Monday, February 28, 2011

Obama Refuses to Defend DOMA; Limbaugh Refuses to Acknowledge Reality

Last week, Attorney General Eric Holder announced the President's decision to stop defending the constitutionality of Section 3 of the Defense of Marriage Act. Believe it or not, Rush Limbaugh was upset about this. And when he couldn't think of a proper justification for being upset, he decided to make shit up:
It's a law duly passed by the representatives of the people. It has not been challenged at the US Supreme Court. He does not have the authority to declare it unconstitutional. He does not have that power. He does not have the power to say, "I'm not gonna defend it anymore."
Actually, Limbaugh's half-right. He's right that Obama doesn't have the authority to declare DOMA unconstitutional, which might be why Obama didn't try to do that. What he did was declare that he believes DOMA to be unconstitutional—a conclusion that's legally binding on exactly no one.

But Limbaugh also says—and repeats several dozen times—that Obama doesn't have the power to stop defending the law, and I have no idea why he thinks that's the case. As explained in the press release itself, and in more detail here, it was established a long time ago that a President can refuse to defend a statute if he believes no reasonable argument can be made for its constitutionality.[1]
Essentially Barack Obama has said, "You know what? I'm the Supreme Court! We don't need one anymore. I don't like the Defense of Marriage Act. Neither does my attorney general. Neither do my gay supporters and contributors. So, you know what? We're not gonna defend it anymore. I don't care what the Supreme Court thinks. It doesn't matter. I have decided.
Limbaugh never quite echoes the misconception I've heard from so many others—that on top of refusing to defend DOMA, Obama is also refusing to enforce it—but he's implying it as hard as he can. Back in reality, however, DOMA remains in force, and Obama remains constitutionally bound to enforce it. Only two branches of the government can change that, and neither of them are his.
Barack Obama, ladies and gentlemen, took an oath—not that that means anything—but he took an oath to faithfully execute his duties. And what he's doing in this Defense of Marriage Act is abandoning the defense of the law which means there's no one left to defend it.
Making sure things sound as dire as possible, Limbaugh tells his listeners Obama has essentially destroyed any chance of DOMA being defended in court. Except, wait a minute, who says the Executive Branch has sole authority to defend federal statutes? Sure, traditionally it's been their responsibility, but that's not mandated by the Constitution or anything. And if the President won't defend DOMA, how about, say, the people who drafted, introduced, and voted for it in the first place? Why can't Congress step in?

Oh, it turns out they can. And probably will:
The House leadership likely will introduce a resolution early next week to intervene in the four lawsuits pending against the Defense of Marriage Act, better known as DOMA, the 1996 federal law that defines marriage as between one man and one woman, conservative leaders say.
So, Rush is upset about pretty much nothing.[2] But at least you can't accuse him of not having any solutions of his own:
People's reaction is the lawlessness. The conservative reaction is, "This is brazenly lawless. Who cares what he has determined he's not gonna defend. It's lawless." There are any number of ways Obama could have done this. He could have, for example, assigned the most inept lawyers in the Justice Department to do these cases when they come up and lose every one of them. He could have done this in a way that nobody would have ever known it. He could have just made sure that this act never amounted to anything by making sure he always lost. In other words, throw the game when they go to court with this case in question.
This is where I start to wonder if I'm being duped. Is he serious with this? Rush adamantly characterizes Obama's actions as "lawlessness," and then endorses an alternative that, in terms of the myriad ethics rules governing lawyers, sounds a lot like actual lawlessness.

Anyway, Limbaugh's normally pretty good at shaping reality to fit his narrative without resorting to blatant falsities (how's that for a backhanded compliment!), but this time he couldn't quite pull it off. The result is a series of unsupportable assertions that still kind of sound true, as long as you avoid hearing any extrinsic details. At worst, it's the tactic of a person who doesn't respect his audience enough to expect to be called out for intellectual dishonesty. At best, it's the tactic of a person who just doesn't care.

1. That's the real question—can a reasonable argument be made that Section 3 of DOMA is constitutional? I'm inclined to say no, for two reasons. First, post-DOMA developments like Lawrence v. Texas have made its constitutionality even more suspect than it already was in 1996. And second, I made up my mind on gay marriage a long time ago and thus can't be trusted to answer the question objectively.
    Regardless, Limbaugh, like most conservative commentators, doesn't even try. I'm sure some are just ignorant of the established standard, but, in Limbaugh's case, I'd guess it's because he (a) can't think of a reasonable argument, and/or (b) doesn't want to bring it up, lest he undermine his premise that Obama is flagrantly overstepping presidential authority.
2. More from the Washington Times article:
At the same time, the administration may have done opponents of same-sex marriage a favor by allowing the House to substitute lawyers who have no conflict about defending the law. Conservatives have complained about the Justice Department's less-than-zealous legal defense.
In other words, it's probably more likely that DOMA will be upheld now that the Obama administration has bowed out. But that doesn't lessen the righteousness of conservatives' indignation, because they care more about the underlying principle of the thing (that is, Obama's perceived abuse of presidential authority) than one issue in particular, right?

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