Holder Says State Attorneys General Don’t Have to Enforce Obamacare
Mr. Holder was careful not to encourage his state counterparts to disavow their own laws, but his position, which he described in an interview with The New York Times, injects the Obama administration into the debate over implementation of the ACA.
Mr. Holder said when laws touch on core constitutional issues like freedom of conscience and limits on government power, an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it. He said the decision should never be political or based on policy objections.
“Engaging in that process and making that determination is something that’s appropriate for an attorney general to do,” Mr. Holder said.
“If I were a member of Congress in 2010, I would not have voted in favor of the Affordable Care Act, as it violates the rights of conscience and is a tax that did not originate out of the House of Representatives,” Mr. Holder said.
It is highly unusual for the United States attorney general to advise his state counterparts on how and when to refuse to defend state laws. Mr. Holder is scheduled to address the National Association of Attorneys General at a conference on Tuesday.
“It really isn’t his job to give us advice on defending our constitutions any more than it’s our role to give him advice on how to do his job,” said Attorney General J.B. Van Hollen of Wisconsin, a Republican who serves as president of that bipartisan group. “We are the ultimate defenders of our state constitutions.”
Despite the 2012 decision in NFIB v. Sebelius designating the ACA’s individual mandate a tax, the Supreme Court has not weighed in on whether that tax is constitutional under the Origination Clause. The legal battleground, for now, has shifted to the cases of Little Sisters of the Poor v. Sebelius and Sissel v. US Dept. of Health and Human Services, recently joined by several House Republicans.
Mr. Van Hollen said Mr. Holder’s analysis might make sense in rare cases related to state laws. In states that have passed constitutional amendments, however, attorneys general must defend them, he said.
“If there’s one clear-cut job I have,” he said, “it’s to defend my Constitution.”
“The answers to these questions are crystal clear,” said Gary Buseck, legal director of Gay and Lesbian Advocates and Defenders. “Attorneys general can’t close their eyes to something that’s blatantly unconstitutional. They’re not supposed to defend the laws at all costs.
If anyone is interested in the actual article:
http://www.nytimes.com/2014/02/25/us/holder-says-state-attorneys-general-dont-have-to-defend-gay-marriage-bans.html?hp
Give up the ghost, Tim.
There has been a long tradition of selective enforcement of the laws by the executive branches in both the state and federal governments.
You have been challenged on this numerous times but as far as I can tell have yet to give a serious answer to the question. You see your Catholicism/Christianity as being a primary part of your identity. That is fine and good. There are millions of people who see homosexuality as being a primary part of their identity. This is also fine and good. Why does their homosexuality count for less than your primary identity factor?
Should a Christian clerk be allowed to deny a Jewish couple a marriage license because they see Jews as Christ killers and the only real marriages are sanctified by churches? Should a Jewish business owner be allowed to not pay for medical services that happen on the sabbath?
You are defending no tradition. You are defending entrenched privilege.Report
The NYT link is in the first line of the post, whose point you missed entirely.Report
ND,
It’s parody and, whatever my personal views, Holder is completely full of shit and had no business interjecting himself into this debate. He may as well have put a Kick Me sign on his back.
Since Holder didn’t, Tim did it for him.
Should a Christian clerk be allowed to deny a Jewish couple a marriage license because they see Jews as Christ killers and the only real marriages are sanctified by churches?
I see this parody as being completely outside of this debate (to the extent there is one I guess).Report
defend/enforceReport
Actually, Holder should try it. It would likely have exactly that effect on Republicans. “You’re not the boss of me! We’re going to defend Obamacare down to the last state budget dollar!”Report
Tim,
Where does this quotation come from?
“If I were a member of Congress in 2010, I would not have voted in favor of the Affordable Care Act, as it violates the rights of conscience and is a tax that did not originate out of the House of Representatives,” Mr. Holder said.
