March 27, 2013

Justice Breyer makes the clearest argument for why there is standing in the DOMA case.

And Chief Justice Roberts takes a different tack. This part is about the bizarre situation in which President Obama and Eric Holder have decided that DOMA is unconstitutional, and they won't defend it in the Supreme Court, but they intend to continue applying it. As Roberts puts it: why doesn't the President "have the courage of his convictions" and stop enforcing DOMA — "rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice"?

21 comments:

David said...

Do you suppose Jackson was reluctant to advance the argument Roberts made because it would make Obama look bad? I'm of course making huge assumptions about her politics, but one has to wonder why she would not make such an obvious response.

Certainly Roberts wonders.

Achilles said...

These people are all ridiculous. And this is who you all want to decide how you choose to associate and what contracts you can enter into.

David said...

A great way to follow the argument, by the way. Both audio and text. Video would be intrusive of course.

Imagine if we could follow Dred Scott or other great historic cases in this fashion.

Petunia said...

Maybe because Zero HAS no courage?

Moose said...

I gotta say - this is a wonderful way to see how this unfolds. Kudos to your choice here....

Amartel said...

I reject the premise that there is either courage or convictions involved in current Presidential decision-making.

Sayyid said...

Breyer's argument is an idiotic misread of the Constitution, and seeing why we will also show how Obama is violating his oath of office by taking the position he has in the DOMA cases.

The constitution (Art. II, Section 1) provides:
Before he enter on the Execution of his Office, [The President] shall take the following Oath or Affirmation:--"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."

Notice -- his primary, inflexible obligation is to preserve the Constitution, not the laws of the United States.

Then consider Article VI:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land"

Read those two together. Then read the section that says the President "shall take Care that the Laws be faithfully executed." What laws? The laws made in pursuance to the Constitution. Otherwise they don't even count as actual law of the land under Article VI.

If he's determined that the law is unconstitutional, then the President's own oath of office says he has to ignore that law.

That's why the President has no standing in this case. He's misread his obligations in order to manipulate the record and deprive the court of any actual case or controversy.

The Court should not be complicit in dereliction of constitutional command.

edutcher said...

Nothing bizarre about it.

This is the Democrat Party's nonsense about the Constitution being a Living Document writ large.

They've hitched their wagon to that old unreconstructed Confederate, Woody Wilson's, nonsense for a century.

sonicfrog said...

I LOVE THIS! This is I think the first time I've ever been able to listen to an actual Supreme Court decision! COOL!!!!

Ann Althouse said...

@sonicfrog Thanks. I finally took the trouble to figure out how to do a clip and embed.

Mark said...

Present.

Emil Blatz said...

Early in that clip I though that Breyer was sounding a bit like Emo Philips.

Tom said...

Obama loves for others to make the decision. I think Roberts wants the President to live with the mess he's made. We elected this disaster of a president and Roberts isn't going to save us from him.

Quayle said...

Just checking: is everybody ready for the end of all marriage triggered benefits from the government?

Because that is coming more clearly in sight.

Two best friends will soon be able to "marry" to get tax and inheritance beneficial treatment and the government won't be able to call sham. (if the government must sat out of the bedroom them the government can't check whether best friends aren't having marital sex.

So goodbye to tax free inheritance by a "spouse" and goodbye to community property in such states, and to marriage tax deductions and the list goes on and on.

Truckee Man said...

Who is Roberts to talk about the courage of his convictions after he punted on Obamacare?

gbarto said...

I disagree with Roberts' ruling but, that said, he's not supposed to have convictions, just look at the text and what it guides. And it is not entirely at odds with his past to say that he thinks the court should show deference to the other branches. So he can certainly call out a political actor while trying to convince others (and himself) that he isn't a political actor or at least in the same way.

SGT Ted said...

Obama is just voting "present" again. He is a moral coward.

Ernst Stavro Blofeld said...

I wonder if this declining to enforce the law theme has implications for upcoming cases in which the feds are declining to enforce immigration laws.

Aridog said...

Quayle said...

Just checking: is everybody ready for the end of all marriage triggered benefits from the government?

Good that there is one more of us who knows that. I've made it a point on the past three+ threads on this SSM topic.

Uncle Sugar tends to serve his own interests....the SSM issue is the camel's nose in the Title 26 USC tent.

jim murray said...

" As Roberts puts it: why doesn't the President "have the courage of his convictions" and stop enforcing DOMA"...
Because he is not willing to vote anything but "present". If he never takes a position he can't be blamed for anything.

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