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Debates Forum

  1. Subscriber no1marauder
    It's Nice to Be Nice
    01 Apr '13 13:13
    During the oral argument concerning the Defense of Marriage Act, Chief Justice Roberts and several other members of the right wing of the court expressed irritation that the Obama administration was still enforcing the DOMA though it believes it unconstitutional:

    He expressed irritation that the case was before the court, saying President Obama’s approach — to enforce the law but not defend it — was a contradiction.

    “I don’t see why he doesn’t have the courage of his convictions,” the chief justice said. He said Mr. Obama should have stopped enforcing a statute he viewed as unconstitutional “rather than saying, ‘Oh, we’ll wait till the Supreme Court tells us we have no choice.’ ”

    The White House took umbrage at the remark and said the president was upholding his constitutional duty to execute the laws until the Supreme Court rules otherwise. “There is a responsibility that the administration has to enforce laws that are on the books,” said Josh Earnest, a deputy White House press secretary. “And we’ll do that even for laws that we disagree with, including the Defense of Marriage Act.”

    http://www.nytimes.com/2013/03/28/us/supreme-court-defense-of-marriage-act.html?pagewanted=2&_r=0

    As my Con Law professor used to say: "Who's right and who's wrong?" Can a President simply ignore a duly passed law because he believes it unconstitutional?
  2. 01 Apr '13 13:22
    Originally posted by no1marauder
    During the oral argument concerning the Defense of Marriage Act, Chief Justice Roberts and several other members of the right wing of the court expressed irritation that the Obama administration was still enforcing the DOMA though it believes it unconstitutional:

    He expressed irritation that the case was before the court, saying President Obama’s appr ...[text shortened]... g?" Can a President simply ignore a duly passed law because he believes it unconstitutional?
    On this one, I have to say that Obama and your law school professor are right. The President's oath of office says he'll faithfully execute the laws, not just the ones he likes.
  3. 01 Apr '13 13:25
    That's a pretty retarded comment from the Chief Justice. Surely the President should not be able to just ignore every law he dislikes on a whim.
  4. 01 Apr '13 13:30
    Originally posted by KazetNagorra
    That's a pretty retarded comment from the Chief Justice. Surely the President should not be able to just ignore every law he dislikes on a whim.
    Roberts seems to have a lawyer's knack for ignoring the law, with rhetorical flourish, such as the rationalization that "penalties are taxes".
  5. Subscriber no1marauder
    It's Nice to Be Nice
    01 Apr '13 13:35 / 1 edit
    Originally posted by normbenign
    Roberts seems to have a lawyer's knack for ignoring the law, with rhetorical flourish, such as the rationalization that "penalties are taxes".
    Scalia said the same thing in the Arizona immigration cases.

    EDIT: That seems to be in error at least as regards the case cited. My apologies.
  6. 01 Apr '13 13:43
    Originally posted by no1marauder
    Scalia said the same thing in the Arizona immigration cases.
    Apparently he has the same knack. Early in my accounting classes, a professor made the point that accountants manipulate numbers, while lawyers manipulate words.
  7. Subscriber no1marauder
    It's Nice to Be Nice
    01 Apr '13 14:04
    Two articles discussing the issue and the history:

    http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/may98.htm

    http://www.acslaw.org/files/Kinkopf-Signing%20Statements-Jun%202006-Advance%20Vol%201.pdf
  8. 01 Apr '13 14:21
    Originally posted by no1marauder
    Two articles discussing the issue and the history:

    http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/may98.htm

    http://www.acslaw.org/files/Kinkopf-Signing%20Statements-Jun%202006-Advance%20Vol%201.pdf
    Both interesting views. I would think that despite the President's oath to "execute the laws" is counterbalanced by his oath of faithfulness to the Constitution, conflicting promises if his view is that a law is Unconstitutional.

    English common law has the principle of nullification, which can be practised by juries, or individuals. I see no reason a President couldn't practice nullification, subject to the same risks that individuals might face. In short, a President openly defying Congress refusing to enforce a law, could precipitate a case before SCOTUS. I'm not sure who would have standing to bring such a case, and whether it would have to travel through the normal court channels before reaching SCOTUS.

