28 November 2009

Constitutional crisis afoot?

The United States Court of Appeals for the Ninth Circuit is a federal (not state) court of appeals whose jurisdiction includes Alaska, Arizona, California, Hawai'i, Idaho, Montana, Nevada, Oregon, Washington, Guam and the Northern Marianas. The Ninth Circuit is by far the largest court of its kind, and there are 29 judges. This is the court that conservatives mock for being frequently reversed. The Ninth hears a ton of high-profile cases, so in sheer number that might be true, but by percentages they're actually not reversed more often than other circuits, less than some.
Not to put too fine a point on it, but the Ninth Circuit is a powerful body. If you lose your case in a federal district court within their jurisdiction, this court would hear your appeal. If you appealed their judgment, it would be to the Supreme Court of the United States. Anymore, SCOTUS justices are culled exclusively from these federal courts of appeal.
The current chief judge of the Ninth Circuit is Alex Kozinski, appointed by President Ronald Reagan. Among the several attorneys working for the chief judge is Karen Golinski, who is a married California resident who wished to add her spouse to her employer's healthcare plan. Ordinarily this would be a nonissue, some paperwork for the court's HR department. Ms Golinski executed the paperwork, but a bureaucrat within the Administrative Office of the U.S. Courts kicked it back.
While most employee disputes in the federal government are decided by administrative agencies (which are part of the executive branch), federal law gives federal courts the power to settle their own employee disputes. So ten months ago, Judge Kozinski ruled the agency had erred.
In making that decision, Kozinski was faced with a conflict of law: the Defense of Marriage Act is a sweeping and categorical denial of state and federal benefits to gay citizens; however, the Federal Health Benefits Act mandates federal employers to extend health coverage to employee's spouse. When faced with such a conflict of law, the typical rule of construction is to avoid deciding a Constitutional question, and that's precisely what Kozinski did. Golinski has a legal spouse and spouses are qualified pursuant to the FHBA; ergo, there's no need to acknowledge DOMA's Constitutional elephants in the room. Thus, a quintessentially conservative ruling produced a rather progressive outcome — Ms Golinski's wife is qualified for coverage. So ordered, the agency moved to comply.
Alas, the "Fierce Advocate" once again sprang into action.
Defying a lawful court order, the Obama administration directed the federal Office of Personnel Management* to demand that Blue Cross not process Ms Golinski's paperwork.
I probably don't need to tell you that Judge Kozinski is pissed. "The Office of Personnel Management shall cease at once its interference with the jurisdiction of this tribunal." He's given the OPM 30 day to comply and says he's willing to use the powers of the court to enforce his order.
When one branch of the government attacks the powers of another, that's called a "Constitutional crisis." But apparently this is not a real Constitutional crisis, since the issue is only gay rights and therefore not terribly important and scarcely even newsworthy.
But seriously, think about this for a moment: Obama is so willing to defend the indefensible DOMA that he is subverting the rule of law just to injure one lesbian couple. Wow.
Had George W. done this, I would have been astonished.
That Barack Obama, former professor of Constitutional law and self-described "friend" of gays is doing it simply beggars description. That Obama is doing this in furtherance of a law he's says is without merit and "abhorent" is nothing short of unhinged.
Tip of the crust to Americablog Gay.
(* John Barry heads the OPM and is the highest-ranking openly gay member of the Obama Administration — which is pretty pathetic in itself. That Mr. Barry is willing to be Obama's kapo says quite a bit about him and his boss.)

1 chimed in:

Butch said...

Yes. Isn't this the president that says he has to support and follow the letter of the law? ( At least when it comes to DOMA and DADT. ) Why the sudden flip-flop on one's principals?! (crickets . . . from Obama or the White House.)