Posted on 02/23/2011 9:39:31 AM PST by Justaham
Obama has no authority to decide what is constitutional. He is usurping the powers of the Supreme Court, which is the body appointed precisely to determine what is constitutional and what not.
This clever ploy of announcing that the President and his Justice Department have decided on their own that a law is unconstitutional is probably meant to keep it from ever being submitted to Supreme Court review.
Wake up and smell the sulphur, folks. Obama has NO authority to do this. He is trying to wrest authority from the Judiciary, which is exactly what Hugo Chavez and every tinpot dictator in Latin America and Africa has done.
“Obama has NO authority to do this.”
Actually, he has authority over what the AG defends. There’s plenty of precedent for this. However, you are correct that he does not have the authority to declare the law unconstitutional. The law remains in effect, and members of Congress can step in and defend it if he chooses not to. Some other posters have cleared this up quite nicely already. This is not the end for DOMA, by any means.
Au contraire. He/she most certainly could do that. Nobody can force a President to execute a law he/she considers unconstitutional. A president can proclaim a law unconstitutional and refuse to give it any effect. The only recourse is impeachment, which isn't going to happen if most people agree with the President's substantive position. Youngstown Sheet and Tube isn't on point at all. Even it it were, it's just a court case. Court's are powerless to give their decrees any effect. If the President can convince most voters that his view of the Constitution is correct, he/she can act in accord with that view and there is nothing anyone can do about it.
As a Clintonista once observed, “stroke of the pen, law of the land — Kinda cool.”
I think the way the statement was phrased, however, is meant to give the impression that it is now the Executive (and its legal counsel), rather than the Supreme Court, that decides on the constitutionality of a law.
Obama and the gang were very successful in casting aside “advise and consent” during the last Congress, and they avoided anything that might have been problematic by declaring that policies that should have been set by the legislature were instead to be set by administrative acts of agencies of the Executive Branch.
With the change in the House, they have lost the ability to do this (not easily, at least). So now they’re attempting to do an end-run around the Supreme Court instead.
While people fixate on WI and Obamacare you failed to watch the all important left hand. DADT is not repealed yet, it will be by July, tags can now once repealed tags can claim partners as dependents free med, housing etc. By the way you will pay for HIV infected partners. Congress can stop this with new laws in the UCMJ making butt pirating illegal. But conservatives are too worried about fiscal issues to worry about moral ones. Dems are counting on that.
That is the whole problem with this and no one seems to get it.
Interesting. I didn’t see that. Holder’s statement said that DOMA remains the law and the the President will enforce the law. It also said that he invited Congresscritters to defend the law in court if they so chose.
Yes, I agree, it’s not the end. But I think he’s trying to do the smoke and mirrors thing and keep this from ever going to the SC.
I have had a lot of close-up and personal views of Latin American constitutional law and its vagaries through many different political administrations over the last 20 years or so. One of the things a dictatorial Executive always tries to do is get rid of the constitutional court (in the US, the Supreme Court). They can often control the Legislative Branch through intimidation and vote-rigging, but the Court usually preexists the dictator and is harder to control, so they usually try to set up some “state of emergency” for getting around it until such time has they have managed to remove or jail its members.
Can the President alone determine if something is Constitutional or not?" Since Holder is referencing that argument. Need an Attorny's opinion here perhaps.
Won't be long before we see the true church go underground at the rate things are moving along. Already many people have difficulty attending their churches when they become more and more liberal and full of the crude we see coming into them.
But will congress step up to this? I have reservations about this.
Bush pulled 20% of the "gay vote" in 2000. Last November one-third voted for Republicans.
Obama's taking a page out of the CA rulebook: Don't like a law? Don't defend it in the courts. It's a short circuit of the process of checks-and-balances that thrives best on vigorous debate.
Like Arnold & Brown did to stiff CA voters, Obama is substituting his judgment for that of his predecessor, former constitutional professor Bill Clinton, and an overwhelming, bipartisan, vote of Congress.
Well, using your application of logic, a President could do anything they wish, so long as they had the political capital to spend. That argument becomes, fairly quickly, absurd, especially in practical application.
"Youngstown Sheet and Tube isn't on point at all. "
Sure it is. Presidents don't have the authority to make law, and they certainly don't have the authority to ignore law, or so held the court in Youngstown. Presidents, using an Executive Order, can wield power that has been previously ceded to them by Congress and codified in statutory law.
"Even it it were, it's just a court case."
So was Marbury v. Madison. How did that turn out?
In the 230+ years of the Republic, when the Supreme Court speaks, the country listens, including the President.
How sure are you? In CA we don't even know if those who placed a measure on the ballot have standing before the court if our governor and AG refuse to defend an initiative the voters passed.
Yes, the DoJ (at the direction of the president, or independent of the president) can (and has frequently in the past) concluded that "something" isn't constitutional. BUT, that's entirely different from a Court holding that "something" unconstitutional.
Generally, a DoJ opinion is just that. And, it's important to point out that opinion is not binding on any court, although the court can take such an opinion under advisement and can view it persuasively.
Congress does this frequently with their own Congressional Research Service. This congressional branch will issue opinions about the constitutionality of laws, or how laws are (or could be) applied unconstitutionally.
What the DoJ can't do, is decide that a law is unconstitutional, and then stop enforcing that law, or begin violating it some way. But, they can decide that they won't defend the law from current or future civil legal challenges.
It's already happened (at least once) that I can remember.
Back in the early 1980s, Congress was granted standing to appeal a case to the Supreme Court - a case that had been abandoned by the executive branch, not entirely different than this one. The case was Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).
The facts of that case aren't relevant to this case, but the issue of standing for Congress exists, nonetheless.
How is having a government not enforce it’s own laws different from tyranny?
I can’t wait till the queenie the muslim weenie gets booted out of office.
As a practical matter most Presidents assume the constitutionality of all existing law that hasn't been overturned by the courts. But that doesn't mean they have to and special circumstances, like Obamacare, may justify a departure from the usual practice.
In our constitutional scheme only the executive has any power to give judgments practical effect. With power comes responsibility and that means Presidents can't avoid interpreting the Constitution. Of course, if Congress and the courts don't accept the President's understanding of his constitutional duties, he can be impeached and convicted. That won't happen if the President's position is popular, which means that the people get the final say, which is as it should be.
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