At Least Obama Understands The Rule Of Law

This is simply extraordinary.  We're talking about Justices- including the head guy- of the United States Supreme Court here.  Sahil Kapur of Talking Points Memo reports

Chief Justice John Roberts took a swipe at President Obama during oral arguments Wednesday, arguing that the president should stop executing the parts of the Defense of Marriage Act he deems unconstitutional rather than relying on the courts to pave the way.

“If he has made a determination that executing the law by enforcing the terms is unconstitutional, I don’t see why he doesn’t have the courage of his convictions,” Roberts said of Obama, “and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we’ll wait till the Supreme Court tells us we have no choice.”

In response, Vicki Jackson, the lawyer appointed by the Supreme Court to argue that the court lacks standing to hear the case, responded that it’s “a hard question” given that the constitutional questions turn on what relief the injured parties are seeking.

The case was unusual in that the Obama administration, after initially defending the law, switched sides in 2011 and began pushing the Supreme Court to overturn it, concluding that it was discriminatory and unconstitutional. (It’s rare but within precedent for a president to refuse to defend the validity of a federal law.) As a result, the House Republican majority took the reins and hired counsel to defend it in court. Meanwhile, the Justice Department said it would continue to enforce the law until the courts reach a decision as to its validity.

Justice Antonin Scalia also took issue with the White House’s approach to DOMA, comparing it to an alleged debtor who admits to owing someone money but refuses to pay it.

“Which is the equivalent of the government saying, yeah, [a law is] unconstitutional but I’m going to enforce it anyway,” Scalia said. “I’m wondering if we’re living in this new world where the Attorney General can simply decide, yeah, it’s unconstitutional, but it’s not so unconstitutional that I’m not willing to enforce it. If we’re in this new world, I don’t want these cases like this to come before this Court all the time.”

Consider reaction of Repubs to President Obama's directive in early 2011 to Attorney General Holder not to defend the Defense of Marriage Act in court.  Michele Bachman promptly called it "a crushing blow to the traditional marriage movement." Newt Gingrich went further, labeling the move "clearly a dereliction of duty" and "a violation of his constitutional oath." (The next day, Gingrich pulled back- slightly.)  Rick Santorum promptly termed it "an affront to the will of the people" and Mike Huckabee maintained the Administration "is clearly out of sync with the people."  (Believing the President should have acted according to poll results, do Santorum and Huckabee now favor same-sex marriage? Just asking.)

And that was merely for Barack Obama deciding not to commit government resources, tax dollars, to defending in court a law which preceded Obama's entry into the Oval Office.    Scalia knocks Obama for, as the Justice puts it, deciding "yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it."  He challenges the President to refuse to enforce a law duly passed by Congress.  He wants Obama to substitute his own judgement for that of the Congress and of the Courts, which had not ruled DOMA unconstitutional.

Apparently, John Roberts is king of the double standard.   Ian Milhiser recalls

In 1990, the Justice Department was tasked with defending a law protecting an affirmative action program governing broadcast licensing to minority-owned stations. Despite the fact thatnone of the traditional reasons why DOJ might refuse to defend a federal law were present in the case, then-acting Solicitor General Roberts refused to defend the law anyway. Instead, Roberts signed a brief arguing that the law was unconstitutional. Ultimately, the law Roberts refused to defend was upheld by the Supreme Court.

So when the Obama Administration refused to defend DOMA, it did nothing more than follow the “Roberts Rule” and travel the path laid by Chief Justice Roberts himself. If Roberts’ fellow conservative have a problem with this Roberts Rule, they should take it up with the Chief.

Operating in a nation of laws and not of men, the Attorney General, and through him the President, has a duty to enforce a law he is not required to defend in court.  As a White House spokesman told reporters, "Well, there is a responsibility that the administration has to enforce the laws that are on the books, and we’ll do that even for laws that we disagree with, including the Defense of Marriage Act. It’s not unprecedented for an administration to take that position." Even Antonin Scalia and John Roberts should be able to understand that.



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