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Not defending the health care bill

Would you support the action posted below?


  • Total voters
    19
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.

I see it as completely different because th eJustice department is not a representative of the people, nor does not defending an issue prevent legislative representation. What is happening in Wisconsin involves people choosing to not represent the people as well as preventing the represenation of other people.
 
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?

Since 2004, such has been done some 13 times. Seems a little late to argue about it now. But, yes, I think it is allowable.
 
I don't think so. We have a government set up with checks and balances, no one can make a move without someone else potentially shooting it down. It makes everyone accountable. If one branch can act with immunity, then we no longer have those checks and balances. As much as I hate DOMA and Obamacare and think neither should exist, it rests in the purview of the courts to make the determination if they're Constitutional or not, not with the Presidency. It is the job of the justice system to defend the laws on the books and if you don't like the laws on the books, there are means to have them removed. Ignoring them does not remove them.
 
I don't think so. We have a government set up with checks and balances, no one can make a move without someone else potentially shooting it down. It makes everyone accountable. If one branch can act with immunity, then we no longer have those checks and balances. As much as I hate DOMA and Obamacare and think neither should exist, it rests in the purview of the courts to make the determination if they're Constitutional or not, not with the Presidency. It is the job of the justice system to defend the laws on the books and if you don't like the laws on the books, there are means to have them removed. Ignoring them does not remove them.

I agree only to a point. A half assed defense isn't much better than no defense, and it is hard to defend what you don't believe in. However, regardless, as it has already been allowed, and I don't remember much debate on this in the past, I think the horse has left the barn so to speak.
 
I agree only to a point. A half assed defense isn't much better than no defense, and it is hard to defend what you don't believe in. However, regardless, as it has already been allowed, and I don't remember much debate on this in the past, I think the horse has left the barn so to speak.

Just because past presidents have ignored the system doesn't mean the system goes away. The existing system ought to be the expectation, regardless of what has happened in the past.
 
I don't think so. We have a government set up with checks and balances, no one can make a move without someone else potentially shooting it down. It makes everyone accountable. If one branch can act with immunity, then we no longer have those checks and balances. As much as I hate DOMA and Obamacare and think neither should exist, it rests in the purview of the courts to make the determination if they're Constitutional or not, not with the Presidency. It is the job of the justice system to defend the laws on the books and if you don't like the laws on the books, there are means to have them removed. Ignoring them does not remove them.

Again, the courts are the ones to rule a law unconstitutional. The president does not, and in neither this case or the one Zyphlin proposes are they. The cases will still get their days in court.
 
Again, the courts are the ones to rule a law unconstitutional. The president does not, and in neither this case or the one Zyphlin proposes are they. The cases will still get their days in court.

Which is fine, but until they are ruled unconstitutional, they remain in force as laws of the land. The President has no power to declare them unconstitutional, it's not his job. His job is to defend the laws we have, so long as we have them.
 
Which is fine, but until they are ruled unconstitutional, they remain in force as laws of the land. The President has no power to declare them unconstitutional, it's not his job. His job is to defend the laws we have, so long as we have them.

Correct, and again that is the case here. DOMA is still in effect and the law of the land. Nothing done changes that.
 
I think we all need to stop and look at all sides of the issue, which to me appear to be:

1. What is the role of the Attorney General (AG) at the Department of Justice?

2. What is the relationship between the AG and the President of the United States where offerring legal advise is concerned?

3. What is the "chain of command", as it were, for either upholding a law and interpreting same between the DoJ, the Supreme Court and Congress?

4. What "means test", i.e., heightened scrutiny measure, is applied by either the DoJ or the SC or Congress, and is such testing utilized by all three legal entities in exactly the same way? In other words, does the DoJ, SC and Congress use the same guidelines when applying "heightened scrutiny" to an issue involving discriminatory practises? We'll get back to that in a moment...

