Obama government will stop defending the DOMA

[Torie]

Has the government ever refused to enforce a law before because it anticipates that SCOTUS will strike it down before?  If that is the new modus operandi, I wonder if the administration will refuse to implement Obamacare for the same reason.  

[Torie]

Terrific news! Hopefully by the 2012 election, Obama will stop lying about his position on gay marriage as well.

Has the government ever refused to enforce a law before because it anticipates that SCOTUS will strike it down before?  If that is the new modus operandi, I wonder if the administration will refuse to implement Obamacare for the same reason.  

Why would the administration expect the Supreme Court to strike down a law that very few but the most partisan Republicans think is unconstitutional?

I have to disagree with that characterization. Apparently a couple of judges think its unconstitutional. Yes, I know, they are both among the "most partisan Republicans," right? In my professional judgment, I would guess the odds are about 60-40 that Obamacare will be tanked. It is beyond the commence clause, and quite difficult to shove into it's a mere tax category for a variety of reasons. It's in trouble.  

[Torie]

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Really?  Fancy that. I wonder how that conclusion was drawn. I wonder how and when this consensus emerged that the commerce clause allows the feds to do anything not otherwise unconstitutional?  Is the consensus also that the SCOTUS decisions striking down federal laws in the past that they considered beyond the scope of the commerce clause were simply wrong?  Can someone help me some more with some of this?  Obviously, I need it. Thanks.

[Torie]

Has the government ever refused to enforce a law before because it anticipates that SCOTUS will strike it down before?  If that is the new modus operandi, I wonder if the administration will refuse to implement Obamacare for the same reason. 

I agree, this seems like a bad precedent.

But the government isn't refusing to enforce a law that's on the books just because it thinks it will be unconstitutional; it's just declining to appeal the decision of a court that has already found the law unconstitutional. There's nothing new or unseemly about this all; DOJ isn't under any obligation to appeal all the way to the Supreme Court every time a lower court overturns a federal law.

Ah, that makes more sense. Pity the article was not written that way. Is there some reason that the losing side can't/didn't petition SCOTUS for a writ?

[Torie]

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Really?  Fancy that. I wonder how that conclusion was drawn. I wonder how and when this consensus emerged that the commerce clause allows the feds to do anything not otherwise unconstitutional?  Is the consensus also that the SCOTUS decisions striking down federal laws in the past that they considered beyond the scope of the commerce clause were simply wrong?  Can someone help me some more with some of this?  Obviously, I need it. Thanks.

Did Scalia recently approve a law that banned an individual from growing marijuana on his own land, for his own use, under the Commerce Clause?

Yes, there is clear precedent that the activity of producing goods for private use does indeed affect interstate commerce, because the dispensaries (in this case) that sell the stuff will lose business, plus the increased supply of weed will at the margins affect the price of that particular commodity.

[Torie]

Yes,  if my choosing to never get out of bed in the morning is deemed an act of interstate commerce, because I am not making money to tax, or suing people, increasing the cost of transactions, is deemed to affect interstate commerce, then I guess a law that I have to get out of bed at 6:00 am every morning, and go out into the marketplace to stir things up, would be deemed within the Feds' commerce power.

You know, not having kids affects interstate commerce too. Interesting.

[Torie]

Yes,  if my choosing to never get out of bed in the morning is deemed an act of interstate commerce, because I am not making money to tax, or suing people, increasing the cost of transactions, is deemed to affect interstate commerce, then I guess a law that I have to get out of bed at 6:00 am every morning, and go out into the marketplace to stir things up, would be deemed within the Feds' commerce power.

You know, not having kids affects interstate commerce too. Interesting.

Wouldn't you say that the precedent since say the 1930s would make that interstate commerce, however silly...though recent cases have started to push that line of thinking back (See Lopez).

No, doing nothing has never been held to be an act of interstate commerce. The null set has not yet become an "act" as it were. Stay tuned.

[Torie]

Yes,  if my choosing to never get out of bed in the morning is deemed an act of interstate commerce, because I am not making money to tax, or suing people, increasing the cost of transactions, is deemed to affect interstate commerce, then I guess a law that I have to get out of bed at 6:00 am every morning, and go out into the marketplace to stir things up, would be deemed within the Feds' commerce power.

You know, not having kids affects interstate commerce too. Interesting.

Not getting insurance = no presence in the national health care market is a bogus statement. It means that you can still end up in the emergency room and under federal law the hospital is obliged to treat you regardless of expense. It's impossible for someone to decline to participate in the health care system, or at least practically impossible, unless you go the full Ted Kaczynski and sever ties with civilization and even he found a way to drum up business for medical care providers.

So if a law is passed that I have to participate in the health care system (even though I am a Christian Scientist, and it's Jesus whose my doctor), I guess a law that I have to pay for it makes sense too. I agree.

Of course one can ignore the differences, or ignore the similarities, when conflating or bifurcating, no doubt about it. That is how the legal game is played. That leaves us with whether the particular conflation or bifurcation has been ruled on in the past (it has not here), and then one can chat about the merits of doing one or the other in this instance. But if this particular conflation is made, the consequence is that the feds can do anything not otherwise unconstitutional, and in all liklihood, the past SCOTUS decisions circumscribing the commerce clause will either also fall, or be circumscribed to their facts in deference to stare decisis (unless they represent some particular category that makes sense to retain while still expanding the commerce clause to the null set, i.e. the non-activity set).

There is a consensus on this eh?  Color me amazed.

[Torie]

While you were lying in bed doing nothing, a helicopter crashed into your neighbor's house and caused a fireball, inflicting 1st and 2nd degree burns over most of your body. While you were unconscious, an ambulance picked you up and took you to the hospital. Oh, and you're not Torie, you're an unemployed 24-year-old with no savings living in a rented apartment. Who pays your bills?

Lying on my bed when a helo crashes into it is an act of interstate commerce by me? Flying a helo on the other hand ...

Is your point that a lack of a robust social safety net is an act of interstate commerce or what?

[Torie]

I'm still waiting to hear why conservatives think that Bob Dole's health care plan=OMG!! Socialism!!!

Tossing labels around tends to get a bit boring when you hit about age 35 or so. Be patient.

The problem with these little labels is that the English language is just too imprecise to make them very useful. Who knew?

[Torie]

The DOMA is perfectly defensible on constitutional grounds.  

five words, my friend: Full Faith and Credit Clause.

Actually, that clause does not apply to the gay marriage thing, because apparently SCOTUS precedents are clear that state public policy in such matters trumps it. But it is shaky arguably under the equal protection clause as it evolves, and also potentially the right to move about freely (the "the fundamental right to travel" concept). If you marriage is "dissolved" if you move from Mass to Miss, that clearly truncates that right.

In my opinion, it would be better for a critical mass of states to adopt gay marriage democratically, and then have a federal law nationalizing it. But that takes time, and I appreciate the impatience. You only live once, and time is precious. And unlike abortion, once legalized, by judicial fiat or otherwise, I strongly suspect the issue will just fade away, because it is just so silly. In that sense, it is a far different customer from the abortion issue, which precisely because it was all by judicial fiat, and involves life and death, and fundamental ethical issues, as to which there is no right or wrong answer, but only something akin to a priori assumptions and beliefs, continues to be a toxin in the public square.

Just my two cents.