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President Obama announced last week that his Attorney General Eric Holder would no longer be defending the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which Congress passed in 1996.

His declaration may have had something to do with the fact that Ninth Circuit Court Justice Stephen Reinhardt and federal trial judge Joseph Tauro of Massachusetts ruled across three separate cases in 2009 and 2010 that DOMA was unconstitutional.

Obama’s Justice Department will be submitting its official response next week to two fresh lawsuits against DOMA filed last year in New York and Connecticut.  The Department is not expected to argue in favor of the law’s constitutionality.

Constitution-revering conservatives have responded to Obama’s announcement by howling that there is no precedent for his declaration in all of American history, that Obama is overturning DOMA just because he doesn’t like it, and that his actions may be grounds for impeachment.

Jonah Goldberg of National Review claimed Obama has “thrown in the towel on the Constitution.”  On her radio show, Monica Crowley stooped to the level of Wisconsin pro-union protestors by labeling the president “Oba-Mubarak.”

Newt Gingrich declared that Obama’s actions could lead to a constitutional crisis.  He offered the hypothetical counterexample of President Sarah Palin declaring that she doesn’t like Roe v. Wade, thinks it’s unconstitutional, and will no longer allow the executive to enforce the right to an abortion.

There’s just one little difference between the Obama and Gingrich scenarios: no court has ever ruled Roe v. Wade unconstitutional.

The Supreme Court, the highest court in the land, had the last word on that matter in 1973, and no lower court or the Supreme Court has declared the unconstitutionality of the fundamental right to an abortion since then.  State courts have chipped away at the edges of the ruling and allowed restrictions on abortion, some of which the Supreme Court has upheld, but no court has ever reversed the Supreme Court’s ruling on the basic right to an abortion.  In fact, because the Supreme Court has already ruled on the matter, only that court would be able to reverse its 1973 ruling.

In the Gingrich scenario, Palin would indeed be imposing her preference on the nation illegally.

In the Obama scenario, in contrast, his Justice Department would be upholding the interpretation of the law offered by two members of the judiciary in three different court cases.

Obama hasn’t even said his Justice Department isn’t going to enforce the law—only that it will not be arguing in court that the law is constitutional.  Which, you may remember, is what two of the highest courts in the land to rule on the constitutionality of DOMA have found in three separate cases.

Even after Obama’s announcement, courts will still be able to rule on DOMA, regardless of the arguments Eric Holder declines to proffer in support of it.  Outside parties, including Congressmen who support the law, will still be able to file friend-of-the-court briefs outlining the exact same by-now-familiar arguments the Justice Department will no longer be citing.

Other conservatives who are upset with Obama’s actions have argued that Florida District Court Justice Roger Vinson recently found ObamaCare unconstitutional, yet Obama is still implementing that law.

Well, yes—clearly Obama is ideologically disposed toward overturning DOMA and not Roe v. Wade or ObamaCare.  But that doesn’t mean he does not have the prerogative to disavow the identified-as-unconstitutional DOMA, or the obligation to uphold the never-identified-as-unconstitutional Roe v. Wade.

As for ObamaCare, two justices had already (ludicrously) upheld the constitutionality of ObamaCare before Virginia District Justice Henry Hudson ruled the individual mandate component of the bill unconstitutional last December, and before Justice Vinson ruled the entire bill unconstitutional in January.  So while one would hope for Obama to take Hudson and Vinson’s cues once their rulings came down, one wouldn’t hold one’s breath.  A third justice has since found ObamaCare constitutional, which sadly gives liberals more cover for continuing to defend ObamaCare until the Supreme Court rules on it.

In the same interview in which he claimed Obama couldn’t decline to enforce DOMA, Gingrich declared that Justice Vinson’s ruling represented “solid grounds for the House to cut off all funding for implementation.”  Apparently the link between Gingrich’s stances on DOMA and ObamaCare was that both criticized supposedly unconstitutional actions of Obama’s.  Yet evidently Justice Reinhardt and Tauro’s rulings on the unconstitutionality of DOMA didn’t figure into Gingrich’s equation.

Other conservatives have questioned the timing of Obama’s announcement, suggesting that it was made to distract voters from the economy or set a trap for Republicans—as though this determined the propriety of Obama’s non-enforcement of a law.  Gingrich noted that Obama had campaigned for president in opposition to gay marriage and promised to uphold DOMA, and is therefore breaking a campaign pledge—again, as though this has anything to do with the legality of Obama’s decision not to defend the law.

Without trying to read Obama’s mind, I can say only that his motives for no longer defending DOMA have absolutely nothing to do with the constitutional appropriateness of his decision.

Here are some hypothetical actions that would be unconstitutional if Obama actually took them: Not enforcing DOMA after the Supreme Court ruled it constitutional.  Enforcing DOMA after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after Congress cut off funding for implementing it.

But deciding not to defend an argument behind one section of a law while still enforcing it, when two of the highest courts in the land have deemed the law unconstitutional in three cases—sorry, but that is not unconstitutional.



