Thursday, February 24, 2011

Obama and the DOMA- Rule by decree?

In a letter to Speaker of the House John Boehner yesterday, Attorney General and political appointee Eric Holder announced President Obama's unilaterally deciding the Administration would no longer "defend" the Defense of Marriage Act signed into law by President Clinton, raising a firestorm of protest from a variety of quarters for reasons that may not at first seem apparent from a cursory perusal of most major media's coverage of this issue, (and surprisingly it has little to do with "homosexual rights," see below analysis and explanation).

Coming on the heels of the Obama Administration utilizing the "lame duck" sesson of Congress in December of last year to force through its dismantling of the "Don't Ask Don't Tell" law responsible for successfully regulating homosexual conduct and disposition in the armed forces for over a decade and a half, it is only natural that countless pro-family and Christian groups would have serious concerns over Obama's apparent penchant for remolding the entire Federal government into a more secular, anti-Christian one which some would say is in fact antagonistic towards conservatives and especially people of faith, (all except radical adherents of Islam and Communist activists, for whom Obama seems to have a soft spot).  However, this decision by the nation's chief Executive officer charged with enforcing and defending the nation's laws has also raised alarm bells for many Libertarian, Tea Party and other groups for entirely irreligious reasons.

 Indeed, this apparently ideologically-motivated decision by the Obama Administration has not only brought notice to the sheer hypocrisy of the Administration in light of Obama's refusal to heed the Order of the Federal District Court in Pensacola that implementation of the Affordable Healthcare Act (i.e "Obamacare") is unconstitutional and should immediately cease, it has more importantly raised a potential Constitutional crisis over the failure of the Executive branch to "take care" to "faithfully execute the laws" and the Rule of Law in our country generally, (see

  Indeed, in our view it is a huge step away from a government under the “rule of law” towards a disturbing trend of this Administration in favor of absolute control and consolidation of all power at the federal level. 

 Moreover, judging by the chatter of cyberspace, to many it appears little different than the "Rule by Decree" formula favored by dictatorial regimes all over the world which America has opposed since its founding, (to varying degrees of success) and seems intent on using executive fiat to accomplish what it could not by the democratic process through open debate and appeals to the electorate, (which have repeatedly repudiated gay marriage in almost every state in which it has been put to a public vote).

 To really understand the opposition to this unprecedented action of the Obama Administration coming at a time when most Americans remain focused on economic recovery and job creation requires analysis of the broader Constitutional implications and a brief examination of those foundational principles upon which our very Republic is, in many significant ways, based.

 The Constitution of the United States clearly states that the Executive Branch is responsible to "faithfully execute the laws." (Art 2, Section 3).  Indeed, due to the fact our Constitution sets up checks and balances among three co-equal branches of government with distinctly different duties, our Democratic Republic is heavily dependent upon the "Rule of Law" (as well as and Separation of Powers principles) to function.  Though this concept is so basic as to be doubtful to require elaboration for anyone who has a basic understanding of American government or follows this blog regularly, due to its crticial nature I will briefly expound on this for newcomers or the uninitiated.

 The concept of the Rule of Law in human history is a relatively novel one compared to the much wider practice in the ancient world of conquer and enslavement, or, in pre-democratic Old World Europe a political society based upon the "Divine Right" of kings, (who routinely used their absolute power to oppress political opponents and stifle dissent). Nevertheless, it was thought of by our republic's Founders as fundamental to survival of a democratic State dedicated to individual rights and a key check on unbridled governmental power. (For those who might question its importance the key "abuses" of King James III listed in our Declaration of Independence from England all boil down to essentially the denial of the Rule of Law as expressed in denial of the right to be treated as other English Citizens, right to jury trial, right to be free from taxation without representation, etc., etc. (see

 It is also key to checking the President from both over-riding the decisions and law-making powers of the Congress inherent in our constitutional Separation of Powers and superseding the fundamental rights of the court's to interpret the laws as found in Marbury v. Madison, (the first decision of the U.S. Supreme Court checking the power of the Legislative Branch by declaring an act unconstitutional and against our primary law of the land, the U.S. Constitution.  While early on in our nation's history some considered all three branches of government to be authorized to determine Constitutional questions for itself, the almost universal consensus in the modern age recognizes the harm such a consolidation of power does to our system of Separation of Powers and is thus almost universally disproved).  It is in this light that the President's unilateral decision not  to defend the DOMA is so troublesome; it clearly is taking upon itself a role that, in our Constitution, is reserved for the courts to determine.

