Obama government will stop defending the DOMA

[Brittain33]

I agree, this seems like a bad precedent.

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

[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?

[Brittain33]

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

[Brittain33]

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

[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.

[Brittain33]

While you were lying in bed doing nothing, a helicopter crashed into your neighbor's house and caused a fireball, inflicting 1st and 2nd degree burns over most of your body. While you were unconscious, an ambulance picked you up and took you to the hospital. Oh, and you're not Torie, you're an unemployed 24-year-old with no savings living in a rented apartment. Who pays your bills?

[Brittain33]

While you were lying in bed doing nothing, a helicopter crashed into your neighbor's house and caused a fireball, inflicting 1st and 2nd degree burns over most of your body. While you were unconscious, an ambulance picked you up and took you to the hospital. Oh, and you're not Torie, you're an unemployed 24-year-old with no savings living in a rented apartment. Who pays your bills?

Lying on my bed when a helo crashes into it is an act of interstate commerce by me? Flying a helo on the other hand ...

Is your point that a lack of a robust social safety net is an act of interstate commerce or what?

It's the argument that people can choose not to participate in the health care market and the mandate forces them to do so. Anyone living in anything less than complete isolation is participating in the health care economy.

[Brittain33]

While you were lying in bed doing nothing, a helicopter crashed into your neighbor's house and caused a fireball, inflicting 1st and 2nd degree burns over most of your body. While you were unconscious, an ambulance picked you up and took you to the hospital. Oh, and you're not Torie, you're an unemployed 24-year-old with no savings living in a rented apartment. Who pays your bills?

Easy.  The helicopter company, whose negligence caused their helicopter to crash.  I and the hospital sue them; they pay me and the hospital; I pay my bills.

Next question.

Right, there will never be an example where the hospital or the patient won't be able to collect from the guy who caused the crash. Certainly every car crash damages bill has been paid up and the perp never vanished or turned out to be broke.

[Brittain33]

But if it makes you feel better, you caused the fire yourself by doing some at-home electrical work, burn yourself up, the hospital takes you in and treats you without knowledge of ability to pay, and it turns out you have none. You're at fault. Well, hospital, go try to collect.

[Brittain33]

But if it makes you feel better, you caused the fire yourself by doing some at-home electrical work, burn yourself up, the hospital takes you in and treats you without knowledge of ability to pay, and it turns out you have none. You're at fault. Well, hospital, go try to collect.

But are you?  Perhaps the equipment you used had a defect.  Or perhaps you have home owners insurance. 

this is fun.

Ok, your meth lab blew up through documentable human error. You do not have homeowner's insurance.

[Brittain33]

But if it makes you feel better, you caused the fire yourself by doing some at-home electrical work, burn yourself up, the hospital takes you in and treats you without knowledge of ability to pay, and it turns out you have none. You're at fault. Well, hospital, go try to collect.

But are you?  Perhaps the equipment you used had a defect.  Or perhaps you have home owners insurance. 

this is fun.

Ok, your meth lab blew up through documentable human error. You do not have homeowner's insurance.

I think if your meth lab blew up, you have bigger problems than your lack of health and homeowner's coverage.

But who pays the hospital because you've chosen not to participate in the health care industry?

[Brittain33]

Why isn't this thread gay?

[Brittain33]

But if it makes you feel better, you caused the fire yourself by doing some at-home electrical work, burn yourself up, the hospital takes you in and treats you without knowledge of ability to pay, and it turns out you have none. You're at fault. Well, hospital, go try to collect.

As bullmoose88 said, perhaps I can sue the manufacturer or homeowners' insurance will pay.  But if they do not, simply making medical bills non dischargeable in bankruptcy would allow the hospital to collect over time.  In your hypotheticals, I'm 24, and have years of work ahead of me.

Ok, look. You can come up with hypotheticals where someone would pay the bill. But even today, pre-PPACA, in the real world, there are plenty of cases where hospitals take care of people and there is no bank account out there to make them whole because the patient doesn't have savings or the effort to collect it would be more than what's outstanding or the person vanishes. More to the point, it's both easy to see scenarios where the hospital is left holding the bag and in which someone says he's "not doing anything" by declining to buy health insurance only to find, through no fault of his own, he's being carried away in an ambulance and being cared for. It's sophistry to pretend this doesn't come up.

[Brittain33]

Holy crap, he forgot to be a moderate hero on an issue.

How do you get more moderate hero than this? He's not legalizing gay marriage or repealing DOMA, he's simply not enforcing it through his administration.

He doesn't have the power to repeal DOMA or legalize gay marriage--that falls to Congress, which was never going to do it under Pelosi, let alone Boehner. Congress is scared to death to be more progressive than the mainstream 60-year-old on gay rights.

[Brittain33]

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.

You must be logged in to read this quote.

Hard to see this as "growing politicization" of the Justice Dept. relative to the Bush years with this as an example.

[Brittain33]

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.

You must be logged in to read this quote.

Hard to see this as "growing politicization" of the Justice Dept. relative to the Bush years with this as an example.

Clinton's was no better, b33......they're all politicized.

I didn't pay much attention to this issue before Bush's second term and not at all when Clinton was President... this is something you know more about than I do.

[Brittain33]

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.

[Brittain33]

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.

