Big Lizards:Blog:Entry “Misrule by Decree”

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February 24, 2011

Misrule by Decree

Hatched by Dafydd

Yesterday, President Barack H. Obama decreed that the popular surge for restricting marriage to the traditional definition was unconstitutional; further, that the popular Defense of Marriage Act was likewise unconstitutional; and he forbade his racially discriminatory Attorney General, Eric Holder, from defending any anti-DOMA lawsuit that disgruntled gay activists might bring:

“The president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Mr. Holder said. “The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”

All I can say is -- thank goodness! Three cheers for Obama's moral resolve and newly grown spine -- because that smirking trick of his clears the decks for for legal challenges to be answered by attorneys for House and Senate Republicans, who actually support traditional marriage and oppose the same-sex inversion of marriage.

And before going one nanometer further, I once again strongly support and defend both the repeal of Bill Clinton's "Don't Ask, Don't Tell" policy of forcing gays in the military to remain in the closet, and also the seminal U.S. Supreme Court ruling in Lawrence v. Texas overturning all "anti-sodomy" state and federal laws. In other words, I have not budged on any of my positions:

I support allowing gays to serve openly in the military.

I support the fundamental liberty of consenting adults to have any kind of sex they want, so long as it does not cross the line into assault, battery, homicide, or public exhibition.

But I completely and adamantly oppose instituting same-sex marriage (SSM).

Back to Lucky Lefty, the Obamunist. Note the traditional liberal hubris and megalomania: First, he is not content to leave findings of constitutionality to the courts; Obama has discovered somewhere in Article II of the Constitution a clause that allows him to nullify, by presidential diktat, any federal law he dislikes, even though duly enacted by Congress and signed by the president. Second, he seemingly could not care less what voters in the United States think about the definition of marriage; he has concluded that SSM is cool with him, and the rest of us should simply fall in line.

But it's not as if he even believes that he can prevent such defenses, thus forcing -- as the state of California and its new (and its former) governor are trying -- to deny all potential defenders standing, then eighty-six the laws due to lack of defense. Rather, the administration seems almost giddy at the thought of Congress defending traditional marriage, while the president attacks it:

The decision effectively throws the defense of DOMA into the lap of Congress, which can instruct its own attorneys to defend federal laws. Mr. Holder said he had informed members of Congress of the decision so that “members who wish to defend the statute may pursue that option.”

Supporters of traditional marriage immediately called on the Republican-majority House to intervene in the DOMA lawsuits.

“With this decision, the president has thrown down the gauntlet, challenging Congress,” said Family Research Council President Tony Perkins. “It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president’s neglect of duty.”

Many on the left are likewise giddy to the point of vertigo, calling the president's principled act of unprinciple a tremendous victory for the forces of radicalism and transformation, hastening the eventual Europeanization of the United States.

But not so fast; lefties may be missing the point.

When the Attorney General or the Soliciter General of the United States undertakes to defend a law under constitutional assault, the courts surely consider that defense much more seriously than some outside, third-party, amicus curae brief; I'm sure they privilege those arguments, since it's the official policy of the United States. Thus, if the administration's defense is deliberately lame and incomplete, the law stands in grave danger of being overturned... even if a better argument was available but unused.

And evidently, the administration has been doing exactly that, offering an intentionally impaired defense of DOMA while ignoring winning arguments that have prevailed in state cases, hoping that the feds' feeble efforts will "fail" to uphold DOMA; the crafty Obamunists will then have gotten a major policy change while leaving their own hands clean, thus sidestepping voter vengeance:

While it was sudden, Wednesday’s move did not come out of nowhere. Opponents of same-sex marriage had grown increasingly frustrated with the administration for what they called its underzealous defense of DOMA and its omission of key arguments.

In a brief filed Jan. 13 in defense of DOMA at the 1st U.S. Circuit Court of Appeals, the Justice Department states that “the administration supports repealing DOMA,” but that the department must do its job to defend the law “as long as reasonable arguments can be made in support of their constitutionality.”

Brian Brown, executive director of the National Organization for Marriage, told The Washington Times recently that he suspected the administration of purposely tanking its case.

“They purposely avoid arguments that are winning time and time again in court,” he said. “Even scholars on the other side of this issue have said, ‘What is going on here is wrong.’ Anyone who cares about constitutional government should be very concerned about what’s happening in the DOMA case.”

But Obama, Holder, and the entire administration are now openly at war with traditional marriage while aiding and abetting same-sex marriage, and congressional conservatives have been given the green light to vigorously defend the sanctity and necessity of a legal marriage being between one man and one woman. That very fact means that DOMA has a much greater opportunity to be upheld yet again.

Inadvertently, the tremendous victory is ours, not theirs, a gift from the smug and cocky Left. As usual, "Progressivism" overreaches and draws back a stump, setting itself up for voter blowback as well.

Thank you, mask man!

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, February 24, 2011, at the time of 6:53 PM

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Comments

The following hissed in response by: RRRoark

My wish is that the federal government would get totally out of marriage. Nothing that the federal government does should be influenced by marital status.

