Apollo offers four criticisms of President Obama's stance on DOMA:
First, there’s no independent basis for the president’s determination of constitutionality. It defers entirely to the judiciary’s standards of constitutionality. Despite what this letter claims, the judiciary is not “the final arbiter” of constitutionality; all three branches of the federal government have an independent duty to examine the constitutionality of laws, and our system is designed so that the American people will not be afflicted with any law that any branch considers unconstitutional. The Congress can revoke a law or refuse to fund its enforcement; the president can refuse to enforce it; and the courts can refuse to allow it to be enforced. For any one branch to base its interpretation solely on the interpretation of another branch deprives the American people of the constitutionally-created division of power.
Second, if the law’s unconstitutional, don’t enforce it. Why are they planning to continue enforcing an unconstitutional law? That strikes me as an impeachable offense. The president has a duty to see that the laws are faithfully enforced, but the Constitution is THE law; that’s the whole rationale, for example, behind judicial review, that in refusing to allow unconstitutional statutes to be enforced, the judiciary is actually enforcing the Constitution. If the president is enforcing a law he believes to be unconstitutional, he is not seeing that the most important law is enforced.
Third, the president is refusing to defend in court a law that he is actively enforcing. This is pure bad faith.
Fourth, the refusal to defend defensible laws even if the president believes they are unconstitutional and refuses to enforce them is the end of constitutional government. We the people, through previous Congresses and Presidents, have expressed our opinion that DOMA is constitutional, and we deserve to have our interests represented in court by our non-political lawyers in the DoJ. Otherwise, I look forward to the next president defaulting on Obamacare, as well as any other laws I dislike. I’ll start making a list.
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