The Federalist Society had an interesting podcast on the issue back in October that you can listen to here. It lasts 40 minutes, and it features Walter Dellinger, John Eastman, John Baker, and Dean Reuter.
In thinking over my reaction from yesterday, some of the feedback I’ve received has me somewhat less concerned than I was yesterday about the Obama Administration’s approach. In particular, it seems that everyone seems to think that, somehow, someone will be available to defend a law when the Administration declines to to do. It’s not entirely clear to me how this happens when an Administration declines to defend a law in the District Court, as opposed to the Supreme Court: The key problem is how to get the case up to the Supreme Court, which isn’t presented when the Administration defends the law in the lower courts. But if everyone agrees that this will happen somehow, then the Administration’s decision is a lot less significant, and therefore less worrisome from a standpoint of long-term impact, than I had thought.
As to how this might happen, some have pointed out that in INS v. Chadha, the Executive declined to defend the law in the circuit court, and the circuit court then appointed amici to represent the interests of both the House and the Senate to defend the law. This is a fair point. At the same time, the law in Chadha was an extremely unusual law: It was a power grab by Congress to take power from the Executive by giving both the House and the Senate unilateral veto power over Executive action. The House and Senate wanted the power; the Executive branch didn’t want them to have it. In that rather unique setting, it makes some sense that the House and Senate, rather than the Executive branch, would defend the law. In the case of DOMA, though, the law is no more Congress’s than it is the President’s. I suppose that you can look to the politics of the majority in each house of Congress and make a practical assessment of whether both or either institution would defend the law; because the House is now in Republican hands, presumably the House would do so if it can. But that strikes me as tricky because it depends on the timing; while it might be true today, presumably it wasn’t true last year.
Anyway, thanks for the helpful feedback; it’s an interesting and complicated question.
The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that this is a constitutionally permissible exercise of executive power, but an unwise one that contradicts the Democrats’ position on other executive power issues.
I’m not a fan of either the Obama Administration or some of the legal arguments they have made in support of the claim that DOMA is unconstitutional. But I do think that they made the right call here. If a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it.
I. The President’s Duty to Defend the Constitution Supersedes His Duty to Uphold Federal Statutes When the Two Conflict.
Let’s start with first principles. The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.
Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.
Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court, and possibly a duty not to take actions to enforce it either, as part of his exercise of prosecutorial discretion (a traditional executive power). Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not. It would have been perfectly legitimate for the Obama Administration to conclude that they are not sure whether DOMA is constitutional, and therefore will defer to the considered judgment of Congress until such time as the Supreme Court definitively decides the issue. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.
II. Practical Considerations.
Many of the critics of Obama’s decision cite the danger that allowing presidents to refuse to defend statutes they consider unconstitutional would allow them to negate any laws the administration happens to disagree with, simply by not arguing for them in court. This is a reasonable concern. But I think it is overblown.
The fact that the administration chooses not to defend a federal law doesn’t mean that it won’t have other able defenders. In practice, virtually any significant federal law is likely to be supported by states and/or private parties who have standing to intervene. For example, any of the 45 states that today forbid gay marriage would probably have standing to defend its constitutionality on the grounds that otherwise they might have to extend tax credits and other government benefits to resident couples who have entered into same-sex marriages in other states. If a future Republican administration chooses not to defend the constitutionality of the individual mandate, both state governments who support it and various private parties who benefit from it materially would have standing to intervene. For example, insurance companies support the mandate because it requires people to buy their products and that financial stake in the law is surely sufficient to give them standing.
Indeed, supporters of a challenged law should prefer that its defense be handled by a party that is genuinely committed to it, rather than a hostile Justice Department that is only litigating the case because they believe they can’t get out of it. Ed Whelan, a prominent critic of the Obama Administration’s handling of the DOMA litigation, claims that the “administration has been sabotaging DOMA litigation from the outset” by refusing to make the best possible arguments in the law’s defense. If so, wouldn’t DOMA supporters be better off if the statute’s defense were handled by parties who actually believe in their case and genuinely want to win it?
Past experience supports the conjecture that a president’s unwillingness to defend a federal statute doesn’t necessarily doom it to defeat. This is not the first time that a president refused to defend the constitutionality of a federal law or regulation. In 1989, as Jim Copland points out, the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court, as other extremely able lawyers were found to defend them. For example, the Bob Jones case was won by prominent Washington, DC lawyer William Coleman.
