-knowing and all-powerful, godlike branch of the gov't known as the Supreme Court. Never mind that they've also ruled in favor of slavery and the like, proving they can be more than just fallible but just plain corrupt/evil.

A better analogy would be if a conservative president refused to defend a constitutional challenge directed at a federal gun control legislation passed by congress.

I would say his analogy is apt. "Roe v. Wade" was a made-up law and should have less sway over federal and state policy than DOMA. DOMA was enacted by Congress, who actually had the Constitutional authority granted to them to pass such a law. SCOTUS never had authority to make up laws like Roe, so if "President Palin" decided to ignore it, she would have more Constitutional authority to do so than Obama does to ignore DOMA.

[Jaybear]

Except the Constitution only mentions things like illegal searches and seizures and not the "right" to an abortion.

Yes, I know. You think the Supreme Court was wrong, and all those Courts that have since refused to overturn the decision were wrong as well. Not a big surprise.

Roe represented an egregious example of the Supreme Court legislating from the bench.

Was the court also legislating from the bench, when it ended school segregation and bans on interracial marriages, or when they gave those accused of a crime the right to an attorney?

Those ruling were also vigorously opposed by conservatives at the time they issued. Should they be overturned as judicial overreach. Likewise the Dred Scott decision, which you cite as an example of where the Court got it wrong, was a conservative interpretation of the constitution.

Conservatives want to have it both ways. They want to keep the "liberal" rulings they now agree with, while trashing the notion that the constitution is an organic document.

Apparently, we have dictator-judges, and we are an oligarchy, not a constitutional republic.

6 of the 9 members were appointed by Republicans.

I would say his analogy is apt. "Roe v. Wade" was a made-up law and should have less sway over federal and state policy than DOMA.

Its not analogous at all.

The AGs office is tasked with enforcing DOMA.

The AGs office is not tasked with enforcing Roe.

Roe extends rights to individuals. Those individuals (not the AG) "enforce" Roe when a state law violates their rights by bringing a federal court action seeking to invalidate the law.

But humor me, how exactly would a President Palin go about not enforcing Roe?

[Mordecai]

Yes, I know. You think the Supreme Court was wrong, and all those Courts that have since refused to overturn the decision were wrong as well. Not a big surprise.

Of course they haven't. They'd have to admit that they never had the authority. You really think SCOTUS will reduce their own power, when Congress has implied that they do have the authority by standing by and doing nothing?

Was the court also legislating from the bench, when it ended school segregation and bans on interracial marriages, or when they gave those accused of a crime the right to an attorney?

Honestly, I don't know. I'd have to look at their ruling. I'm not sure what in the Constitution they based their ruling on. I do know that it was unjust for the country to practice segregation, but I don't know that the Constitution had anything in it that would specifically ban such a practice. It was Congress's and/or the state legislature's job to deal with such issues, but they shirked their responsibilities. Certainly, the best scenario would be to never have to involve SCOTUS in the first place and simply end the practice. Clearly, a wicked country can't maintain a democracy, and this is a prime example of that.

Congress certainly knew they were weak and lacked authority by allowing such behavior, so they lacked the authority to do anything about SCOTUS perhaps overstepping their bounds, seeing as the justice in SCOTUS's ruling gave them authority. Reason/Nature are higher authorities and SCOTUS appealed to that, apparently giving them greater authority than Congress. However, technically, they still overstepped their Constitutionally given authority, I suspect.

Likewise the Dred Scott decision, which you cite as an example of where the Court got it wrong, was a conservative interpretation of the constitution.

That wasn't a conservative interpretation of the Constitution. They were liberal with their interpretation, technically, going against a narrow definition of what the founders intended. I wouldn't call it a liberal ruling, either, though. What it was, just like Roe, was a tyrannical ruling, a power grab, not based on reason, history nor the Constitution. It's not about liberal and conservative; it's about tyranny and power-mongering.

Conservatives want to have it both ways. They want to keep the "liberal" rulings they now agree with, while trashing the notion that the constitution is an organic document.

