Friday, February 25, 2011

Switching Horses In The Middle Of The Stream

Contrary to the common belief, the Barack Obama/Eric Holder decision not to defend the Defense of Marriage Act is not unprecedented. But such an action is extremely rare, and previous turnarounds almost always involved a decision by the Supreme Court in a related matter. Either way, I find the decision to be both reprehensible and predictable.

First of all, let me make it clear that I have expressed my opinion that the Defense of Marriage Act (DOMA) was unconstitutional. And unlike liberals and misled conservatives who base a concurring opinion on "equal protection" or "denial of due process," my reasoning is quite different. I think that the federal government has no business telling the states which laws relating to marriage they must recognize from other states. I am a federalist, and damned near a zealous purist about it. If a definition of marriage belongs anywhere in government, it belongs at the state level and not the federal level (except in federal jurisdictions, of course).

The purpose of DOMA was to stave off application of the "full faith and credit" clause which theoretically would require a non-gay marriage state to recognize a marriage performed in a gay marriage state. I totally sympathize with the intent, but I can't sanction the method. Full faith and credit requires a state to recognize the decisions of another state, unless to do so would "shock the conscience of the public" or require the recognition of a law which directly contradicts the objecting state's law and has no basis in the application of a basic constitutional right. The last time I looked, marriage is not a basic constitutional right, and that leaves a state free to make its own marriage laws and reject those of others. So until the Supreme Court rules on [gay] marriage based on the current equal protection and due process arguments, and/or the full faith and credit argument, no state need recognize the gay marriages of another state.

But that's not what this article is about. I first needed to establish that there are several different legal points of view on DOMA, of which my federalist argument is only one. More importantly, I used it to point out that the Obama/Holder decision had next to nothing to do with the law or the Constitution, and everything to do with politics and soothing the savage breast of the Democratic left which believes that Obama has moved too far to the center. The Democratic Party is bleeding votes like a sliced artery, and they needed to put a band-aid on the wound.

Holder's Justice Department has announced that even without the President's change of heart on the issue (oh, yeah?), the DOJ had no choice but to drop the government's defense of DOMA. Aw, baloney. They always have a choice. More importantly, they have an obligation to defend the laws of the United States, whether they personally like them or not. Holder's justification is as follows: "After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that . . . the legislative record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships, precisely the kind of stereotype the Equal Protection Clause is designed to guard against."

So, the two constitutional geniuses have come up with a purely political argument for applying the equal protection clause. But at least they found something in the Constitution they so routinely disregard to hang their fedoras on. But DOMA was designed solely to protect against enforcement of the full faith and credit clause, not the equal protection clause. Whatever "expressions" were made during the legislative process, the legislation itself contains no such wording. That's largely because a substantial number of Democrats who support gay causes found no corresponding reason to support gay marriage. And it was a Democratic president, Bill Clinton, who is very gay-friendly who signed the bill. Did they miss all that "animus toward gays?"

Want more proof that this was a political move? Holder will not defend DOMA because it is the Justice Department's legal opinion that the law is unconstitutional. But he also made it clear that he would continue to enforce the law until a court of competent jurisdiction calls it unconstitutional. So he's merrily dropping the will of the American people through their elected representatives and their president that he defend the law, but has no problem enforcing an unconstitutional law. Either he has an obligation to defend the law or an obligation to refuse to enforce it, but he can't have both.

Some of you may be wondering why Holder doesn't simply switch sides. That's what politicians do, but lawyers are ethically and legally forbidden to do so without court approval and the consent of the opposition. That's not bloody likely to happen. So he chose to pretend to be a good cop and a better humanitarian. That's one of the few things to surprise me about this reversal of position. Former Deputy Attorney General and current Massachusetts Governor Deval Patrick did exactly what is forbidden when the Bush I administration morphed into the Clinton administration. The issue was far less controversial, and the two sides weren't poles apart, but he still switched sides in the middle of litigation and nobody called him on it.

