Late last Friday we saw the Obama Administration shoot the finger at our nation's judiciary when it announced that it would not comply with the order of the Chief Judge of a Federal appeals court in a matter involving the enrollment of the spouse of an employee of the 9th Circuit in the court's health benefits program. The Obama Administration is denying enrollment of the employee's spouse because both the employee and the spouse are of the same sex, yet this matter reveals a profound act of hypocrisy on the part of the Obama Administration regarding its own prior actions.
The Latest on the Case
First however, an update on the case. In my prior diary on Friday I included a poll asking what action the Administration should have taken. Most thought the administration should follow the order, but 16% said appeal. One would think that this would be logical, that when faced with a court order one thinks is illegal or unconstitutional, that one would appeal the order rather than simply ignoring it and publicly saying that you would ignore it. As Friday's new release by the Administration indicated however, they are content to appeal only in the court of public opinion and not in the actual court issuing the order.
The Obama Administration failed to file an appeal with the 9th Circuit Court of Appeals in the case within the deadline required by the court. As a result, yesterday afternoon the judge in the case, the 9th Circuit's Chief Judge Alex Kozinski, issued a new order noting OPM failure to file a timely appeal.
The time for appeal from my orders in this matter, dated January 13, 2009,and November 19, 2009, has expired. Only Blue Cross and Blue Shield Association ("Blue Cross") has filed a timely notice of appeal; it petitioned the Judicial Council for review of my November 19, 2009, order on December 17, 2009. My prior orders in this matter are therefore final and preclusive on all issues decided therein as to others who could have, but did not appeal, such as the Office of Personnel Management ("OPM") and the Administrative Office of the United States Courts. Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398-402 & n,4 (1981); see also Travelers lndem. Co. v. Bailey, 129 S. Ct. 2195, 2205-07 (2009).
As the jurisdictional issues presented in Blue Cross's petition for review are separate and distinct from those concerning my now conclusively-determined jurisdiction over governmental entities such as OPM, I authorize Ms. Golinski to take what further action she deems fit against any entity other than Blue Cross without waiting for the Judicial Council's disposition of Blue Cross's appeal.
When he says he authorizes Ms. Golinski to take further action "against any entity other than Blue Cross," he's inviting her to make a motion for contempt against OPM or petition for a writ of mandamus, a very formal and serious order directing a public official to perform a certain action, against them. Which action Ms. Golinski and her attorneys will chose remains to be seen.
Principles of Separation of Powers
While this case is about giving health benefits to the same sex spouse of a court employee, that is only peripheral to the matter at the core of the dispute, the ability of a branch of government to rule itself, to make the rules of its own governance unfettered from interference from the other branches of government. It s ultimately a question of whether there are actions by any branch of government that simply cannot be subject to review or approval by the others when the matter of the action is confined to that branch.
The separation of powers and the ability of each branch of government to govern its own administration have been foundational principles of our government recognized by the courts as far back as the case upon which any study of American Constitutional interpretation begins, Marbury v Madison. There the Supreme Court drew a distinction between acts undertaken by the "will" or "instructions" of the President and those that are prescribed by law, that as officers of the United States, officials are "bound to obey the laws."
In this case, the 9th Circuit Court of Appeals, through a ruling and court order of one not only one of its members in good standing, but its Chief Judge, that the Federal law governing the health benefits program for Federal employees, their spouses, children and family does not preclude the wife of Ms. Golinski, a Federal employee, from being enrolled. Judge Kozinski, taking a very minimalist approach to interpreting the law, declined to reach the question of whether the D[enial] of Marriage Act (DOMA) was unconstitutional, following a principle of law that if an alternative interpretation relying solely upon statutory interpretation is possible, courts should avoid answering the question of constitutionality. Kozinski found that DOMA does not preclude benefits for Ms. Golinski's wife because DOMA only defines the meaning of spouse under Federal law, but under the Federal health benefits law, spouses are not the only persons eligible for benefits. Others entitled to benefits under the Federal Employees Health Benefits Plan (FEHBP) include children and other family members. Kozinski found that the law does not conclusively define the term family to the absolute exclusion of Ms. Golinski's wife and ruled that she is family within the meaning of the word for the purposes of the FEHBP and ordered the enrollment of Ms. Golinski's wife in the plan.
