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View Diary: The b(ogu)s appeal of 'enormous consequences' (298 comments)

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  •  Don't politicize Justice (0+ / 0-)

    The Justice Department, indeed the entire Executive Branch, has an obligation to enforce the law as passed by Congress.  Perhaps some of the commenters have forgotten that from Civics class.  But what that means in practice is that the Justice Department is obligated to defend statutes in court, including appeal if there is a decent legal argument that can be made in favor of the validity of a statute.

    During the Bush era, everybody was ready to demand Bush's impeachment because he issued signing statements narrowly interpreting Congressional enactments, or even appearing to override or ignore them, and because his Justice Department became highly politicized.  If Eric Holder allowed the Justice Department to become similarly politicized, the right would have exactly the same argument.  I know that people get very passionate about their policy preferences, and they should, but they should also not forget about something called the law.  

    DADT is on its way out.  This latest judicial ruling accelerates that process. The administration is committed to repealing the policy.  But at the same time the Justice Department has an obligation to enforce existing law.

    http://www.hopeandchange.net

    •  "Don't politcize justice"? WAY TOO LATE for that! (5+ / 0-)

      The Justice Department is TOTALLY politicized, ALL THE WAY FROM THE TOP DOWN. Just consider the infamous Siegelman case....

      EVERYTHING they do is political. EVERYTHING.

      If it's
      Not your body
      Then it's
      Not your choice
      AND it's
      None of your damn business!

      by TheOtherMaven on Thu Oct 14, 2010 at 04:39:34 PM PDT

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    •  Don't confuse the obligation of the DoJ (6+ / 0-)
      Recommended by:
      musing85, xynz, neroden, DKinUT, MrJayTee, JesseCW

      to enforce existing law, which is real... (although, obviously, see: Torture Prosecutions, lack of,)

      with an imaginary obligation to appeal every ruling by a lower court that goes against the government position.

      When you triangulate everything, you can't even roll downhill...

      by PhilJD on Thu Oct 14, 2010 at 05:37:33 PM PDT

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    •  I'd be curious.... (2+ / 0-)
      Recommended by:
      neroden, MrJayTee

      to know if you believe the DOJ is required by law to defend statutes that they believe to be unconstitutional, or even just don't believe they pass legal muster? In short, do you truly believe they MUST, under ALL circumstances, defend a statute? I ask because I think you'll find the case history on this says otherwise.

      You seem to suggest that if they don't appeal this ruling it will allow the DOJ to become politicized. Here's the problem with your logic:

      1. The DOJ is, and will be, politicized for some time. The fact that the current administration presumably won't make political decisions regarding DOJ doesn't preclude people already there from previous administrations making political decisions.
      1. The very notion that they might make this decision to keep from being politicized, in fact, reinforces the politicization already there because the ONLY factor that should be considered is DOJ's best estimate of whether the statute in question is constitutional/ legal. If they believe it to be unconstitutional, why would they have to defend it?
      1. Assuming that the DOJ ISN'T politicalized already, in what way does making the correct call politicize it and are you suggesting that keeping from politicizing the DOJ should take precedence over defense/non-defense of an unconstitutional statute?
      •  Justice Department standards (0+ / 0-)

        I did not say that Justice must defend a statute under all circumstances.  What I said was that they should defend statutes if a decent legal argument can be made in support of the validity of the statute.  I'm actually not sure that is the exact standard the Justice Department uses, but it's really not that different from what you said, which is that the only factor that should be considered is Justice's best estimate of whether the statute is constitutional/ legal.  But the issue from a standpoint of legal ethics is not what the lawyer's personal beliefs are, but rather the lawyer's estimate of the chances of a particular legal argument succeeding in court.  In this case, an appeal was presumably filed because somebody made a judgment that an appeal had a reasonable chance of succeeding.  If so, that means the statute is constitutional, regardless of whether the lawyer might believe the statute should be found constitutional or not.  And therefore we should agree that they should defend it.  

