The Choice to Defend DOMA, and Its Consequences

[BR_Parkway]

http://www.americablog.com/2009/06/choice-to-defend-doma-and-its.html

NOTE FROM JOHN: I'm happy to introduce Richard Socarides, a long time friend, former Hill staffer, and then former top aide to President Clinton, who will be writing for us from time to time on a variety of issues.

Today's topic is whether or not President Obama's Department of Justice had a choice to file a brief supporting the Defense of Marriage Act. The Department of Justice says they had no choice but to support DOMA. Some (but not other) outside legal experts claim the administration had no choice. Richard, who worked quite literally in the Oval Office as a top aide to the president (he's pictured above, in glasses, standing between President Clinton and Janet Reno), says categorically that the DOJ had a choice, and they chose wrong. He goes on to explain exactly how it works when the president is confronted with a choice such as DOMA.

Richard is the most senior former administration, and only former White House, official to weigh in on this matter. He was quite literally there when these types of decisions were being made in the White House. It appears we finally have our definitive answer to the much-talked-about post I wrote about the other day on this matter. Here is Richard's piece.

I was equally troubled by the administration’s explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.

No matter what the president’s personal opinion, administration officials now tell us that the US Department of Justice (DOJ) must defend the laws on the books, and must advance all plausible arguments in doing so. Thus, the theory goes, the DOJ was just following the normal rules in vigorously defending the anti-gay law.

I know and accept the fact that one of the Department of Justice's roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case – and not in this way. To defend this brief is to defend the indefensible.

From my experience, in a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.

much, much more at the link - click through and read the entire thing

[BuyingThyme]

1. kcik

[skepticscott]

2. One statement alone makes the whole thing highly suspect

If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.

The president's "policy decisions" are NOT law. Statutes passed by Congress and signed by the president ARE, no matter how much some people may disagree with them. The president, and by extension, the executive branch, has NO legislative powers. This approach sounds dangerously like President Bush signing a law, and then saying he's not going to obey the parts of it that he happens not to like, and that the rest of the executive branch should follow suit.