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Trump administration won’t defend ACA in case brought by GOP states

MSgt said:
Well, it appears that you are absolutely correct.




There appears to be a loop-hole of "as long as" and "if reasonable argument" involved that allows the President to shrug off the obligation to defend something argued as unconstitutional. But then who the hell is supposed to defend the written laws? It would have been nice for the a-hole to list out the "rare cases" so that we can see those historical contexts' and where this precedence was set.
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Sessions is indeed relying on the Obama/Holder precedent (as the Administration is for many things it's doing), but as I detailed earlier in the thread, there were indeed reasonable arguments to be made in defense of DOMA.

As for the ACA, the reasoning goes that the individual mandate was found to be constitutional in 2012 because the penalty is a tax, and Congress has the power to tax. But Congress removed the penalty, so there's no longer a tax, and that argument is voided.

I happen to think this is correct, as an argument.

I also happen to think the 2012 case was wrongly decided, and only decided that way because of a last-second switch by Roberts. It should have been found unconstitutional for the reasons pointed out in the dissent, which was very clearly meant to be the majority opinion until the Roberts switch.

But that's irrelevant. There are reasonable arguments to be made in defense of ACA. It's the Executive's duty to make them in court. I hope they fail, but it's their duty to make them.
 
Harshaw said:
Sessions is indeed relying on the Obama/Holder precedent (as the Administration is for many things it's doing), but as I detailed earlier in the thread, there were indeed reasonable arguments to be made in defense of DOMA.

As for the ACA, the reasoning goes that the individual mandate was found to be constitutional in 2012 because the penalty is a tax, and Congress has the power to tax. But Congress removed the penalty, so there's no longer a tax, and that argument is voided.

I happen to think this is correct, as an argument.

I also happen to think the 2012 case was wrongly decided, and only decided that way because of a last-second switch by Roberts. It should have been found unconstitutional for the reasons pointed out in the dissent, which was very clearly meant to be the majority opinion until the Roberts switch.

But that's irrelevant. There are reasonable arguments to be made in defense of ACA. It's the Executive's duty to make them in court. I hope they fail, but it's their duty to make them.
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I am far from the legal beagle. Most of this stuff is over my head. What you state seems right to me.
 
Harshaw said:
Article II requires the President to faithfully execute the laws. That includes defending them in court.
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The President also has a duty to uphold the Constitution. You're making broad assertions that the duty to faithfully execute the laws, which is one duty, and the separate duty to defend them against legal challenges, exists without regard to his duty to uphold the Constitution, that he must disregard the latter in all cases.

Seems a little overly broad to me.
 
Harshaw said:
It's part of the faithful execution of the law.
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Cite?

This analysis seems fairly comprehensive, and what it concludes is that the duty to execute the law in almost all cases would require defending it in court, but not always, because a genuine conflict between the law and the Constitution can exist and the President has to pick ONE, with his primary duty to the Constitution. https://www.justice.gov/file/22296/download
 
Hawkeye10 said:
I dont think that current governments have an obligation to defend in court the laws that previous governments have enacted. The obligation is to fulfill the laws up till the time they are repealed or ruled invalid by the courts.
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This is complete and utter garbage.
 
Harshaw said:
I'm sorry this didn't go your way.
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You're making broad assertions of the law, the Constitution, what the President is obligated to do, without a single cite backing up these assertions. You're imposing a duty for the executive to violate his duty to uphold the constitution, by defending EVERY law in court, including those he believes are unconstitutional, that he cannot in good conscience defend consistent with his primary duty to the constitution.

If you want to assert that obligation exists, surely there is some precedent or authority for it.
 
JasperL said:
You're making broad assertions of the law, the Constitution, what the President is obligated to do, without a single cite backing up these assertions. You're imposing a duty for the executive to violate his duty to uphold the constitution, by defending EVERY law in court, including those he believes are unconstitutional, that he cannot in good conscience defend consistent with his primary duty to the constitution.