 This is so because, while not technically invading the province of any court, this decision by our nation's Chief Executive and Attorney General Eric Holder, our nation's chief law enforcement officer, actively undermines the sovereign right of the Courts to determine the constitutionality of "cases and controversies" as is their sole right and obligation under Article three of our Federal Constitution. (Indeed, by one stroke of a pen, President Obama's unexpected action on this issue seems designed to deprive federal appellate courts of jurisdiction by rendering moot cases already winding their way through our legal system on this very issue).

 As a result, a constitutional crisis and inherent conflict has been triggered by the President's actions, (even if the left can't seem to understand the Separation of Powers principles at stake. Indeed, as above alluded, the idea that each branch gets to decide for itself what is or is not constitutional has since Marbury v. Madison long been discredited, for better or worse, see ).

 Further, while couching its rationale in respect for the judiciary in not wanting to establish "precedent" in circuits of the Federal Courts of Appeals that have not ruled on what level of legal scrutiny applies to challenges to the DOMA, that-- according to the President and Attorney General-- may be incorrect, (i.e., so called "rationale basis" test that requires a high level of deference be given to the governmental regulation or law challenged), by taking it upon itself to make such determinations in advance the Administration is in fact showing an appalling lack of respect for the right of the Courts to make this determination AND Congress, who presumably considered such matters prior to passage of this act.  (While we shall analyze whether, in fact, such judgment by Congress, as well as other court's determinations on the issue, was correct in a separate post, it is sufficient for our purposes here to merely note the inherent contradiction in the President's actions).

 In further support for its constitutional "determination," the Administration also cites "changing public perceptions" on the issue, and, in an amazing display of self-aggrandizing hubris, the lame duck Congress' recent overturning of the Clinton era 'Don't ask, Don't Tell' rule at the specific behest of the President!  (Talk about self-serving political arguments!)  This in spite of considerable opposition to repeal of DADT in both the military and society at large.   The attorney general's reference to the High Court's recent declarations in Lawrence v. Texas that "states have 'demean[ed] the[] existence' of gays and lesbians 'by making their private sexual conduct a crime.'   Lawrence v. Texas, 539 U.S. 558, 578 (2003) is both irrelevant to the Administration's Constitutional duties and arguably factually incorrect.  Indeed, as pointed out in the Bowers v Hardwick decision ( which governed this area of jurisprudence for 17 years prior to the controversial Lawrence decision, there had never been found a right to sodomy since the nation's founding, nor would such a right have been recognized by the Founders or any of the original colonies.  In fact, all these historical sources unanimously speak to the disapproval of any such "right" (which would have undoubtedly been considered deviant and sinful expressions of sexuality by our laws and citizens alike).   Don't get me wrong.  I say this not to say gay people should be imprisoned for their private expressions of affection; as a conservative with a strong libertarian streak, I could care less what they do in the privacy of their bedrooms.  Indeed, regardless of my personal moral view to hold otherwise would just as anathema to me as is the constitutional destruction we are now witnessing at the behest of the President's personal to "reshape" society in a more secular, progressive mold.  However, only one of these, (the abandonment of defending a duly passed law by the United States Congress) has the devastating effects to our constitutional fabric and system of "ordered liberty" which is, to put it mildly, extremely worrisome, (and therefore is our mission to address here).  I only refer to it because the administration cites this state of the law in support of its decision to not defend DOMA and our belief here at the ACLP that such is an extremely weak reason for doing so.  (Indeed, the reference in attorney general Holder's letter to Congress makes it sound as if the Lawrence decision was made without controversy and there is no other rational view of either the law or its effect upon what weight it should be given vis a vis the Administration making its "constitutional" determination not to defend the Defense of Marriage Act, which is just not factually the case).   The Supreme Court has been wrong before and in subsequently overruled controversial holdings, (as it did in Brown v. Board of Education and many, many others); Regardless of your view of such matters it does not justify the President in deciding unilaterally not to enforce current, lawful acts of Congress which have not been struck down as unconstitutional by the U.S. Supreme Court, (at least not if you care about our whole constitutional framework by which all our basic rights are protected). 

 Finally, a word on outcomes.  By not allowing each state to decide this matter for themselves and failing to prevent states whose population's don't approve of gay marriage from being forced to accept it due to the "full faith and credit" clause of the U.S. Constitution, (the whole point of the DOMA in the first place), the inevitable outcome of this “Executive Decision” of the President is to insure more cultural combat on this issue in much the same way as the infamous 'Dred Scott" decision predating the American Civil War did, (now there's both an intellectually intriguing and tragic notion).  Hopefully the result won't be the same.

