Monday, February 28, 2011

Justice Department declares ObamaCare unconstitutional

Alternate headline: Do you remember when they told us that if we voted for McCain it would mean at least four more years of discretionary consolidation of power in the executive branch? Well, they were right.

Of course, the administration and the Justice Department haven't abdicated enforcing the law of the land with respect to ObamaCare but rather another law. No matter the law, it's the law and refusing to enforce always has negative ramifications towards the continuance of liberty in the republic.

B-Daddy has more here on the subject.

Whether it's the economy or the law, it's all about picking winners and losers now, baby!


B-Daddy said...

Dean, thanks for the link. The ways in which Obama continues to emulate everything I disliked about Bush, while emulating none of the good that Bush did, amazes. Further into the article on Volokh, Kerr emphasizes the intellectual continuity with the legal reasoning behind rendition and waterboarding that went into the administration's decision not to defend DOMA.

steve said...

One of the main reasons I read Volokh most every day is that they follow up on their posts and admit when they have over reacted. You should read the follow up posts by Somin and Kerr himself. The administration has said it would follow the law, unlike what is happening with Obamacare. The decision to not defend DOMA was made publicly, unlike the torture rulings. DOMA will still be defended by amici as needed and, if read this correctly, the administration has agreed to facilitate this. If you have libertarian leanings, you really should read Volokh regularly, not just the occasional linked to post.


Dean said...

Thanks for the lecture, Steve. I'll check out the link and, yes, I do make it over there to Volokh from time to time.

As your response appears to be qualified, I would like to know whether or not they intend on enforcing all of DOMA not just portions of it.

My libertarian leanings wrt DOMA have nothing to do with this as the thrust of the post was to call out an administration that very much appears to govern by waiver and exception.

steve said...

The DOJ, via Holder, has specifically said that it will continue to enforce DOMA. This is not ruling by waivers or exceptions. What is happening is that suits have been brought to challenge the constitutionality of DOMA. What the DOJ has said is that it will not oppose the finding by judges who ruled the law unconstitutional. Note that this is different than not enforcing the law. Should a conservative POTUS have to defend abortion if it were ruled unconstitutional by a District judge? As Kerr and Somin note, there are plenty more people, including Congress who can appeal this decision which, presumably, will be decided by the SCOTUS.

One should also note that there is a fair amount of precedent for a president to actually not enforce a law that he considered unconstitutional. Would you have supported Reagan's decision to do so in 1985?