If you want to assert that obligation exists, surely there is some precedent or authority for it.
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Everything you barked at me today was already discussed in the thread. If you're going to respond in a thread that's nearly a year old, you should read it before you do.
 
Harshaw said:
What I don't like is the President overstepping his powers or shirking his duties. Refusing to defend a law does both.

It shirks his duties for reasons I've already said. The President is required to take care the laws are faithfully executed. Part of execution is defending them in court. It's the Executive Branch which is responsible for arguing the government's case in court. If it doesn't, there is no rule of law.

It oversteps his powers because it in effect gives him a second veto over the law. All he has to do is refuse to defend a law he doesn't like to eliminate it. It also, in interpreting the law as "unconstitutional," steps on the purview of the courts.

Justice Kennedy writing for the majority in US v. Windsor (which had to do with DOMA):

As for what I don't like in the things I've mentioned in this thread, I don't like Trump, I don't like Obama, I don't like the ACA, I don't like DOMA, and I don't like McCain-Feingold. So there you go.
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From your quote:

it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court.
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No one is arguing the President can "nullify" a statute. Deciding not to defend a statute in a challenge isn't to nullify it - those are entirely different acts.

He went on:

Yet the difficulty the Executive faces should be acknowledged. When the Executive makes a principled determination that a statute is unconstitutional, it faces a difficult choice. Still, there is no suggestion here that it is appropriate for the Executive as a matter of course to challenge statutes in the judicial forum rather than making the case to Congress for their amendment or repeal. The integrity of the political process would be at risk if difficult consti- tutional issues were simply referred to the Court as a routine exercise.
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You're arguing he has no choice.
 
JasperL said:
From your quote:



No one is arguing the President can "nullify" a statute. Deciding not to defend a statute in a challenge isn't to nullify it - those are entirely different acts.

He went on:



You're arguing he has no choice.
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You should really read what you quoted.
 
Harshaw said:
Everything you barked at me today was already discussed in the thread. If you're going to respond in a thread that's nearly a year old, you should read it before you do.
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I read every word, and I only posted on this thread because you pointed us all to it. Bottom line is there is no obligation for the President to defend in court a law he believes is unconstitutional, because doing so would violate his primary duty to uphold the constitution.

I can't stand Trump and from everything I've read the stance they're taking here is legally absurd, but if AG Barr and the DoJ have in good faith determined the ACA, Medicaid expansion, changes to Medicare, etc. must be entirely struck down because the tax rate on the penalty was reduced to 0% they have no obligation to defend a position they believe is constitutionally indefensible.
 
JasperL said:
I read every word, and I only posted on this thread because you pointed us all to it.
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I don't care why you posted in it. I only care that you said a bunch of things that you would have known were already addressed had you read the thread before you posted.
 
Harshaw said:
I don't care why you posted in it. I only care that you said a bunch of things that you would have known were already addressed had you read the thread before you posted.
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I read the entire thread before I posted.
 
Harshaw said:
If you read anything past what you bolded, then you did so without comprehending it.
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I comprehended it fine. I'll repost it with the key words:

Yet the difficulty the Executive faces should be acknowledged. When the Executive makes a principled determination that a statute is unconstitutional, it faces a difficult choice. Still, there is no suggestion here that it is appropriate for the Executive as a matter of course to challenge statutes in the judicial forum rather than making the case to Congress for their amendment or repeal. The integrity of the political process would be at risk if difficult consti- tutional issues were simply referred to the Court as a routine exercise.
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In short, it's arguing that in the vast majority of cases the DoJ has a duty to both uphold the law and defend it in court, but that there are exceptions, choices, in rare cases.

I linked to a very thorough discussion of this issue that makes what seems is an obvious point. The executive is tasked with two duties with regard to this question:

1) Uphold and defend in court laws passed by Congress, and
2) defend the constitution.