 In any case, taking into account the fact of the President's known support by homosexual activist groups and progressive/liberal past associations (i.e., Jeremiah Wright), and voting record, (the most liberal in the U.S. Senate), it seems likely that rather than being based on any strong belief in "principle" as Mr. Holder attempts to spin this in his letter to House Speaker Boehner, it is much more likely we are witnessing a shrewd political act meant to shore up the President's left wing base in the Democratic party at what is arguably the start of his 2012 campaign for re-election. 

 On the matter of concern in this post, such a self-aggrandizing power grab as here displayed by the President of the United States, is, in our view, an alarming development by an Administration that seems at war both with foundational principles of our Republic and its own position in other cases in which it favors a different outcome.

 Specifically, in the 'Obamacare' cases now making their way through our court system on the way to their likely resolution in the Supreme Court, what has the Obama Administration's position been re: the constitutionality of Acts of Congress? Has it not been that the Congress has spoken re: Obamacare's passage by duly-elected Representatives in Congress and the President has signed this monstrous legislation into law? (See Feb 4 post, "So what's really the problem with Obamacare?") Sure, it is wrapped inside pious legalese re: the Commerce Clause and the right of the Federal Government to "tax," (read "penalize") individuals who don't choose to purchase health insurance, but that is what it comes down to in the end. Which makes a curious juxtaposition against the Administration's jettisoning of Congress' will regarding the much-more-firmly established DOMA.

 Clearly, on the former, the Administration continues to ignore the plain direction of the Pensacola (and Virginia) Federal courts finding the largely unpopular and recently passed "Affordable Healthcare Act" unconstitutional and ordering the federal government to cease implementation; On the latter, the DOMA has the almost universally popular support of the American electorate, (including in liberal California whose voters upheld it for a third time by a 52% percent vote in 2008), and had, prior to July of 2010 never been declared unconstitutional in spite of continuous litigation by liberal and gay-rights activist groups since its implementation nearly 15 years ago.  (to say nothing of the fact it is Congress' job to enact legislation, and the President's to defend and execute the policy of Congress, which it outright refuses here to do, arguably an impeachable act, see below). 

 Of course, such considerations don't seem to faze the Obama Administration's stubborn determination to impose its liberal-progressive social agenda on American society regardless of the outcome, damage to our constitutional system, or will of the American people.  

 Indeed, the inescapable conclusion is that, rather than based on its obligations to "faithfully execute the laws," it is simply the politics and ideological preferences of the most liberal Administration since Jimmy Carter of the late 70's, desperate to please its left-wing base in time for the 2012 elections, that is the cause for such blatant hypocrisy and disregard for the Rule of law. (Either that, or, as some have alleged, an outright assault on America's core and Christian values, which we here at the ACLP are not sure is worse or that such motives can be definitely ascertained, though it does appear increasingly clear).

 The tragic and funny thing is, that if our leftist friends were really honest they would have to agree, if only intellectually, that the courts, (which allowed segregation and issued the infamous "Dred Scott" decision that said blacks were merely property to be returned to their owners), are a particularly poor venue for asserting rights. Indeed, as has been previously pointed out elsewhere, (see ), by vesting the federal courts with such unmitigated power they also form the legal noose that can prove their undoing, (as if one set of men in robes can "find" such things in the Constitution another surely can "unfind" them! see  ).

 This is why it is the job of the Congress and/or the people through their State Legislators, not the President or even the courts unless clearly against the U.S. Constitution, to make such "political" determinations on hot button issues; It is also why decisions like the one the Obama Administration has just made re: defending the Defense of Marriage Act, even if technically legally correct, (still a matter in dispute), come at too high a cost as it is just one more step in a complete disavowal of American law and principles upon which our nation was founded and a step towards unmitigated consolidation of power in the Federal government which can only lead to it and the judiciary's corruption.

 As our nation's third President and author of the Declaration of Independence Thomas Jefferson warned us, "It has long, however, been my opinion, and I have never shrunk from its expression... that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body (for impeachment is scarcely a scarecrow) working like gravity by night and by day, gaining a little today and little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one." - Thomas Jefferson, letter to C. Hammond, 1821

 In any event, one thing is abundantly clear; Beyond the start of the 2012 Presidential elections, (which we think is evident have begun with a bang), the damage to our Republic and system as a "nation of laws and not of men" that such "decisions" by the Executive branch has caused is inestimable and most worrisome.