    Could Congress then pass articles of impeachment against a President who nullified a law? It seems that many Presidents quietly ignore laws they don't like, without the fanfare of the bully-pulpit.
  9. 01 Apr '13 16:37
    Originally posted by normbenign
    Both interesting views. I would think that despite the President's oath to "execute the laws" is counterbalanced by his oath of faithfulness to the Constitution, conflicting promises if his view is that a law is Unconstitutional.

    English common law has the principle of nullification, which can be practised by juries, or individuals. I see no reason ...[text shortened]... y Presidents quietly ignore laws they don't like, without the fanfare of the bully-pulpit.
    Could someone provide the context in which the president swears to "execute the laws" and also where the distinction is drawn between executing and defending? The presidential oath is "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States." Is the distinction drawn from other explicit constitutional wording, statutory or case law? I'm not disagreeing here; just asking for guidance.
  10. 01 Apr '13 18:07
    Originally posted by JS357
    Could someone provide the context in which the president swears to "execute the laws" and also where the distinction is drawn between executing and defending? The presidential oath is "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend th ...[text shortened]... utional wording, statutory or case law? I'm not disagreeing here; just asking for guidance.
    Comment: Partially answered by clause 5 of section 2 -- The President must "take care that the laws be faithfully executed." But isn't defending specified only for the Constitution?
  11. 02 Apr '13 16:58
    Originally posted by JS357
    Comment: Partially answered by clause 5 of section 2 -- The President must "take care that the laws be faithfully executed." But isn't defending specified only for the Constitution?
    It seems you've identified the relevant text. I was lazy, not citing it, confident that no1 would, especially if he disagreed.

    The common law tradition of nullification, seems to bring into focus, the apparent conflict of defending the Constitution, and executing laws he believes are unconstitutional. The tradition of nullification is on shaky footing, as is the scofflaw practicing it. It is a manner of opposing unjust or unconstitutional laws, and getting them in front of a court, presumably SCOTUS eventually.
  12. 02 Apr '13 19:11
    Originally posted by no1marauder
    During the oral argument concerning the Defense of Marriage Act, Chief Justice Roberts and several other members of the right wing of the court expressed irritation that the Obama administration was still enforcing the DOMA though it believes it unconstitutional:

    He expressed irritation that the case was before the court, saying President Obama’s appr ...[text shortened]... g?" Can a President simply ignore a duly passed law because he believes it unconstitutional?
    I think Justice Roberts was expressing the view that there could be a standing issue as one of the parties (the administration) wasn't really defending the law.
    I could see where a justice would be frustrated, feel time and resources were wasted and that they would get bad press even if they legally came to the correct result if the court eventually tossed out a case based on standing and never got to rule on the merits of the arguments.
  13. 02 Apr '13 19:25
    Originally posted by quackquack
    I think Justice Roberts was expressing the view that there could be a standing issue as one of the parties (the administration) wasn't really defending the law.
    I could see where a justice would be frustrated, feel time and resources were wasted and that they would get bad press even if they legally came to the correct result if the court eventually tossed out a case based on standing and never got to rule on the merits of the arguments.
    In what cases I've read, the matter of standing is a refuge of those who don't want to try a case on its merits.
  14. 02 Apr '13 19:48
    Originally posted by normbenign
    In what cases I've read, the matter of standing is a refuge of those who don't want to try a case on its merits.
    There are certainly situations where one of the parties isn't vigorously defending its position and therefore the case is a sham. Many people seem to want this issue decided on its merits and therefore I could see where one might believe that there needs to be parties on both sides of the issue to make arguments.
  15. 02 Apr '13 20:11
    Originally posted by quackquack
    There are certainly situations where one of the parties isn't vigorously defending its position and therefore the case is a sham. Many people seem to want this issue decided on its merits and therefore I could see where one might believe that there needs to be parties on both sides of the issue to make arguments.
    It is pretty clear that there are people on both sides of the issue, but whether they are connected to Prop 8 or DOMA is doubtful.

    Anyone who voted for Prop 8 it would seem should have standing.

    The Congress of the US and President Clinton stood for DOMA. Where are they now?

    Ruling a lack of standing is a cowardly way out of not dealing with an issue that is uncomfortable.