23 February 2011

Defend DOMA? No. Enforce DOMA? Yes.

You've probably read the breathless headlines about Attorney General Holder's statement regarding Section 3 of the so-called Defense of Marriage Act.

Yeah, well...it's being waaaaay oversold.

The DOJ is only saying it won't defend DOMA's Section 3* in the two new cases filed last November in the Second Circuit. The DOJ then invites any congressmembers "who wish to defend the statute [to] pursue that option" and the department also guarantees those individuals "a full and fair opportunity to participate in pending litigation."

This is a remarkable development — because I'm not at all certain that members of congress are a party with standing to defend the law. Attorney General Holder here seems to just assume this is the case without providing any support. Fact is, Congress delegated its right to defend federal laws to...Holder's department. Is Holder free to play Hot Potato like this? Not sure.

Holder buried his lede. The big news is:
The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples...is...unconstitutional.
Look, everybody! Our "constitutional scholar" president finally noticed that nouveau marriage segregation might be legally problematic. Ain't he just amazing?

So now that Obama and his DOJ have co-opted the very legal argument that kicked their asses in Massachusetts v. U.S. Health and Human Services, 698 F.Supp.2d 234 (D.Mass. 2010), there's really no case or controversy anymore. Thus, they've apparently also decided to abandon that appeal, and any other case where DOMA Section 3 is central to their argument.

However, just because Obama has finally come to believe that law is unconstitutional** doesn't mean he won't keep enforcing it.
"Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court." 
That raises two questions:

In Massachusetts v HHS (above), Federal District Court Judge Joseph L. Tauro held DOMA Section 3 was unconstitutional. The judge stayed his ruling pending the administration's appeal — an appeal that Holder hints will be abandoned, rendering Tauro's decision final. Will President Obama respect the holding of that federal district court judge?

It's a reasonable question because when the Chief Judge of the Federal Ninth Circuit Court of Appeals ordered the Obama administration — back in 2009 — to enroll the legal spouse of a court employee on the court's health insurance plan pursuant to the Federal Health Benefits Act, the administration ignored the court order, citing DOMA. So I'm very curious as to which judicial rulings President Obama feels compelled to respect.

Second question: if President Obama believes a law violates the Constitution, doesn't executing or enforcing that law violate his oath of office to protect and defend the Constitution?

* DOMA §3: "In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
**  16 Am Jur 2d, Sec 177 late 2d, Sec 256: "The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted."

2 chimed in:

Mo Rage said...

well and wisely put.

what are you? a law student or something?

:)

the crustybastard said...

Something like that.