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Tags barack obama , bill clinton , court decisions , department of justice , DOMA , gay marriage , gay rights

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Old 12th October 2010, 04:21 PM   #1
DallasDad
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Why did Clinton sign DOMA?

...and why is the current Justice department appealing the Mass. ruling against it?

Clinton was a staunch supporter of gay rights. Obama has said repeatedly that he thinks DOMA is discriminatory. I don't understand why they support DOMA.

Is the Justice department required to appeal? Why can't they just say they feel the decision was valid? Congress passed it, so can't Congress appeal if they want? Does the executive branch have to defend everything the legislative branch does?

The California executive passed on appealing the Prop 8 ruling. Is there a Constitutional requirement at the Federal level preventing the same behavior?
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Old 12th October 2010, 04:42 PM   #2
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Originally Posted by DallasDad View Post
Clinton was a staunch supporter of gay rights. Obama has said repeatedly that he thinks DOMA is discriminatory. I don't understand why they support DOMA.
It's my understanding that Clinton, while President, was a supporter of gay "rights", but not gay marriage. Yeah, I don't get the distinction either. It seems these days he believes it's a issue for the states, not the federal government.

As for Obama he says DOMA is discriminatory but he is still opposed to gay marriage because Jesus told him so.
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Old 12th October 2010, 04:48 PM   #3
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Originally Posted by Alt+F4 View Post

As for Obama he says DOMA is discriminatory but he is still opposed to gay marriage because Jesus Allah told him so.
He's a sekrit muslin.
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Old 12th October 2010, 08:34 PM   #4
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Here's a possible clue:

Quote:
The bill was passed by Congress by a vote of 85–14 in the Senate[1] and a vote of 342–67 in the House of Representatives,[2] and was signed into law by President Bill Clinton on September 21, 1996.
That date was just a few weeks before the election. He probably felt he needed to do this to position himself on the side of the issue that the large majority of the population was on (as did most members of the House and Senate). Nothing more or less.

ETA: Also, with those majorities in the House & Senate, they could have overridden a veto anyway.
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Old 12th October 2010, 09:06 PM   #5
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But why is Justice appealing today's ruling against DOMA? I'm not a legal scholar, and I was hoping someone here could help me understand the process. Does Justice always defend? Are they compelled to, or is there discretion?

I understand the cop who says "I don't make the law, I just enforce it," but this seems to be several steps removed from that. None of the press releases or news stories I read quoted anyone from Justice saying it was a good and proper law that should be defended, or even that it was a bad ruling from a judge gone mad with power. The only statements I saw said that it was Justice's responsibility (with the implication that it didn't matter what Justice felt about the law).

My question now centers on what discretion Justice has, and, if any, at whose orders or under whose influence they make such decisions.
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Old 12th October 2010, 11:38 PM   #6
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This is by no means authoritative, but I seem to recall hearing that it is customary for the Justice Department to argue on behalf of existing laws. It's like their job. It would be unusual not to. However I don't know if they are actually required to.

The why, now as in 1996, is nothing more or less than politics. Opposition to gay marriage was still the position of the majority of voters last time I checked.

ETA: Actually, it's closer than I thought. It looks like in a few more years the majority will probably favor same-sex marriage.
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Old 13th October 2010, 08:09 AM   #7
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Originally Posted by DallasDad View Post
...and why is the current Justice department appealing the Mass. ruling against it?

Clinton was a staunch supporter of gay rights. Obama has said repeatedly that he thinks DOMA is discriminatory. I don't understand why they support DOMA.
For several reasons, among them, the fact that it was a hot-button election issue that he would almost certainly have been hammered on, and there was more than enough votes to override any veto.

In the longer term, signing DOMA was actually a good thing, because it more or less stopped the "amend the Federal Constitution to prevent gay marriage" movement in its tracks (there was no need, since DOMA presumably accomplished the same thing). Since it's much easier to repeal a law than an amendment, and there was a good chance of DOMA being found unconstitutional when an appropriate test case came up, signing it makes for good politics.

Quote:
Is the Justice department required to appeal? Why can't they just say they feel the decision was valid?
No, they're not required to appeal, but part of how the game is played is that the President is more or less expected to apply (and defend) the laws as they are written, regardless of his personal beliefs. Which, frankly, makes sense. I would really hate, for example, for President Bush to have decided that the Clean Air and Water act was unconstitutional -- or for President Palin to decide that the Voting Rights Act didn't need to be enforced.

Quote:
Congress passed it, so can't Congress appeal if they want?
Nope. Congress has no standing.

Quote:
Does the executive branch have to defend everything the legislative branch does?
No. But Obama has stated several times that gay rights are an issue for the legislature, not the judiciary, so it's reasonable that he would defend the authority of the legislature both to deny and to grant gay rights.
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Old 13th October 2010, 08:14 AM   #8
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Originally Posted by DallasDad View Post
But why is Justice appealing today's ruling against DOMA? I'm not a legal scholar, and I was hoping someone here could help me understand the process. Does Justice always defend? Are they compelled to, or is there discretion?

