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Townhall...
Obama Not Just Above
the Law--He Is the Law
By David Limbaugh
President Obama’s brazenly calculated move to unilaterally abandon the
federal Defense of Marriage Act showcases his attitude that he is above
the law.
DOMA defines marriage as “only a legal union between one man and one
woman as husband and wife” for purposes of all federal laws, rules and
regulations (Section 3). It specifies that no state shall be required
to honor laws of other states that treat same-sex relationships as
legal marriages -- effectively carving out an exception to the
Constitution’s full faith and credit clause (Section 2).
Congress passed this law by enormous majorities (Senate 85-14, House
342-67) in response to political pressure in some states to redefine
marriage, especially a Hawaiian court’s decision suggesting the Hawaii
Constitution conferred the right to same-sex marriage. Congress was
worried that, among other things, same-sex couples living in other
states might go to Hawaii to marry and demand that their home states
recognize their marriages.
It seems that in enacting this law, the federal government was quite
scrupulous in deferring to the sovereignty of the states by pronouncing
a federal standard for marriage applicable to federal laws but not
presuming to encroach on states’ authority to set their own standards.
It affirmed the states’ prerogative by providing that their marriage
laws would not be abrogated or diminished by conflicting laws of other
states but did not preclude them from honoring, if they so choose, laws
of other states validating same-sex marriages.
During his presidential campaign, Obama stated that he did not support
same-sex marriage but that he did believe that DOMA should be repealed.
He gave no hint that he would take it upon himself to issue a
presidential edict, without a congressional bill placed before him,
forbidding the executive branch from enforcing the law. But that is
precisely what he did this week.
Attorney General Eric Holder announced that President Obama had
concluded that the administration would no longer defend Section 3 of
DOMA. Holder acknowledged that the Justice Department had previously
defended DOMA in court under a “rational basis standard.” (It’s
interesting they chose Section 3, because many legal scholars believe
Section 2 is more vulnerable to a constitutional challenge.) But he
said Obama now believes that “a more heightened standard of scrutiny”
should be required for laws involving same-sex marriage -- the same
standard that applies to “laws targeting minority groups with a history
of discrimination.”
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.
Holder admitted in his statement that the Justice Department “has a
longstanding practice of defending the constitutionality of
duly-enacted statutes if reasonable arguments can be made in their
defense,” but not otherwise.
But it is preposterous to suggest there are no reasonable arguments to
defend the statute when 5,000 years of human history and the express
act of Congress fly in the face of that statement. According to
professor John Yoo, “in the few cases that the Supreme Court has heard
gay rights cases, it has never adopted (the standard Obama is
applying).”
In announcing a new standard, Obama claims that the legal landscape has
changed in the 15 years since DOMA was passed. You know the drill:
Society has “evolved.” That’s highly dubious in view of the fact that
even people in some liberal states have expressed their preference for
preserving the traditional definition of marriage. Further, it is not
Obama’s place to make this determination, especially when the people
have already done so in such emphatic terms through their duly elected
congressmen. If the people want the law changed, they can lobby their
congressmen to change it or marshal their lawyers to argue their
position in actual cases before the courts.
In response to leftists arguing that President George W. Bush also
declined to enforce a federal statute, Yoo says that Obama’s action is
distinguishable. Bush did so in cases in which he was resisting
congressional intrusions into the executive’s constitutional
authorities in the area of national security. Here there are no alleged
encroachments on executive authority; it’s just that Obama has a
different opinion than the American people and has decided to implement
it unilaterally.
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.
Read it at Townhall
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