It’s not in the NYT link.Report
Updated the first line to make it (more) obvious this is parody.Report
Ahh. Thanks.Report
It is ironic that Obama has already selectively enforced Obamacare, ignoring the letter of the law and changing the effective dates of the mandates.Report
I haven’t waded through the entire act, but there is quite a lot of flexibility extended to the executive branch in some areas. Is delaying the mandates within the scope of that flexibility?Report
How profoundly sad.
My brother, who will celebrate one year of marriage, and his husband walk in grace.
But I do have a very serious question for the lawyers here: given that I understand the difference between enforcing a law and defending it in court; is there a long history of AG’s opting not to defend laws, or is this a new development?
This was the only serious writing a quick google search provided:
http://columbialawreview.org/wp-content/uploads/2012/07/112-3_Devins_Prakash.pdf
And it takes us back to Jefferson and the Sedition Act. The modern Presidential signing statement (of which President G. W. Bush was master,) seems something of the same mold — the Executive Branch refusing to even enforce laws they deem to be unconstitutional.Report
Selective enforcement has long been the perogative of the executive branch. There are too many laws for any executive to enforce and many might contradict each other.Report
Enforcement, yes.
Defending in court is a different beast. And that’s what I’m wondering about; the document above states a few examples, beginning with the sedition act; but I’d imagine there’s a wealth of history at the state and local level, too. Deciding to defend a law challenged in court is a commitment of citizens resources to proffer that defense. I’d presume that the decision not to defend might be quite common.Report
so far as I’m aware law enforcement doesn’t broadcast what laws it will not enforce when the reason is lack of resources. if the reason is to create policy, though…Report
I believe it is based on politics. AG is often a political office and that means AGs can and often do run on the promise to enforce or not enforce a particular set of laws or defend or not defend. There were probably AGs during the 20th century who came out swinging for integration instead of segregation/Jim Crow.Report
@tim-kowal you are an attorney, no? I presume you know the difference between defending a law and enforcing it?
How ’bout you explain that to me, just so that I’m certain you’re not conflating things here, because I don’t think you have a very good grasp on what you’re trying to parody.
Opting not to enforce a law, for example, would be what happened on the Deep Water Horizon. You remember that? When it blew up, and 11 people died, and billions of gallons of raw crude oil spilled out into the Gulf of Mexico? That’s a failure to enforce. Another example might be civil rights laws, and the Florida 2000 elections, where so many people (in excess of 20,000) with names similar to known felons from several neighboring states were purged from the voting roles that the state’s Republican Governor, Jeb Bush, promised reform to the people of the state because people had been disenfranchised of their right to vote.
Defending a law happens when the law is challenged through the legal system. AG’s defend laws all the time; and when the decisions about those laws are a good part of the body of law we think of as legal precedent; like the Supreme Court ruling that carbon is regulated under the Clean Air Act or giving corporations the rights of free speech through Citizens United. Holder said AG’s do not have to defend laws that they deem to be unconstitutional; and this might matter, since those AGs have a duty to defend the constitution.
But you’ve gone ahead and conflated ‘not have to defend,’ with ‘not have to enforce.’
You seem like a smart guy; comedic timing aside. So why conflate =/= things to make a point that you knew would be offensive to many? I just don’t get that at all.
I do know that when I do things like that, I get this smug, self-satisfied feeling that I know is a sure sign I’m doing something I should not do.Report
Obama’s decision was based on constitutional grounds; and I believe John Roberts court overturned that law on constitutional grounds.
So you still haven’t explained you legal conflation.Report
Obama doesn’t recognize the difference between “defend” and “enforce”
Tim, the link you provide is a quotation attributed to Buchanan claiming that Obama wouldn’t enforce DOMA, a claim the article determined to be false. How is the evidence that Obama doesn’t recognize a distinction?
Are you referring to the second sentence of the penultimate paragraph which claims that some experts believe the distinction between enforcement and defense collapses? That also doesn’t establish that the Obama Admin thinks it collapses for pretty obvious reasons.Report
whoa. Twilight zone.Report
Yes, twilight zone.
