Obama government will stop defending the DOMA

[Tender Branson]

Breaking News: Obama action against DOMA coming

By Jonathan Capehart

A well-placed and trusted source tells me that, any minute now, Attorney General Eric Holder will issue a statement announcing that it will no longer defend so-called Defense of Marriage Act lawsuits in court. The source believes DOJ had come to the conclusion that heightened scrutiny would apply, and that these cases cannot be defended in court. A 530d letter has been sent to Congress informing it that, if it wants to defend the statute, it is free to do so. A case is pending now that has a filing deadline of March 11.

This is huge, folks. By definitively stating that gay men and lesbians deserve heightened scrutiny, the Obama administration is declaring that there is no government interest in perpetuating the discrimination aggrieved parties are trying to redress.

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

[Tender Branson]

Attorney General Eric Holder said in a statement Wednesday that Obama “has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.”

“The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional,” Holder said. “Given that conclusion, the President has instructed the Department not to defend the statute in such cases.”

http://www.politico.com/politico44/

[Torie]

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.  

[Brittain33]

I agree, this seems like a bad precedent.

Does this mean the feds will now recognize my marriage? If not, when?

[Lief 🗽]

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?

[Torie]

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.  

[Landslide Lyndon]

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.  

Now that you mentioned it Torie...

http://tpmdc.talkingpointsmemo.com/2011/02/federal-judge-in-dc-upholds-health-care-reform-says-some-arguments-ignore-reality.php

A federal judge on Tuesday upheld the health care reform law signed last year by President Barack Obama and found that Congress had the clear authority to regulate health insurance under the Commerce Clause of the Constitution.

U.S. District Judge Gladys Kessler's 64-page ruling (below) takes aim at the argument espoused by many conservatives which holds that the passive act of not purchasing health insurance does not constitute an activity that can be regulated under the Commerce Clause.

"It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not 'acting,' especially given the serious economic and health-related consequences to every individual of that choice," Kessler writes. "Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality."

Kessler, however, rejected the argument that Congress had the authority to enact the Affordable Care Act under the General Welfare Clause because Congress "did not intend [the law] to operate as a tax."

The Justice Department welcomed the ruling, which was the "third time a court has reviewed the Affordable Care Act on the merits and upheld it as constitutional," a spokeswoman said in a statement.

"This court found -- as two others have previously -- that the minimum coverage provision of the statute was a reasonable measure for Congress to take in reforming our health care system," DOJ's Tracy Schmaler said. "At the same time, trial courts in additional cases have dismissed numerous challenges to this law on jurisdictional and other grounds. The Department will continue to vigorously defend this law in ongoing litigation."

[Lief 🗽]

Two judges, both appointed by Republicans, have found it unconstitutional. Most constitutional lawyers (as well as a majority of the judges who have heard the case) would agree that there is nothing unconstitutional about it, and most of the arguments against the individual mandate are silly for a host of reasons.

[Verily]

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.

[Linus Van Pelt]

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. 

I agree, this seems like a bad precedent.

But the government isn't refusing to enforce a law that's on the books just because it thinks it will be unconstitutional; it's just declining to appeal the decision of a court that has already found the law unconstitutional. There's nothing new or unseemly about this all; DOJ isn't under any obligation to appeal all the way to the Supreme Court every time a lower court overturns a federal law.

[Torie]

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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.

[Brittain33]

You must be logged in to read this quote.

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?

[cinyc]

I guess the Attorney General no longer is required to defend the laws of the United States in court if he doesn't like the law.

[Torie]

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. 

I agree, this seems like a bad precedent.

But the government isn't refusing to enforce a law that's on the books just because it thinks it will be unconstitutional; it's just declining to appeal the decision of a court that has already found the law unconstitutional. There's nothing new or unseemly about this all; DOJ isn't under any obligation to appeal all the way to the Supreme Court every time a lower court overturns a federal law.

