NOM’s Brian Brown is spitting mad. He’s hysterical over Obama’s decision not to defend DOMA. And, he had a public hissy fit in the Washington Post by making an argument, then undermining it:
President Obama’s announcement Wednesday that he will refuse to do his job when it comes to the Defense of Marriage Act (DOMA) is part of this stunning pattern of rejecting the democratic process. Obama said that his administration would not defend the law in legal challenges because it is unconstitutional but that it would continue to enforce the law selectively. This is incomprehensible and incoherent, except in nakedly political terms. The president is using his power to do what he – and his base – wants.
So, according to BB, what Obama did is the worst thing EVER — legally and politically. What should concern Brian is that the Obama operation — and many Republicans — have realized that the politics on this issue have changed (See post below.)
But, Brian is not coherent these day. A couple paragraphs after attacking Obama’s legal move, Brown admits that there’s a process in place exactly for this kind of action taken by a president:
Thanks to the president’s dereliction of duty, the House now has a clear pathway to intervene in legal challenges. If the House does so, that would mean there will finally be lawyers in the courtroom, arguing before the judge, who actually want to uphold the statute and win their case.
There’s nothing radical about one or both houses of Congress intervening in a court case; it has happened several times in recent decades. As Hans von Spakovsky, a former Justice Department attorney and senior legal fellow at the Heritage Foundation, put it: “Congress clearly has the authority to retain special counsel to represent its interests in litigation. As history shows, Congress uses that authority most often when there is a conflict between the views of the Administration and the Legislature.”
So, what Obama did is the WORST thing ever, according to BB, but there’s a “pathway” for the House to defend DOMA and it’s not “radical” for the House to get involved in a case. Um, yeah. There’s a reason it happens. it’s called a statute: 28 U.S.C. § 530D. Report on enforcement of law, which reads:
(a) Report. –
(1) In general. – The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice –
(A) establishes or implements a formal or informal policy to refrain –
(i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional;
Yes, it’s in the U.S. Code. And, it’s been done before as even Brown notes through his pals at Heritage.
In another Post column today, Ruth Marcus points out how another administration decided to defend a law viewed as unconstitutional:
Which brings me to [now Chief Justice John] Roberts, as a lawyer in the solicitor general’s office during the George H.W. Bush administration. Roberts not only declined to defend a congressionally mandated program to give minority applicants preferences in obtaining broadcast licenses – he filed a brief urging the justices to strike it down.
The president’s actions here are more restrained – and more justified. The law has changed significantly since the Defense of Marriage Act was passed in 1996. Back then, the high court had ruled that states could criminalize homosexual conduct. In the years since, the justices have overruled that decision. Numerous courts have found constitutional protection for gay rights.
Brian Brown is just a little too obsessed with same-sex marriage. And, today, he showed how weak his arguments are by contradicting himself — within paragraphs.