This has to do with Constitutional conservatism, meaning we interpret the Constitution the way it was written, not based on whims. Congress should have done their job, ending segregation and all slavery and should censure SCOTUS, telling them, "If we want you to do our job, we'll let you know." I would prefer they impeach members of SCOTUS that make up laws as they go along, especially when they are costing tax payers billions, bankrupting the country, by making up policies out of thin air.

...6 of the 9 members were appointed by Republicans...

That means what to me? Totally irrelevant and has nothing to do with anything. It's a red-herring, built into our political system that I'm tired of dealing with. It simply distracts from the real issues.

...Its not analogous at all...

Just like Newton's apple wasn't analogous to the planets, because planets aren't red and shiny. It's perfectly analogous, in that "President Palin" would be grabbing power in the face of staunch opposition, the law and tradition. It's the same thing in that sense. If you take the time to think about how you'd feel if Palin did such a thing, then you'll start to understand why conservatives aren't happy with Obama's lawlessness.

[Jaybear]

Honestly, I don't know. I'd have to look at their ruling. I'm not sure what in the Constitution they based their ruling on.

Roe v. Wade was not decided in a vacuum. If you haven't reviewed the 14th Amendment cases that preceded Roe v. Wade, you are really not in the position to criticize the integrity of the Supreme Court.

Congress should have done their job, ending segregation and all slavery and should censure SCOTUS, telling them, "If we want you to do our job, we'll let you know." I would prefer they impeach members of SCOTUS that make up laws as they go along, especially when they are costing tax payers billions, bankrupting the country, by making up policies out of thin air.

If Congress could be trusted to protect the inherent rights of those without a voice, ie slaves and former slaves, we wouldn't need a bill of rights.

It's the same thing in that sense. If you take the time to think about how you'd feel if Palin did such a thing, then you'll start to understand why conservatives aren't happy with Obama's lawlessness.

If Palin did what, specifically. What is it you think the President is supposed to do with Roe v. Wade?

[Mordecai]

Roe v. Wade was not decided in a vacuum. If you haven't reviewed the 14th Amendment cases that preceded Roe v. Wade, you are really not in the position to criticize the integrity of the Supreme Court.

I am in a position to read the Constitution and see that there is nothing in the Constitution that gives the Supreme Court the authority to make up laws. The Constitution is the highest law in the land, not case law, as you imagine. That the ruling was gradually built up to is no surprise. Most serious violations of the law are built up to, as SCOTUS tested the water in the past to see what they could get away with. Unchecked power eventually gets out of control, of course, and that is exactly what happened.

If Congress could be trusted to protect the inherent rights of those without a voice, ie slaves and former slaves, we wouldn't need a bill of rights.

Similarly, if SCOTUS could be trusted to be dictators, we wouldn't need elected officials.

If Palin did what, specifically. What is it you think the President is supposed to do with Roe v. Wade?

How about officially declare it unconstitutional and instruct conservative states to ignore it, using her czars, political influence and bully pulpit to fight any resistance to bans on abortion. Regardless, it's an apt analogy in that it is an egregious power grab, appealing only to the base (in Obama's case, the extreme left).

[Daniel2]

Mordecai,

I'll repeat: Obama isn't advocating lawlessness or ignoring the rule of law. He is not refusing to enforce DOMA--he's merely instructed the AG to cease to defend the constitutionality of it in appeals courts, in keeping with the ruling by several judges who have already ruled that DOMA is unconstitutional.

A lot of people are repeating ignorant statements about "Obama Law" or "Obama's Lawlessness" or "The Rule of Obama." Those doing so are ignorant of the reality of Obama's position or stance with regards to the rule of law. The following video shows the erroneous statements juxtaposed with what the press release actually says. Those angry with Obama's "lawlessness" would do well to educate themselves by watching it:

And wow... nobody even repsonded to the Onion article...? I thought it was hilarious.

Darin

[Daniel2]

By the way, I came across another great video about Marriage Equality today--this time about the bill in support of allowing same-sex couple equal marriage rights that's currently being discussed in Maryland. The video is a Mormon physican, U.S. Army Colonal, combat veteran, and father testifying in favor of the marriage equality bill in front of the House Judiciary Committee on Friday:

Amazing father.

