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Thread: Not defending the health care bill

  1. #41
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    Re: Not defending the health care bill

    Quote Originally Posted by iamitter View Post
    DOJ defenses usually go on recommendation of the AG, who is appointed by the president.
    I am not aware of any previous case of the Department of Justice declining to defend the law from a legal challenge.

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    Re: Not defending the health care bill

    Quote Originally Posted by Viktyr Korimir View Post
    I am not aware of any previous case of the Department of Justice declining to defend the law from a legal challenge.
    My favorite example: Crazy Horse malt Liquor. Congress passed a law to make it illegal to use the words "Crazy Horse" on beer labels back in 1992. Brewer sued, lower court sided with the brewery, and the administration refused to defend the law since clearly it was a violation of the first amendment.

    Source: Law.com - Government's 'Duty to Defend' Not a Given
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    Quote Originally Posted by Fiddytree View Post
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  3. #43
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    Re: Not defending the health care bill

    Quote Originally Posted by Redress View Post
    My favorite example: Crazy Horse malt Liquor. Congress passed a law to make it illegal to use the words "Crazy Horse" on beer labels back in 1992. Brewer sued, lower court sided with the brewery, and the administration refused to defend the law since clearly it was a violation of the first amendment.

    Source: Law.com - Government's 'Duty to Defend' Not a Given
    Duly noted. But the article notes that it requires an extraordinarily higher standard of futility to justify declining; if there is any valid argument that the law is Constitutional, the DoJ would still seem obligated to present it.

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    Re: Not defending the health care bill

    Quote Originally Posted by Viktyr Korimir View Post
    Duly noted. But the article notes that it requires an extraordinarily higher standard of futility to justify declining; if there is any valid argument that the law is Constitutional, the DoJ would still seem obligated to present it.
    Here is the DoJ release on this: Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

    The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.



    Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.
    Basically, section 3 is the issue, and when it goes to the next higher court, it is almost certain(maybe completely certain, not a law expert) that the higher standard will be in effect for evaluating discrimination, and under that higher standard, there is simply no reasonable argument to defend section 3. The conservative judge who ruled on the Mass case ruled clearly that section 3 did not pass under the lower standard("no rational basis" was I think his words iirc).
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    Quote Originally Posted by Fiddytree View Post
    Uh oh Megyn...your vagina witchcraft is about ready to be exposed.

  5. #45
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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.
    The DoJ *does* serve at the pleasure of the president. And as I understand it, the power to enforce the law includes the power NOT to enforce it. Just like there is no obligation to investigate and prosecute every crime with equal zeal.
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    Re: Not defending the health care bill

    Quote Originally Posted by Kandahar View Post
    The DoJ *does* serve at the pleasure of the president. And as I understand it, the power to enforce the law includes the power NOT to enforce it. Just like there is no obligation to investigate and prosecute every crime with equal zeal.
    The law is still being enforced. This has nothing to do with enforcement.
    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.

  7. #47
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    Re: Not defending the health care bill

    So since you both didn't vote, just wanting to be clear in understanding you about THIS question, and not about DOMA.

    Redress and Kand, are you saying that in 2012 if a Republican became President and they determined in their opinion that there is no way to truly defend the health care bill because in their opinion its unconstitutional, you would have no issues from a procedural stand point with them refusing to defend challenges against it in court?

    Mind you, I'm not asking YOUR opinion as to whether or not its unconstitutional or not or whether or not you think there is ways to defend it....for example, I firmly disagree with the Obama's Administration's belief there's no way to honestly defend DOMA with a chance of success....but rather if they make the determination and thus take this course of action, is the action itself okay in your mind. Just wanting a clear answer since I didn't notice your vote either way.

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    Re: Not defending the health care bill

    Quote Originally Posted by Zyphlin View Post
    So since you both didn't vote, just wanting to be clear in understanding you about THIS question, and not about DOMA.

    Redress and Kand, are you saying that in 2012 if a Republican became President and they determined in their opinion that there is no way to truly defend the health care bill because in their opinion its unconstitutional, you would have no issues from a procedural stand point with them refusing to defend challenges against it in court?

    Mind you, I'm not asking YOUR opinion as to whether or not its unconstitutional or not or whether or not you think there is ways to defend it....for example, I firmly disagree with the Obama's Administration's belief there's no way to honestly defend DOMA with a chance of success....but rather if they make the determination and thus take this course of action, is the action itself okay in your mind. Just wanting a clear answer since I didn't notice your vote either way.
    Correct, if there is no way the bill can be defended, from a procedural standpoint it is a perfectly valid thing to do.
    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.

  9. #49
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    Re: Not defending the health care bill

    Quote Originally Posted by Redress View Post
    Correct, if there is no way the bill can be defended, from a procedural standpoint it is a perfectly valid thing to do.
    That's not what you've been saying though. You've been saying that there's no way in the opinion of the administration that the bill can be defended. I think there's some laywer, somewhere, for just about any case that thinks they have a legitimate way at defending a bill. However, your point seems to be if the administration feels it can't be defended.

    One, what you said in your last post, is some kind of absolute that is unprovable and improbable to be considered universally true. The other, what you seem to be speaking about throughout this thread, is far more likely where an administration bases their opinion on the facts as they see it and comes to the conclussion that there's no way it can be defended.

  10. #50
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    Re: Not defending the health care bill

    Quote Originally Posted by Zyphlin View Post
    Here's the question, for liberals and conservatives alike.

    To preface this I'd like request two things:

    First, that I ask you to answer under the hypothetical that the Obama Administration did not come out and say that they would not defend DOMA in court. IE, I don't want the conservatives on here saying "Absolutely, if they did it we should to". I want the question answered based simply on itself and your feelings in a general sense as to how the various branches of government should work.

    Two, the poll is not necessarily asking for your PERSONAL opinion...IE would you agree with the principle of the action...but on a governmental procedural action. The govermental version of "I don't agree with what he's saying, but I agree with his right to say it". I'm not asking if you'd agree that it SHOULD be done, but rather should it be allowable.

    So here's the question:

    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?
    I voted "No." IMO, this would be a subversion of the Democratic process. No different than our Wisconsin legislators who refuse to show up because they know they'll be out-voted.
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