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Boehner responds to Obama’s refusal to defend DOMA

Timothy Kincaid

March 4th, 2011

House Speaker John Boehner has announced the direction that he will go in response to Attorney General Holder’s declaration that he and President Obama would no longer defend the constitutionality of the Defense of Marriage Act. And it appears, to me, to be a measured and non-hysterical response. (WaPo)

Boehner said he will convene a meeting of the Bipartisan Legal Advisory Group, a first step toward taking action in the House to defend the law.

“It is regrettable that the Obama administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy,” Boehner said in a statement. “The constitutionality of this law should be determined by the courts – not by the president unilaterally – and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution.”

On the Bipartisan Legal Advisory Group are the top three House Republicans – Boehner, Majority Leader Eric Cantor (Va.) and Majority Whip Kevin McCarthy (Calif.) – and the top two House Democrats – Minority Leader Nancy Pelosi (Calif.) and Minority Whip Steny H. Hoyer (Md.).

The group has the authority to instruct the House general counsel to take legal action on behalf of the House. It typically gets involved in situations where leaders believe there are institutional or separation-of-powers concerns.

This is, in other words, the appropriate group to consider whether there is any issue of the President acting in a manner that violates the rights of the Congress.

Boehner is walking softly on this issue, and this “all by the book” response is far more measured that I would have predicted. I wasn’t expecting him to appoint the Pacific Justice Institute to represent the House, but I also wasn’t expecting him to treat the matter as though the President’s position should be given any thought before responding or to invite the Democratic leadership to participate in the response.

And the language he has selected – language that does not insist that DOMA is constitutional and makes no appeal to “protecting the family” or “the will of the people” or even a reference to a “homosexual agenda” – speaks of disapproval of process or timing rather than homophobic posturing.

It is far too little and far too soon to read too much into this (and I am aware of my inclination to look for the silver lining), but somehow it feels as though there has been a shift. It feels to me as though the Republican leadership may be moving away from knee-jerk dismissal of the claims of gay citizens. It’s hard to put my finger on it exactly, but it feels different, as though they aren’t agreeing or supporting, but finally they’ve started listening.

Comments

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Jim Taylor
March 4th, 2011 | LINK

…or have started realizing the issue is no longer a perfect slam-dunk that can be pandered with a knee-jerk reaction. I think some republicans are beginning to see this as an actual issue to be considered, not just a red meat position…

Priya Lynn
March 4th, 2011 | LINK

Boehner said ” “The constitutionality of this law should be determined by the courts – not by the president unilaterally…”.

The president isn’t determining the constitutionality of the law, he’s leaving it up to the court to decide.

Timothy Kincaid
March 4th, 2011 | LINK

Priya,

Holder did say in his letter

As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

So Boehner is not necessarily incorrect.

Priya Lynn
March 4th, 2011 | LINK

Timothy I’ve concluded the law is unconstitutional as well, but neither mine nor the presidents opinion will determine whether or not that is the case.

Maurice Lacunza
March 4th, 2011 | LINK

I have noticed in the past year that Boener speaks very carefully about social issues.

It is as if he is thinking about the future: will I have to eat these words when I run for President?

I propose that Boener is trying to keep both sides happy so that he can make a run for President.

Maurice Lacunza
March 4th, 2011 | LINK

Boehner said that he and Obama could discuss the Social Security and Medicare problem and walk arm in arm to present a budget plan showing Americans how serious this problem is.

This action would show a side of Boehner that is above politics; a side that can walk with his opponent for the cause of the common good. Who would not want to have this man for President?

Boehner has an agenda. The question is whether or not the agenda is good for America.

Rob in San Diego
March 4th, 2011 | LINK

Boehner said ” “The constitutionality of this law should be determined by the courts – not by the president unilaterally…”.

I thought republicans hate the court system and judicial activism. Shouldn’t he be calling on the American people to put this to a vote?

Amicus
March 5th, 2011 | LINK

Perhaps there are other reasons for the tone.

One might be to calm the overblown passions on the Right.

Another might be simple recognition of their legal quandary, for lack of a better term.

Technically, neither the AG nor House GC are ideological ambulance chasers quite like the PJI, say. (ok, that was a snark, but they really are so smug…) By that, I mean they might want to maintain some semblance of professional independence, of not being told, even by a bi-partisan committee, what the Office of Counsels position on the law is.

Which brings up the question whether individual lawmakers could hire a private lawfirm and intervene. I suspect they could. Who would pay for that, though? I mean, seriously, that looks like a can of worms as well as a nightmare for the House Ethics Committee.

What’s more, if you were an attorney contemplating defending even on appeal to the Supreme Court, I could speculate -speculate!- one might want something from Congress, something to bolster the defense. A ‘sense of the House’ resolution might suffice, but, without a concurrent resolution by the Senate, it might not have so much sway…

justsearching
March 5th, 2011 | LINK

There’s a big difference between opining and determining. The president has done the former, not the latter, in regards to DOMA. To describe it as the president acting unilateral is Boehner’s blatant misrepresentation of the facts.

And for now I think the bulk of the Republican party is treading more softly on this issue, not because they give a damn about gays, but because they are not completely blind to the changes that are happening around them. You might say that “they’ve started listening” but I’d contend that they are only doing so because the can see what the future probably holds.

justsearching
March 5th, 2011 | LINK

*unilaterally

mike
March 5th, 2011 | LINK

“It is regrettable that the Obama administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy”

riiiiight cause we ALL know this is what the rethuglicans are focused on. They’ve been wanting to kill the gays or even export us to other countries since the beginning of the clinton admin. Get a clue boner the only reason you don’t like it is because a black man that supports the gay community is in office and has the power to determine what is not constitutional and what is. He is performing his duty legally.

Priya Lynn
March 5th, 2011 | LINK

But Mike, that black man doesn’t have the power to determine the constitutionality of the law – only the court can do that.

Timothy Kincaid
March 7th, 2011 | LINK

justsearching

There’s a big difference between opining and determining.

Yes. Opinion is stating your opinion. Determining is laying out the criteria, analyzing the situation, and action on your analysis.

During the election the President did the former, now he has done the latter. I agree with his determination and support his decision but I don’t see Boehner’s response as untruthful.

Timothy Kincaid
March 7th, 2011 | LINK

mike, your hate-filled irrational rant does nothing for your cause.

Priya Lynn
March 7th, 2011 | LINK

“Yes. Opinion is stating your opinion. Determining is laying out the criteria, analyzing the situation, and action on your analysis.

During the election the President did the former, now he has done the latter. I agree with his determination and support his decision but I don’t see Boehner’s response as untruthful.”.

The actions Obama has taken on DOMA (or more accurately “lack of action”) will not determine its constitutionality so Boehner’s response is untruthful. Only the court will determine DOMA’s constitutionalty, not Obama regardless of what action he does or doesn’t take.

Timothy Kincaid
March 7th, 2011 | LINK

Clearly Boehner is saying that if the House does not respond, then the end result is that the President will have unilaterally determined the constitutionality of the law.

That happens to be an honest assessment.

It is disingenuous to argue that “the court decides” when the court is given only one side of an argument.

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