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Redstate...
Defense of Marriage
Act, ObamaCare and Kagan
Posted by Curt Levey
Wednesday, February 23
President Obama’s decision today to abandon the Defense of Marriage Act
(DOMA) is both outrageous—as a matter of Justice Department policy and
constitutional law—and a miscalculation that will decreases the chances
of ObamaCare being implemented, while potentially increasing calls for
Supreme Court Justice Kagan to recuse herself from certain gay rights
cases.
The President’s refusal to defend DOMA, a federal statute enacted by
overwhelming margins in the Senate (85 - 14) and House (342 - 67) and
signed into law by President Clinton, flies in the face of Justice
Department policy and principles of democratic government. It has
long been the Department’s policy to defend any challenged federal
statute unless no plausible argument can be made in its defense.
By ignoring that policy, President Obama is engaging in a disturbing
power grab that, if taken to its logical conclusion, would allow him to
undermine any duly enacted federal law that he doesn’t personally agree
with.
But that’s not the worst of this power grab. In announcing the
President’s decision, Attorney General Holder informed the nation that
“the president has concluded that … sexual orientation should be
subject to a more heightened standard of [constitutional]
scrutiny.” In layman’s terms, that means that President Obama has
decided that the Fourteenth Amendment’s Equal Protection Clause
prohibits distinctions based on sexual orientation in the same way that
it prohibits racial discrimination.
Of course, the authors of the Fourteenth Amendment would be quite
surprised to learn that they had made same-sex marriage a
constitutional imperative. However, even putting originalism and
strict construction aside, it was heretofore accepted that only the
judicial branch—particularly the Supreme Court—has the authority to
determine the appropriate level of Fourteenth Amendment scrutiny and
whether a particular piece of legislation meets that level of scrutiny.
Apparently, President Obama has now taken that authority upon
himself. And this from an Administration that was outraged that
Congressmen were even discussing the proper interpretation of the
Fourteenth Amendment provision dealing with birthright citizenship.
This is not the first time that President Obama has shown he is willing
to do an end run around the other branches of government in pursuit of
his political agenda. His use of White House czars to circumvent
the Senate confirmation process and of the EPA to circumvent
legislative resistance to cap and trade should have forewarned us that
he would attempt today’s end run around the judicial system.
Even if today’s end run succeeds, President Obama may come to regret it
should he fail to win reelection. In that case, it will be up to
a Republican president to defend ObamaCare against current and future
constitutional challenges. Obama has just handed his successor a
perfect excuse to effectively repeal or cripple ObamaCare by refusing
to defend it in court.
Even in the short term, the President has strengthened the hand of
ObamaCare opponents, particularly the many states that question its
constitutionality and plan to resist its implementation. After
abandoning DOMA, Obama has no moral authority to argue that, because
ObamaCare is the law of the land, all government officials must enforce
it unless and until the Supreme Court decides it’s unconstitutional.
Finally, even the President’s critics will concede that his conclusion
about the proper level of constitutional scrutiny for sexual
orientation—whether right or wrong—must have been based on legal
research and analysis rather than just a sudden political whim.
If so, Obama and Holder surely consulted the nation’s Solicitor
General—the government’s top constitutional attorney—when conducting
this important legal analysis. As a result, the Administration
will be called upon to disclose whether Elena Kagan was still Solicitor
General when this consultation began.
If the answer is yes and Kagan was involved in determining the federal
government’s official position on the proper scrutiny for sexual
orientation, it opens up an ethical can of worms for her concerning
Supreme Court cases in which that standard is at issue. It’s a
can of worms that Obama may come to regret.
Read it at Redstate
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