Again, to gay rights activists.  The DOMA is perfectly defensible on constitutional grounds.  Nothing in the constitution confers rights to people due to sexual orientation, or so the argument goes.  

Cinyc, if it isn't clear, I am talking about the one section of DOMA that empowers the federal government to decline to recognize certain legal state marriages. You are not on solid ground here with your characterization of this as a minority view or an issue of special rights based on sexual orientation--it's about equal treatment of state marriages, as has always been done. I stand by what I said and the vast majority of con law experts are with me. All you are doing here is repeating Sam's ad hominem criticism, not making a case.

Now, the part of DOMA that allows Alabama and Utah to ignore my marriage may be found constitutional, I don't know; we will find out eventually and the DOJ hasn't said anything affecting those appeals. Similarly, the case for the legitimacy of prop 8 is very different and I wouldn't predict how Kennedy will rule on that.

[Brittain33]

Eric Holder, Bill Daley, and Barack Obama are not gay activists.

[Brittain33]

The law firm hired by Congress to represent them and defend DOMA has dropped the case.

http://tpmmuckraker.talkingpointsmemo.com/2011/04/law_firm_drops_doma_defense_leaves_house_gop_at_the_altar.php?ref=fpi

I'm surprised that the House Republicans can't find some law firm they know well that would take tons of money to wage this fight for them and lose with dignity before the base. All Congress has to do is get out the national checkbook and write a big blank check to whichever law firm happens to have some former Pubbie congressmen among its partners... everyone's happy.

[Brittain33]

Well the lawyer who took the case will continue to represent the House, just not the law firm, who was bullied out of representing the House by gay rights activists.   He resigned from the firm.

Gay rights activists have a First Amendment freedom of speech. I would strongly discourage trying to censor them in the interests of your own political views, that's not consistent with democracy. Spaulding and King as a law firm has the right to decide its own affairs without you deciding for them what they have an obligation to do or not to do--that's how it works in North Korea, not the U.S. Clearly an ideologically-motivated partner went off the reservation and made a decision that was bad for the firm and wasn't thought out. The firm didn't have an obligation to consider your desire, as neither a member of the firm, a client, or John Boehner, to see your opponents crushed under their bootheel.

Did you notice that the contract to represent Boehner in this losing case included a gag order banning all members of this law firm from advocating against DOMA, even in their private time, as private individuals? Do you think it is "gay activist bullying" to oppose that provision and think it was an overreach on the part of your side to impose on a large law firm?

[Brittain33]

If you're going to clutch your pearls and express outrage at brutal and thuggish behavior etc., you have an obligation to back your words up or back off.

Did you read about the gag order that Congress forced on all of the employees of this firm regarding activism about DOMA, including the very many who will have no tie with this case? Do you support that kind of thuggish bullying of free citizens?

If that is the reason the firm dropped the case, then I must say that is entirely despicable and thuggish behavior, that should be unacceptable and it shouldn't be tolerated from any group of activists regardless of what they support.

Not the firm's fault for lacking the cajones to take up a case concerning some great moral issue eh?

I didn't say that. If I was going to say that, I would have, but of course I didn't so don't be ridiculous.

All the focus is on the bullying...what bullying exactly...the disappointment expressed here should be directed at the firm...which seems to have balked with seemingly little pressure.

Since have I lost to right to focus on what I want to focus on. I really don't give a damn what anyone else has focused on in this thread. An it isn't my responsibility to ensure some kind of balance. If you are so worried about it, then you should bring it up, which you have. Problem solved.

[Brittain33]

BTW, before any more strawmen are hurled at me, I do think that DOMA should be defended and as I said in my first post in the revival of this thread I have no doubt there are some clubby old-line conservative law firms staffed with old hacks who are willing to take the case. If I thought that no one would take the case, as might happen with an unpopular defendent like a Gitmo detainee, that would be a real crime. But Paul Clement is still going to represent Cinyc's doomed arguments before the Supreme Court to the best of his ability, he's already landed at a different law firm, and my tax money will be paying him and his buddies huge amounts of money to put on this show and lose with dignity. Why are you complaining, Cinyc? The profits from this case will accrue to a firm that represents your beliefs and can reuse them to fund other causes you support--not King and Spaulding, which doesn't have the right moral agenda to deserve getting taxpayer funding.

[Brittain33]

By definition, if its a voluntary contract, there is no overreach.

Are we debating what is legally permissible or what is overreach in a general sense? Everything we've talked about so far is legally permissible, including S&K's pull-out, but people have gotten upset for other reasons. Ditto the gag order. Various employees of S&K got the gag order through no decision of their own and obviously someone in the firm decided after the fact they shouldn't have agreed to it and added it to everyone's term of employment.

You must be logged in to read this quote.

I would so love it for Boehner, Gallagher, etc. to bring it on and fight this issue. They won't. Some Pubbies might like to see the Speaker of the House sue a private law firm for not gagging random attorneys who speak out against DOMA, but this isn't 2004, and that kind of random vindictiveness would play very, very poorly among the base Obama needs to come out and swing voters who don't care for that kind of persecution.

[Brittain33]

seemingly little pressure.

Coca-cola weighed in. But I think you're on to something... they didn't need a boycott to realize this decision by the Bush administration veteran on behalf of the firm was not well thought out and they should revisit it.