Tuesday, March 1, 2011

Barack Obama Flip-Flops Again, And Crowns Himself Emperor

During the campaign of 2008 and throughout the first two years of his term, Barack Obama maintained his support of DOMA, the Defense of Marriage Act. Now that people's attention is spread far and wide -- Egypt, Libya, gas prices, Wisconsin, etc. -- he quietly flipped his stance.

This is controversial for a couple of reasons. More on that in a moment, but first we need to set things up a bit.

What is DOMA? It's pretty simple, really:
DOMA defines marriage as between a man and a woman for the purposes of federal law, and clarifies that no state has to recognize a homosexual marriage from another state.
DOMA is the law of the land, and was signed into law by Bill Clinton with huge majorities in both houses of Congress back in the 1990s. It doesn't prevent gay marriage from being ruled legal in any state; it merely prevents the requirement of any state to recognize such marriages conducted in another state. As I mentioned before, Obama has thus far publicly supported and legally defended DOMA, even while privately opposing it. His recent declaration was merely bringing his public policy into line with what everyone knew he believed, anyway.

I've seen quite a bit of discussion about whether or not the President has the authority to selectively enforce laws that he feels is unconstitutional, and I think there are pretty strong points on both sides. In reality, it appears that though Obama has publicly stated he supports DOMA, his direction of the Justice Department has been so lame that even gay rights activists understand that he's really still playing for their side. And while it's kind of refreshing to see him actually be honest about something for a change (how stupid and intellectually dishonest is it to attempt to enforce and legally defend something you find unconstitutional?), it opens up another whole raft of thorny problems, like this one:

The problem with what the Obama administration is doing with DOMA is political, not legal. Nothing requires a president to defend or enforce a law he truly believes is unconstitutional, or even a law he believes is constitutional but chooses, in his discretion, not to enforce as a matter of policy (see, e.g., Obama on the immigration laws).

Putting the law to the side, it is outrageous for an administration to use its Justice Department’s privileged position as the lawyer for the United States to sabotage a case, and for a president to claim his legal position is evolving when, in fact, he is transparently pandering to a key constituency. Those are reasons to vote him out of office, and for Congress not to trust the administration to carry out the Justice Department’s mission faithfully — Congress ought to be slashing DOJ’s budget and holding aggressive DOJ oversight hearings.

Let's gloss over the fact that Congress is full of flaming liberals just like Obama and spineless pushovers in the GOP (especially in the Senate) and just keep things theoretical. The point is that he is playing with the law like he is above it, and for purely political reasons, and in doing so he is deliberately handicapping the side of the argument he opposes, which harms the American system of justice:

There are reasonable legal arguments to be made in defense of DOMA. The Justice Department’s failure to make them to date, and the President’s abandonment of the case, appear to be judgments made not based on a determination of the availability of reasonable legal arguments, but based upon the policy preferences of the President. That has never been the standard used by the Justice Department or any prior administration.

The President is now required by federal law (28 U.S.C. § 530D) to file a report to Congress within 30 days explaining the decision not to defend the law, “including a complete and detailed statement of the reasons for the policy or determination . . . .” The courts of appeals will need to appoint counsel to defend the law.

Members of Congress, consistent with the law of standing, should seek to intervene in the case or file amicus briefs to assure that DOMA gets the vigorous defense that should be afforded to all federal statutes for which reasonable legal arguments may be offered – and which the President is refusing to provide. Furthermore, the court should give special consideration to such intervening or amicus briefs as statements of the federal government in support of a statute, given the complete failure of the President to carry out his constitutional duty to “take care that the laws be faithfully executed.”

Beyond the obvious legal ramifications for those supporting one-man-one-woman marriage, there is another major consequence at play here, something we've seen more and more of as Obama's term in office has moved forward (emphasis mine):

To understand the magnitude of Obama's action, we must again consider the above-cited fact that both chambers of Congress passed DOMA by overwhelming majorities reflecting the will of the people that marriage be defined, for legal and policy purposes, as it always had been. Also, no federal appellate court has ruled the statute unconstitutional.

As he has in so many other areas (EPA, the offshore drilling ban, IMF), Obama has usurped the authority of the other two coequal branches of government to make himself, in effect, not just chief executive but super-legislator and a supreme judicial authority.


So now we have an imperial president who is refusing to enforce a law passed by powerful congressional majorities while persisting in enforcing a law (Obamacare) that two federal courts have already invalidated. The only common denominator is that Obama believes he is the law.

This is not an isolated incident, either. Consider the mess with Arizona's immigration law. The state law was essentially identical to the federal law, but Obama repeatedly attacked the state law and even directed the DOJ to sue Arizona over it. Consider Obamacare, which was blatantly unconstitutional from the start, but which was signed into law anyway; now that multiple judges have followed up with rulings that Obamacare is unconstitutional, Obama is simply directing his forces -- through HHS, his budget numbers, hiring IRS enforcers, and continuing to set up the Obamacare infrastructure -- to ignore those rulings.

Are we living in a monarchy? Is Obama an Emperor of some kind? Funny, I thought he was an elected representative of the American people, bound by the laws of the land and the head of one of three separate but equal branches of the American government.

These encroachments and forays into undemocratic tyranny should cause major heartburn throughout the citizens of this great nation, and should not under any circumstances be allowed. The American people need to see them for what they are, rise up against them, and demand satisfaction from their elected representatives RIGHT NOW. All who do not respond should be replaced at the next election.

If we fail in this, the future of a free America is dim.

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