Those duties can in rare cases conflict and when they do POTUS can only pick ONE option, and his primary duty is to the constitution. You've offered no explanation why the alternative must be true in every case, that POTUS has a duty to faithfully defend laws he believes are an affront to the Constitution he has sworn a duty to defend.

The case for enforcing a law until it's struck down is simple enough, but that's a different duty than ordering his AG to make what will be bad faith arguments to defend a law POTUS believes is unconstitutional and cannot be defended in good conscience. There's no logical or legal case for that.
 
JasperL said:
I read the entire thread before I posted.
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Then you repeated things that had already been said and discussed as if they hadn't even been touched on, which makes it even more ridiculous.
 
JasperL said:
I comprehended it fine. I'll repost it with the key words:



In short, it's arguing that in the vast majority of cases the DoJ has a duty to both uphold the law and defend it in court, but that there are exceptions, choices, in rare cases.
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Well, now you're changing your story. :shrug:

I've stated my case in this thread, and I'm not going to repeat it. I do not give the first **** if you agree or not.

People can read what was said in thread nearly a year ago, before you came in today with machine guns blazing, and decide for themselves.
 
Harshaw said:
Well, now you're changing your story. :shrug:

I've stated my case in this thread, and I'm not going to repeat it. I do not give the first **** if you agree or not.

People can read what was said in thread nearly a year ago, before you came in today with machine guns blazing, and decide for themselves.
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I was happy to leave the debate where it was, but YOU responded to two of my posts, and I replied, which is custom on a debate forum. Now you're being hostile and saying you don't care what I think, so why in the hell did you respond to my posts, only to ignore the replies and lie about me changing my story? I don't get it, but whatever. I can read actual experts and their arguments are compelling, and consistent with the law and precedent, and your arguments are neither. :shrug:
 
:roll:

For those coming late into this thread, the bulk of my arguments, based on the law, precedents, and history, can be found in posts 39, 45, and 46. As I said, I'm not going to repeat it. It's already there.
 
Deuce said:
I have analyzed every argument I’ve seen made for DOMA. None pass rational basis. There simply is no government interest to be found in having the federal government disregard same sex marriages validly created by a state.

Previous administrations argued nonsense. “Marriage promotes stable homes for kids.” This is true. But recognizing same sex marriage furthers this interest rather than detracting from it. “Moral fabric of society” is not a tangible thing the government can legislate.
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You should tell that to the dimwits in congress then.. LOL


Tim-
 
Harshaw said:
:roll:

For those coming late into this thread, the bulk of my arguments, based on the law, precedents, and history, can be found in posts 39, 45, and 46. As I said, I'm not going to repeat it. It's already there.
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I agree with your interpretation Harshaw, BUT, I do see a grey area whereby some detractors have,at the very least made a decent case in support of their position.


I think the President to faithfully execute means, defend the laws he or other past presidents have signed into law, period! It means that, at the time, the congress, and the executive did their jobs, passed legislation fully represented, and it is the duty of ANY President to uphold that trust!



While I don't agree with the detractors here, I do see they were able to punch-out a little teeny bit of grey!



Tim-
 
Hicup said:
I agree with your interpretation Harshaw, BUT, I do see a grey area whereby some detractors have,at the very least made a decent case in support of their position.


I think the President to faithfully execute means, defend the laws he or other past presidents have signed into law, period! It means that, at the time, the congress, and the executive did their jobs, passed legislation fully represented, and it is the duty of ANY President to uphold that trust!



While I don't agree with the detractors here, I do see they were able to punch-out a little teeny bit of grey!



Tim-
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A "teeny bit of grey" isn't the same as my being wrong, though, and JasperL dismissed my position entirely, even though he only engaged a small part of my argument.

I did note in post 45 that Eugene Volokh, whom I admire and with whom most often agree, sees it differently from me.
 
Hicup said:
I agree with your interpretation Harshaw, BUT, I do see a grey area whereby some detractors have,at the very least made a decent case in support of their position.