        •  appeals in general (0+ / 0-)

          I want to add another point, which is that because the decision we are talking about is only a district court decision, which is not binding on any other federal judge (although it is entitled to some deference in the Ninth Circuit only), there is right now nothing to prevent any other judge in any other district from deciding another case raising the issue of the validity of DADT, in a different way.  And eventually one of those cases will be appealed.  

          I would also add that if everyone is so sure that this statute is unconstitutional, why should anyone be afraid of an appeal?  Must be because in fact we are not so sure of how a Court of Appeal or the Supreme Court would rule.  And if we're not sure of that, then we can't be so sure that the statute is unconstitutional, can we?  My guess is that the current Supreme Court probably would hold that this statute is constitutional, and there will eventually be a way to get the issue before them, regardless of what the Justice Department does with this particular case, unless Congress or the Executive acts before that time.  Which is why people really should not be outraged at all that the administration would prefer to have this issue resolved by Congress.  That is really the best way to get it done, not to have an Act of Congress overturned by an "activist" judge.  Only if Congress does not act, would an Executive Order be another possibility for getting this policy changed.

          •  Delay, delay, delay (1+ / 0-)
            Recommended by:
            mnkid

            Appeals mean delay.  At this point it's clear that facts on the ground -- thousands of gay people serving openly and successfully -- are better than delay.

            -5.63, -8.10. Learn about Duverger's Law.

            by neroden on Thu Oct 14, 2010 at 11:42:29 PM PDT

            [ Parent ]

    •  Perhaps you need a post grade school civics class (3+ / 0-)
      Recommended by:
      xynz, mnkid, neroden

      The Justice Department, indeed the entire Executive Branch, has an obligation to enforce the law as passed by Congress.  

      The administrative branch does not have to enforce immoral or unconstitutional laws. And fyi it regularly ignores laws it doesnt want to enforce just as your state, county and city governments do.

      But more to the point: Per your thought Process the military  should still be segregated with blacks only allowed to dig latrines. Luckily Harry Truman disagreed with you and issued an order ending segregation in the military. And in my experience ending racism in the military except by a few very very secretive scumbags.

      And Jesus said to his disciples, "Truly, I say to you, it will be hard for a rich man to enter the kingdom of heaven.

      by cdreid on Thu Oct 14, 2010 at 07:00:24 PM PDT

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      •  grade school civics (0+ / 0-)

        You are correct that the executive does not have to enforce unconstitutional laws.  But who decides whether the law is unconstitutional or not?  The courts, not the Executive.  Otherwise, under your theory of the Constitution, the Executive would have sole unchecked discretion to decide what laws to enforce.  That would be even more dangerous if they were allowed to used the "morality" of a statute as an excuse for not enforcing it.  What would you have thought if the Bush administration had decided that it was not going to enforce a particular act of Congress because they thought it was immoral?  

        The theory of the Constitution is that the Congress, which is supposed to be the most democratic branch, must be entrusted to make the laws.  The Executive branch does not get to decide which laws they choose to enforce.  And the courts are supposed to be very careful before declaring a statute of Congress unconstitutional.  That is the reason that lower court decisions overturning a statute generally should be appealed.

        •  Bizarre (0+ / 0-)

          You can convince yourself of whatever you want. You can recite untrue things the courts have specifically declared untrue all day long.

          You are correct that the executive does not have to enforce unconstitutional laws.  But who decides whether the law is unconstitutional or not?  The courts, not the Executive.

          The courts cannot tell the executive to appeal a decision or take a case to court. The courts cannot force the executive to enforce a particular law. I'm not a lawyer but i HAVE seen the caselaw on this. In fact just fyi there are large swaths of the law the executive, and indeed your state and likely county and city governments dont enforce. And the courts cannot force them to.

          And Jesus said to his disciples, "Truly, I say to you, it will be hard for a rich man to enter the kingdom of heaven.

          by cdreid on Sat Oct 16, 2010 at 02:30:12 AM PDT

          [ Parent ]

    •  DOJ is already politicized. (0+ / 0-)

      Or where are the war crimes prosecutions?  How about the acceptance of the 4th amendment as valid law?

      -5.63, -8.10. Learn about Duverger's Law.

      by neroden on Thu Oct 14, 2010 at 11:41:14 PM PDT

      [ Parent ]

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