LL I believe you misperceive Stern's position.

As the proud father of a happily married daughter and daughter-in-law, I can perfectly well understand that a decision suggesting a failure of duty to faithfully uphold the law raises issues well beyond what is expedient or desirable.

Defending any section of the US Code against challenges is not a "policy" of the executive branch, it is an assigned JOB of the executive branch.

My point to Stern is simply that the Constitution anticipates power plays, and we have historically seen power plays for good and for ill. Congress has a check via impeachment, and voters have the last word since bills of impeachment must originate in the most representative house with the most frequent turnover.

Stern is taking a valid legal point of view. I am suggesting that the legal constraints on the use of power, and the abuse of power, exist in the context of what remains a democratic system of government.

The timing and manner in which this was done is a political calculation, and I believe a correct one.

I pointed out above specific examples of the DOJ being "directed" by the White House, including Clinton "directing" the DOJ not to defend the constitutionality of anti-HIV provisions of a funding bill. Bush prioritized election fraud investigations (even firing US Attorneys who weren't making it enough of a priority).

This notion that the DOJ is an entirely independent agency where it is inappropriate for the White House to "direct" their activities, well, it's an unsupported assertion. It's your opinion, Stern, that the DOJ is now apolitical and no "direction" has occurred from the West Wing. Okay, bring it.

As for unconvincing legalese? Well, it seems like pretty convincing legalese to me. In other jurisdictions, there was precedent saying "in same-sex issues, apply rational basis scrutiny." When you apply that scrutiny, anything is constitutional. In the Second Circuit, there is no precedent. It would be the White House saying, "we SHOULD apply the weakest scrutiny to same-sex marriages." That is fundamentally different than "if you apply the court-mandated standard, then this law is Constitutional."

The government shouldn't be arguing that rational basis scrutiny should apply. You disagree? Tell me the good reasons why the Government should be putting its weight behind the argument that same-sex relationships are worthy of a lesser scrutiny than interracial marriages?

Now, if they argue, in the Second Circuit, that strict scrutiny applies, that sets up an issue conflict in other cases.

Could they have phrased their decision differently? I don't know. It's a legal decision, based on an analysis of legal principals.

Who exactly is the viable candidate who is terrifying you that they're going to beat Obama in 2012 unless he puts on a swastika armband and joins the bigots?

So then respond to my lengthy and meticulously sourced post on how what Obama has done and how historical precedent supports it and FDR went even further in refusing to defend unconstitutional laws, instead of just making vague and general responses to nothing in particular.

I also have no clue whatsoever why being the father of a daughter is even remotely related to wanting to dismiss the interests of children of gay couples, as if they're supposed to suffer for the "sins" of their parents, as DOMA is intended to carry out.

A reasonable response to a deliberate violation of Godwin's so-called law, but you still haven't made anything approaching a rational argument that Obama, by supporting the basic human rights of citizens of America, has somehow sacrificed his reelection. I think you're full of shit. You have an opportunity to show otherwise, so go ahead and exercise it.

The way I read it, what Stern is saying is that Obama can accomplish just as much and reserve political capital for other battles INCLUDING reelection by doing it in the way Stern outlined. There is no sense in revving the engines more than adequately to accomplish the purpose of getting the vehicle from A to B. The gas could come in awfully handy later.

Chill.

Correct. Loh's overwrought responses are funny, though.

Loh, are you sure you shouldn't be one of us Grumpy People?

In other words, Loh is of the opinion that if a president believes abortion is murder, then that president should simply decline to defend a challenge to, say, the federal law protecting access to clinics.

What is amazing about his spittle drenched commentary here is that I agree with what was done here by the administration. Stern raises a valid point of view on the extent to which an administration may treat the US Code as a take it or leave it proposition.

This kind of thing is fine, so long as the administration is one with which you agree. The point of our system is whether one can maintain progress in human rights, independent of the identities of the office holders.

Spittle? Perhaps a little. But, he's also got facts and evidence, versus bare assertions on your and Stern's part.

Loh showed that the administration declining to defend statutes is not really that unusual. Your response, and Stern's is that contrary to the evidence, you [highlight]think[/highlight] it's something that hasn't happened, or shouldn't happen.

The only way the Obama administration can defend this law in the Second Circuit is to claim not just that the law is Constitutional, but that Homosexual relationships are of less value than interracial relationships. That homosexual relationships are worthy of merely rational basis scrutiny.

The only way the Obama administration can defend this law is to make NEW law in the Second Circuit - new law that is offensive.

Unless you've got some magical way of defending the law that doesn't require them to first argue that rational basis should apply?

It's not like if the Justice Department declines to defend the law then no one in the government will be able to defend it. Congress has been invited to defend their law.

Am I missing something here? Does no one else see the difference between defending the law in the 11th Circuit by saying "you've decided that homosexual relationships are worthy of only rational basis review and, grudgingly accepting that, these laws meet rational basis," and defending it in the Second Circuit by saying "we, the Administration think that rational basis review should apply to homosexual relationships because they are worth less than other marital relationships and, having made that point, these laws meet rational basis?"

Yes, what you haven't pointed out is where these types of actions were met with universal agreement and approval. It was precisely that sort of thing that is on my short list of "reasons I despise Bush".

You are also, in your previous post, making the same mistake of confusing a question of process with a question of substance.

I thought DOMA was unconstitutional the moment the ink dried on it. That's a separate question of what is the legal duty of the DoJ relative to challenges to the US Code.



