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  •  Yes, there is a big Difference. It (1+ / 0-)
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    jsfox

    is touched on in the article I linked to and explained in greater detail in this article

    It is really two questions. First,

    Can the President refuse to defend the Constitutionality of a law?

    It doesn't happen often, but Presidents can refuse to defend laws that are challenged as unconstitutional. Holder's letter to Congress explaining the President's DOMA decision discusses the issue in general terms,
    As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense . . . . However, the Department . . . does not consider every plausible argument to be a “reasonable” one. . . . Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here.

    While this is a rare occurrence, the practice of not defending laws goes back for years as outlined in the article.
    In 1989 . . . 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 . . . .
    Congress even acknowledges that this can occur which is why they enacted a law that requires the President to notify the Congress in the event of such a decision,
    The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice . . . determines . . . . to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute . . . .

    So people can question whether President Obama should have taken this action, but they cannot question its legality or say it is unprecedented.

    And secondly,

    How can the President continue to enforce a law he thinks is Unconstitutional?

    This really involves two separate and distinct issues. First, the Constitutionality of DOMA was challenged. As discussed above, the President is generally obligated to defend laws against Constitutional challenge. However, there are circumstances when Presidents can decline to defend cases. He has decided that DOMA is no longer Constitutionally defensible and will now take that position in court.

    On the second issue, the question is different. The short answer is that the President has a duty to enforce the law regardless of what he thinks about it. The President swore an oath,
    I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

    The President swore to faithfully execute the Office of President. Foremost among the duties of the office are to "take care that the laws be faithfully executed." DOMA is the law. The President does not have the power to issue a binding ruling that DOMA is Unconstitutional. That power resides in the Supreme Court. Since the 1803 case of Marbury v Madison it has been accepted that only the Court can declare a law Unconstitutional. Unless that happens or until it is repealed, DOMA is the law of the land. If a President is presented with a law that he thinks is Unconstitutional he should not sign it. The same applies to every Member of Congress who votes on a law. But once passed and signed, it is the law.

    There are some legal scholars who disagree, arguing that the President has no more obligation to enforce laws he thinks are Unconstitutional than to enforce the laws of another country. A detailed discussion of this position is beyond the scope of this article except to note that the real issue is "who decides if a law is Constitutional." If the President does, then there are only two branches of government and the Presidency can override the legislature at its will. If both the Court and the President decide, you have uncertainty and chaos. It the decision rests with the Court, you have certainty, order, and a true separation of powers. Thankfully, most Presidents have respected this third view and the circumstances where laws have been ignored are rare.

    Further, affiant sayeth not.

    by Gary Norton on Fri Jul 08, 2011 at 01:31:24 PM PDT

    [ Parent ]

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