I found these two articles which I believe speak directly to the points I've outlined above and should help answer the question placed before us from the OP.

Article 1: Obama: DOMA Unconstitutional, DOJ Should Stop Defending In Court

Article 2: DOMA Is Unconstitutional

I think everyone interesting in this matter should read them. However, I also believe everyone providing input on this poll should familiarize themselves to exactly what the role of the DoJ is and what the AG's role is in relation to the POTUS. For only when armed with such knowledge can one honestly render a virdict on the matter. To that, the DoJ's website. From its website:

The Judiciary Act of 1789 created the Office of the Attorney General which evolved over the years into the head of the Department of Justice and chief law enforcement officer of the Federal Government. The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested. In matters of exceptional gravity or importance the Attorney General appears in person before the Supreme Court. Since the 1870 Act that established the Department of Justice as an executive department of the government of the United States, the Attorney General has guided the world's largest law office and the central agency for enforcement of federal laws.

So, what we have here isn't a matter of the Justice Dept not upholding the law (DOMA). Their office just won't defend it in court for the reasons Redress recently pointed out, i.e., objection to clause 3 of the Act which, according to AG Holder and supported by the President, doesn't meet the higher standard of strutiny they've apparently outlined. Thus, the question becomes "what's the higher standard now being applied"? But even if neither the SC nor Congress adopts these "higher standards of scrutiny", both would still have to graple with justifying how anti-discrimination laws would not apply equally to gays and lesbians as they apparently do towards other minorities. (See article 2 above, "DOMA Is Unconstitutional" which outlines the four heighten scrutiny standards generally applied to such discrimination/Equal Protection cases) Moreover, how do you justify upholding DOMA when Congress just repealed DODT? One law takes gays and lesbians out of the perverbial closets; the other puts them right back in it! How do you rationalize that?

Based on this new knowledge (for I admit I had no idea what "DOMA" stood for or what the law entailed before posting to this thread and answering the poll), I think I've provided the best non-bias response I could give on the matter. To that, my initial position stands. The AJ has consulted with the President on the matter and they have determine that DOMA is unconstitutional and, as such will not defend such from the Executive Branch. It is, therefore, up to the courts themselve (perhaps even the Supreme Court) to render final virdict on the law's constitutionality. For what it's worth, I think the law will be overturned even if the "higher standards" (whatever it is) isn't adopted.
 
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It is, therefore, up to the courts themselve (perhaps even the Supreme Court) to render final virdict on the law's constitutionality. For what it's worth, I think the law will be overturned even if the "higher standards" (whatever it is) isn't adopted.

Well, no. The next step is the House of Representatives decides if it will defend the law.
 
Just because past presidents have ignored the system doesn't mean the system goes away. The existing system ought to be the expectation, regardless of what has happened in the past.

I think it means a precedence has been set. Because it was allowed not once, but many times, this means it is allowable now.
 
As a follow-up to my last post (#59), this from the linked article #2 per AG Holder's letter to Speaker Boehner:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
 
I think it means a precedence has been set. Because it was allowed not once, but many times, this means it is allowable now.

That's absurd. That's like saying that because the cops don't give a couple of people speeding tickets, they've lost their right to give anyone a ticket because the precidence has been set. I don't buy that for a second.
 
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.
A president can veto for reasons other than that a law is unconstitutional. Same is true for issuing executive orders. I doubt any president concerns themselves with the constitutionality of those.
 
That's absurd. That's like saying that because the cops don't give a couple of people speeding tickets, they've lost their right to give anyone a ticket because the precidence has been set. I don't buy that for a second.

In fact, that's a good comparison (though kind of skewed incorrectly on your part). Police offers don't have to give speeding tickets and sometimes don't. The losing the right thing is not what was said. Police don't give them always, but still maintian the rigth to give them. . . . or not. Same here. He doesn't lose the right to defend something else later on, but keeps the right not to if he doesn't want to. Again, that precedence has been set already.
 
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