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View Diary: Law firm drops House DOMA case, Clement resigns (183 comments)

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  •  People keep saying that (7+ / 0-)

    "every client deserves a defense."

    But who is the client here?  

    The people of the United States?  They seem to want DOMA gone, if polls are any indication.

    The Federal Government as defined by the Executive?  Uh, obviously not any more.

    The US Congress that passed the law?  That entity doesn't exist any more.

    The current US Congress?  They haven't voted to defend the law.  It's not at all clear that such an instruction could make it through Congress.

    House Republicans? They haven't even voted to defend the law.

    We are left with a very unclear picture of who, exactly, is the client here that needs representation, and certainly no good reason why the government should be paying for it unless Congress allocates the money.

    •  Exactly (4+ / 0-)

      Defending someone accused of raping or murdering is fine, possibly even noble in some cases. But defending a person and defending a law are two different things.

      Proud supporter of nuclear power!

      by zegota on Mon Apr 25, 2011 at 10:48:26 AM PDT

      [ Parent ]

    •  It's more than just that (2+ / 0-)
      Recommended by:
      Adam B, Matt Z

      As it's been discussed on connection with Prop 8, there is something unsettling about an executive who declines to defend a law, effectively undercutting the intent of a legislature or voters.  It's all well and good when it's a law that we'd rather see fall by the wayside, but what if it was a Democratic-sponsored bill that a Republican president failed to defend?

      •  Actually, no (0+ / 0-)

        There are literally thousands of absurd laws on the books at all levels penalizing actions that people perform all time. Heck, there are even entire web sites devoted to nothing but listing such laws, e.g.,, and making fun of their absurdities.

        By your logic, it should be "unsettling" that pretty much all of these laws are never enforced. The reality is exactly the opposite: Our legal system is entirely dependent on the frequent practice of prosecutorial discretion. We'd all wearing those stylish orange jumpsuits (pink in some parts of AZ) if that weren't the case.

        Now, if you want to talk about having a system where we have to rely on selective enforcement to keep things operating, then you necessarily are talking about a very different sort of system, one where it's a lot more difficult to get laws passed and much easier to modify or strike them down. Such a system might in fact be a huge improvement over what we have, but the key point is iti's not what we have.

        And yes, a big problem with our present system is that selective enforcement leaves the door open to not enforcing laws that should be enforced. But the consequences of changing that without revamping the whole shebang would be pretty drastic.

        Finally, I should point out that the existence of legal remedies to force government officials to enforce laws when someone's rights are being violated (writ of mandamus) kinda says it all about the existence of selective enforcement.

    •  The client is the House of Representatives (2+ / 0-)
      Recommended by:
      jpmassar, Darmok

      Through its bipartisan leadership.  If the people want DOMA gone, Congress can repeal it.

      Moreover, the current Congress did authorize the defense -- the Bipartisan Legal Advisory Group (Speaker, two leaders, two whips) voted 3-2 to authorize these actions.

      •  Certainly on a technical basis (5+ / 0-)

        you are correct.  By precedent and by various grants of authority by various votes it is true that the BLAG has the authority to authorize a defense.

        But in a more abstract and less legally technical sense, as I tried to express in my note above, it's much less clear that there really is a 'client' who has any need of representation.  

        The House of Representatives does not pass laws.  Congress passes laws.  And Congress has not specifically authorized the defense of this law, and likely would not be able to.  The fact that 3 members of the BLAG can authorize a defense is a technicality that we will all accept, but not something that I think lends a lot of moral legitimacy to the entire enterprise, nor entitles it to a stirring defense about how 'every client deserves a lawyer' with allusions to Guantanamo, indigents and the downtrodden.

        •  Indeed, this is rather more (1+ / 0-)
          Recommended by:

          like undertaking the civil defense of a person who engaged in torture at Guantanamo.

          Ok, so I read the polls.

          by andgarden on Mon Apr 25, 2011 at 11:19:10 AM PDT

          [ Parent ]

        •  Is it not implied (0+ / 0-)

          that Congress wants a law defended when the law is still good law that passed the Congress?  I would certainly think that Congress in the metaphysical sense you refer to would want to have a law that is still on the books defended.

          If not, then your argument could easily be applied to avoid defending healthcare if we have a Republican President and a Republican Congress in 2012 (i.e. can't get through the Senate but the President choses not to defend it).

          Fact are stubborn things. -John Adams

          by circlesnshadows on Mon Apr 25, 2011 at 11:32:53 AM PDT

          [ Parent ]

          •  It would be one thing if any time any law (1+ / 0-)
            Recommended by:

            passed by Congress were automatically to be defended by Congress if the Executive decided it was unconstitutional.

