U.S. Justice Dept. decision not to defend Def of Marriage act, is wrong.

[BenNatuf]

where did you learn that? Because he certainly does and courts have upheld it over and over again. He doesn't get the final say, but he does get the first bite of the apple. He gets the third bite too, but thats another story.

A President gets a say in laws that land on his desk to sign or veto. Not laws that were passed by Congress and a previous President.

wrong

Myers is very nearly decisive of the issue [of Presidential denial of the validity of statutes]. Myers holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts.

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTEUNCONSTITUTIONAL STATUTES This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.

If he believed they were unconstituional he would be acting within his authority, on the other hand if he believed they were constituional and failed to defend them it would be a derriliction of duty. BTW, I'm not a lib, I'm likely more conservative than you are, but my opinion of Presidetial authority doesn't change with the letter after their name.

I don't see how the Department of Justice can just decide to defend or not defend cases brought against laws. Its ALREADY law, so its their job to defend and enforce it. The President gets to appoint the head of the DOJ, he does not have the authority to micro manage it and tell the agency to stop enforcing/defending certain laws he cherry picks.[/quote]Who said anything about cherry picking? If the president in the course of reviewing a law to determine how to enforce it can find a way to enforce it that he thinks IS constitutional, then he is bound to do so. That is not saying if he doesn't like it and can find a way to determine its unconstitutional he should, its not saying that at all, its quite the opposite. he should make every aytempt to find a way to enforce it within the confines of the constitution. If however, no matter how he tries he cannot, he is bound by oathe not to. It is not something a President should do lightly, but in the case that he honestly believes it and can find no way to reconcile the law in order to enforce it, he should not enforce it. To do so is anethema to the constitution and that itself is the gist of marbury.

It's not a precedent, been done by almost every administration, you don't usually hear about it though, because they don't usually announce it.

Provide some examples then?

They've already been provided by others in posts above

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTEUNCONSTITUTIONAL STATUTES This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.

wouldn't be worth squat, the president does not have the authority to exempt people from laws he believes to be constitutional. He does have the authority to pardon them for breaking them though.

Then how is the current President getting away with issuing "waivers" to whomever he deems worthy? He is not pardoning them from convictions.

Did I say what he was doing was constitutional? That would be one of the reasons the law is being challenged.

 

[M14 Shooter]

The problem with the "Defense of marriage act" from a legal standpoint has nothing to do with how you feel about gay marriage.

It is unconstitutional for one simple reason:

Deciding who can marry who is not one of the enumerated powers of the Constitution. Therefore, congress may pass no law defining marriage.

The DOMA does not decide who can marry who.

It does, however, define who may receive federal benefits - a power that Congress certainly does have.

Even liberals must understand that simple truth.

Never mind that there is absolutely no provision in the Article II powers of the President that gives the President the power to decide to not enforce the law, regardless if he declares it "unconstitutional" or not. That decision is - wholly- outside his perview.

 

[theHawk]

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTEUNCONSTITUTIONAL STATUTES This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.

So some memorandium to President Clinton is "proof" that a President has the legal authority to disregard any law he "thinks" is unconsitutional?

 

[M14 Shooter]

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTEUNCONSTITUTIONAL STATUTES This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.

So some memorandium to President Clinton is "proof" that a President has the legal authority to disregard any law he "thinks" is unconsitutional?

How long do you suppose it would have taken the liberals to scream for impeachment, had GWB decided that the 1994 'assault weapon' ban was unconstutional and refused to enforce it?

 

[BenNatuf]

The DOMA does not decide who can marry who.

It does, however, define who may receive federal benefits - a power that Congress certainly does have.

Even liberals must understand that simple truth.

That part is true enough

Never mind that there is absolutely no provision in the Article II powers of the President that gives the President the power to decide to not enforce the law, regardless if he declares it "unconstitutional" or not. That decision is - wholly- outside his perview.

Courts disagree with you, of course thats because courts reccognized a long time ago that the President enforcing laws which are anethema to the constitution would be a violation of his oathe. Yes, courts do determine the constitutionality of statutes... once they get to them. Prior to that the administration must enforce them, and in order to do that they must interpret them, and in the course of doing that, if they cannot reconcile them with the constitution they should ignore them.

Consider an obvious contradiction.