I’m not noticing the break in the space-time comment continuum that Will says occurs when stuff gets deleted, either.
Multiverse threading perhaps?Report
It is in no way clear how Holder’s description of laws he would not defend should not apply to enforcement. Is there any reason why Holder would enforce a 1953 Kansas Jim Crow statute? “I will not defend it in court, but out of my deep abiding principle to the rule of law, I will nonetheless enforce it,” is not something I can imagine Eric Holder saying.
Or anyone else, for that matter. Holder and the Obama Administration are not wrong about the executive’s co-equal constitutional duty to enforce the Constitution. They are just improvident for advancing such a vague, bromidic, unlawyerly standard that could be applied to anything…say, the Affordable Care Act.Report
Skimmed the politifact article too quickly while making dinner. Just deleted rather than try to parse what I meant. Replacement comment above.Report
They are just improvident for advancing such a vague, bromidic, unlawyerly standard that could be applied to anything…say, the Affordable Care Act.
Yet the ACA passed constitutional muster — with the exception of forcing states to participate in the Medicaid expansion — and clearly the grounds for the executive branch to not enforce or defend are based on constitutionality.
So as far as I can tell, this is still conflation.Report
Conflation, yes, I stipulated to that. My question to you is, so what? Do you see a reason for not conflating them?Report
“I will not defend it in court, but out of my deep abiding principle to the rule of law, I will nonetheless enforce it,” is not something I can imagine Eric Holder saying.
This is circular. This is the assumption that your parody is based on, and it’s defended by repeating it. In fact, this is likely Holder’s exact position. In any case, it’s the one AGs ought to have when they determine that their administration’s position is that it can’t defend a law’s constitutionality in court, but will defer to courts’ assessments of its constitutionality for the purposes of enforcement. Yes, that’s a distinction that we expect Attorneys General to make. We ought to at least demonstrate Holder doesn’t make it himself before we conclude he doesn’t.Report
“I believe it is based on politics”
“[Attorney General Holder] said the decision should never be political or based on policy objections.”Report
@michael-drew “In fact, this is likely Holder’s exact position. In any case, it’s the one AGs ought to have when they determine that their administration’s position is that it can’t defend a law’s constitutionality in court, but will defer to courts’ assessments of its constitutionality for the purposes of enforcement.”
That it is Holder’s position is not a reason for the position. The executive has a co-equal duty to interpret the Constitution. If it believes a law to be so unconstitutional that it will not defend it, I see no constitutional basis to enforce it, regardless of what the Court says. The Court is not above the executive, nor vice versa.
I understand the general standard for refusing to defend a law is when the AG finds no non-frivolous basis for the law. Four Supreme Court justices in Windsor found DOMA to be non-frivolous, as did a majority of Congress who enacted it, the Democratic president who signed it into law, and presumably our current Administration until partway through the first term. This suggests to me why you don’t hear Holder explaining the “non-frivolous” standard, but instead this much more malleable standard that could be said to apply to almost anything a given AG disagrees with. If he wants to change the standard, that’s one thing. But Holder will not be the last AG to hold the office. These precedents tend to stick around regardless of what you think about the particular policy it’s being applied to at this moment.Report
“In any case, it’s the one AGs ought to have when they determine that their administration’s position is that it can’t defend a law’s constitutionality in court,”
AFAIK, the job of the solicitor general, who (again afaik) works for the attorney general (at both the federal and state level) is to represent specifically the government’s interest in court cases. An administration cannot just ‘vote present’.Report
If it believes a law to be so unconstitutional that it will not defend it, I see no constitutional basis to enforce it, regardless of what the Court says.