I do believe that there should be a civil union contract much like a prenuptial that could be run through the courts prior to the civil union so that it could not be changed without both parties consent so that support and other items could be discussed beforehand for those people wanting to make a commitment to each other.

If we didn't have survivor benefits of various sorts and the tax break for couples with disparate incomes, marriage could simply be a religious rite not a civil right. Yes I know there is also a marriage penalty tax, but that wouldn't encourage marriage.

The above hissed in response by: RRRoark at February 24, 2011 10:10 PM

The following hissed in response by: MikeR

Megan McArdle has already asked, What will happen in 2012 when the new Republican president announces that he will not defend the constitutionality of Obamacare?

The above hissed in response by: MikeR at February 25, 2011 7:09 AM

The following hissed in response by: MarkJM

This lawless Marxist jackass needs to be impeached, but no one has the cajones to do it. He broke the law when he fired Inspector General Walprin (a law he co-sponsored as a Senator). He is currently violating the law by continuing to 'implement' the non-existent law known as obamacare, and now this. I'm becoming more an more concerned that we may not be able to 'fix' this without violence (not worried about the Tea Partiers, rather more the Fleebaggers and their Union goons). Although, if violence does break out, it would probably do the country some good to eliminate a high volume of lefty democrat communists...

The above hissed in response by: MarkJM at February 26, 2011 9:31 AM

The following hissed in response by: Dafydd ab Hugh

MarkJM:

This lawless Marxist jackass needs to be impeached, but no one has the cajones to do it.

Impeachment is merely an accusation. To convict -- that is, remove from office, which I think is what you intend -- you need 67 members of the United States Senate to vote that way.

There currently are 47 Republicans, 51 Democrats, and two "independents" who caucus with the Democrats. Let's assume all Republicans vote to convict, along with Sen. Joe Liberman (I-CT, 95%) (I doubt that Lieberman would vote that way, but let's just suppose.) You still need 19 more Democrats to remove Barack H. Obama from office.

That's well over a third of the Democrat caucus; can you identify even three of the remaining Democrats and socialist Bernie Sanders (I-VT, 100%) who would actually vote to convict America's first black president, a dyed-in-the-wool liberal-Progressivist Democrat, of "high crimes and misdemeanors," thus removing him from the presidency? This Senate? I can't even think of one.

Impeachment talk is a complete non-starter. Obama will be president at least until January 20th, 2013; and there is nothing that can be done about that.

In fact, no Republican contender has stepped forward who has -- at this moment -- even a reasonable chance of defeating Obama in the 2012 election. Not Palin, not Huckabee, not Pawlenty, Romney, Gingrich, or anybody else who has so far announced some intention.

If things get markedly worse, that could change; or if a game-changer throws his head into the ring (for example, David Petraeus or Chris Christie), that could have a galvanizing effect. But sad to say, at the moment, it looks pretty good for Obama to be reelected, simply because, as usual, he has no viable opponent... which is how he has won every election of his brief career, including 2008; though usually he creates that happy state himself by getting all his strongest rivals removed from the ballot on one pretext or another.

Bottome line, Obama stands a better than even chance of remaining president until January 20th, 2017. We should make most of our plans with that unfortunate probability in mind.

We need a sufficient majority of fiscally conservative Republicans in both chambers of Congress, along with a deep bench in state legislatures for future candidates, that we can sustain a flurry of spending cuts along with frequent confrontations with Obama; so many that he is forced to accept most of them to retain any shred of credibility or hope of a legacy (which I suspect is the single most important issue to the Obamacle, being such a narcissistic megalomaniac).

If we end up with a Republican president in 2013, great! It makes the task easier. But that's not the most likely outcome at this point.

Dafydd

The above hissed in response by: Dafydd ab Hugh at February 26, 2011 12:47 PM

The following hissed in response by: seePea

This is the USA Presidential oath of office:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."

So if the President determines that a law is un-Constitutional based on court decisions, why is it an impeachable offense?
I think it is a stupid thing to do, and that the Left will highly regret this decision, but impeachable?

The above hissed in response by: seePea at February 27, 2011 11:44 AM

The following hissed in response by: MarkJM

Dafydd (and seePea),
Of course impeachment would not 'convict'; however, it would slow down the Senate and this lawless administration. More importantly, it would help 'enlighten' more people about the lawless disregard this 'Mj' has for our Constitution and the damage being done to our future, because the leftist frauds we call the MSM would HAVE to report on it, and (thanks to you and many, many others) the MSM no longer have a 'monopoly' on 'information'. With enough 'proper' exposure and a 'unified message' (yeah, right. like that will happen) from the conservatives (Tea party base, conservative Republicans, throw the rest in with the progressive, communist democrats...). The public can be made to realize that 'Mj' is NOT an option for 2012, and ANYBODY BUT 'Mj' would be better. I agree, there is no-one yet that has 'entered the arena', that I believe is 'electable', but I do believe the public 'paradigm' is 'shifting'. It's time to take advantage, and organize an effective plan. (I do agree that impeachment is not an ideal 'start', but we MUST start somewhere!). Any other ideas? Our freedoms and future depend upon 'educating' a large populous in a very short time!

The above hissed in response by: MarkJM at February 28, 2011 7:16 PM