My column this week . . .

Monday, March 7th, 2011

. . . questions the conventional wisdom that the Solicitor General should always advocate on behalf of the government.

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22 Responses to “My column this week . . .”

  1. #1 |  Lior | 

    One quibble: the DOJ isn’t claiming that DOMA is unconstitutional in its entirety. They are only talking about Section 3, the part that requires the Federal Government to (a) directly discriminate and (b) refuse to give full faith and credit to marriages made in the various States.

  2. #2 |  Lior | 

    By the way, what to the other readers here think of a DOJ which at the same time say they believe a law unconstitutional and that they will enforce it?

  3. #3 |  Mike T | 

    The problem is that this puts the legislature at the mercy of the executive. The last time that I can think of that the executive broke ranks with the legal system and legislature was when Jackson ignored the Supreme Court and removed the Cherokee Indians at gun point from their land in Georgia. The precedent should make us cautious about whether the President really is concerned about the Constitution. Considering Obama’s record, I really think the question is whether he considers the Constitution toilet paper or tissue paper (either way, he wipes himself with it daily).

  4. #4 |  C. S. P. Schofield | 

    Lior,

    While I have no particular liking for this DOJ (or any other), I can see it as a point of view. The reasoning would go like so; This law is unconstitutional, so it will be overturned. That is the job of the Supreme Court, not the DOJ. The DOJ’s job is to enforce the law of the land AS IT EXISTS FROM DAY TO DAY.

    There are flaws with this thinking, but they don’t seem worse flaws than “It is our job to enforce only those Laws that we believe to be Constitutional.”

  5. #5 |  InMD | 

    Generally a good article though there are two slightly misleading legal statements.

    First you stated: “But the Obama administration also has advocated limiting the rights of the accused in state cases, even in states that afford less protection to criminal defendants than federal courts do.” I’m not entirely sure what you meant here but if we’re talking about constitutional rights the states cannot be more restrictive than the U.S. Constitution (though they can interpret state constitutions to convey broader rights than the U.S. Constitution).

    Also it isn’t a requirement that police read a suspect their Miranda rights upon being arrested. It’s required that those rights be read if the police want to use a statement made by the suspect during a custodial interrogation later on in court. There’s a bit of a difference.

  6. #6 |  Highway | 

    InMD: It’s not a requirement that police give Miranda warnings immediately upon arrest. It is only required that someone who is detained be given the Miranda warning before statements they make are admissible in court (although sometimes statements made before Miranda warnings are admitted in court). That police frequently do give Miranda warnings upon arrest is due to making sure that they’re given as part of procedure.

    In response to the article: Much of this ‘conundrum’ is due to the abdication of all branches but the Judicial of their responsibility to support the Constitution. Congressmembers should *never* think “well, this might be unconstitutional, but I’ll let the court decide it.” They have by and large abdicated their responsibility to apply a constitutionality test to legislation they vote for. Of course, some use this test as a prop, for legislation they don’t like. But that same evaluation disappears if it’s something they think should be done.

  7. #7 |  BamBam | 

    I’m still trying to find where in the Constitution it says anything about government being in the business of personal relationships. Upon finding that, I would then question the logic and morality of such a (non-existant) finding.

  8. #8 |  Pete | 

    When you give the executive branch leeway to not defend or use laws that it finds unconstitutional, you also give it leeway to act in a way that it claims is constitutional but probably isn’t.

    Our current system is, to not put too fine a point on it, fucked up. But it’s gonna be a lot more fucked up if the executive gets to ignore half the laws on the books. (Which is already sort of going on when a call about a home robbery results in a hurriedly and disinterestedly written report, while a call about some guy with a marijuana stem in his trash results in 25 officers’ involvement with the new case and a SWAT raid.)

    I think the DOMA stinks, but it’s not the job of the executive to make that assessment or strike down a law, even effectively.

    This is a great situation that is an awful precedent.

  9. #9 |  Highway | 

    but it’s not the job of the executive to make that assessment or strike down a law, even effectively.

    Isn’t it, Pete? Isn’t it the job of the Executive to veto laws that he feels are unconstitutional? Isn’t that part of the reason there *is* a President – to act as a check on Legislative power? Why does that not extend to laws that were signed by his predecessors?

    The courts have ruled on these kinds of situations before, to force the Executive Branch to carry out laws passed by the Legislative Branch. In those cases, the Executive would argue against the constitutionality of the law. Why is that different?

  10. #10 |  Nick T. | 

    I think the executive can refuse to enforce laws it believes are unconstitutional. The President’s oath is basically one big promise to defend and uphold the Constitution – indisputably his number one task. A president who truly believes a law violates the Constitution (putting aside the justified cynicism most of us here have) can not enforce or implement the law without violating his oath (says one line of reasoning).

    Of course this creates some issues with the fact that laws are passed by Congress which is far more connected – at least structurally – to the people. But it’s not the end of the world or even unprecedented. Marbury v. Madison was exactly that case where the new President refused to enforce a law passed by the old Congress, and the Supreme Court struck down the law. I think lawsuits can serve to correct or iron out a lot of these issues so they’re not left hanging for decades.

    Plus, as a general matter, an executive that refuses to enforce “Unconstitutinal” is a pro-freedom application of the separation of powers doctrine.