Ah, that makes more sense. Pity the article was not written that way. Is there some reason that the losing side can't/didn't petition SCOTUS for a writ?

[Grumpier Than Uncle Joe]

I agree, this seems like a bad precedent.

Does this mean the feds will now recognize my marriage? If not, when?

The IRS sure as hell isn't going to.......as to when:



Sadly.

[Brittain33]

My partner and I make almost exactly the same income. If the marriage penalty still exists, we're a prime case for it.

[Torie]

You must be logged in to read this quote.

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.

[Verily]

You must be logged in to read this quote.

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.

[Brittain33]

The thread title should be changed from "enforcement" to "legal defense" because DOMA is still the law.

[bullmoose88]

You must be logged in to read this quote.

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.

The horrors of 1L constitutional law...stupid home garden affecting interstate commerce (tomatoes or potatoes whatnot).

[Torie]

Yes,  if my choosing to never get out of bed in the morning is deemed an act of interstate commerce, because I am not making money to tax, or suing people, increasing the cost of transactions, is deemed to affect interstate commerce, then I guess a law that I have to get out of bed at 6:00 am every morning, and go out into the marketplace to stir things up, would be deemed within the Feds' commerce power.

You know, not having kids affects interstate commerce too. Interesting.

[bullmoose88]

Yes,  if my choosing to never get out of bed in the morning is deemed an act of interstate commerce, because I am not making money to tax, or suing people, increasing the cost of transactions, is deemed to affect interstate commerce, then I guess a law that I have to get out of bed at 6:00 am every morning, and go out into the marketplace to stir things up, would be deemed within the Feds' commerce power.

You know, not having kids affects interstate commerce too. Interesting.

Wouldn't you say that the precedent since say the 1930s would make that interstate commerce, however silly...though recent cases have started to push that line of thinking back (See Lopez).

[Brittain33]

Yes,  if my choosing to never get out of bed in the morning is deemed an act of interstate commerce, because I am not making money to tax, or suing people, increasing the cost of transactions, is deemed to affect interstate commerce, then I guess a law that I have to get out of bed at 6:00 am every morning, and go out into the marketplace to stir things up, would be deemed within the Feds' commerce power.

You know, not having kids affects interstate commerce too. Interesting.

Not getting insurance = no presence in the national health care market is a bogus statement. It means that you can still end up in the emergency room and under federal law the hospital is obliged to treat you regardless of expense. It's impossible for someone to decline to participate in the health care system, or at least practically impossible, unless you go the full Ted Kaczynski and sever ties with civilization and even he found a way to drum up business for medical care providers.

[Torie]

Yes,  if my choosing to never get out of bed in the morning is deemed an act of interstate commerce, because I am not making money to tax, or suing people, increasing the cost of transactions, is deemed to affect interstate commerce, then I guess a law that I have to get out of bed at 6:00 am every morning, and go out into the marketplace to stir things up, would be deemed within the Feds' commerce power.

You know, not having kids affects interstate commerce too. Interesting.

Wouldn't you say that the precedent since say the 1930s would make that interstate commerce, however silly...though recent cases have started to push that line of thinking back (See Lopez).

No, doing nothing has never been held to be an act of interstate commerce. The null set has not yet become an "act" as it were. Stay tuned.

[bullmoose88]

Yes,  if my choosing to never get out of bed in the morning is deemed an act of interstate commerce, because I am not making money to tax, or suing people, increasing the cost of transactions, is deemed to affect interstate commerce, then I guess a law that I have to get out of bed at 6:00 am every morning, and go out into the marketplace to stir things up, would be deemed within the Feds' commerce power.

You know, not having kids affects interstate commerce too. Interesting.

Wouldn't you say that the precedent since say the 1930s would make that interstate commerce, however silly...though recent cases have started to push that line of thinking back (See Lopez).

No, doing nothing has never been held to be an act of interstate commerce. The null set has not yet become an "act" as it were. Stay tuned.

Fair enough.  Eagerly awaiting whatever you're drawing up here.