As Attorney General of the State of California, now Governor Jerry Brown refused to defend Proposition 8. I was disgusted, but he was under no constitutional obligation to do so. With California's oddball election system, governors, lieutenant governors and attorneys general are often from different parties. The state constitution imposes no obligation on a Democratic Attorney General to defend challenged laws passed by Republican legislatures and signed by Republican governors or passed by the people via initiative (such as Prop 8). The result is that it is not uncommon at all for the government to have to go to outside counsel to defend its laws.

That is not how it works at the federal level. Law and precedent impel but do not compel attorneys general to defend the government. The Constitution compels the executive branch to "faithfully execute the laws." In almost every case, that has meant that when a law of Congress is challenged, the US Attorney General defends it. So why gay marriage, and why now? Was Obama hiking on the road to Damascus when he reached his decision? Was Holder satisfied with getting away with dismissing voter intimidation cases against Black Panthers when the cases had already gone to judgment? Did the drugs wear off? Who knows, but it stinks of political maneuvering to me.

To be fair, Holder has said and implied that he believes in the rule of law and therefore the matter should be decided by the Supreme Court. Hogwash. The Supreme Court will decide the matter on the arguments of the government and the opposition. If the government puts up no case through its attorney general, the result is very likely the political outcome Obama and Holder want. DOJ dithered and diddled while the California Prop 8 case is making its way through the appellate courts and undoubtedly the Supreme Court. Considerable time has been wasted while the identical twins put their fingers in the air to see which way the wind was blowing. And that's the largest reason why they suddenly discovered the equal protection clause just as they were in trouble with their leftist base. DOMA has taken a back seat to the litigation of Prop 8.

The job of a lawyer is to defend his client's interests. I've defended murderers and robbers, and it had nothing to do with whether I liked them or their crimes or not. I did it because I believe in the constitutional right of every American to be allowed his day in court and a defense. Holder loves the Constitution so much that he won't defend his client's interest in court despite over two hundred years of precedent, but he will continue to enforce the law passed in his client's interest. That's nothing short of legal schizophrenia--or politics.

As for the picture accompanying the article, I couldn't resist. It was taken at a pro-gay marriage, anti-Prop 8 rally in San Francisco. My question was immediately "does this guy know what sharia actually means, and what will happen to gays if Muslims ever succeed in getting sharia law imposed?"

25 comments:

Tennessee Jed said...

A wonderful, lawyerly treatise on the subject. I have taken enough basic and business law courses to reasonably follow your line of thinking, Hawk --even if I would be incapable of trying to make said argument.

Bottom line, though (to borrow a business buzz phrase of yore) "Obama and Holder do the politically expedient thing-- legal rationale be damned" is a tag line we have sadly come to see all too frequently.

John C. Calhoun of South Carolina was the first to really push legislative nullification. I believe the tariff involved came to be known as the "Tariff of Abominations." Would it be fair to refer to D.O.M.A. as the "Tariff of Obamanations" even though it is not (strictly or even looselyspeaking) a tariff? ;-)

T_Rav said...

LawHawk, you have to understand, our country's mentality has evolved since the Clinton years and more of us have come to realize that gays are people too, and we can see them now for who they really are...okay, I'm gonna make myself gag.

Anyway, thanks for that explanation. One bizarre thing I heard about the decision was that federal regulatory agencies would still have to proceed as if DOMA has teeth, which meant that gay couples who felt discriminated against by such agencies could sue in court and win: in other words, Obama's basically pitting the bureaucracy against his own DOJ. Yeah, that sounds about like something he'd do.

LL said...

I'm convinced that we have to wait until the Obama regime has left the Executive Branch to get any sense of clarity and consistency. The 'rule of law' is stretched by their nonsense.

BevfromNYC said...

Once again we have the "Confuser-in-Chief" muddying the waters. I will, but I won't. I do, but I don't. He's our friend, but our enemy. Obama is really, really bad at Clinton fence-sitting. Clinton would say different things to different groups. Obama just say different things in the same speech.

I was having this very conversation on HuffPo yesterday. Correct me if I am wrong, but the Executive Branch does not have the authority to deem ANY law unconstitutional. It is his job to execute the laws until the Judicial Branch deems them otherwise unconstitutional. Of course, on Huffpo, there was a lot of sputtering and "He was a Constitution Law Professor, of Course he knows what he's doing!"

