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Thread: Not defending the health care bill

  1. #31
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    Re: Not defending the health care bill

    Quote Originally Posted by Zyphlin View Post
    If Republicans win in 2012 and the new President decides that he believes the Health Care Law that was passed is unconstitutional, do you think it is acceptable and alright for him to have the Justice Department refuse to defend the law in court cases allowing it to be challenged in court without any proper defense of its legality being put forward by the state?
    No. And here's why...

    Our system of government established three separate branches of goverment, each with a specific function, each acting as checks and balances upon the other. From a legal perspective, the Legislative branch was authorized to write the laws of the land and our Judicial branch was authorized to interpret how those laws are being applied fairly across the nation. Should there be a conflict between private citizens or another entity, i.e., a corporation or the U.S. Government itself, i.e., and the Supreme Court believes Congress has overstepped its bounds and infringes on the rights of the citizenry, they can rescind that law.

    Congress also has the authority under the Constitution to overturn a law, but only either by sending such a bill for rescission to the President for approval or, if disapproved, a 2/3rd vote is obtained in both chambers of Congress. Otherwise, the President does NOT have the authority NOT to uphold a law nor to direct the Supreme Court not to take up same in the highest court of the land.
    Last edited by Objective Voice; 02-25-11 at 01:02 AM.

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    Re: Not defending the health care bill

    Quote Originally Posted by X Factor View Post
    So why bother with the courts at all if the President gets to decide what is and is not Constitutional?
    The president is not making that determination. The courts still do that. The president is deciding whether to throw the AG/SG resources into defending the challenge to the law.
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    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

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    Re: Not defending the health care bill

    If a Republican wins in 2012 (and presumably the Republicans maintain control of Congress), I think it's a foregone conclusion that they'll try to block it any way they can anyway. But hypothetically...

    I'm not really sure how the appeals process for these things works, so I can't give you a very informed answer. But it makes sense to me that the executive shouldn't have to defend any law he/she doesn't want to. As long as someone is allowed to defend it so that it gets a fair hearing (and I'm really not sure how you'd determine who), it seems OK to me.
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  4. #34
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    Re: Not defending the health care bill

    Quote Originally Posted by Objective Voice View Post
    No. And here's why...

    Our system of government established three separate branches of goverment, each with a specific function, each acting as checks and balances upon the other. From a legal perspective, the Legislative branch was authorized to write the laws of the land and our Judicial branch was authorized to interpret how those laws are being applied fairly across the nation. Should there be a conflict between private citizens or another entity, i.e., a corporation or the U.S. Government itself, i.e., and the Supreme Court believes Congress has overstepped its bounds and infringes on the rights of the citizenry, they can rescind that law.

    Congress also has the authority under the Constitution to overturn a law, but only either by sending such a bill for rescission to the President for approval or, if disapproved, a 2/3rd vote is obtained in both chambers of Congress. Otherwise, the President does NOT have the authority NOT to uphold a law nor to direct the Supreme Court not to take up same in the highest court of the land.
    Point of interest here...Obama has not directed the Supreme Court to not take up the same. He has directed the WH's lawyers to no longer defend a law. Also you are combineing the Presidents veto power with that of Congress's ability to over ride a law. They are two seperate powers.
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    Re: Not defending the health care bill

    The Obama Administration continues to enforce DOMA; i.e., it remains the law of the land. They've concluded that it is in fact unconstitutional and hence will not defend it when challenged in court. Apparently Congress has standing and can defend it if they choose to.
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    Re: Not defending the health care bill

    Once again I ask this not to become a debate as to whether or not Obama is is right or should be acting specifically to the DOMA case. There are a lot of threads already discussing if its a good or bad thing, if you support it or not, why he's doing it or not, the political ramifications, etc. This is a thread focusing more on the procedure in a generalize sense, which is why I was attempting to talk about it in a hypothetical separate from the DOMA case.

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    Re: Not defending the health care bill

    Quote Originally Posted by Kal'Stang View Post
    Point of interest here...Obama has not directed the Supreme Court to not take up the same. He has directed the WH's lawyers to no longer defend a law. Also you are combineing the Presidents veto power with that of Congress's ability to over ride a law. They are two seperate powers.
    Read the Constitution again, Article 1, Section 7 details.

  8. #38
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    Re: Not defending the health care bill

    The Department of Justice does not serve at the whim of the President and his opinion on the law is irrelevant; the President and the Department of Justice are both charged with enforcing the law as it is written. Neither has the authority to change the law or refuse to enforce it, which would include defending it against legal challenges until such time as it is lawfully overturned. To hold otherwise is to undermine the authority of the legislature and the rule of law itself.

  9. #39
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    Re: Not defending the health care bill

    Quote Originally Posted by Viktyr Korimir View Post
    The Department of Justice does not serve at the whim of the President and his opinion on the law is irrelevant; the President and the Department of Justice are both charged with enforcing the law as it is written. Neither has the authority to change the law or refuse to enforce it, which would include defending it against legal challenges until such time as it is lawfully overturned. To hold otherwise is to undermine the authority of the legislature and the rule of law itself.
    DOJ defenses usually go on recommendation of the AG, who is appointed by the president.
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    Re: Not defending the health care bill

    Quote Originally Posted by Viktyr Korimir View Post
    The Department of Justice does not serve at the whim of the President and his opinion on the law is irrelevant; the President and the Department of Justice are both charged with enforcing the law as it is written. Neither has the authority to change the law or refuse to enforce it, which would include defending it against legal challenges until such time as it is lawfully overturned. To hold otherwise is to undermine the authority of the legislature and the rule of law itself.
    Except the law does not say this. In fact there are legal procedures for how to do exactly what is being done. It has been done 13(?) times since 2004.

    Here is a fascinating read, with actual details on what is going on(bolding mine, not source): Box Turtle Bulletin » DOMA: recap, summary, and analysis

    The Supreme Court has established a three part test to determine whether rational basis or a stricter level of scrutiny be considered: a history of discrimination, immutable characteristics comprising a discrete group, and political powerless minority subject to majority whim. On all three of these, the DOJ found itself incapable of arguing for rational basis and thus found that only strict scrutiny could be applied to sexual-orientation based discrimination.

    Secondly, Holder acknowledged that his office was incapable of presenting any argument in favor of anti-gay discrimination that could stand up to strict scrutiny. While theoretically rational basis arguments can be pie in the sky (though they must at least be rational), strict scrutiny required tangible real and compelling reasons for the discrimination that were tied to the legislature’s actual reasoning and there just wasn’t anything to present.

    It is important to understand that the Administration did not say that it was refusing on unwilling to defend the law but rather that it was incapable of defending the law. There simply were no arguments to present to the court.
    It goes on to say:

    Those who claim that the Administration is “choosing which laws to defend” are either confused or dishonest. Those who say that this will “nationalize” same-sex marriage and impose it on unwilling states are either confused or dishonest. Those who go on TV and spout completely false information about this decision are either irresponsible or dishonest. I’m inclined to suspect ‘dishonest.’
    Note: the house of representatives can choose to defend DOMA in court((see, there is a procedure for this, it's not something new). If they choose not to, then the law will probably be overturned on a summary judgment. If they do choose to defend the law, they have the additionally difficult task of explaining why not just the plaintiff, but the DoJ is wrong in their opinion, not to mention the lower court judge.
    We became a great nation not because we are a nation of cynics. We became a great nation because we are a nation of believers - Lindsey Graham

    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

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