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What’s Good for the Goose is Good for the Gander

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Last week the Justice Department announced that it would no longer enforce the Defense of Marriage Act (DOMA). Passed by huge bipartisan majorities in both chambers of Congress and signed into law by President Clinton in 1996, DOMA defines a legal marriage as one between a man and a woman. Additionally, the act shields each state from having to legally recognize same sex marriages permitted in other states. In making the announcement, Attorney General Holder said the decision was based on his and the president’s opinion that the law was unconstitutional.

Now, naturally, the Obama Administration’s announcement has angered many on the right. Newt Gingrich, one of the right’s main moral barometers, thinks Obama has a constitutional duty to enforce the law and if he doesn’t he hinted that he possibly should be impeached. The former Speaker of the House was quoted recently as saying,

“I believe the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job. His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent.”

It’s a big surprise that Gingrich would come out against the president like this. Of course I am kidding. It is not a surprise at all given Newt’s interest in the office Obama currently occupies. What is also not a surprise is that Gingrich is way off base in his analysis. Under our separation of powers, Congress really can’t tell the president what to do. What Gingrich is doing harkens back to the impeachment of President Andrew Johnson in 1868. Johnson, a Democrat, disagreed with the fascist policies of the Radical Republicans toward the South after the Civil War. The last straw was his firing of Secretary of War Edwin M. Stanton in violation of the newly passed (over Johnson’s veto) Tenure of Office Act. The Act denied the president the power to remove anyone from office who was appointed by a previous president without the advice and consent of the Senate. In the end, Johnson was acquitted by the Senate and the Supreme Court ruled the Tenure of Office Act unconstitutional in 1926 consequently upholding the separation of powers between the Executive and Legislative branches.

To even hint that by not enforcing an act of Congress Obama is committing an impeachable offense is producing a dangerous precedent. Article 2 Section 4 of the U.S. Constitution is clear about what grounds must exist in order for the House of Representatives to undertake impeachment proceedings against the president. They include acts of “treason, bribery, or other high crimes and misdemeanors”. In other words impeachment is for crimes committed not for not carrying out one’s duties. In our system of governance the American people can vote the president out of office at the next election. That is the beauty of Democracy.

Thus, the president is within his right to refuse to enforce or “nullify” an act of Congress. But what is interesting is the two-faced position of the president in this circumstance. For, while he clearly believes that as president he has the right to nullify an act of Congress, he surely would not agree that juries and states have the same right.

Recently in a Manhattan federal courtroom 78 year old Julian P. Heicklen was arraigned for violating a federal law against jury tampering. Since 2009, the retired Heicklen has stood outside courthouses handing out pamphlets to potential jurors informing them that they have the power to ignore laws they deem unconstitutional and render verdicts based on their conscience. This practice is known as jury nullification and usually applies to so-called victimless crimes dealing with guns, drugs, gambling, etc…

Of course, then there is the much hated Obamacare. At least 7 states, Idaho, Maine, Montana, Oregon, Nebraska, Texas, and Wyoming have either started the process of passing laws nullifying Obamacare or are considering such laws. Essentially these laws state that Obamacare is unconstitutional and will not be enforced. If Obama was consistent he would pardon Heicklen and if the time comes recognize the states’ right to nullify his beloved health care boondoggle.

Because what it really comes down to is the old saying, “What’s good for the goose is good for the gander.” If the president is going to claim the right to ignore a law passed by Congress then he ought to also recognize the right of other entities to do the same. Double standards in government must end. Nullification is another mechanism of checking the power of government. It is an important safeguard against tyranny of the majority. It is a means to snuff out unconstitutional laws like the one President Obama is nullifying

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About Kenn Jacobine

  • Glenn Contrarian

    Kenn –

    The whole issue is silly from the get-go. Why? Because I think you’ll find very, very few presidents from either party who didn’t decide that there were certain laws and regulations they wouldn’t enforce. Dubya was really big on this one when it came to environmental matters, treaties, and a little something called ‘torture’. And of course there’s Reagan and his denial of the necessity of the law when it came to Iran-Contra. And then of course, there’s Nixon.

    If you’ll think about it, all Obama did differently was to come right out and say it.

  • Kenn Jacobine

    We agree Glenn! But the point of my article was more about the right of juries and states to do the same thing. I perceive you would disagree with that?

  • http://www.mbroder.com Michael Broder

    Ken, when I saw your comment on my article on this topic, I had no idea that you were doing exactly what I was calling attention to in my piece: confusing enforcement of the law with defense of court challenges to the constitutionality of the law. If is of course the latter that the Obama administration has decided not to do: that is, not to defend court challenges to the constitutionality of DOMA (actually, the constitutionality of a specific portion of the law). The administration has explicitly asserted that it will continue to enforce all provisions of the law, as it is a law duly passed by an act of Congress and signed into law by the President (in this case, President Clinton).

  • Kenn Jacobine

    Yes, you are right. I believe he has the right and I would prefer that he just ignore the stupid thing.

  • Boeke

    DOMA is unconstitutional on the face of it. DOMA attempts to promote the affairs of married people over others, which violates equal protection.

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