Whether it was part of School House Rock or just a good government/civics class teacher I think we all learned somewhere along the line that our government has three branches. The legislative is empowered to formulate and pass laws. The executive signs acts into law and executes them. The judicial interprets whether the laws are consonant with the Constitution.
That’s fairly standard, basic U.S. government 101, right? I mean, any school kid knows that stuff, so you’d expect a person who supposedly taught Constitutional law would especially know that, right? So what the heck is the executive branch doing declaring a duly enacted law unconstitutional, stipulating its own interpretation of the Constitution, and refusing to defend and enforce that law?
It seems some Con Law professors and lawyers are like so many theologians who get “so smart” that they forget to be orthodox and suddenly they’ve formulated a doctrine that makes sense to them (or at least fits their hoped-for reality), but doesn’t at all resemble the original material upon which it was built. But I digress…
The abandonment of DOMA and the reasoning for it is what we call a “naked power grab.” They didn’t even do it surreptitiously by defending the law poorly and letting it be struck down in court. While underhanded, that would at least be defensible. No, they boldly proclaimed themselves unrestrained by the strictures of their Constitutional role and did that which is reserved to the judicial branch.
Some have pointed out that this could backfire on Obama at some later date. They say it opens the way for Congressional Republicans to insert their own lawyers into the defense of DOMA, who would undoubtedly mount a more robust defense of the law, thus saving what was otherwise a sabotaged defense.
Another says both a) that it may backfire on Obama’s when a future Republican president simply decides that Obamacare is unconstitutional and therefore not to be enforced or implemented; and b) that since Elena Kagan was likely party to conversations regarding DOMA during her recent tenure as solicitor general she will be under great pressure to recuse herself on any future DOMA-related case before the Supreme Court.
A friend of mine also pointed out that this really puts any Supreme Court action on this topic in a new light because of the jurisprudential tendencies of Justice Anthony Kennedy. Kennedy, the only real “swing” vote on the present Court, frequently decides and reasons in ways more focused on defending and expanding the prerogative of the Court rather than offering worthwhile opinions on the merits. Any incursion upon that prerogative will not play well with him, and this decision by Obama is beyond an incursion: it’s a taking, bypassing, ignoring of the Court. Justice Kennedy won’t take kindly to that. So this decision is a loser there as well.
But those are all long-term ramification thoughts. What about right now?
Ed Whelan suggests something I had thought immediately, but would go further than he does.
See, along with the separation of powers we have “checks and balances.” The President must sign acts into law, but if the President is recalcitrant on a manifestly worthy law and vetoes it, the Congress can override the veto and make the act a law in spite of the President’s opposition.
Also, while the executive branch is charged with carrying out the work of governance, it cannot raise or apportion its own money: that is up to Congress to apportion and provide. Specifically, all spending initiatives must originate in the House of Representatives. If the House does not want something to get money, it does not get money.
If the President and his attorney general have refused to do what they swore they would do and have overstepped their specific duties, the Congress can, and ought to, simply defund their activities. Cut the President’s salary. Cut the salary of anyone involved in the non-defense of a duly enacted law. If they are specifically refusing to do their job and are specifically violating the principle of separation of powers they ought not get paid as though everything is operating properly.
It really is not hard to do, especially with the continuing resolution to fund the government through the remainder of this year still in the works. Simply remove the line items that apportion monies to those accounts and it’s done.
We’re looking to cut costs on ineffective and poorly performing parts of the government: the President and Attorney General have presented a good example of ineffective, poorly performing government.