Well, this is hardly a new distinction, and I think prevailing opinion has long been that it’s perfectly legitimate (obviously you can depart from that). And while I don’t disagree with you that the executive has a role as constitutional interpreter, meaning that there is certainly some threshold at which they would refuse to enforce, I don’t see any reason there shouldn’t be a different threshold for refusing to defend a law’s constitutionality. Again: this is not new here. The Court has staked out a position for two centuries as our country’s foremost reviewer of the constitutionality of laws, and executives have taken that lead. Which only makes sense, as if executives constantly appraised laws for constitutionality before even enforcing them, we would basically have chaos. On the other hand, occasionally declining to defend the constitutionality of a law in court hardly produces legal chaos.
Contra Kolohe, AFAIK, executives (state, federal) have never held themselves to have some obligation to defend every law on the books against constitutional challenge. I don’t know exactly what the standard is, but if it’s “defending the state’s interests,” that seems potentially perfectly consistent with an occasional determination that it’s not in the state’s interest to defend a law’s constitutionality when under challenge, given that it can gain a defense from other interested parties.
Again, this is not some novel distinction. It’s happened plenty if I am not mistaken.Report
@newdealer
One of the more serious problems our republic faces.Report
Zic:
Don’t you mean Clinton as he issued more signing statements than Bush? Funny thing, you missed the fact that Obama promised not to use them but lied about that as well.Report
You’re right, @notme Clinton has more.
Bush’s were controversial because they constructs for the Unitary Executive, and not construed along constitutional lines. Thanks for correcting me.Report
Tim,
I don’t see you defending anything but churlishness and sophomoric stunts:
http://www.slate.com/blogs/the_slatest/2014/02/24/jack_burkman_michael_sam_gop_lobbyist_s_cynical_ploy_to_ban_gays_from_the.htmlReport
a dozen sneers is not an argument.Report
Fair point. Here is the argument.
There is no First Amendment right to impose your religious preferences or beliefs upon other people or to have those beliefs dictate how you handle your job or business.
This is not the first time freedom of religion has been used to discriminate or as a justification for discriminate. Much of the massive resistance to ending Jim Crow was also done on arguments of Freedom of Association or Religious grounds. See: Loving v. Virginia (“God almighty…”). Catholics have also been the victims of state action (see Pierce v. Society of Sisters).
It might be true that religion taught for thousands of years that homosexuality is immoral or wrong but that does not mean it needs to be or should be the basis for our laws. Religion is a personal matter and that is where it should remain. A government worker does not have a right to let their religious beliefs influence how they handle their jobs. This could lead to all sorts of problems. “Rule of law” means all are treated equally under the law. I don’t see how we can say we are a nation of rule of law if we let religious government workers refuse service or aide to homosexuals just because said religious government workers see homosexuality as a sin and wrongful.Report
These are questions where a lot of disagreement exists about their answers. And we have a process where we can work these things out. Not clear to me why that process is insufficient. Report
Wow. NewDealer that is about the most skillfully forked-tonged defense of anti-religious fascism I have ever read. Well done sir.
“There is no First Amendment right to impose your religious preferences or beliefs upon other people or to have those beliefs dictate how you handle your job or business.”
“…or to have those beliefs dictate how you handle your job or business.” Amazing.
And then you define for millions of people how they should practice their religion. “Religion is a personal matter and that is where it should remain.”
And the coup d’état
“This could lead to all sorts of problems. “Rule of law” means all are treated equally under the law.” …except for gay people, apparently, who can do what they want, act upon what they believe, and force others to do their will who disagree with that belief.
Wow. Just wow. Religious freedom, as long as it doesn’t effect anything you actually do. Religious freedom, which allows you the “free exercise thereof” in this little building within which we allow you to practice. Religious freedom which allows you to peacefully assemble where and with whom the government mandates.Report
And New Dealer, the way you use our abhorrence at past big-government oppression & the Jim Crow laws to justify more big-government oppression–
“See: Loving v. Virginia (“God almighty…”). Catholics have also been the victims of state action (see Pierce v. Society of Sisters).”
are you classically trained in this?Report
@29victor
I personally wouldn’t sign on to the notion that others’ religiosity ought to remain a private thing. And in practice, if not in theory, I think most people, @newdealer included, bring their religiosity to bear when it comes to policy questions.