In an effort to save money and prevent duplicitous bureaucracy, the benefit plans for all three branches of government are administered by one Federal office, the Office of Personnel Management (OPM) and that office is assigned to the Executive branch even though its function and mission cares out the benefit directives from all three branches of government.
Judge Kozinski's orders (note plural) have required the OPM to enroll Ms. Golinski's wife in the court's benefits plan. OPM, citing DOMA, has refused arguing that in Ms. Golinski's case, Judge Kozinski somehow ceases to be a Federal judge and is merely an administrative hearing officer of inferior authority performing administrative duties of the Courts attempting to circumvent Federal law. And here we come to the profound hypocrisy of the Obama Administration...
The President as an Administrative Officer
On June 18th of this year, the President signed an executive memorandum on GLBT rights. You may remember it being the breadcrumb the administration offered in the middle of the firestorm surrounding a GLBT Democratic fundraiser. In President Obama's executive memo, he directed the OPM to extend certain benefits to the domestic partners of certain Federal employees, i.e. all employees within the Executive brach over which he has the authority to direct such action. President Obama, in his capacity as a mere administrative officer of the executive branch, extended benefits to the partners of gay Federal employees. No marriage required given the marriage isn't recognized Federally anyway. Obama found that DOMA does not prohibit the extension of all benefits to such partners.
In both cases, an officer with administrative authority over the branch in question ordered the extension of benefits insofar as the law permits. In one case, the President has no problem with the directive of the administrative officer since he was that very administrative officer, but in the other refuses to comply with or to even participate in the proceedings except by press release. OPM has court orders in hand that says enrollment of Ms. Golinski's wife is not precluded by DOMA. Indeed it would seem that if Ms. Golinski wasn't married, the administration may not have a problem with the order since the administration's response by press release focuses solely upon the marriage issue and not upon the ruling that Ms. Golinski's wife is "family" irrespective of her marital status. The Obama Administration is penalizing Ms Golinski's family because of the existence of a marriage the government claims does not exist and uses the press release as a ploy to backhandedly advocate for the Domestic Partners Benefits and Obligations Act in Congress. It smacks of Obama stabbing the GLBT community in the back and then yelling at straight America "You better pass this law or I'll stick it in further. Oops! You made me stab the gays again! I'm pushing it in further! Better hurry!"
I'll close with the statement of one of Karen Golinski's lawyers, the Lambda Legal Defense Fund, on the press releases issues last Friday:
We are once again surprised and shocked that the Obama Administration is rejecting yet another chance to do the right and legally required thing, disregarding both the order, and the substantive analysis, of the Chief Judge of the Ninth Circuit about what federal law and the Ninth Circuit's employment rules require in this case.
Chief Judge Kozinski has concluded that the Ninth Circuit MUST not discriminate against Karen Golinski with respect to the health insurance benefits portion of her compensation, and that the Separation of Powers doctrine of the U.S. Constitution authorizes the court to take appropriate steps to treat its workers fairly, and prevents employees of the Executive Branch from interfering with the functioning of the Judicial Branch in these circumstances.
Judge Kozinski, a Reagan appointee, is widely regarded as among the brightest judges on the federal bench, an expert in issues of judicial independence, and notable for his common sense approach.
Lambda Legal believes Judge Kozinski is clearly correct that employees of the federal Office of Personnel Management (OPM) and the Department of Justice do not have superior authority to interpret federal law than federal judges. Lambda Legal also finds it troubling and very disappointing that the Obama Administration has chosen to express its views of these legal questions through Friday-afternoon press statements stating that it will not comply with Judge Kozinski's direct orders, rather than by presenting its legal reasoning to Judge Kozinski in this proceeding so that we can respond on Ms. Golinski's behalf in the duly-established administrative forum in which Ms. Golinski is required to present her discrimination claim.
OPM has never disputed that this administrative forum is the appropriate venue for this discrimination claim, and yet has refused to participate and present its views. Today, again, these Executive Branch officials are refusing to respect both Judge Kozinski's duly-issued order and his clear, compelling legal analysis. This is not the approach to issues of LGBT equality we had anticipated and deserve from the Obama Administration. (emphasis added)