In recent years, federal courts have gradually relaxed standing rules, making it easier for a variety of parties — especially state governments — to bring lawsuits or intervene in existing ones. Thus, it is highly unlikely that a president’s refusal to defend a statute in court will mean that it won’t find able defenders elsewhere. If there is still a problem, the proper solution is to further loosen restrictive standing requirements, which should be eliminated anyway for reasons I explained here.
UPDATE: I should add that it might also be legitimate for the president to adopt a general policy of deferring to congressional judgment on issues relating to the constitutionality of federal statutes, if he believes that Congress’ judgment on these matters is likely to be systematically superior to that of the executive branch. But I think any such presumption is at best dubious in an era when Congress generally enacts whatever statutes it wants with little or no serious consideration of constitutional constraints on its power.
UPDATE #2: I have changed around some of the wording in this post for the sake of clarity.
As Vice President Biden was called for jury duty, he said he hoped that President Obama would serve in Chicago if he was called.
However, the Los Angeles Times notes Obama “was called to serve on a Cook County jury last year, but he declined the obligation because, coincidentally, it fell two days before his first State of the Union address.”
Taegan Goddard’s Political Wire
(CNN) - Vice President Joe Biden reported for jury duty in Delaware Monday morning, but he was not chosen to sit on a jury.
The White House announced early Monday that Biden, who served for nearly four decades as a U.S. senator from Delaware, and who often retreats to his Wilmington family home on the weekends, would “participate in the standard jury selection process in his capacity as a private citizen” at the New Castle County Courthouse in Wilmington.
A White House official later confirmed that the vice president was released around noon along with the rest of his jury pool.
Just last week, Supreme Court justice Elena Kagan reported to the Washington, D.C. Superior Court for jury duty, but was also released from service and did not sit on any hearings.
-CNN Supreme Court Producer Bill Mears contributed to this report.
Updated 3:26 p.m.
Now I think we all appreciate the symbolism of him reporting just like any other citizen but the fact is he is not just any other citizen. He was never going to serve on a jury for the simple reason that if he did the loser in the case would have had a solid basis for appeal.
In addition his being there required extra security, secret service, etc.
I appreciate the gesture but considering he was never going to appear I have to question the wisdom of spending the money for him to show.
While he is constantly flying around the country on official business and for Democratic fundraisers, Vice President Joe Biden took time Monday morning to report for jury duty.
His office announced that he reported to the local Superior Court at the New Castle County Courthouse in his hometown of Wilmington, Delaware.
“The Vice President will participate in the standard jury selection process in his capacity as a private citizen,” the office said.
ABC News’ Karen Travers reports: Vice President Joe Biden has embraced the nickname “Sheriff Joe,” given to him by President Obama for his role overseeing the Recovery Act funds. He may have a new nickname to go along with that…
Vice President Joe Biden, along with 100 other Delawareans, reported for jury duty this morning at the New Castle County Courthouse, the Wilmington News Journal reports.
Said Biden: “I don’t consider myself different than any other person. This is important … It is an honor to be a part of the system. I hope the president serves in Chicago if he is called.”
Taegan Goddard’s Political Wire
Washington (CNN) - Politics is serious business - but not all of the time.
The most informed juror
New Supreme Court justice Elena Kagan found herself among fellow Washington residents on Thursday - waiting at D.C. Superior Court after receiving a jury summons.
“Sporting dark trousers and a checkered patterned sweater jacket, she sat quietly, reading through what appeared to be a legal brief and making handwritten notes in the margin,” ABC News’ Devin Dwyer reports.
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BY: MOHAMED KHODR
“I’ve never seen a President — I don’t care who he is — stand up to them [the Israelis]. It just boggles the mind. They always get what they want. The Israelis know what is going on all the time. I got to the point where I wasn’t writing anything down. If the American people understood what a grip those people have got on our government, they would rise up in arms. Our citizens certainly don’t have any idea what goes on.” Admiral Thomas Moorer, former Chairman of the U.S. Joint Chiefs of Staff
President George Washington warned America of developing a “Passionate Attachment” to a foreign nation whose interest may surpass our national interest. Similarly both President Jefferson and President Madison warned of “foreign entanglements” and the influence of a “faction” respectively whose power will undermine America’s security and prosperity.
Today this nation is Israel. Today this faction is Israel’s Lobby, mainly the feared AIPAC (American Israeli Public Affairs Committee), an admitted Israeli lobbying group that the Department of Justice is paralyzed to force it to register a foreign agent.