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• Video: Gingrich Says “The Rule of Obama” on Doma and Ocare Is “Very Dangerous” (healthcarebs.com)
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The congenitally leftist site Media Matters regularly collects “controversial” quotes by conservative personalities and displays them on its website for liberals to gawk at.  It’s supposed to be self-evident to visitors how insane these statements are.

Evidently this soft-sell strategy works, as evidenced by the reams of snarky remarks dumped in the comments section by loyal readers.

Rush Limbaugh is of course a favorite target of Media Matters.  Please join me while I deconstruct a sampling of contentiously worded but eminently sensible recent Rush quotes (thanks to David Swindle for post idea):

“Continued unemployment benefits increases unemployment”

Rush bemoans the fact that recent Republican opposition to extending unemployment benefits has been based, not on the philosophy behind endless benefit extensions, but on the technicality of paying for them.  Rush points out the fact that it’s easier for people to accept a $325 a week check than to look for a job.  Subsidizing something (unemployment) gives you more of it; taxing something (working) gives you less of it.  Contrary to Nancy Pelosi’s claims, unemployment benefits do not increase employment.

Everything Obama has done has been “an attack on the greatness of this country”

Rush cites the following disasters in Obama’s first term: ObamaCare, intrusive financial regulations, a moratorium on drilling, bank and auto company bailouts, and the stimulus bill.  So where does Rush get it wrong?  Is it part of America’s manifest destiny to impose socialized medicine, constrict financial institutions, ban exploration of natural resources, keep bad businesses from failing by punishing good ones, and spend trillions of dollars we don’t have on projects we don’t need?

Requiring insurers to cover preexisting conditions “isn’t insurance, it’s welfare”

Eric Cantor recently announced that Republicans would not seek to completely get rid of the health care reform bill; some elements will be kept, such as coverage of preexisting conditions.  Rush argues that forcing insurance companies to accept people with preexisting conditions is welfare.  Insurance companies stay in business by getting many people to pay premiums; if they had to provide coverage to anyone who wanted it, people would simply wait until they suffered catastrophes and then purchase insurance.  Thus, coverage of preexisting conditions = free money = welfare.

“The Constitution is an obstacle to [liberals], it’s a Bible to me”

A caller wants to know how to bridge the gap between liberals and conservatives.  Rush tells him that the things the two sides want done are incompatible, and that the left is no longer on the same page as the right.  Rush is willing to compromise on policy details but not on the Constitution.  When you have Democrats being caught admitting they don’t worry about the Constitution, or trying to redefine it as involving more than protecting “negative liberties,” then there’s no room for negotiation.

Obama didn’t lobby for 2022 World Cup because he is a “guaranteed loser … talk to Chicago about that”

Obama failed to win the 2016 Olympics for Chicago, guarantee carbon emission reduction concessions at Copenhagen, help candidates in Virginia, New Jersey, and Massachusetts, and get G-20 members to agree to currency inflation.  He is, in every sense of the term, a loser.  Yes, he won the 2008 presidential election—and an electoral victory gives one power, but does not produce actual results.

Past terrorists have been “young male Muslim Arabs,” and now “everybody has to be groped”

Rush addresses dissatisfaction over the Transportation Safety Administration’s decision to use invasive full-body scanners and “enhanced pat downs.”  We know who the enemy is in the war on terror, what they look like, their national origins, their ages.  But for some reason we’re supposed to suspend logic and pretend anyone could be a terrorist.  Police officers profile suspects all the time, and residents of high-crime neighborhoods are grateful they do.  If a suspect is a young, African American male, should police waste time stopping middle-aged white men and Hispanic grandmothers to prove they’re not racist?

Some Republicans are “gun-shy about defending the rich,” but “I, of course, do not have that problem”

Rush discusses a column in which Thomas Sowell expresses concern about the GOP losing the tax extension debate.  Sowell notes that tax cuts for the rich raise revenue and create jobs.  Republicans have that fact on their side, but they have to explain it to the public.  Decades of pounding from the mainstream media have left the GOP queasy about speaking up.  Sowell notes that we just won a landslide and asks, Why are we afraid to speak up?  Rush’s answer: The GOP does need to speak up, but in the meantime, I’m going to do it for them.

“Secondhand smoke is harmless”

A recent study by a Swedish health board claims that secondhand smoke kills more than 600,000 people each year.  Rush notes that the World Health Organization conducted a worldwide study in 2001 that found that secondhand smoke has no impact on health, but suppressed the study, because its findings were politically incorrect.  Rush observes that liberals lie about global warming, DDT, and other supposed health risks in order to control people’s lives, so until there is better evidence about secondhand smoking, we shouldn’t give them the benefit of the doubt on this.

To African-Americans: “The Democrat party is the party of keeping you poor and downtrodden”

A caller asks why the media don’t focus on the fact that if the Bush tax cuts are not extended, the lowest tax rate would increase from 10% to 15%, a 50% increase, which would disproportionately affect African Americans.  Rush points out that Democrats are not the party that is best for African Americans but rather the party of segregation, Jim Crow, and the KKK.  Until FDR used electoral strategies to turn African Americans his way, this voting bloc had consistently voted Republican.  LBJ expanded this strategy with his Great Society in the 1960s, and Democratic presidents from Carter to Clinton to Obama continued it, with the result that illegitimacy and dropout rates are now higher in African American communities than in the 1950s.  So remind me: how are Democrats the party that’s best for African Americans?