The Congress of the united states once again overrun by progressives in the spirit of early 20th century progressives like Wilson passes a law mandating the reduction of the killer gas CO2. As a part of the statute they declare the executive must take illegal immigrants when caught and provide them as slave labor to construct windmills and solar farms to facilitate saving the planet. (unlikely as that may be... they could)

The new GOP President, a lover of freedom, liberty and individual rights, vetos. (as he can)

The liberal fascist congress then overrides his veto (as they can)

Is it now a law the President must enforce?

Obviously NOT, it is clearly unconstitutional and the President is bound by oathe (which you'll find in the constitution) to defend the constitution, not legal nullities which are anethema to it.

The finding in marbury is that ALL departments, agencies and courts MUST consider laws which are anethema to the constituion as void. IOW a law which is anethema to the constitution is not and never was actually a law as the constitution itself nullifies them, not the courts. It does not say the departments and agencies should enforce legal nullities until a court tells them not to... it says to consider them void. Period.

Moving along, suppose some giant Krupp industries type corporation (GE perhaps) sues the federal government for the President's failure to enforce the law which harms their business by not providing them with slaves to construct windmills and solar farms making them more competitive with evil big coal. Should the President and AG now defend the law? If so, the giant corporation wins by default. Obviously the answer is no, the President and AG should defend the constitution.

Suppose the district court rules in their favor because the district judge is an environmental whacko activists who cares more about propping up the green movement than he does the constitution (say Van Jones was appointed and thinks slave labor is every bit as good as prison labor - again, as unlikely as it seems its possible)

Should the President aquiesce and enforce the law until the case moves on? Obviously not, his duty is to the constitution, not the courts.

Suppose now the appelate court full of obamabots in the ninth circuit screws the pooch royally yet again and interprets the clause "except as punishment for crime" as justification for the statute and decides the law is a reasonable exercize of power under the clean air act to reduce the killer polutant CO2, completely ignoring the "cruel and inhuman" aspect and affirms the lower courts ruling.

Should the President now throw in the towel and enforce the law? No, not if he's worth a shit.

Now the case goes to the SCOTUS which is over run by O'Fascialist Obama appointees in the mold of Kagan and Sotomayor who find it a reasonable exercize of governmental authority deciding that the real cruel and inhuman thing to do would be to leave these poor undocumented workers at the mercy of evil big business coporate executives who will take advantage of them by paying them less than scale, and that nanny state government is the best place to ensure their happiness, productivity, and contributions to society. They put in requirements like "no chaining after the shift is done, and lobster on fridays" to show how caring and benefficient we are.

Should the President now enforce the law?

Likely? No. Plausible? No. Possible under our system? Yes.

 

[BenNatuf]

PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTEUNCONSTITUTIONAL STATUTES This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.

So some memorandium to President Clinton is "proof" that a President has the legal authority to disregard any law he "thinks" is unconsitutional?

Perhaps you noted the LEGAL precedents?

 

[M14 Shooter]

The DOMA does not decide who can marry who.

It does, however, define who may receive federal benefits - a power that Congress certainly does have.

Even liberals must understand that simple truth.

That part is true enough

Never mind that there is absolutely no provision in the Article II powers of the President that gives the President the power to decide to not enforce the law, regardless if he declares it "unconstitutional" or not. That decision is - wholly- outside his perview.

Courts disagree with you, of course thats because courts reccognized a long time ago that the President enforcing laws which are anethema to the constitution would be a violation of his oathe. Yes, courts do determine the constitutionality of statutes... once they get to them. Prior to that the administration must enforce them, and in order to do that they must interpret them, and in the course of doing that, if they cannot reconcile them with the constitution they should ignore them.

Please back this with something more subtsantive than your opinion.

Be sure to include specific legal examples and instances, as well as text from the constitution that supports the idea that the President may, for himself, decide that legislation is unconstitutional and then selectively decide to ignore it.

 

[BenNatuf]

The DOMA does not decide who can marry who.

It does, however, define who may receive federal benefits - a power that Congress certainly does have.

Even liberals must understand that simple truth.

That part is true enough

Never mind that there is absolutely no provision in the Article II powers of the President that gives the President the power to decide to not enforce the law, regardless if he declares it "unconstitutional" or not. That decision is - wholly- outside his perview.

Courts disagree with you, of course thats because courts reccognized a long time ago that the President enforcing laws which are anethema to the constitution would be a violation of his oathe. Yes, courts do determine the constitutionality of statutes... once they get to them. Prior to that the administration must enforce them, and in order to do that they must interpret them, and in the course of doing that, if they cannot reconcile them with the constitution they should ignore them.

Please back this with something more subtsantive than your opinion.