Isn't he skirting his oath of office to uphold the laws of the United States. Ignoring the law and kicking it down the road is one thing, but to actively and flagrantly deem a law "uncontitutional" is another.

Also, am I the only one who finds the timing of this announcement just a little suspect? Protests in Wisconsin, the Mideast falling apart, the Government about to shut down because of no budget agreement. Seems kind of a trivial issue to be actively fronting at this moment.

Joel Farnham said...

LawHawk,

It's a good thing Obama is a teacher of the Constitution. He knows exactly when he is breaking the law. What's more, he has all those lawyer types in the WH to advise him. Isn't that great or what? ;-)

LawHawkRFD said...

Tennessee: Again, thanks. I have to admit that Calhoun had some good ideas, and he was a strong advocate of states' rights. But some of his better ideas went awry, like that small matter of the war of northern aggression (and I'm not even a Southerner).

Seriously, the concept of nullification is not entirely dead, and in the case of the law of one state being anathema to another, the objecting state arguably has an obligation to refuse to enforce the law of the other state. But two things the Civil War decided are that states may not secede, and that once the Supreme Court has ruled on the correctness or incorrectness of the objecting state's action, the law is settled. Obama and Holder know that there's a substantial chance the Supreme Court will rule against federal regulation of marriage, but it won't matter. By the time the whole matter is litigated, they will either be out of power or capable of saying to their leftist base "we did our best." So what they wish to have appear as a matter of legal conscience is in reality a pure political ploy.

I'm not so sure that DOMA isn't a tariff of sorts, since the battle is going to cost the taxpayers a great deal of money in multiple areas. And the action taken (or rather not taken) is an Obamanation. LOL

LawHawkRFD said...

T_Rav: Hence, "that's nothing short of legal schizophrenia--or politics." One thing that liberals are really good at is creating confusion, taking inconsistent stands, then waiting for imperial judges to sort the whole mess out. Create enough legal smokescreens, and the courts tend to forget their obligation to refuse to rule on purely political matters. The Obama/Holder twins are indeed pitting their own DOJ against their bureaucracy with the additional bonus of getting the states involved in defending their prerogatives. That is massive legal confusion designed solely to accomplish a political goal.

LawHawkRFD said...

LL: I agree that the Obama administration is essentially lawless and the most disloyal to the Constitution since the Nixon administration. And even during the Nixon administration, a series of fine lawyers quit their high-level jobs at DOJ or were dismissed for refusing to go along with the Nixon executive branch. Can you imagine, for one minute, an Obama/Holder DOJ appointee quitting his job over dishonest and unethical acts committed by the White House and the AG's inner sanctum?

T_Rav said...

LawHawk: Great. So it's not stupidity, it's intentional. Well, that just makes me feel so much better.

AndrewPrice said...

I don’t have any heartburn with this, except that Obama’s got problems making a decision.

The President takes an oath to the Constitution, not to the laws that Congress passes. If he thinks what Congress has done in unconstitutional, then he actually has a duty to make that point when the law is challenged (or even challenge the law himself). He can't refuse to enforce it, but he doesn't have to defend it in court and he can in fact challenge it.

LawHawkRFD said...

Bev: I've mentioned my extreme suspicions of Obama's credentials for becoming essentially a "full" professor at the U of Chicago Law School, since nobody seems to remember anything about his classes nor can anyone define his professorial take on the Constitution. And then there's that suspicious matter of being the editor of the Harvard Law Review without ever having published a scholarly article of his own.

A small but historical note is appropriate here. The Founders fully intended that each branch of the government would have its own independent ability to decide on the Constitutionality of any act by another branch. They didn't entirely think that one through, and Marbury v. Madison ended the concept for good in the early days of the Republic. What Obama and Holder have done is pervert a good theory that didn't work out in practice or precedent to gain a political end. The Founders' intent was to keep each branch balanced with the others to avoid chaotic "partisanship." The Obama/Holder intent is pure partisanship designed to shore up their support on the left and create chaos.

So even if I could admire a President who genuinely believed a law was unconstitutional and refused to defend it against a challenge, I would still come down on the side of that being a dereliction of duty. On the other hand, do we want the amateurish half-assed political lawyers in the DOJ defending a highly-controversial law?