That said, I do think there are limits beyond which people should not be allowed to take their religious beliefs and practices, and those limits meet at some point where they conflict with others’ rights and prerogatives.
When it comes to gay marriage, the bundle of rights, privileges, and recognition marriage confers just doesn’t have any real counterpart, even in civil unions. And to deny that benefit to a class of people because recognizing it offends the religious belief of some is to my mind a point where religious practice ought to be limited. I wouldn’t carry it further and state that religious official, acting as a religious official, ought to be compelled to perform ssm ceremonies (although I would say that if the person is a pastor on weekends but a justice of the peace during the week, then he/she ought to be compelled to do ssm ceremonies when on the clock as a JP, especially if no other can be found to do it).
When it comes to anti-discrimination laws, the issue which seems to be lurking behind our critique of NewDealer’s statement about businesses, I have slightly more sympathy, at least to the point of admitting the issue into discussion. I’d still probably fall on the opposite side of the policy aisle from you there, both because I believe the state ought to have the power to regulate some of the terms of commerce to promote the good of equal access and because when it’s an issue of a corporation (and not a sole-proprietorship), one arrives at the question of whether a corporation can have religious beliefs and I answer in the negative. But I do think it’s discussable.Report
“See: Loving v. Virginia (“God almighty…”). Catholics have also been the victims of state action (see Pierce v. Society of Sisters).”
You forgot Germans (Meyer v Nebraska) and gays (Lawrence v Texas, Romer v Evans). Of course, the latter two decisions were seen as oppressive although I’m still trying to figure out who was actually oppressed.Report
Attorneys general are not ciphers. Should they be? Even when equal protection claims are at stake?
Also, if I understand the process correctly, another party may be granted standing to proceed with defending a legal position an attorney general has decided not to defend – the Bipartisan Legal Advisory Group at the federal level for instance. Is this mechanism absent from statehouses?
Lastly, supposing a state attorney general takes a perspective that is so horrible, so unconscionable, then I’m guessing state legislatures are empowered to launch impeachment proceedings against them. If Republicans want to take a stand that an attorney general must defend a ban on gay marriage in a state constitution, and finding otherwise is impeachment worthy, then go ahead. I don’t think the public will be behind them, but if that’s the issue they want to hold that line on who is stopping them?Report
“another party may be granted standing to proceed with defending a legal position an attorney general has decided not to defend – the Bipartisan Legal Advisory Group at the federal level for instance. Is this mechanism absent from statehouses?”
All of them, courtesy the Hollingsworth v. Perry decision, as I understand it.Report
Senior legislators acting in their official capacity can have standing. Karcher v. May as discussed by Roberts’ opinion in Hollingsworth (emphasis in original):
Report
I had not noticed that Karcher reference. Interesting. But I notice the Court did not provide any explanation for the distinction between private individuals and legislators. It states that “the New Jersey Legislature had authority under state law to represent the State’s interests,” but said that in the context of its authority to pass laws authorizing the legislators to defend the law in court, not as an explanation why those who defend in court must be legislators or other officials. In the latter regard, must the officials be state officials? In the legislative branch? What about local officials?
Ah well. Some law is made by very fine slicing, and some is made with a pen and a phone. Those with designs on getting their hands on the pen and phone are watching with great interest how this Administration wields them.Report
Honestly don’t know the answer to your questions. If I had a vote, I’d decide Hollingsworth the other way.
Some law is made by very fine slicing, and some is made with a pen and a phone.
