After 8 Years OF Unethical Bush meddling With The DOJ, People Forget How It's Supposed To Work

The Department of Justice insists that Pres. Obama wants Congress to change DOMA... but in the absence of a new law, the government is duty-bound to enforce the laws of the land unless they are clearly unconstitutional... The response from Obama aides has generally been... Trust us. We're doing what we can. We'll get this stuff done. But it will take some time. We've got a lot on our plate.

"Note that the standard for defending a statute, once enacted, is lower than whether, in our judgment, it is constitutional," a senior administration official said. "It is whether there are arguments that can be made. The DOMA statute has been found constitutional by at least 6 courts and has never been struck down. Whatever we think, it would be pretty hard to say that there are not 'reasonable arguments' with that context."

Why Smelt posed a weak legal challenge to DOMA:

As someone who wants to see DOMA dismantled and invalidated, I would love it if this ninth circuit case would evaporate into the ether.

Even though I personally believe that DOMA is unconstitutional, I think that this particular lawsuit is very vulnerable; it’s not anywhere near as strong as the one that was brought in the federal district court in Massachusetts (a suit filed by Gay and Lesbian Advocates and Defenders).

In an environment where the Supreme Court is still quite conservative, what makes a suit a strong one is that it finds a point of entry in which it’s possible to invalidate a law in a number of its applications by using more of a scalpel that might appeal to five justices rather than a bludgeon that will almost certainly ask more of the court than it is willing to do.

What’s strong about the Massachusetts case is that these are concrete situations of people who are legally married under the laws of states like Massachusetts or Vermont, and who are being discriminated against by the federal government with respect to federal benefits simply because they are same-sex couples. There’s no other difference between them and other couples in that state, and the court could agree with that without accepting any of the broader theories advanced in the (Smelt) lawsuit in the central district of California, which is basically a bet-the-farm lawsuit that almost dares a conservative Supreme Court to slap it down.

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Defending congressional statutes:

Under the traditions of the solicitor general’s office, the government does have an obligation to provide a defense in any lawsuit where there is a plausible argument to be made, even if the president does not agree with the law.

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There are ways for the president to get rid of DOMA. He can advocate for its repeal, he can eventually urge the solicitor general to join in a more surgical attack, but he certainly isn’t obliged to go along with every plaintiff who brings a lawsuit.

The important point here is that the solicitor general traditionally seeks to dismiss lawsuits against federal laws whenever there is a plausible basis to do it. A lot of the outcry about the administration’s position doesn’t take that institutional reality into account.

United States Attorneys conduct most of the trial work in which the United States is a party. The United States Attorneys have three statutory responsibilities under Title 28, Section 547 of the United States Code:

•the prosecution of criminal cases brought by the Federal government;
•the prosecution and defense of civil cases in which the United States is a party; and
•the collection of debts owed the Federal government which are administratively uncollectible.

http://www.usdoj.gov/usao/index.html

It is imperative that there be public confidence that the laws of the United States are administered and enforced in an impartial manner. To that end, all components of the Department of Justice, including United States Attorneys' Offices, shall abide by the following procedures governing communication between the Department of Justice and the White House.

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Pending Civil Investigations and Cases

The Department shall provide the White House with information about pending civil investigations or cases only when doing so is important for the performance of the President's duties and appropriate from a law enforcement or litigation perspective. Except with respect to national security matters, all initial communications that concern or may concern a pending civil investigation or a case pending at the trial level should take place only between the Office of the Counsel to the President and either the Office of the Deputy Attorney General or the Office of the Associate Attorney General, all initial communications that concern or may concern a civil case pending at the appellate level should take place only between the Office of the Counsel to the President and the Office of the Deputy Attorney General, the Office of the Associate Attorney General, or the Office of the Solicitor General. If appropriate with regard to a particular case or investigation, the Office of the Counsel to the President and the senior Justice Department official with whom the White House is dealing will design and monitor a process for ongoing contact between the White House and the Justice Department concerning that particular matter.