            But that is not the case.  Some body has to vote to authorize a defense.  If there must be a vote, it's really hard to justify the five-member BLAG being the body, rather than at least a joint committee of the House and the Senate.

            Furthermore, we could differentiate between laws that have already been declared unconstitutional (via, in this case, Gill) and laws that the Executive has chosen to not even defend at all.  It would be plausible to say that Congress, as a body, should have to decide whether to continue to defend a law that has already been declared unconstitutional if the Executive refuses.

            •  p.s. (1+ / 0-)
              Recommended by:

              And while  the PPACA has been ruled unconstitutional, it has also been ruled constitutional, so clearly you need a resolution which forces a defense.

              •  My Legislation professor (0+ / 0-)

                would definitely not buy into your theory of legislative interpretation.  If we're going to automatically assume that a law is unconstitutional and therefore only deserving of a defense if the Congress votes affirmatively to defend it any time a lower court declares a law unconstitutional, then we've just created the biggest bureaucratic drift known to democratic government.  

                Laws are both de-facto constitutional and to be defended by the Congress.  I appreciate and am supportive of the motives of the advocates here, but there are huge, gaping procedural questions in the way the advocates are going around this issue.  I wish we were spending more of our time working on grassroots democratic means like winning the marriage equality vote in New York and less time trying to trick our way into a DOMA overturn.  

                Fact are stubborn things. -John Adams

                by circlesnshadows on Mon Apr 25, 2011 at 02:11:11 PM PDT

                [ Parent ]

                •  Which, of course, is not what we're assuming (0+ / 0-)

                  at all.

                  The entire premise is that the Executive has already determined that it is unconstitutional.

                  If you wish to assume a completely different hypothetical, go ahead, but don't but an assumption I never made into my mouth.

      •  Ha! (2+ / 0-)
        Recommended by:
        Matt Z, davidincleveland
        If the people want DOMA gone, Congress can repeal it.

        Since when does Congress do what the people want.

        •  Case in point: repeal of DADT (3+ / 0-)
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          vacantlook, Matt Z, davidincleveland

          DADT repeal was supported by a far larger majority than is repeal of DOMA (if it's even true that a majority of the public feel that way; I don't think the polling is done using DOMA as a basis).

          Despite the overwhelming support for dismantling DADT it took intense bargaining, including, arguably, bargaining away of the most important aspect of what most think of when they think of DADT being gone: any sort of non-discrimination policy.

          •  Also, take the current "debate"... (3+ / 0-)
            Recommended by:
            sfbob, Matt Z, davidincleveland

            ...going on in Washington.  The people outisde the aristocracy by like 70-some percent last I saw want taxes increased on millionaires and corporations.  And yet Congress is still acting like there's a good chance that won't happen; got to cut programs that benefit the serfs instead.

      •  You say this, (0+ / 0-)
        the current Congress did authorize the defense
        but you HAVE to know that isn't true, as demonstrated by your opening statement,
        The client is the House of Representatives
        as well as by your statement in the rest of the same sentence:
        the Bipartisan Legal Advisory Group (Speaker, two leaders, two whips)
        That group doesn't even amount to authorization by the House of Representatives. Had they any hope of getting their own GOP majority caucus to vote to defend DOMA, Boehner and Cantor would have given themselves the political cover of an actual vote to defend DOMA, on the floor of the House.
        You need to remember that a majority of the voters have already indicated, in 2011, that they want DOMA repealed. The GOP House leaders and their entire caucus are aware of this FACT. You have to know better than to seriousy suggest that the voters' wishes actually automatically move congresspersons to vote accordingly. That doesn't even work for our Democrats. Still, I have to thank you for this little gem:
        If the people want DOMA gone, Congress can repeal it.
        You've given me a new sig line, which will say, "The people want DOMA gone, so why hasn't Congress repealed it?" Since I know you are a strong advocate for equality, and are debating the ethics of 'GITMO-lawyerizing' DOMA-defending counsel, I'll refrain from linking to your sig-inspiring comment in the sig.

        The hard rain is falling.

        by davidincleveland on Mon Apr 25, 2011 at 04:40:09 PM PDT

        [ Parent ]

        •  It actually does, because... (1+ / 0-)
          Recommended by:

          Rule II.8 of the House authorized BLAG to direct the House Office of General Counsel:

          Office of General Counsel

          8. There is established an Office of General Counsel for the purpose of providing legal assistance and representation to the House. Legal assistance and  representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the  Speaker, who shall consult with a Bipartisan Legal Advisory Group, which  shall include the majority and minority leaderships. The Speaker shall appoint and set the annual rate of pay for  employees of the Office of General

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