Obama government will stop defending the DOMA

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Terrific news! Hopefully by the 2012 election, Obama will stop lying about his position on gay marriage as well.

Has the government ever refused to enforce a law before because it anticipates that SCOTUS will strike it down before?  If that is the new modus operandi, I wonder if the administration will refuse to implement Obamacare for the same reason.  

Why would the administration expect the Supreme Court to strike down a law that very few but the most partisan Republicans think is unconstitutional?

I have to disagree with that characterization. Apparently a couple of judges think its unconstitutional. Yes, I know, they are both among the "most partisan Republicans," right? In my professional judgment, I would guess the odds are about 60-40 that Obamacare will be tanked. It is beyond the commence clause, and quite difficult to shove into it's a mere tax category for a variety of reasons. It's in trouble.  

Absolutely bogus. There is widespread academic consensus that Obamacare is constitutional based on current precedent. Whether the Supreme Court will alter precedent is something else entirely, but not something that needs to be seriously considered in this regard--and even then I find it hard to imagine the current court striking it down. (There will be the Hack for striking it down, of course, and Scalia and Thomas who dissent from all of the precedent, but I strongly doubt either Kennedy or Roberts would rule against it.)

At least one of the two judges is a blatant partisan hack in his opinion (the Florida guy). The Virginia one, less familiar, but his ruling was not exactly airtight in reasoning, either.

[Verily]

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Really?  Fancy that. I wonder how that conclusion was drawn. I wonder how and when this consensus emerged that the commerce clause allows the feds to do anything not otherwise unconstitutional?  Is the consensus also that the SCOTUS decisions striking down federal laws in the past that they considered beyond the scope of the commerce clause were simply wrong?  Can someone help me some more with some of this?  Obviously, I need it. Thanks.

Did Scalia recently approve a law that banned an individual from growing marijuana on his own land, for his own use, under the Commerce Clause?

Yes, there is clear precedent that the activity of producing goods for private use does indeed affect interstate commerce, because the dispensaries (in this case) that sell the stuff will lose business, plus the increased supply of weed will at the margins affect the price of that particular commodity.

Surely if the illegal marijuana market consists of interstate commerce, then the legal insurance market does as well, and the federal government can regulate and mandate as it wishes.

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Please don't fancy yourself by pretending you're a "genuine liberal"... try "genuine bald faced liar" in that case.

That's almost as clever as the time I was called "poopyface."

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"Classical" liberalism, simply put, is the desire for a smaller government that respects individual rights.  No classical liberal argues for a larger government or decreased rights.  Beyond that, the continuum can exist among anyone who satisfies those criteria.  That includes all manner of people, whether they accept or reject the idea of the monopoly of force.  It's really freakish how a "true liberal" nowadays is an outright fascist.  The square has been circled, war is peace, freedom is slavery.

Simply untrue.

Classical liberalism was the founding ideology of the modern state. It resisted the concentration of power in unelected (or otherwise illegitimate, since it was fine with unelected courts) officials, like monarchs and military leaders, but that is a far cry from resisting the power of the state.

Quite the opposite--the classical liberals were very much in favor of state intervention to improve infrastructure for trade or to educate and provide for the health of the general public, which they viewed as a civic government duties that had not been met by the previous governments. True, they were in some sense minimalist in these endeavors. (Sometimes, not always--the push for universal education, while its significance is largely forgotten today, was quite a radical and dramatic expansion of government authority.) But they certainly and undoubtedly dramatically expanded the scope and goals of the state in the 18th and 19th centuries with new programs designed to serve the public instead of the leadership.

[Verily]

By the way, without reading through all of the posts.......does anyone here finding the timing almost silly given what's going on around the globe at the moment?  (He should have done this much earlier, and during a relatively non-newsy period)

No, I find it perfectly rational; he wants it to be buried, to some extent.  Those who like it will notice and be happy, but those who don't are distracted by more important news.

Yeah, I agree with this.

Me too. I think it was timed to be quickly driven out of the news by Libya, Bahrain, Wisconsin, Christchurch, etc.

[Verily]

That's really the only issue that matters - as that would be a huge executive power grab if this could not be done.

Congress can choose to appoint someone. I wonder if the House GOP may actually decide not to do so, because this is the one part of DOMA which is clearly and unequivocally indefensible, and Boehner isn't looking to stir up the youngs before 2012 with a culture war where they have already banked all the votes they can get out of the issue.

Indefensible to gay rights activists, perhaps.  But not indefensible to the Republican social conservative base.  The Republicans are dead with their base if they don't fight Obama's nonsensical decision.

Indefensible on constitutional grounds. That doesn't mean the Republican social conservative base understands this, of course, and will want to waste money on a kamikaze run.

Indefensible under current law. If congress wanted to, it could prohibit the federal government from recognizing any marriage licenses issued in MA, NH, CT, VT, and Iowa. What it can't do is take a legally indistinguishable type of document(since there is no separate gay marriage and straight marriage license forms, not even gender is included on some of them) and honor some and not honor others.

 At the least, it seems highly unlikely the Court would allow Congress to pass such a law, even if it had to make up Constitutional doctrine to do so.

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Even besides its anti-gay bigotry, the DOMA is an iffy law regardless.

Let's say Brittain33 here decides to move to, say, South Carolina. This state, through DOMA, doesn't recognize his marriage to another man. He could thus legally marry a woman there. Per the US Constitution, his home state would be forced to recognize his South Carolina marriage even though he already has a recognized marriage with his MA husband and polygamy is illegal. Confusing legal hellhole waiting to happen.

This is interesting. Someone should try it. Probably would not be hard to do.

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Bacon King has a great point that I never thought of before. How would that legal conundrum be handled?

The same way that first cousin marriages are handled. They are void in the states that do not permit such behavior.

Not true, mostly. The states vary, but at least some have held otherwise. For example, the Arkansas Supreme Court (the most recent state court to address the issue, in 1986), found that Arkansas had to recognize out-of-state cousin marriages even though cousin marriage was expressly forbidden in Arkansas. A similar case was decided on a technicality in Arizona in 2005.

I don't think there has ever been a federal Constitutional challenge on the issue via Full Faith and Credit, so the federal courts have never considered the issue. Hard to see them finding for the state looking to deny recognition, though.

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None of the state cases addressed FF&C. They were all based on their state constitutions and statutes. There's very little case law on the matter even in that regard, and nothing on the Constitution. Not sure why; one would figure the plaintiffs would at least try the argument. Maybe they all had bad lawyers (not that surprising; cousin marriage isn't exactly seen as a pressing civil rights issue, so no pro bono or public interest backing, and probably these challenges are not being brought by people with money).

The result in the Arizona case was that they found the Arizona law forbidding cousin marriage did not apply to out-of-state cousin marriages performed before the law was passed, so they had to recognize the marriage, which doesn't address the core issue at all (although it does suggest that Arizona, which did not ban gay marriage until 2008, might have to recognize gay marriages performed elsewhere before 2008 if someone challenged the ban).