No Americans possess the honor, courage, credibility, bearing hardships and sacrificing life and limb as America’s soldiers and Veterans who uniquely have the knowledge that war is hell, but willingly accept that liberty and freedom from all foes from abroad or within is the highest calling to defend this nation.
Honorable Veterans, you are America’s pride with vast support in this country. It must be you that rallies this nation to once against fight for America’s Independence from Israel’s power. You, along with all of us who will follow your leadership, must, must, must reclaim our government, the White House and the subservient Congress, from the tentacles of Israel that reach deep into our Treasury, Pentagon, State Department, and Commerce Department, and our Federal Reserve
The Revolutionary War won American Independence from the most powerful colonial power in the world at the time. Today, America’s Independence is once again jeopardized by a second more insidious colonial power—Israel.
Without the United States immediate recognition of a unilaterally declared State of Israel in 1948 there would be no Israel. Without America’s enormous military aid of the latest weapons, technology, and satellite spying; without America’s tax dollar grants to Israel of close to $ 2 Trillion; without America’s constant Vetoes in the United Nations of Security Council Resolutions simply condemning and urging Israel to comply with International and Humanitarian Law; without American Presidents and the subservient Congress support and protection of Israel’s wars and atrocities as “self defense”; without America’s media attacking, smearing, and ruining the lives of any American who dares speak out against Israel’s control of our foreign policy; and most importantly, without the American people’s ignorance, disinterest, disconnect, and apathy toward our governmental domestic and foreign policies—there would be no ISRAEL.
While Jewish Americans constitute <2% of the U.S. Population, a small minority of them have disproportionate ownership, presence and tentacles throughout the government (Senate alone has 13 Jewish Senators with not one African American senator), in Wall Street Banks and Financial Institutions, major media corporations, Hollywood, and Academia.
Such “Jewish Power”, the title of a book by Jewish journalist J. J. Goldberg, is solely used for Israel’s benefit and interest and not America’s national interest.
“I am concerned for the security of our great nation; not so much because of any threat from without, but because of the insidious forces working from within.”
–General Douglas MacArthur
This is not an Anti-Jewish rant (Anti-Semitic is a misnomer since Semitic refers to Semitic languages like Arabic, Hebrew, Akkadian, Assyrian, Babylonian etc.; and not to any ethnicity or faith) but a factual statement that is easily verifiable. Thus factually Arabs are Semites no Jews.
Let us view Quotes by prominent American politicians over several decades on the power and detriment of Israel to America’s national interests, honor, foreign policy, and international credibility.
Truman’s Ambassador Mark Etheridge to the Lausanne Conference to get Israel to accept two U.N. Resolutions: `181 (Partition of Palestine) and 194 (Right of Return of Palestinian Refugees to their homeland): From the conference he wrote President Truman.
““Since we gave Israel birth we are blamed for her belligerence and her arrogance and for the cold-bloodedness of her attitude toward refugees…what I can see is an abortion of justice and humanity to what I do not want to be a midwife… Israel must accept responsibility….her attitude toward refugees is morally reprehensible….Her position as conqueror demanding more does not make for peace.”
–Quote from former Time Magazine’s Jerusalem Correspondent Donald Neff’s book, “Fifty Years of Israel”, p.79
“I am aware how almost impossible it is in this country to carry out a foreign policy [in the Middle East] not approved by the Jews….. terrific control the Jews have over the news media and the barrage the Jews have built up on congressmen …. I am very much concerned over the fact that the Jewish influence here is completely dominating the scene and making it almost impossible to get congress to do anything they don’t approve of. The Israeli embassy is practically dictating to the congress through influential Jewish people in the country”
–Secretary of State John Foster Dulles in February, 1957 quoted on p.99 of “Fallen Pillars” by Donald Neff
“The Israelis control the policy in the congress and the senate … somewhere around 80 percent of the senate of the United States is completely in support of Israel — of anything Israel wants”
– Senator William Fulbright, Chairman Senate Foreign Relations Committee, October 7, 1973 on CBS’ “Face the Nation”.
“You can’t have an Israel policy other than what A.I.P.A.C. gives you around here,” Hollings said. “I have followed them mostly in the main, but I have also resisted signing certain letters from time to time, to give the poor president a chance.”