Be sure to include specific legal examples and instances, as well as text from the constitution that supports the idea that the President may, for himself, decide that legislation is unconstitutional and then selectively decide to ignore it.

It's been provided to you over and over again and the cases cited are in the memo. You've been provided with more than "my opinion" and your ignoring it as if it weren't there does not negate its being there. Do you think nobody can see the link with the cited SCOTUS cases in it and the dicta from the court quoted to support it within them? And thatmemorandum which sites those cases doesn't even cite marbury's finding, which of course is binding and the reason other courts have upheld the practice.

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

concluding

...the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.

pretty cut and dried.

 

[M14 Shooter]

pretty cut and dried.

...that a law repugnant to the constitution is void...

Certainly true. The question where the Constitution gives the President the power to make this determnination.

 

[BenNatuf]

pretty cut and dried.

...that a law repugnant to the constitution is void...

Certainly true. The question where the Constitution gives the President the power to make this determnination.

Where does it say a court may nullify an act of the congress? The court came to this conclusion through legal reasoning, not because the constitution explicitly said they could. It is not courts that nullify laws, it is the constitution and if we are to have three CO-EQUAL branches then each brance must be able to interpret the constitution for itself, subject to the oversight of the other two. A law which is repugnant to the constitution is not made repugnant by the courts, but by the constitution. If a President is to enforce a law which he considers unrecconcileable to the constitution until a court tells him otherwise then he does not serve the constitution, he serves the courts.

How else is he supoposed to enforce a law other than to interpret it? Yes, courts interpret the law for the courts, and since thats where the law "happens" they are the final arbiters in practice. But they are not the sole arbiters and they are not the first arbiters. marbury is binding, and nowhere in it do the courts say the President must follow a law he finds repugnant to the constitution until they tell him he doesn't have to, in fact, in Marbury, they upheld him NOT DOING IT!

 

[M14 Shooter]

pretty cut and dried.

...that a law repugnant to the constitution is void...

Certainly true. The question where the Constitution gives the President the power to make this determnination.

Where does it say a court may nullify an act of the congress? The court came to this conclusion through legal reasoning, not because the constitution explicitly said they could.

Yes. The court decided that it could decide that it has the power of judicial review.

It is not courts that nullify laws, it is the constitution

So this whole idea that laws are presumed constitutional until the court decides otherwise is a simple legal fantasy - indeed, any branch of the government, by simply saying so, can declare an action or statutse unconstitutional, and then acting as if said declaration came from the court?

Imagine, had GWB simply declared the 1994 AWB unconstitutional and decided to not enforce it.

 

[BenNatuf]

...that a law repugnant to the constitution is void...

Certainly true. The question where the Constitution gives the President the power to make this determnination.

Where does it say a court may nullify an act of the congress? The court came to this conclusion through legal reasoning, not because the constitution explicitly said they could.

Yes. The court decided that it could decide that it has the power of judicial review.

among other things

the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.

It is not courts that nullify laws, it is the constitution

So this whole idea that laws are presumed constitutional until the court decides otherwise is a simple legal fantasy - indeed, any branch of the government, by simply saying so, can declare an action or statutse unconstitutional, and then acting as if said declaration came from the court?

to the first part... yes, that is a fantasy. the courts have upheld administration not enforcing the law many times... starting with Marbury. Do you understand that when a court rules a law as being unconstitutional they are not in effect interpreting the law for themselves but are adjudicating the interpretation of the Executive against the interpretation of the appelant? And, in doing so have always given GREAT LATITUDE to the interpretation of the Executive.

Imagine, had GWB simply declared the 1994 AWB unconstitutional and decided to not enforce it.

It is not a matter of simple declaration, there must be a rational basis and the executive must satisfy themselves that there is NO POSSIBLE interpretation under which the law could be enforced. hence, almost every President in history's "signing statements" telling the executive how they are to interpret law's he finds constitutionally troublesome in order to enforce it. Being President is a heavy responsibility and with it comes a heavy burden. No President should take this tact lightly, and every President should to the best of his ability construe every law passed by the congress in whatever light he can so as to make enforcement constitutional, when that becomes an impossibility, it is just that.

BTW, the executive must also be prepared to DEFEND such declaration as some party harmed by their lack of enforcement will sue, and then the court gets its bite of the apple.

 

[52ndStreet]

where did you learn that? Because he certainly does and courts have upheld it over and over again. He doesn't get the final say, but he does get the first bite of the apple. He gets the third bite too, but thats another story.

A President gets a say in laws that land on his desk to sign or veto. Not laws that were passed by Congress and a previous President.

