February 23, 2011

If this is the new Executive Branch standard ...

... then I'll expect the next GOP president to declare ObamaCare and a host of other laws he (and his party) do not like "unconstitutional."

"Given a number of factors, including a documented history of discrimination," Holder wrote in a statement, "the administration has concluded that classifications based on sexual orientation must be subject to a higher constitutional standard than ordinary laws. And the federal Defense of Marriage Act does not meet that test," he says. (Link.)

In other words, Obama himself has decided that the law is unconstitutional and therefore won't defend it anymore. Or, as Orin Kerr writes,

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case in this case, the degree of scrutiny for gay rights issues and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

As I said, if this is what Democrats really want, then get ready to see ObamaCare, etc., thwarted as soon as a Republican gets back into the White House.

Posted by Hube at February 23, 2011 07:48 PM | TrackBack

Comments  (We reserve the right to edit and/or delete any comments. If your comment is blocked or won't post, e-mail us and we'll post it for you.)

It won't end with Obamacare being unconstitutional. I can think of a whole raft of things that the GOP led DOJ will no longer take an interest in. This isn't exactly new either. Either party has been focusing on whatever their base wants them to and ignoring the other stuff. Look at Janet Reno pushing after that anti-abortion guy for how long and the Elian Gonzales fiasco all while the 9/11 crew was ramping up. Calls about them were ignored. Nobody at the FBI was interested.

Hell Andrew Jackson once said "John Marshall has made his decision, now let him enforce it!"

We may well hear that same sentiment from President Christie.

Posted by: Duffy at February 24, 2011 09:37 AM

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