Posted by Curt on 23 February, 2011 at 7:19 pm. 24 comments already!

So what is one of the Presidential responsibilities given to him in our Constitution?

“he shall take care that the laws be faithfully executed”

But in Obama’s America it’s only the ones he agrees with.

His use of regulatory governing is well known, what with his czars and all, but now he has decided to use the DOJ once again and this time it involves gay marriage and state rights:

President Obama has instructed the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which has since 1996 allowed states to refuse to recognize same-sex partnerships legally recognized in other states.

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President Obama believes that section – Section 3 — “is unconstitutional” given the Due Process Clause of the Fifth Amendment (including its equal protection component), Holder wrote, and the president has instructed the Department of Justice to no longer defend the law in those two lawsuits.

President Obama “has made the determination,” Holder wrote, that Section 3 “as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.”

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But now, “under heightened scrutiny” since the 2nd circuit court asked for the administration to defend its position given lack of precedent, Holder wrote, the government’s ability to defend the law can no longer be made by “advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.”

That legislative record, Holder wrote, “contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”

Instead of allowing the judicial branch to decide whether a certain group met the 14th Amendment scrutiny he has decided all by his lonesome that sexual orientation should be included. This was a statute that was voted in by a 85-14 majority in the Senate and a 342-67 majority in the House. Then it was signed by President Clinton. To order the DOJ to stop defending a federal statute, voted into law by overwhelming majorities and signed into law by the President of the United States is a MAJOR power grab and one which may come back to bite him in the ass.

Even if today’s end run succeeds, President Obama may come to regret it should he fail to win reelection. In that case, it will be up to a Republican president to defend ObamaCare against current and future constitutional challenges. Obama has just handed his successor a perfect excuse to effectively repeal or cripple ObamaCare by refusing to defend it in court.

Even in the short term, the President has strengthened the hand of ObamaCare opponents, particularly the many states that question its constitutionality and plan to resist its implementation. After abandoning DOMA, Obama has no moral authority to argue that, because ObamaCare is the law of the land, all government officials must enforce it unless and until the Supreme Court decides it’s unconstitutional.

Finally, even the President’s critics will concede that his conclusion about the proper level of constitutional scrutiny for sexual orientation—whether right or wrong—must have been based on legal research and analysis rather than just a sudden political whim. If so, Obama and Holder surely consulted the nation’s Solicitor General—the government’s top constitutional attorney—when conducting this important legal analysis. As a result, the Administration will be called upon to disclose whether Elena Kagan was still Solicitor General when this consultation began.

If the answer is yes and Kagan was involved in determining the federal government’s official position on the proper scrutiny for sexual orientation, it opens up an ethical can of worms for her concerning Supreme Court cases in which that standard is at issue. It’s a can of worms that Obama may come to regret.

Remember, he has refused to abide by the federal judge’s ruling regarding ObamaCare already….this is going to come back to haunt him.

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