Note: There is a print link embedded within this post, please visit this post to print it.

Related articles

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Fresh out of the gate, in the early days of his administration, President Obama decided to continue President Bush’s plan to take over the nation’s largest car companies and banks by tempting them with bailout funds, then tightening the noose around their necks and micromanaging them from Washington.  Soon after, Obama decided to force taxpayers to guarantee virtually all U.S. mortgages, thus sticking a $5 trillion tab to people who had largely paid their mortgage bills on time.  Recently, Obama decided to cap executive pay for banks that took bailout money, and has expressed an interest in monitoring executive pay for even banks that didn’t take TARP money.

Congress is currently considering unconstitutional legislation—stalled only because they are trying to pass even bigger, more expensive unconstitutional legislation—to impose cap-and-trade regulations to restrict and tax individual citizens’ energy use.

This summer, Obama carried out an amusing little $3 billion scheme that involved paying car owners to destroy their used automobiles and buy new ones, a jaunt that resulted in no significant net energy conservation in the U.S., boosted the auto industries of Japan and South Korea, and hurt the American used car business.

Since July, Democrats’ pet project has been to take over the U.S. health care system.  Not crazy enough to try to force through a single payer system, Senate Leader Harry Reid nonetheless went “rogue” on Monday, in defiance of Senate committee members and moderate Democrats, and announced that the Senate version of the health care reform bill would offer a public health insurance option, though such an option has zero chance of passing in the Senate.

Other fun and unconstitutional dalliances the administration has undertaken in recent months include:

•    Nationalizing the student loan system

•    Nominating for the Supreme Court a justice who believes in ignoring the equal protection offered under the law and considering race and gender in her rulings

•    Threatening to violate free speech rights by regulating the Internet and talk radio in order to ensure “balanced” views and prevent “irresponsible” content

•    Attacking a private organization, FOX News, for criticizing the administration, and threatening its right to freedom of the press by shutting it out of White House interviews to which other major news organizations are invited

•    Appointing 34 unaccountable czars—“green jobs czar,” “science czar,” “diversity czar,” “czar witness protection program czar”—to set policy while circumventing Congress’s approval of either policy or czars

•    Engaging in massive, unprecedented deficit spending to stimulate the economy

Obama’s expansion of federal government rivals the explosion of federal agencies resulting from FDR’s New Deal and the establishment of the Department of Health, Education, and Welfare in the 1950s.

If the Obama administration finds a free moment from poking around in the Constitution identifying such lame justifications for its schemes as “promoting the general welfare,” it might consider dealing with the following urgent tasks, which are actually allowed by the Constitution but seem to have fallen by the wayside:

•    Providing adequate troop levels for our ongoing war in Afghanistan, as the General whom Obama hired to turn around the war requested several months ago.  Joseph Curl of The Washington Times notes, “The White House bristles when asked whether Mr. Obama is so distracted by domestic affairs and health care that he is unable to focus on Afghanistan.”  Hint to Obama: People don’t “bristle” about something that isn’t true—they brush it off their shoulders and move on, because they and everyone else know it isn’t true.  Instead of bristling, Obama might want to consider that his interlocutors are on to something.

•    Taking steps to protect the U.S. and its allies from the threat of a nuclear Iran—beyond Obama’s chilling warning to Iranian President Mahmoud Ahmadinejad that he will meet him “without preconditions or preconceptions.”  As the UK Telegraph recently reported, Israel’s former deputy defense minister has somberly observed that Israel can no longer rely on the U.S. to rein in Iran’s nuclear program if Israel wants to survive as a nation.

•    Sticking up for allies Poland and the Czech Republic and honoring our agreement to defend them against potential Russian aggression

•    Providing adequate funding for missile defense rather than slashing it to make room for bloated domestic spending

•    Standing up for human rights in Iran—by not waiting a week after anti-government protests to support the protestors; in China—by not having our Secretary of State rhetorically place the issue of human rights below that of reversing climate change; and in Tibet—by not refusing to meet the Dalai Lama in order to appease China

•    Defending the Honduran government’s enforcement of its constitution in their ouster of President Zelaya for attempting to violate presidential term limits

Recently, The New York Times’ Bob Herbert came out against fighting crime in New York; he called it a racist promise for Mayor Bloomberg to make in his reelection bid.  The Times’ editorial board no doubt approves of Obama’s Attorney General Eric Holder’s early decision to drop charges in the Black Panther voter intimidation lawsuit brought last fall after a harassment incident in Philadelphia on Election Day.

If protecting citizens against violent crimes by fellow citizens isn’t a legitimate Constitutional function, then what is?

I think we have a good idea regarding the priorities the administration will and will not be focused on for the next four years.