I understand the cop who says "I don't make the law, I just enforce it," but this seems to be several steps removed from that. None of the press releases or news stories I read quoted anyone from Justice saying it was a good and proper law that should be defended, or even that it was a bad ruling from a judge gone mad with power. The only statements I saw said that it was Justice's responsibility (with the implication that it didn't matter what Justice felt about the law).

My question now centers on what discretion Justice has, and, if any, at whose orders or under whose influence they make such decisions.
I am not a lawyer, but here is my opinon on the procedure all the same ...

First of all, the Justice Department is run by the Attorney General, and as such, it is up to the Attorney General to decide what cases to persue and what cases not to persue.

Second of all, after a law has been duely enacted, the Attorney General is supposed to do his best to defend that law. Now then, I am sure that there are cases where the Attorney General may not like doing that, but he has to set aside his personal feelings and serve the law all the same.

Third of all, I do think that the President could order the Attorney General not to persue a certian case, however the Congress would require the President to explain why.

Fourth of all, considering the horrible way that Bush interferred with the operation of the Justice Department, then I am sure that Obama wants to avoid those issues. So unless the issue is one that requires serious executive action, then I do not expect Obama to ever get involved with the Justice Department.

I hope this helps!
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Old 13th October 2010, 11:47 AM   #9
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A study in contrasts, this Obama. He voted against the DOMA but the administration is now defending it. He is for civil unions but thinks marriage should be only between man and a woman.
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Old 13th October 2010, 12:52 PM   #10
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Originally Posted by Crossbow View Post
Third of all, I do think that the President could order the Attorney General not to persue a certian case, however the Congress would require the President to explain why.
No, Congress doesn't have the authority to "require" the President to explain -- or do -- anything.
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Old 13th October 2010, 01:23 PM   #11
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Originally Posted by Neally View Post
A study in contrasts, this Obama. He voted against the DOMA but the administration is now defending it. He is for civil unions but thinks marriage should be only between man and a woman.
The Reuters artical posted in the Don't Ask Don't Tell thread the explanation was essentially "Obama supports the reppeal of DOMA but we're (the Justice Department) gonna challenge it regardless" but as crossbow said you think Obama could persuade them not to pursue it.

"As a policy matter, the President has made clear that he believes DOMA is discriminatory and should be repealed," said Justice Department spokeswoman Tracy Schmaler. "The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged."
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Old 13th October 2010, 01:50 PM   #12
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Originally Posted by drkitten View Post
No, they're not required to appeal, but part of how the game is played is that the President is more or less expected to apply (and defend) the laws as they are written, regardless of his personal beliefs. Which, frankly, makes sense. I would really hate, for example, for President Bush to have decided that the Clean Air and Water act was unconstitutional -- or for President Palin to decide that the Voting Rights Act didn't need to be enforced.
Don't know if you're being sarcastic with the last sentence but I fail to see how Obama allowing this appeal to happen is taking the high road considering he supported the reppeal of the law. That being said i'm also not sure how much authority Obama would have in his administrations Justice Department in preventing the appeal from happening.
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Old 13th October 2010, 02:14 PM   #13
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Originally Posted by Juniversal View Post
Don't know if you're being sarcastic with the last sentence but I fail to see how Obama allowing this appeal to happen is taking the high road considering he supported the reppeal of the law. That being said i'm also not sure how much authority Obama would have in his administrations Justice Department in preventing the appeal from happening.
Let me answer the second question first. Obama has absolute authority over the conduct of any member of the Justice Department and could stop the appeal with a phone call.

However, he will not make that phone call, because he believes it is the duty of the President to administer the laws of the United States and the duty of Congress to rewrite them.

He believes that Congress made a bad decision when they passed DADT. But there's a difference between a bad decision and an unconstitutional one. This decision, among other things, would strongly limit Congress' authority to make rules for the Armed Forces in general.

There's an old lawyer's maxim that "bad cases make bad law." If you allow a bad precedent to stand because you agree with the outcome in the specific case that set it, that will most likely turn around to bite you later. (That's one of the reasons that a lot of civil libertarians are watching the WBC case so closely; it's a classic "bad case" in that everyone wants the WBC to lose, but if the decision ends up gutting the First Amendment for "outrageous" speech, that would probably be worse than allowing the nutcases their protest.)
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Old 13th October 2010, 02:49 PM   #14
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Originally Posted by drkitten View Post
Let me answer the second question first. Obama has absolute authority over the conduct of any member of the Justice Department and could stop the appeal with a phone call.

However, he will not make that phone call, because he believes it is the duty of the President to administer the laws of the United States and the duty of Congress to rewrite them.

He believes that Congress made a bad decision when they passed DADT. But there's a difference between a bad decision and an unconstitutional one. This decision, among other things, would strongly limit Congress' authority to make rules for the Armed Forces in general.