–Senator Ernest Hollings (D-SC), Speech on Senate Floor, May 20, 2004 (prior to his retirement after serving 39 years in the Senate)
“I do not believe the National Intelligence Council could function effectively while its chair was under constant attack by unscrupulous people with a passionate attachment to the views of a political faction in a foreign country (Israel)…. The libels on me and their easily traceable email trails show conclusively that there is a powerful lobby determined to prevent any view other than its own from being aired, still less to factor in American understanding of trends and events in the Middle East. The tactics of the Israel Lobby plumb the depths of dishonor and indecency and include character assassination, selective misquotation, the willful distortion of the record, the fabrication of falsehoods, and an utter disregard for the truth. The aim of this Lobby is control of the policy process through the exercise of a veto over the appointment of people who dispute the wisdom of its views, the substitution of political correctness for analysis, and the exclusion of any and all options for decision by Americans and our government other than those that it favors.”
–Ambassador Chas Freeman’s Letter in the Washington Times, March 11, 2009 on the Israeli Lobby’s and Jewish American attacks on him forcing him to withdraw from his appointment by President Obama to Chair the National Intelligence Council.
Ambassador Freeman is only one of many Americans attacked by Israel’s Lobby forcing many to resign, withdraw, or be defeated in political elections or appointments. The same holds true in the media (Helen Thomas, Rick Sanchez, Octavia Nasr), and Academia (Professors Ilan Pappe (Israeli) and Norman Finkelstein (Jewish American).
While our Constitution and Bill of Rights guarantees Americans the rights of free speech, when it comes to Israel, this right is sacrificed to Jewish influence, money, and media control.
Several prominent Jewish Americans have dual American-Israeli citizenship which begs the question where does their allegiance lie. Among them is Rahm Emmanuel, son of an Israeli terrorist, and who until recently was President Obama’s Chief of Staff.
Around the world Israel is seen as a pariah for its theft of Palestine by war, violence, and terrorism; for its ethnic cleansing of 750,000 Palestinians and destruction of 450 Palestinian Muslim and Christian villages, and its wars of occupation that now militarily rules over 3.5 million Palestinians, 1.5 million of them in Gaza totally besieged by Israel now for 4 years.
Israel’s racist attitudes against Palestinian Christians and Muslims have been repeatedly documented by the Israeli press. Rabbi Ovadia Yosef, the head of the Shas Party, Israel’s largest religious party with 5 members in Netanyahu’s cabinet voiced such racism against all Gentiles.
“Goyim (Non Jews) were born only to serve us. Without that, they have no place in the world – only to serve the People of Israel,” Jerusalem Post: 10/18/2010
This includes you, Honorable Veterans, and all Americans who for decades have paid and died for Israel.
In 2003 a Eurobarometer Poll of Europeans in 15 nations showed that the majority of Europeans, 59%, believe Israel is the greatest threat to world peace; not North Korea nor Iran.
While Israel’s only “friend” is America it continuously slaps and insults America’s Presidents and people without a simple whimper of a response from this superpower.
“Our American friends offer us money, arms, and advice. We take the money, we take the arms, and we decline the advice.” –Moshe Dayan (Iron Wall, p. 316)
No greater example of Israel’s power upon our government than its deliberate murderous attack on the USS Liberty on June 8, 1967 that killed 34 Americans and wounded 171. The ship called for naval help but the White House denied the call and instead covered up this attack to protect Israel. Congress has refused to investigate this attack for similar reasons. Thus our own government covers up Israel’s murders of our military and civilian citizens for Israel’s sake.
Our Government would rather fight Israel’s wars than have the courage to fight Israel’s power.
Americans are paying dearly by the hundreds of billions to Israel during a time our national and budget deficits are in the trillions of dollars;, while our citizens are homeless, hungry, without health insurance, jobless, with dilapidated schools, roads, bridges, and transportation system.
President George W. Bush on July 29, 2007 proposed $ 30 Billion of military aid to Israel. To pay for that just two days later he VETOED the same amount, $ 30 Billion, to expand the Children’s Health Insurance program, SCHP.
The health and welfare of America’s Veterans, families, children, and the elderly are sacrificed to our government’s priority of paying Israel, the very nation that takes our money, our weapons, then kicks us in the face
This should outrage every American, but who will provide the leadership to lead us into battle to reclaim our nation and our government?
You, Honorable Veterans. You must lead us to free this land of the brave and home of the free.
