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Justices Troubled By Selective Defense Of Laws

From the Washington Times:

Obama administration under fire in gay marriage arguments

By Tom Howell Jr. and David R. Sands | March 27, 2013

Gay marriage is on trial but it was the Obama administration facing the heat as the Supreme Court began the second of two days of landmark oral arguments on the constitutionality of gay marriage.

With the court on Wednesday taking up the federal Defense of Marriage Act (DOMA) effectively barring federal recognition of state same-sex marriage laws, several justices questioned the Justice Department’s declaration that it would not defend the law’s constitutionality even as it continued to enforce the statute.

Centrist Justice Anthony Kennedy, often seen as the key swing vote on the nine-member court, said it was “troubling” that a president and his administration could pick and choose which laws to defend in constitutional challenges.

As far as we’ve seen, this article is the only one I’ve seen that reports on the Justices questioning the Obama administration as to why they chose to not defend DOMA, as it is their Constitutional duty to do. Why does the Obama administration think it can pick and choose which laws it will defend in court?

Chief Justice John Roberts asked Deputy Solicitor Sri Srinivasan, the lawyer representing the administration in Wednesday’s arguments, “What is your test?”

Mr. Srinivasan, said the court should issue a ruling on DOMA, and argued there is a precedent for the executive branch to not defend a law even while it was enforcing it. But Associate Justice Antonin Scalia challenged the government’s line of argument, saying what was being asked of the high court was “totally unprecedented.”

That is, Obama’s actions are totally unprecedented. And you will notice that Mr. Srinivasan was unable to cite any precedence.

And, come to think of it, this could have ramifications even beyond the DOMA case, since Obama is also choosing which laws to enforce. As in the case of immigration laws, and drug laws, and probably countless other laws that are not being enforced that we don’t even know about yet.

In a second hour, Solicitor General Donald B. Verrilli Jr. said DOMA subjected legally married same-sex couples to “terrible discrimination,” and the federal government should not have its own uniform marriage law that is out of step with states. “We don’t think the federal government should be thought of as the 51st state,” he said.

And never mind that the federal government has no trouble being "out of step with states" when it comes to gun laws or drug laws or immigration laws.

But Justice Kennedy later questioned whether the federal statute defining what marriage intruded into an area best left to the individual states to decide.

“The question is whether the federal government … has the authority to regulate marriage,” he said. “That authority undermines the states’ role in the federal system.”

States’ rights? That is almost as an archaic concept as marriage being between a man and a woman.

Because the administration declined in 2011 to defend the law, the GOP majority in the House of Representatives has hired noted constitutional lawyer Paul Clement to defend DOMA…

Mr. Clement in turn faced some sharp questions from the justices over the House’s right to challenge the law.

“The House is the proper authority to defend” DOMA, Mr. Clement insisted at one point…

The court began the two-hour oral arguments Wednesday with a lengthy discussion over whether the court should even be deciding the case, and whether the House of Representatives had legal “standing” to defend DOMA.

If either DOMA or Prop 8 is dismissed because of lack of standing, then the other case should be as well. The situations are identical.

That is, in both cases the people responsible for defending the laws in question both reneged on their constitutional duty, and others had to step in.

This article was posted by Steve Gilbert on Thursday, March 28th, 2013. Comments are currently closed.

One Response to “Justices Troubled By Selective Defense Of Laws”

  1. With 21,000,000 federal laws, twice that in regulations and lord knows at the state and local level you are breaking the law right now and don’t even know. Of course, selective enforcement is happening.


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