If he believed they were unconstituional he would be acting within his authority, on the other hand if he believed they were constituional and failed to defend them it would be a derriliction of duty. BTW, I'm not a lib, I'm likely more conservative than you are, but my opinion of Presidetial authority doesn't change with the letter after their name.

I don't see how the Department of Justice can just decide to defend or not defend cases brought against laws. Its ALREADY law, so its their job to defend and enforce it. The President gets to appoint the head of the DOJ, he does not have the authority to micro manage it and tell the agency to stop enforcing/defending certain laws he cherry picks.

It's not a precedent, been done by almost every administration, you don't usually hear about it though, because they don't usually announce it.

Provide some examples then?

wouldn't be worth squat, the president does not have the authority to exempt people from laws he believes to be constitutional. He does have the authority to pardon them for breaking them though.

Then how is the current President getting away with issuing "waivers" to whomever he deems worthy? He is not pardoning them from convictions.

This is exactly my point. The DOJ job and duty is to defend Federal laws.
The President has no authority to pick and choose which laws the Justice Department
will defend.DOMA is not unconstitutional. DOMA should be vigourously defended.
This act by the Obama administration is a miscarriage of justice.

 

[BenNatuf]

where did you learn that? Because he certainly does and courts have upheld it over and over again. He doesn't get the final say, but he does get the first bite of the apple. He gets the third bite too, but thats another story.

A President gets a say in laws that land on his desk to sign or veto. Not laws that were passed by Congress and a previous President.


I don't see how the Department of Justice can just decide to defend or not defend cases brought against laws. Its ALREADY law, so its their job to defend and enforce it. The President gets to appoint the head of the DOJ, he does not have the authority to micro manage it and tell the agency to stop enforcing/defending certain laws he cherry picks.


Provide some examples then?

wouldn't be worth squat, the president does not have the authority to exempt people from laws he believes to be constitutional. He does have the authority to pardon them for breaking them though.

Then how is the current President getting away with issuing "waivers" to whomever he deems worthy? He is not pardoning them from convictions.

This is exactly my point. The DOJ job and duty is to defend Federal laws.

Correct

The President has no authority to pick and choose which laws the Justice Department
will defend.

In principle, correct, in application, not so much

DOMA is not unconstitutional.

You, me and two appellate courts agree

DOMA should be vigourously defended.

based on the fact thats its been upheld in two appellate courts, i agree.

This act by the Obama administration is a miscarriage of justice.

Its him putting his opinion above what two appelate courts have decided. He can do that, but he's got to be prepared to defend it in court.

 

[Polk]

I don't really give a shit about the gay marriage aspect of it, what I find revealling is that the President finds the law unconstituional as his his want, has said its indeffesible which is demonstrably false, and yet he's still going to enforce it which violates both his oathe and Marbury. Thats just wrong.

If he believes what he thinks is true he shouldn't enforce the damned thing.

First, I've noticed this in several of your post. Oath does not have an e at the end.

Second, it's the duty of the President to "take Care that the Laws be faithfully executed". It's not his place to rewrite the laws passed by Congress.

 

[BenNatuf]

I don't really give a shit about the gay marriage aspect of it, what I find revealling is that the President finds the law unconstituional as his his want, has said its indeffesible which is demonstrably false, and yet he's still going to enforce it which violates both his oathe and Marbury. Thats just wrong.

If he believes what he thinks is true he shouldn't enforce the damned thing.

First, I've noticed this in several of your post. Oath does not have an e at the end.

Second, it's the duty of the President to "take Care that the Laws be faithfully executed". It's not his place to rewrite the laws passed by Congress.

First, I really don't give a damn about gramar nazism

second, his duty is to defend the constitution first, and the courts have declared that laws repugnant to the constituion are in fact, not laws.

 

[Polk]

Except that it's not the duty of the President to declare laws unconstitutional.

 

[BenNatuf]

Except that it's not the duty of the President to declare laws unconstitutional.

No, its his duty not to enforce them if he finds them to be.

 

[Polk]

Except that it's not the duty of the President to declare laws unconstitutional.

No, its his duty not to enforce them if he finds them to be.

That's opening a really dangerous door.

 

[BenNatuf]

Except that it's not the duty of the President to declare laws unconstitutional.

No, its his duty not to enforce them if he finds them to be.

That's opening a really dangerous door.

Doors been open since Marbury. We have Courts and the Congress to check a president who misuses his power.

Other than that I don't want to hijack this thread on the topic of executive authority. Thats why I created the other.