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View Diary: House Republicans vote to punish the gays (80 comments)

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  •  Separation of powers? (1+ / 0-)
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    auron renouille

    If enacted, the provision would cut off funding for DOJ to oppose DOMA.  DOJ could presumably still defend DOMA, and could use appropriated funds for that defense.  So DOJ could still participate in these cases, but only on the side that the House wants it to.

    I think there are a couple problems here.  First, although it doesn't happen often, it's pretty well established that the Attorney General can, in the exercise of his legal judgment, decline to defend a statute he believes to be unconstitutional.  That's what's happened here.  So the House is basically overruling the AG's legal determination by withholding appropriations.  I don't think the legislative branch gets to make that call.  

    Second, there's the ethical problem you raise, and it's related to the first.  DOJ operates on funds appropriated by Congress, but its lawyers still have to do their ethical duty to their client.  I recognize one can argue about who DOJ's real client is, but the AG has determined that DOJ's duty is to oppose the constitutionality of DOMA.  DOJ's lawyers can't abandon that position merely because of who's paying them.  

    This kind of conflict arises frequently in insurance cases.  When a policyholder is sued and tenders defense of the suit to its insurance carrier, the carrier may reserve its rights to decline coverage and undertake to defend the suit conditionally.  In most states, the carrier is required to provide independent counsel for the policyholder.  (Here in California, this is called "Cumis counsel," after the name of the leading case on the subject.)  Although counsel is paid by the carrier, his duty of loyalty is to the policyholder and the policyholder alone.  

    By analogy, it would seem DOJ's lawyers owe their duty of loyalty to their client, not to their paymasters.  So I guess this all comes down to who their client is.

    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

    by FogCityJohn on Thu May 10, 2012 at 09:55:28 AM PDT

    [ Parent ]

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