Saturday, February 26, 2011

Sometimes criticizing Beck is best left to the professionals


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Earlier this week the Administration announced that its Dept. of Justice was not going to defend legal challenges to section three of the Defense of Marriage Act (DOMA) in court. Needless to say, Glenn Beck reacted to that with his ignorance and hypocrisy. The following is MSNBC's Lawrence O'Donnell's "rewrite" of Beck's and Newt Gingrich's criticism of Obama's decision and then research from Media Matters for America showing that the decision was legal, Constitutional and in accordance with a precedent dating back to President Jefferson.





Glenn Beck Dubiously Suggests Obama's DOMA Decision Is Unlawful


Beck: Obama "Thinks He Can Literally Do Anything He Wants Whether He Has A Legal Way To Accomplish It Or Not." From Glenn Beck's radio show:
BECK: Talk about fundamental transformation for a minute. The Obama administration will no longer enforce DOGMA [sic], the Defense of Marriage Act. A lot of people are making this about gay marriage, which it is not. This is about a president who is just willy-nilly picking the laws that he likes and doesn't like. It's an end run around the Senate, the House, and even the previous Democratic president. This guy thinks he can literally do anything he wants whether he has a legal way to accomplish it or not, and it is frightening. [Premiere Radio Networks, The Glenn Beck Program2/24/11]

President, DOJ Have Authority To Choose Not To Enforce Unconstitutional Statutes

1994 DOJ Memo Outlines "Circumstances In Which The President May Appropriately Decline To Enforce A Statute That He Views As Unconstitutional." From a 1994 Department of Justice memo, written by then-Assistant Attorney General Walter Dellinger, titled "Presidential Authority To Decline To Execute Unconstitutional Statutes":
I have reflected further on the difficult questions surrounding a President's decision to decline to execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts to share with you. Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.
First, there is significant judicial approval of this proposition. Most notable is the Court's decision inMyers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional."Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).
Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).
While the general proposition that in some situations the President may decline to enforce unconstitutional statutes is unassailable, it does not offer sufficient guidance as to the appropriate course in specific circumstances. [Justice.gov, 11/2/94]
Legal Scholar Prakash: "The President's Duty To Preserve, Protect, And Defend The Constitution Requires The President To Disregard Unconstitutional Statutes." From a paper by University of Virginia Law School professor Saikrishna Prakash, published in the Georgetown Law Journal:
Recent Presidents have claimed a power to disregard statutes that they deem unconstitutional, prompting critics to make an array of arguments against these assertions. As a matter of text, the Faithful Execution Clause supposedly bars such non-enforcement. As a matter of history, the English Parliament specifically prohibited a royal discretionary power to disregard statutes. Moreover, American Presidents did not exercise a power to disregard unconstitutional laws until almost a century after the Constitution's creation. Taken together, these arguments are said to refute the regal pretensions of modern Presidents. This Article serves as an antidote to such claims, while sharpening our understanding of the proper Executive Branch stance towards unconstitutional statutes. The critics are correct in supposing that the President lacks a discretionary power to disregard unconstitutional statutes; instead, the Constitution is best read as obliging the President to disregard statutes he regards as unconstitutional. First, the Constitution never empowers the President to enforce unconstitutional statutes. He no more has the power to enforce such statutes than he has power to enforce the statutes of Georgia or Germany. Second, the President's duty to preserve, protect, and defend the Constitution requires the President to disregard unconstitutional statutes. When the President enforces a statute he regards as unconstitutional, he violates the Constitution no less than if he were to imprison citizens without hope of trial. Third, the Faithful Execution Clause requires the President to choose the Constitution over unconstitutional laws, in the same way that courts must choose the former over the latter. Consistent with these understandings, John Adams and Thomas Jefferson argued that executives could not enforce unconstitutional laws. Indeed, President Jefferson halted Sedition Act prosecutions on grounds that the Act was unconstitutional. According to Jefferson, his duty to defend the Constitution barred him from executing measures that violated it. [Georgetown Law Journal6/08]