There's an old lawyer's maxim that "bad cases make bad law." If you allow a bad precedent to stand because you agree with the outcome in the specific case that set it, that will most likely turn around to bite you later. (That's one of the reasons that a lot of civil libertarians are watching the WBC case so closely; it's a classic "bad case" in that everyone wants the WBC to lose, but if the decision ends up gutting the First Amendment for "outrageous" speech, that would probably be worse than allowing the nutcases their protest.)
If that's the case I hope congress can get their act together and officially end DOMA themselves. I doubt this will happen anytime soon.
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Old 13th October 2010, 03:30 PM   #15
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Originally Posted by drkitten View Post
Let me answer the second question first. Obama has absolute authority over the conduct of any member of the Justice Department and could stop the appeal with a phone call.

However, he will not make that phone call, because he believes it is the duty of the President to administer the laws of the United States and the duty of Congress to rewrite them.

He believes that Congress made a bad decision when they passed DADT. But there's a difference between a bad decision and an unconstitutional one. This decision, among other things, would strongly limit Congress' authority to make rules for the Armed Forces in general.
Even if you thought it was unconstitutional wouldn't it make some sense to appeal, to get a higher and stronger ruling on its constitutionality.

Of course I am not sure the current SC is the best court to decide such a case.
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Old 13th October 2010, 04:59 PM   #16
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Originally Posted by ponderingturtle View Post
Even if you thought it was unconstitutional wouldn't it make some sense to appeal, to get a higher and stronger ruling on its constitutionality.
Well, here you leave the realm of law (which I know nothing about) and enter that of politics (which I also know nothing about).....

But I'd say, "no." Especially with the current composition of the SCOTUS, who seem both able and willing to do anything at all that fits with their political views. (Yes, Scalia, I'm talking about you as well as your laptop.)

But even if you had more confidence in the integrity of the court, why roll those dice if you don't have to? The nice thing from a tactical perspective about the injunction (if Obama decided not to appeal) is that integration of gays within the military would be forced world-wide. Over the next six months, while the Tea/Nazi Party is trying to incorporate the Nuremberg Laws into the UCMJ, and the sky persistently refuses to fall, sensible heads in the military will realize that there's no actual harm from gays in the service and there will be a lot more hard evidence to prove the absence of harm.

But beyond that, Obama doesn't think that Don't Ask Don't Tell is unconstitutional. He just thinks it's bad policy, but trying to declare it unconstitutional will limit his ability to make good policy later.

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Old 14th October 2010, 05:49 AM   #17
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Originally Posted by drkitten View Post
No, Congress doesn't have the authority to "require" the President to explain -- or do -- anything.
Sorry, but I do not think that is quite right!

Article 2, Section 3 of the US Constitution does state that the President does have to provide to the Congress a 'State of the Union' report and this section does go on to say that that the President is required to 'faithfully execute all laws'.

Specifically:

Quote:
SECTION. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
Now then, it is true that this language is rather vague and one can disagree as to how it should be applied in an individual case. However, it is accurate to say that the President does indeed have some legal Congressional obligations and requirements.
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Old 14th October 2010, 06:01 AM   #18
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Originally Posted by Crossbow View Post
Now then, it is true that this language is rather vague and one can disagree as to how it should be applied in an individual case. However, it is accurate to say that the President does indeed have some legal Congressional obligations and requirements.
It sounds to me like the president is exerting his authority over congress to "recommend" measures, and not that congress can require the president to explain anything specific to them.
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Old 14th October 2010, 07:50 AM   #19
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Originally Posted by Crossbow View Post
Now then, it is true that this language is rather vague and one can disagree as to how it should be applied in an individual case. However, it is accurate to say that the President does indeed have some legal Congressional obligations and requirements.
... but not to Congress.

His only obligation to Congress is to deliver the State of the Union address, which specifically doesn't have to cover any particular issue (if he wanted to leave gay rights out of the address entirely, he could do that). While he has an obligation to see that laws are executed "faithfully," Congress is not the judge of that (indeed, it's not clear who would be -- probably the court system initially).

Ultimately, if Congress decides that the President is a Bad enough Boy, it can impeach him. Congress can "require" the President to leave office. Other than that, there's not a damn thing that it can require of him.
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Old 14th October 2010, 09:27 AM   #20
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Originally Posted by drkitten View Post
... but not to Congress.

His only obligation to Congress is to deliver the State of the Union address, which specifically doesn't have to cover any particular issue (if he wanted to leave gay rights out of the address entirely, he could do that). While he has an obligation to see that laws are executed "faithfully," Congress is not the judge of that (indeed, it's not clear who would be -- probably the court system initially).

Ultimately, if Congress decides that the President is a Bad enough Boy, it can impeach him. Congress can "require" the President to leave office. Other than that, there's not a damn thing that it can require of him.
Sorry to sound obstinate, but I still think that is incorrect.

Have you heard of 'Congressional Oversight'?

Congress does have some legal levers to use against the President which have been affirmed by the US Supreme Court.
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