I think you’re just politely needling here, but still. A part of this is executive orders yes, which can be controversial. However, a part of this “a pen and a phone” business is simply the convening authority of the president. Authority any president would have. At some lecture or another I recall a former White House official saying a significant advantage of holding a conference at the White House was that invited people attended. It is a fantasy to imagine the Obama administration, or any president, would just volunteer for lame duck status this early in a second term. I fully expect that whoever gets the presidency gets the bully pulpit that goes along with it, pens and phones included.Report
Of all the goddamn hills to die on, why in the hell do Conservatives keep dying on the Gay One?Report
The classic definition of insanity:
Doing the same thing over and over and continually expecting different results.Report
“The battle over Moral Terrain, waged in the name of liberty and Freedom(TM), spanned generations and inflicted immeasurable suffering on both sides. Early in the second decade of the 21st century, Teh Gays established a stronghold on legal high ground, which some observers signalled the beginning of the eventual decline in violence. Yet the bloody battle waged on. Liberal observers – even those engaged in combat – watched in horror as Conservative soldiers hurled themselves against fortifications and ramparts freshly won, wondering if the causalities could ever be justified given the strength of Teh Gay army. Moments of somber reflection, small reprieves from the overwhelming fury of the Conservative counterattack, were punctuated by quizzical stares at what had truly become a baffling, and tragic, series of ineffectual responses. The number of casualties climbed ever higher…”Report
Volume 1 from the Chronicle of the Suicide LemmingsReport
@stillwater you should have seen my brother’s wedding. He and his husband had been together for 25 years. Both come from old, New England Republican families; certainly not the social conservatives found elsewhere, but pretty steeped in clinging to tradition. The spent a good part of those 25 years building relationships with people who thought they ought be damned to hell. I can’t begin to tell you how often I sat with my brother as he wept at the hatred and cruelty some of those people threw at them, particularly in the early years.
The ceremony was brief, Burt would have approved. The judge (my brother clerks for him), pronounced them wed, they kissed, and this room full of gray-haired Republicans drew in a deep breath like they’d been waiting to take it for 25 years. Not a person in that room would fight in this war now.
Because we all witnessed it: a miracle of love. A blessing.
It was one of the most beautiful and sacred things I’ve ever seen. I’ll defend marriage, and so will every person in that room: everyone’s right to it.Report
Volume 1 from the Chronicle of the Suicide Lemmings
Give Me Religious Liberty to Deny Gay’s Basic Rights, or Give Me Death!Report
zic,
Yeah, what you said.Report
@stillwater,
I hope you approve.Report
The post is about the rule of law. Holder could have been talking about any policy and the same critique would apply.Report
And yet, by a strange coincidence, here we are. Again.Report
More substantively, Pierre’s point below is pretty decisive. Your ad absurdum parody has, in fact, happened. State AG’s have been leading the charge against the ACA. Have you heard of Ken cuccinelli? He was in all the papers a little while back, and it wasn’t for his full-bore support of Obama’s policies.
Also, what does it even mean to enforce a ban on SSM? If there are more Gavin Newsoms out there, they should be appropriately reprimanded, but that has nothing to do with what Holder is saying, as others on this thread have pointed out.Report
Has a *SINGLE* person who wasn’t inclined to vote for you anyway started discussing the importance of the rule of law when you start talking about The Gay?
Or have they all started talking about The Gay?
This is like the whole Confederacy thing. “I’m not talking about institutionalized racism, I’m talking about the right of states to secede!”
Dude, the fact that I am willing to overlook something for the five minutes to entertain an argument does not mean that you are entitled to get me to keep overlooking it as soon as the argument is finished being presented.
There are dozens of examples you could have chosen to scream about Obomba’s contempt for the rule of law.
It was not to your benefit that you picked one that dealt with The Gay. Seriously.Report
A single person here? This is a left-leaning blog, remember, and concerns over the rule of law are steeped in Privilege. Besides, the only reason I am presumed to care about this Administration’s non-gay-related abuses of power is because Obama is black. Failing that, there’s Bigotry. Or Flat Earth Society. Or War on Women. Or if one is feeling really lazy, arguments may be ignored if they Offend.