Darin

[frankenstein]

If you take the time to think about how you'd feel if Palin did such a thing, then you'll start to understand why conservatives aren't happy with Obama's lawlessness.

not a good comparison, but I get the gist of your point. a person who does not understand why there are two Koreas, does not even come close to a Constitutional Law Professor stating a opinion that a law is unconstitutional, but your point is understand.

DOMA is still on the books, DOMA is still in full force and affect. DOMA has been ruled unConstitutional by at least 1 Federal Judge, the cases (DOMA case) throughout the nation will likely be lumped together and heard by Scotus in the near future (considering Judicial time)

[Mordecai]

...he's merely instructed the AG to cease to defend the constitutionality of it in appeals courts...

This is what is supporting lawlessness. DOMA is not remotely unconstitutional. Not in the slightest. To have the AG stop defending it is the problem, and it does represent a lack of respect for the law. If SCOTUS rules that it is Constitutional, will he change his mind? I don't think he has the humility to change his position, now that he's publicly committed to undermine Congressional authority on this issue to galvanize his base.

not a good comparison, but I get the gist of your point. a person who does not understand why there are two Koreas, does not even come close to a Constitutional Law Professor stating a opinion that a law is unconstitutional, but your point is understand.

The thing about the typical lawyer/law professor is that they generally don't care what the Constitution says, other than how they can use it to support their agenda. They care how they can manipulate and cherry pick what the Constitution and case law say. You're being a drone if you actually believe that the typical Constitutional-law professor is a higher authority on what the Constitution says than a person with decent reading comprehension and respect for the law.

[Jaybear]

This is what is supporting lawlessness. DOMA is not remotely unconstitutional. Not in the slightest.

This assertion seems to be the premise of your anti-Obama rant.

Many here are far right social conservatives but they pretend to be libertarians. Here is what an actual libertarian, the 2008 Libertarian Presidential nominee Bob Barr had to say about DOMA:

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said,

[Daniel2]

This is what is supporting lawlessness. DOMA is not remotely unconstitutional. Not in the slightest. To have the AG stop defending it is the problem, and it does represent a lack of respect for the law.

In July 2010, a federal judge in Boston, Massachussetts did rule that DOMA is unconstitutional. As such, your characterization that "DOMA is not remotely unconstitutional. Not in the slightest" is either merely a simple expression of your belief that you disagree with his ruling (presumably because you studied the case more and are better informed that the Boston federal judge who presided over the trial did), or you may be simply misinformed that DOMA has been ruled unconstitutional:

Judge declares US gay marriage ban is unconstitutional

July 8, 2010 06:55 PM.

By Michael Levenson, Globe Staff

A federal district court judge in Boston today struck down the 1996 federal law that defines marriage as a union exclusively between a man and a woman.

Judge Joseph L. Tauro ruled that the federal Defense of Marriage law violates the Constitutional right of married same-sex couples to equal protection under the law and upends the federal government

[Jason]

Decisions about marriage can't be left solely to the states, because at the moment the states have different ideas for what is a legal marriage.

[Daniel2]

Decisions about marriage can't be left solely to the states, because at the moment the states have different ideas for what is a legal marriage.

I agree with you. There needs to be a federal standard about marriages that are federally recognized from all 50 states. DOMA worked and made sense when no state recgonized same-sex civil marriage, just as nation-wide anti-miscegenation laws worked for a time, until some states began allowing interracial marriage.

Over time, however, just as the patchwork of anti-mecegenation laws eventually proved unworkable, DOMA has proved unmanageable in that it compels the federal government from refusing to recognize the civil marriages of states that grant their same-sex residents the ability to civilly marry, thereby creating an inequality among state representation.

In short, just as our goverment eventually recognized the right for all consenual citizens the right to marry their spouse of choice regardless of race, the federal standard will eventually need to follow suit with regards to recognition of the right of all consentual citizens to marry their choice of partner, regardless of gender.

Darin