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Not defending the health care bill

Would you support the action posted below?


  • Total voters
    19
The Presidents first and foremost job is to protect the Constitution. If a President believes a law to be unconstitutional then he has a right, and an obligation as POTUS to stop defending any law that is in the courts...be they enacted during or before his nomination and appointment.
So why bother with the courts at all if the President gets to decide what is and is not Constitutional?
 
The Presidents first and foremost job is to protect the Constitution. If a President believes a law to be unconstitutional then he has a right, and an obligation as POTUS to stop defending any law that is in the courts...be they enacted during or before his nomination and appointment.

Hmm. I agreed that POTUS had the legal right to stop defending a law believed to be unconstitutional. I didn't think that they should have had the right to do that, because that opens the door to presidents repeatedly refusing to defend laws they didn't like simply by stating they personally thought it might be unconstitutional, and envisioned the potential domino effect down the road, where laws were only in effect until a president who didn't like that law came into office.

However, upon reading your opinion, perhaps I wasn't giving the judiciary enough credit. Someone appealing a law's constitutionality has to have a legitimate legal concern to do so, or the appeals courts will through the case out whether it is defended or not.

I must consider this further.
 
I can't figure out Obama's strategy. Not only is this a dangerous precedent to set, but invoking such a culture war is not in his favor come 2012. This is not a pragmatic and calculated move. If anything, given the current political climate, this is what I would expect of someone who wanted to galvanize all the troops against same sex marriage.

The only benefit he could derive is forcing House Republicans into a position where they have to defend this case and as can be seen from similar debates on this forum about same sex marriage, it will make them appear a lot like religious tyrants.
 
I support this course of action in both cases because I think that both pieces of legislation (Obamacare and DOMA) represent federal usurpation of state authority. Neither of them should be defended by the justice department, IMO, because neither of them should exist.
 
So why bother with the courts at all if the President gets to decide what is and is not Constitutional?

Because the President can still support an unconsitutional law. For example...Obamacare. Obama supports that.

But if you think about it the president has always had this ability. Our founding fathers gave the President two powers which he alone has. The power to veto any bill set before him. That power alone shows that he has the right to decide if a bill is unconstitutional. The next power that he has is his executive order power. That allows him to basically write laws. However it is not as binding as a law passed by the House. Any President afterwords can over ride a previous presidents executive order. Between the two the President obviously has the ability to decide whether a law is Constitutional or not.
 
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.
 
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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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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 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.
 
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.
 
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.
 
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
 
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.
 
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).
 
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.
 
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.
 
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.
 
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.
 
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.
 
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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