Our Dear Veterans, will you be silent and stand on the sidelines or will you do everything in your power to free America from its Albatross—Israel. Will you allow our beloved nation to be shackled and owned by a foreign power? Can we afford to pay hundreds of billions of tax dollars to a nation that occupies the land and lives of an innocent population? While Congress fights over unemployment insurance there is massive bipartisan support to meet Israel’s demands, or else.
Disagree with Israel and the Pro-Israel media will smear, attack, and dress you down as an “Anti-Semite”; “Holocaust Denier”; “Jew Hater”; or “Genocidal Liar”. Just ask President Jimmy Carter, Nelson Mandela, Former Archbishop Desmund Tutu, Former Irish President Mary Robinson, and many other Jewish, Christians, and Muslim Americans here and abroad.
You will not be alone, America will follow. There are millions of Americans who abhor Israel’s influence, many organizations—ironically the majority are run by Jewish Americans; many churches and clergy, student organizations, and a vast internet and alternative media outlets.
There are 21.9 Million Veterans in the United States.
What if only one percent of Veterans descend on Washington D.C. to demand and reclaim our government to serve Americans, to serve our domestic and international interests, to fund domestic programs for all Americans and not be subservient and cowardly toward a foreign nation—Israel.
Let freedom ring in Washington D.C. that our government is established with “We the People”, and “Not They, the Israeli’s_.
- We shall demand an end to Israel’s foreign aid, an aid that goes to one of the world’s richest nations and constitutes about a third of all our foreign aid. An aid that subsidizes Israel’s illegal occupation of Palestinians and the construction of illegal settlements.
- We shall demand an end to all military, technology, and satellite spying aid to Israel.
- We shall demand an end to all Vetoes in all International bodies to protect Israel.
- We shall demand an end to its illegal occupation of Palestinian lands and the establishment of a Palestinian State along the 1967 borders with East Jerusalem as a capital for Christians and Muslims. The world has been silent as Christians have been ethnically cleansed from the Holy Land. Christians constituted 29% of Palestine in 1948; today they are only 2% due to Israel’s policies.
Israeli Jews are working diligently to destroy Islam’s Holy Mosque in Jerusalem, how long before they destroy the Church of the Holy Sepulcher?
As Abraham Lincoln said: “Those who deny freedom to others deserve it not for themselves”. (April 6, 1859)
- We shall demand the destruction of the Apartheid Wall that has stolen more Palestinian Land and separated Palestinian families and farmers from their fields.
- We shall demand an end to all Congressional Resolutions supportive of Israel.
- We shall demand that AIPAC register as a Foreign Lobbying Agent and thus come under the scrutiny of the Department of Justice.
- We shall demand “no more wars for Israel” in the Arab and Muslim world. Our dollars and youth are more precious than any relationship with a nation that has defied the world yet demands the world submit to its demands.
Let the politicians be warned–do this—or You’re Fired.
Honorable Veterans, this is the biggest challenge facing our nation at a time of huge deficits, unemployment, home foreclosures, and a shameful neglect of the health and housing for our Veterans. It is much easier to fight an actual war than to fight this hidden cancer in our national institutions.
Time and Justice is on our side.
Let us be Silent No More.
“All that is necessary for evil to succeed is for good men to do nothing.”
–Edmund Burke, British statesman and philosopher
The views in this brief are those of the author and do not necessarily reflect those of Intifada-Palestine.com.
Mohamed Khodr is a political activist who frequently writes on the plight of Palestinians living under the brutal occupation of Israel, U.S. Foreign Policy, Islam, and Arab politics.
When will 57 year old men learn not to mess with a man’s 17 year old daughter?
47 year old Helmut Seifert had his 17 year old daughter’s 57 year old boyfriend catrated. He said, “I saw it as my duty as a father.” Seifert had tried to have the police act on the matter; however, they stated they were powerless to do so. Seifert said of the police, “ You said you couldn’t stop him – so I did.”
“The man was forced to remove his trousers and, fully conscious, he was castrated. The severed testicles were taken away by the perpetrator.”
The man was close to bleeding to death but managed to call police. His life was saved but he remains a eunuch for life.
Seifert pleaded guilty and will be on trial for attempted murder next year. But he has remained silent on who his accomplices were.
He told police: “I received a phone call anonymously that my daughter was involved with a guy 40 years older than her. You said you couldn’t stop him – so I did.
“I saw it as my duty as a father.”