"To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public." -- Theodore Roosevelt


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Wednesday, February 23, 2011

Obama's DOJ Refuses to Defend DOMA, Perhaps Ushering In Era of Selective Enforcement


The Department of Justice has announced it will refuse to enforce the Defense of Marriage Act. Eric Holder, after consultation with Obama, has decided to stop defending key portions of the law.

William Jacobson at Legal Insurrection has an excellent overview, and rightly points out that this political game is a massive power grab by the Obama administration.

From Jacobson:

"The decision by the the Department of Justice to refuse to defend the Defense of Marriage Act is a massive power grab by the Executive Branch.

"The Justice Department is tasked with representing the 'government' is the broad sense in legal matters coming before the courts. There is no congressional Justice Department. Whether it likes a law or not, the Justice Department traditionally has fulfilled the role of arguing for the constitutionality of a law if there were any good faith basis for doing so, because someone has to represent the will of the legislative branch in the courts.

[...]

"While opponents of DOMA will be cheering, this is misguided. As Orin Kerr points out, what goes around comes around, and there may be a host of legislation passed under Obama which a Republican administration could subvert by refusing to defend.

"Similar thoughts at Point of Law Blog:

"'I'm not a fan of the Defense of Marriage Act, but I do have a large problem with the politicization of the role of the Department of Justice. Strip away the gay-rights issue and consider the question: what would Democrats say if, in 2013, President Sarah Palin announced that her Department of Justice would refuse to defend the constitutionality of Obamacare in court? There is no provision in the Constitution for a retroactive veto. Compare and contrast the Bush administration Department of Justice, which steadfastly (and successfully) defended McCain-Feingold and enforced FACEA.'

"Is this really how we want our system of justice to work?

"The President for whom the words 'rule of law' flow so easily from the teleprompter doesn't seem to know what the words actually mean."

I guess anything to get people's minds off of unemployment and fleeing Democrat lawmakers... The short-sightedness of the Obama administration is astonishing to me.

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