October 27, 2010
Court Conclusions of Unconstitutionality and Government Decisions to Appeal
The Obama DOJ's footnote one in the Emergency Motion appealing the district judge's injunction of the military's "don't ask, don't tell" policy states the DOJ has a "longstanding practice of defending the constitutionality of federal statutes." But is that really true?
In an excellent column published today, Tony Mauro thinks not. He contends that the DOJ has declined to defend the constitutionality of a federal statute "at least 13 times" since 2004. Indeed, Mauro relates that as recently as June, the Obama DOJ decided not to appeal the D.C. Circuit's opinion in SpeechNow.org v. FEC that declared unconstitutional two provisions of the Federal Election Campaign Act of 1971 limiting contributions to political committees. Mauro also provides some other examples that are staples of ConLaw: Buckley v. Valeo (1973) and INS v. Chadha (1983).
Additionally, the stated (if untrue) DOJ policy to defend is in contrast with recent decisions in some states not to defend a statute. Florida, for example, recently chose not to appeal a decision that its homosexual adoption ban was unconstitutional. In California, the Governor and the Attorney General both chose not to defend Proposition 8 in a challenge to its constitutionality, and then chose not to appeal the judge's decision.
Meanwhile, the Obama DOJ has filed its notice of appeal of the district judge's ruling that section 3 of the Defense of Marriage Act, DOMA, is unconstitutional.
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