    @InMD, the first statement you list isn’t necessarily misleading. The Federal Congress, like states can pass laws that afford defendants greater protection federal courts than what is required by the Federal Constitution. the Constitution is of course the baseline of protection and freedoms all states and the fed must provide citizens, but those same jurisdictions can legislate to provide greater protections.

  11. #11 |  Pete | 

    Isn’t it, Pete? Isn’t it the job of the Executive to veto laws that he feels are unconstitutional? Isn’t that part of the reason there *is* a President – to act as a check on Legislative power? Why does that not extend to laws that were signed by his predecessors?

    The courts have ruled on these kinds of situations before, to force the Executive Branch to carry out laws passed by the Legislative Branch. In those cases, the Executive would argue against the constitutionality of the law. Why is that different?

    You’re being rather disingenuous there, Highway, but perhaps I should have qualified with an ‘outside of the accepted duties of his office.’

    What you’re completely ignoring is one administration refusing to acknowledge the legitimacy of laws passed by another. Bad. Bad bad bad.

  12. #12 |  Highway | 

    No, I’m not completely ignoring that. There is nothing inherently legitimate about a law once it exists. If there were, why is there any review of laws more than a couple years old? And just because a law was passed by the legislature and signed by the executive doesn’t mean it’s Constitutional.

    If a law is so bad that an incoming administration refuses to enforce it, it should definitely be reviewed. But there’s nothing “Bad bad bad” about the scenario. And I’d much rather have that situation than one where a bad law gets shoved through and then the incoming executive is forced to throw their hands up in the air and say “Sorry, we’ve gotta ram this crap-ass law down your throat because it was signed.”

  13. #13 |  supercat | 

    #11 | Pete:

    Statutes which are contrary to the Constitution are not laws, and the legislature is duty-bound not to pass such things. Even if the legislator is derelict in its duty, however, and passes such unconstitutional legislation, the executive is still duty bound not to enforce such non-laws.

  14. #14 |  awp | 

    I am just waiting for team red and blue positions to be switched and see what happens if a republican gets in next year and decides that the Health Care act is unconstitutional and thus shouldn’t be defended by the executive.

  15. #15 |  cks | 

    The president swears an oath to “preserve, protect and defend the Constitution of the United States”, not the laws passed by Congress. (page 30 of my handy Cato Declaration of Independence/Constitution)

  16. #16 |  Nick T. | 

    #14 Very good point, though painfully predictable.

  17. #17 |  Pete | 

    I’m just waiting for pot to be decriminalized by legislation and some administration refusing to abide by it. Or something similar.

  18. #18 |  awp | 

    #17 “The executive after long and careful thought and deliberation has decided that freedom is unconstitutional and thus any law that voids a previous law and increases freedom will be ignored.”

  19. #19 |  Lior | 

    Pete: No one can claim that legalization of pot could be unconstitutional. The constitution certainly does not mandate pot being illegal.

    The issue boils down to the integrity of the administrations. If you think that under this justification they will only decline to enforce laws they genuinely think unconstitutional (this seems to have been the case for the last 200-odd years), it will continue to be a rare occurrence. It also won’t be a serious problem since most such laws will also be eventually adjudicated in court (PS: for political reasons they are unlikely to buck the Supreme Court even if the decision comes out the other way). If administrations abuse this to simply ignore laws passed by their predecessors, the situation can quickly get out of hand.

    Certainly there is a dispute about the constitutionality of DOMA §3. The Clinton admin thought it was ok (they signed it into law). The current admin doesn’t. Perhaps the dispute justifies the Obama admin’s decision to keep respecting the law even while they think it unconstitutional.

  20. #20 |  Highway | 

    If we somehow started to get into some huge continuous pissing match between the Executive and the Legislature, there are at least two factors which would serve to limit any ‘damage’ that would be done.

    First, hopefully, the essentially negative position of all laws where ‘rights’ are concerned. Generally, the government is taking away freedom to do things. If the law is saying “The government will no longer interfere with your freedom to do this” then there is a huge standing to take the government to court when they do interfere. And in cases like that, it’s extremely unlikely that the government will come up with justification to a Constitutional challenge to a law that says “The government shall not interfere.”

    The second is that, no matter what we’d like, there’s only a limited number of factions that are possibly going to be in charge. So even if one administration considers something to be unconstitutional and doesn’t enforce it, and it’s something that a significant portion of the country wants, they won’t be “the administration” for too long.

  21. #21 |  InMD | 

    Highway:

    Pretty sure that’s what I said. Not sure where/if you’re disagreeing. I know most of the time police officers perfunctorily advise a suspect of their Miranda rights upon arrest but they don’t have to (though if they don’t they risk the suspect’s statement being suppressed). I also know the exceptions but I try not to treat the Agitator comment page as a Con Crim Pro Seminar.

    Nick T.

    I understand that statutory and procedural protections vary which is why I said “if we’re talking about constitutional rights..” I just thought it was written unclearly.

  22. #22 |  Highway | 

    InMD, sorry, I thought you were asking if Miranda warnings had to be given immediately upon arrest / detainment with “Also it isn’t a requirement that police read a suspect their Miranda rights upon being arrested.” My point, which you already know, is that there’s no requirement right then, only between then and interrogation.

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