 Indeed, we seem to recall the expression of strikingly similar concerns on the part of representatives of the Democratic party in the Mid-eighties that similar behavior on the part of the Reagan Administration indicated criminality and "corruption" of the highest order justifying impeachment, (and bringing extensive hearings in any case, does the name "Colonel Oliver North" ring any bells?)

 Politically, we are talking, of course, about the so called "Iran-Contra" affair in which President Reagan was accused of disregarding laws duly-passed by Congress prohibiting aid to forces fighting to overthrow an oppressive Communist government in Central America by trading arms for hostages held in Iran. Back then we were repeatedly assured by high officials in the Democratic party of the "seriousness" of the "crime" President Reagan committed by disregarding the laws duly passed by Congress and the harm this caused to our "Democratic" institutions. (And this was so even though such actions as alleged to be done by the President, even if conclusively proven true, which was never the case, could at least arguably be said to have been done under the Executive's inherent authority to conduct the nation's Foreign Policy, a justification not available to the Obama Administration here). Apparently the only harm to our "democratic institutions" the political left in this country cares about is the kind that harms their own political agenda. jp


  1. I still don't get why you think Obama should be required to defend something he disagrees with.
    The courts can appoint a lawyer to argue and he or she will better represent the opposing viewpoint. He has not disobeyed a valid law (as he continues to enforce it). Regan disobeyed a valid law that was in-force and that nobody doubted was constitutional. I'm trying to see the parallels but I don't....

    Yes, there are problems with courts as a check on legislatures - it makes a judicial organ more partisan than it needs to be but it also acts as a safeguard.

  2. Yes, but you forget that the left, (which I presume are your political predilictions, though I could be wrong), went CRAZY when Reagan chose to fund the Contras regardless of Congress' cutting off funding (thus arguably breaking federal law, with the caveat pointed out above of an arguable justification due to Foreign Policy being the exclusive domain of the Executive branch under our constitution, as alluded to above). The DOMA however is an act of legislation entirely dealing with domestic matters.

    Moreover, paralleling the health care debate, the Congress didn't pass a law initiating an act which MADE Reagan take active steps to institute ANYTHING, only cutting off funding (and arguably refraining from supporting the Contras).

    Finally, while I quite agree the law may get a better defense from Boehner and/or the House, that is not the question; moreover, though we may have to agree to disagree, from our perspective, (as well as apparently Michael Dorfs at the blog), to my way of thinking it would have been actually more consistent (and certainly showed more integrity according to the reasons provided by Att. Gen. Holder's letter) for the President to have continued to defend the law and fail to enforce it as against individual homosexuals couples. Of course, both actions seem to us to unlawfully "pick and choose" what laws he wants to enforce/defend, (contrary to Obama's obligations as the nation's chief law enforcement officer to "faithfully" defend and execute the nation's laws as Bush continued to do with the Freedom of Abortion Clinic Entrances Act even though he politically may have disagreed with abortion), but at least he arguably could have had more teeth in saying as Chief executive he made the call in light of court decisions that he could no longer constitutionally enforce the DOMA. (Of course, he still would be open to the charge of hypocrisy by continuing to defend Obamacare in spite of two federal judges declaring it unconstitutional).

    But I am unclear about your last Reagan statement about "in-force" law; Are you saying that the key to a President upholding and defending duly passed law is political opinion? (Of course, on the real matter at issue here the DOMA had been in force without incident for almost 15 years, surely plenty of time to be considered "in force"!) Just because no court declared Congress' expressed will re the Contras an invasion of the Executive's right to determine foreign policy doesn't mean it wasn't an unconstitutional encroachment on the Executive Branch, (or, in your apparent touchstone of analysis, that Reagan didn't honestly think it was). One can only conclude that your failure to give Reagan the same pass as you give Obama is due to your political preferences.

  3. Doug: I additionally note the irony and interesting contradiction in your stance re: Baby Joseph, (see full post on this blog) compared to that regarding Obama's refusal to defend the DOMA. "So what does one have to do with the other?" you may ask.

    Simply this: You state "I still don't get why you think Obama should be required to defend something he disagrees with" in expressing your concern that President Obama should not be "required" (your word) to defend the laws of our country under the Constitution, yet you won't give the same deference to the parents of Baby Joseph, (who the "London Health and Science Center" would-- had the Canadian hospital had it's way-- have been REQUIRED to violate their consciences, to say nothing of their rights as parents!), in "consenting" to end the life of their own child. Interesting contradiction indeed... jp