LawHawkRFD said...

Joel: I wouldn't go so far as to say he is breaking the law, but would rather say he's manipulating it. Not that I think he's above breaking the law, I just don't see that he's doing so in this particular case.

Joel Farnham said...

Did I imply that Obama is breaking the law? I don't believe I did. Hmmm. My bad. :-)

LawHawkRFD said...

Andrew: The Constitution sets forth the oath, which indeed only requires that he preserve, protect and defend the Constitution. But at the same time we cannot entirely ignore Article II, Section 3, which requires the President to "take care that the Laws be faithfully executed." That implies that he doesn't get to pick and choose which laws he will faithfully execute, and by inference, which ones he will defend. Therein lies the constitutional argument over whether he is or is not compelled to defend an Act of Congress against a constitutional challenge.

Like you, I believe that it is unlikely that he is compelled to do so, but the words of the Constitution itself do not specifically spell it out. And of such things is litigation made.

That said, I have to admit that they played this one very cleverly. They make it appear that they are acting on conscience, but in order to avoid being directly accused of flouting the words (if not the intent) of the Constitution, Holder has declared that even though he won't defend the Act, he will enforce it, thus "faithfully executing" the law he won't defend. Sneaky, but clever as hell in my book.

LawHawkRFD said...

Joel: You did not, in fact, say that he was breaking the law in this matter. You simply pointed out that "he knows exactly when he is breaking the law." That's as lawyer-like a non-accusatory accusation as I've ever heard. Well done. LOL

LawHawkRFD said...

T_Rav: I'm glad I've managed to set your mind at rest. ;-)

BevfromNYC said...

This is about the best assessment of Obama that I have read AND it was on HuffPo - who'da thunk?

http://www.huffingtonpost.com/jim-garrison/obama-the-feckless_b_828136.html

LawHawkRFD said...

Bev: Yay! We got ahead of HuffPo! We're on our way as the HuffPo of the right! LOL

I'm having atmospherics with my satellite, so it took a long time for the link to come up, so all I was seeing was a tab that said "Obama the F---." I couldn't wait to see what the rest of it said.

After the piece finally downloaded, I read it and can only say "even the devil tells the truth occasionally, either as a mistake, or because it suits his purposes."

LawHawkRFD said...

Bev: For everyone else's convenience, here's the clickable link: Obama the Feckless.

T_Rav said...

Bev and LawHawk: Oh, that's just precious. I don't know what I liked more, the article or all the commenters below tearing themselves to pieces over it. Awesome.

LawHawkRFD said...

T_Rav: They're like rats in a small cage who have bred too fast. So they start to eat each other.

StanH said...

I believe Barry knows he’s between a rock and a hard place with the electorate, so look for politics to be his guide, if he doesn’t have his base he has no chance.

Check out an article at, American Thinker “Meeting Young Obama,” by: John Drew. It only confirms what we knew about Barry’s love of Marxism, and don’t you know that McCain’s Opposition Research team picked this up, and why wasn’t it used? This also tells us what we need to know about collusion in the press, and punctuates Barry’s comment, “I’m the one you’ve been waiting for.”

The Civil War, was, The War of Northern Aggression, wasn’t it? …HA!

LawHawkRFD said...

Stan: A friend of mine sent that article to me a couple of days ago. It gives us some deep insight into Obama's persona. If the author is right, Obama is a "practical Marxist," which puts him in the Euroweenie social democracy camp. Then, of course, there's the narcissistic personality and a certain dollop of charisma (which entirely escapes me).

AndrewPrice said...

Lawhawk, As I say, I don't think they have an obligation to defend the law, to the contrary I suspect they have an obligation to oppose if it they think it's unconstitutional -- they though do need to enforce it.

But I have NO respect for the way Obama or Holder is approaching any of this. He clearly isn't standing on principle, he's standing on what he thinks he can get away with at the moment without upsetting too many people. I can't respect that.

LawHawkRFD said...

Andrew: I agree that they are likely not obligated to defend the law, but I think they owe it to the American people to explain why they won't defend it, but will enforce it. I mentioned above that I think a decent Attorney General oould do that honestly and ethically, but since neither applies to Holder or Obama, well . . . .

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