Speaker Boehner wants Congress to deduct the costs of defending DOMA from the Justice Department's budget. Here's a better idea.
The Obama Administration decided earlier this year that it no longer made legal sense to continue to defend in court a key provision of the Defense of Marriage Act, the federal statute that bans same-sex marriage. That didn't sit well with Republicans in control of the House of Representatives. In March, the GOP-controlled Bipartisan Legal Advisory Group in the House of Representatives voted to take up the DOMA's defense. And that in turn didn't sit well with Democrats in the House.
The Republican decision to pick up the gauntlet on DOMA prompted Rep. Nancy Pelosi (D-Calif.), the House Democratic leader, to question last month how much it would cost Congress to continue to defend the contentious statute in court. And that in turn prompted Rep John Boehner (R-Ohio), the Speaker of the House, to respond to Pelosi Monday with an extraordinary letter telling her that he hopes Congress will deduct from the Justice Department's budget the legislature's costs of defending DOMA. Here's specifically what Boehner wrote:
The burden of defending DOMA, and the resulting costs associated with any litigation that would have otherwise been born by DOJ, has fallen to the House. Obviously, DOJ's decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA. It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not the DOJ, defending DOMA.
Two reactions to this whopper come immediately to mind. First, the notion that the Congress is going to "punish" the Justice Department for a decision about how to handle a federal statute in court is terrible precedent and policy. It infringes upon executive branch power and exceeds legislative authority to control the management of federal laws once they undergo judicial review. Besides, where were all these "let's neuter the executive branch" politicians when George W. Bush, Dick Cheney and David Addington were running the White House? Where were all these people when Attorney General Alberto Gonzales was ruining the Justice Department?