I think the President to faithfully execute means, defend the laws he or other past presidents have signed into law, period! It means that, at the time, the congress, and the executive did their jobs, passed legislation fully represented, and it is the duty of ANY President to uphold that trust!

While I don't agree with the detractors here, I do see they were able to punch-out a little teeny bit of grey!

Tim-
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I don't think the detractors, if it includes me, are saying anything other than the President cannot always both 1) faithfully execute a law, including defending it in court against any challenge, and 2) meet his duty to defend the constitution if in good faith POTUS determines the law is unconstitutional.

I cited Carter's OLC position on the question at #54. Here's Reagan's OLC analysis on a case that Carter's people declined to defend.

https://www.justice.gov/sites/default/files/olc/opinions/1981/04/31/op-olc-v005-p0025_0.pdf

The Department appropriately refuses to defend an act of Congress
only in the rare case when the statute either infringes on the constitutional
power of the Executive or when prior precedent overwhelmingly
indicates that the statute is invalid. In my view, the Department has the
duty to defend an act of Congress whenever a reasonable argument can
be made in its support, even if the Attorney General and the lawyers
examining the case conclude that the argument may ultimately be
unsuccessful in the courts.
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In other words, the DoJ has no obligation to defend an act of congress when a reasonable argument CANNOT be made in its support.

I won't quote it but the analysis goes on to say that although parts of the law may indeed by unconstitutional, some of the law may stand and therefore the AG decided to intervene in defense of the law. The point is the decision rested on their decision that they could make a good faith defense of the law. Had they concluded otherwise, presumably they'd have followed the decision by Carter's AG and not done so. The argument was simply NOT that they had an obligation in every case, no matter the merits, to defend every law in court.
 
JasperL said:
I don't think the detractors, if it includes me, are saying anything other than the President cannot always both 1) faithfully execute a law, including defending it in court against any challenge, and 2) meet his duty to defend the constitution if in good faith POTUS determines the law is unconstitutional.

I cited Carter's OLC position on the question at #54. Here's Reagan's OLC analysis on a case that Carter's people declined to defend.

https://www.justice.gov/sites/default/files/olc/opinions/1981/04/31/op-olc-v005-p0025_0.pdf



In other words, the DoJ has no obligation to defend an act of congress when a reasonable argument CANNOT be made in its support.

I won't quote it but the analysis goes on to say that although parts of the law may indeed by unconstitutional, some of the law may stand and therefore the AG decided to intervene in defense of the law. The point is the decision rested on their decision that they could make a good faith defense of the law. Had they concluded otherwise, presumably they'd have followed the decision by Carter's AG and not done so. The argument was simply NOT that they had an obligation in every case, no matter the merits, to defend every law in court.
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That's not the standard though. The legislative branch, by definition, meets the rational basis test. Rational basis is synonymous with reasonable argument, in this context, do you agree?


Tim-
 
Hicup said:
That's not the standard though. The legislative branch, by definition, meets the rational basis test. Rational basis is synonymous with reasonable argument, in this context, do you agree?

Tim-
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I agree with what Reagan's AG stated, and what Carter's AG states, which is in the VAST majority of cases, those two are synonymous - passed by the legislature and signed into law virtually always means the AG does have a duty to both enforce the law as written AND defend it in court. That has in fact been the practice throughout the history of the country. Exceptions are extremely rare.

That's not to say there aren't or cannot be exceptions.

In this thread there are two cases mentioned - Obama's decision not to defend DOMA and Trump's decision not to defend the ACA. The proper analysis of those is on the merits of each decision rather than declaring a decision NOT to defend a law an impeachable offense. I don't believe that. I've read several articles on Barr's decision in this case and the objection to it isn't just that he (or Trump) decided not to defend the ACA but that the legal basis for that decision is absurd, indefensible on the merits. That's an entirely different argument than "Trump's DOJ must defend every challenge to any law, period."
 
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