Precedent Traces Back To Thomas Jefferson

Prakash: Thomas Jefferson Was The First President To Refuse Enforcement Of An Unconstitutional Statute. From Prakash's Georgetown Law Journal paper:
As a matter of history, Thomas Jefferson was the first President who felt compelled to cease enforcement of a statute he regarded as unconstitutional. Believing that the Sedition Act was unconstitutional, Jefferson ordered his prosecutors to cease all existing Sedition Act prosecutions. Jefferson felt constitutionally obliged to arrest the execution of unconstitutional laws. He also concluded that his Faithful Execution duty did not extend to unconstitutional laws because the latter were null and void. He was confident in his conclusions, believing there was "no weak part in any of these positions or inferences." [Georgetown Law Journal, 6/08
George H.W. Bush Administration Chose Not To Defend "Must-Carry" Measures. According to the Los Angeles Times:
In an unusual move, the U.S. Justice Department has decided not to defend the government against lawsuits seeking to strike down a provision of the recently passed cable re-regulation law that allows local broadcast stations to demand that their programs be carried on cable systems.
In a two-page letter sent to Vice President Dan Quayle on Wednesday, Assistant Atty. Gen. Stuart M. Gerson said similar "must-carry" measures have been struck down twice by the courts. In addition, he wrote that President Bush, who opposed the cable measure, is the "ultimate client" of the Justice Department and thus an "ethical conflict of interest would be created were the department now to defend these actions of the statute." [Los Angeles Times11/6/92]
Clinton Administration Refused To Defend Amendment Requiring Dismissal Of HIV-Positive Troops.According to a press briefing by then-White House counsel Jack Quinn:
QUINN: As Mike indicated, we anticipate that tomorrow the President will sign the Department of Defense Authorization bill. As you also know, the President's indicated previously that there's a provision in that bill that he finds completely abhorrent and offensive -- the Dornan Amendment, which would require the Armed Forces to toss out of the military everyone who is HIV positive, no matter what the cause of that affliction, and despite the fact that these people are physically and medically able to perform their military duties.
This provision of the bill, in the President's judgment, is mean-spirited and serves no purpose other than to punish people who deserve this government's help, not its hatred.
The President's response to this provision is three parts. First, we will vigorously support the Kennedy-Cohen legislation which we anticipate will soon be introduced to repeal the Dornan Amendment. The President calls upon Congress to act swiftly on this legislation and pass it.
The second, the President has determined that this provision is unconstitutional. He's, therefore, directed the Attorney General not to defend it in court. The President has been informed in this regard by the Department of Defense that in its judgment the Dornan Amendment serves no legitimate military purpose; that it is arbitrary, unwarranted, and unwise. [Clinton Presidential Center,2/9/96]
George W. Bush DOJ Opted Not To Defend Federal Statute That Prohibited Federal Money For Transit Systems That Accepted Ads Advocating Legalization Of Drugs. According to Congressional Quarterly:
The Justice Department will not defend a legislative provision that withholds federal money from transit systems that accept ads advocating the relaxation of drug laws.
The language, inserted into the fiscal 2004 appropriations omnibus (PL 108-199) by Rep. Ernest Istook, R-Okla., chairman of the Transportation-Treasury Appropriations Subcommittee, decreed that any local transit authority that ran ads advocating the legalization of drugs would forfeit any money extended through the omnibus.
[...]
Acting Solicitor General Paul Clement told the Senate legal counsel in December that the Justice Department would not appeal Friedman's decision, which had held "under well-established Supreme Court precedent [that] the funding condition amounted to viewpoint discrimination in violation of the First Amendment," and that "the government does not have a viable argument to advance in the statute's defense." [Congressional Quarterly, 1/26/05, via Nexis]
Under Acting Solicitor General John Roberts, DOJ Declined To Defend Federal Statute Encouraging Minority Ownership Of Broadcast Stations. According to a post written by former Deputy Assistant Attorney General and Georgetown University professor Marty Lederman:
The Washington Post reports today that John Roberts was the point person in the Office of the Solicitor General in 1990 when that office decided not to defend the constitutionality of federal statutes that required minority preferences in broadcast licensing. (In fact, Roberts was the Acting Solicitor General for purposes of the case, because SG Starr had a conflict.) The case in question was Metro Broadcasting v. FCC, and it raised very interesting questions about the circumstances under which the Department of Justice will refrain from defending the constitutionality of federal statutes.
[...] 
The FCC Commissioners and General Counsel unanimously urged the Department to defend the statutes as well, emphasizing that the U.S. Court of Appeals had upheld the central policy and that "there is a solid foundation in the Supreme Court's precedents for the government to argue that the FCC's policies are constitutional." But, as the Post story today reports, a memo in the files of Associate White House Counsel Fred Nelson (see the back page of this) reveals that Roberts was "[r]eluctant to defend [the] commission's position." In the Supreme Court, the Department of Justice not only did not defend the federal statutes -- it urged the Court to declare them unconstitutional. Acting Solicitor General Roberts, appearing on behalf of the United States as amicus curiae, argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. The Acting SG's amicus brief went further still: It urged the court to reject the deference to Congress suggested in Fullilove, and to apply strict scrutiny to federal affirmative action programs (a position that would, of course, restrict Congress's future legislative prerogatives -- i.e., that would substantially limit federal power). [Balkinization, 9/8/05] 
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2 comments:

kamaalindia said...

Glenn Beck falsely reports riots in India http://bit.ly/hfhaL5

The Glenn Beck Review said...

Thanks kamaalindia, I dropped a comment on that story about Beck.

Beck excels at false reports.