I think Stern quite clearly referred to instances where this sort of thing has happened, notably during the Nixon administration.

When you are dealing with assertions of power at the margins "shouldn't" is a more difficult question.

The real problem, which was the subject of my paper for Joe Biden's class, and for which I got the highest grade from Joe, is the vesting of various duties of the AG as "executive" functions in the first place. It is a problem around which Morrison v. Olson danced to some extent, but when you dig into various arrangements in the colonies and in the early states, the prosecutorial function, for example, was not simply assumed to be an executive branch function and was not always placed there.

You are neglecting to consider the forge in which Stern's view of these types of issues was made. Absolutely, there are historical examples of the White House driving the AG's office, up to and including the Nixon WH directing the AG not to pursue prosecution of members of the administration. So, sure, it happens, but what I haven't seen is a principled discussion of when it should or shouldn't beyond the personal predilections of who is occupying the White House.

An expression of opinion or unease with the limits to which the WH should be driving the AG's office isn't a subject in want of factual support. We saw this in action with Nixon and didn't like it. If you liked it, that's your privilege. But it does not make anyone "full of shit" to be uncomfortable with a practice that can readily be abused. That sort of reaction on your part, frankly, indicates you are interested primarily on taking out some emotional energy on anyone you find to be a convenient target, and is not a very conversation inspiring way to proceed.

So before more Nazi's come marching through the piles of shit with which folks here are filled, then you can carry on with them alone. I am not here to have my character assessed by a pompous asshole. I have others who know me more closely and are better at it.

That's not even the topic of the discussion here. If you are asking me, I see no reason why there should be any difference between same sex marriages or any other marriages.

Now, if I had taken an oath to defend challenges to the US Code, and was given this file, my response would be to read through the manual on resignation procedures, as it is a duty that I could not discharge in good faith.

Mr. Wolf comes on at about the 2:00 mark.

Was it also the reason you despised Clinton? Carter? Reagan?

What I object to is this notion that "directing" the DOJ is somehow uncommon. That assertion is naked and unsupported. I'd point out, however, that if you look past the one sentence cited, the decision was made in consultation with DOJ including Holder's recommendations on the issue.

You talk as if you just "defend" the law, without making any arguments. That "defending" the law will happen in a vacuum with no collateral consequences. The ONLY way to defend this law is to FIRST win the argument that homosexual marriages only deserve rational basis scrutiny. Having made that argument, the DOJ commits its institutional weight to it. Prop 8 supporters next brief will cite the DOJ saying "rational basis." if they try to argue strict scrutiny later, in some other context, their opponents will cite this brief.

You don't see a way to determine when to defend the law and when not to? How about you don't defend the law when it requires you first to make NEW law that is offensive and wrong?

But, I'm a Nazi, so don't respond to me. It must be true, since it took you three consecutive posts to make your point!

I'm ponderin' whether it's OK to call yourself names, or if that's a violation of the rules.



When I figger it out, I'll let y'all know.

Meanwhile, cain't we all git along? Having vanquished our enemies, are we turning on each other?

I'm pretty sure I said that if it were me, I would resign from the DoJ before considering such a thing. I even wrote it in English.

So you can take the "you" out of that sentence, and place it somewhere convenient.

K?

FIFY.

Here's some more "spittle" for you:

The following are the number of hate crimes motivated by sexual orientation bias as reported by the Federal Bureau of Investigation under The Hate Crimes Statistics Act of 1990:



In 2006, a midterm typified by yet another rash of anti-gay initiatives, hate crimes against gay people increased by 20%, and remained high, increasing in 2008 with fewer initiatives, but ones which were higher profile (like the ones in California and Arizona). To be fair, there were also cases like Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009), which enraged people, but mainly just in Iowa.

Every one of those crimes is against a flesh and blood human just as entitled to protection as anyone else, and defending a law like this, in the absence of any good reason to do it, encourages people who see it as a social sanction for their hatred.

If you have any actual facts to the contrary, let me know. Or you can just accuse me of drooling again. That will show me.

Where in the oath of office the Attorney General or Attorney General took is there mention of the U.S. Code? Just curious. I am absolutely certain you wouldn't have said such a thing unless you were thinking of something specific.

Sounds good to me, Dick Tater!

I lures me some Grumpy People. Just sayin'.

Nooooooooooooooooooo!

I don't want to be a member of a group Loh is a member of. (Of course, I also don't want to be a member of any group that will have me as a member.)

Please protect me from the spittle and accusations of being an asshole and worse by such a temperate and collegial fellow member. I clearly deserved all the name calling and abuse. After all, this was my great crime:

Yup. I deserve all the obloquy which Loh has dumped on me. You can discern in that post that I am sekretly a crypto-facist, gay basher, Obama-hater, Democracy-destroyer. (The misspelling of the word "hiss" is the big giveaway.) You'll have to excuse me, now. I have to put on my hair shirt for the evening. I'll be wearing it as I sip my hemlock cocktail.

Certainly, you've never criticized anyone here intemperately. Of course, you and Res have managed to mend your differences and bury the hatchet, which is good. I just rather regret it was in my skull.

Me too. It's fun to watch 'em grump on each other. Like watching a court battle on the TeeVee.

But I has a cornfuzzle. If'n the old Grumpy doesn't want the would-be Grumpy to be a new Grumpy, doesn't that just make 'em all even Grumpier? And thus be a Good Thing?