If you don’t take me seriously, Jaybird, then we’re even.Report
This is a left-leaning blog, remember, and concerns over the rule of law are steeped in Privilege. Besides, the only reason I am presumed to care about this Administration’s non-gay-related abuses of power is because Obama is black. Failing that, there’s Bigotry. Or Flat Earth Society. Or War on Women. Or if one is feeling really lazy, arguments may be ignored if they Offend.
This would inclined even the most charitable people to cease to take you seriously, unless they already agreed with you.Report
How in the hell is support for gay couples “liberal”? Two guys meet, they fall in love, they get married, they buy a house!
You know what they care about now? Zoning. Taxes. *CRIME*.
They are *THIS* close to showing up for the PTA meetings to talk about how they love the enthusiasm of the new English teacher, but maybe we shouldn’t be teaching subversive literature to children.
They’re *THIS* close to being yet another group of privileged white males except for that the committee to promote virtue and prevent vice keep pulling crap like this.Report
I would say that in the last couple years the League has adopted a gentle tilt to the left; certainly as compared to its early gentle tilt to the (libertarian) right. Pointing that out does not strike me as ludicrous.Report
North, certainly not. Everything that came after that, though…Report
ish. I’d say it’s a synthesis more than anything else. The libertarians have become more leftish, and the leftists have become more libertarian.Report
Besides, the only reason I am presumed to care about this Administration’s non-gay-related abuses of power is because Obama is black.
I don’t think that’s quite fair, Tim.Report
No cause is so noble as to not attract idiots.
It reminds me of this story from today:
http://nymag.com/thecut/2014/02/qa-the-duke-freshman-porn-star.html
Said story is about a Duke Freshman porn star.* Interestingly she makes some standard liberal and left-wing comments about institutionalized sexism as is common at schools like Duke. She is also a college Republican and ends the interview with this puzzle when asked about her College Republicanism:
“To clarify, I’m a libertarian who is forced to play within party lines because, at this point, our party isn’t strong enough to get anything done without the backing of the Republican Party. It’s really frustrating that when I tell people I’m in College Republicans they immediately assume I’m a bigot and a homophobe. Duke Republicans is completely pro-gay rights. Calling somebody a Republican is almost an insult and, personally, I hope the party moves toward a more libertarian style wherein they give rights to gays and more respect to women, and it’s not so driven by religion or by theology.”
Color me largely unsympathetic. She has clearly marked her economic views as being more important than her social liberty views. As such she has signed up with a party that is older and whiter and much more socially conservative than the electorate. The Duke College Republicans do not seem to have much power in determining the stances of the Republican Party in North Carolina. She wants to have her cake and eat it too. Yet all her critiques on the treatment she is getting fall into conventional liberal-feminism critiques of American sexual politics so why does she align with the GOP?
Either be with conservatives and the hill they choose to die on or don’t be with them.
*I am rather shocked that the median student income at Duke is 350,000 dollars.
Really read the interview and the jumble it is.Report
She wants to have her cake and eat it too.
(Consider this a placeholder until I figure out a way to get this joke past the censors.)Report
“Either be with conservatives and the hill they choose to die on or don’t be with them.”
You have just defined why I reject both sides. I’m not dying on a hill for anyone.Report
Wanting to have your cake and eat it to is pretty much the human condition for a lot of people. It might be slightly to very on hypocritical side for a person in that womans position to complain of sexism yet sign on with a socially conservative group but this sort of thing happens a lot.
I’m still struggling to figure out how a person can manage to be a porn star and college freshman at the same time. You need to be at least eighteen to start acting in porn legally. Most people also enter college around eighteen or nineteen. I suppose that the student in question could have taken a couple years off after high school to participate in the industry of her choice. That would make the timing more plausible but a can’t see even average parents even if they have an extraordinary liberal disposition allowing their kid to take a few years off after college to act in porn. The entire scenario is an example of Mark Twain’s dictate about truth being stranger than fiction because fiction has to be believable.Report
It strikes me that sympathy for her – and people who agree with her – is precisely what you should have if you wish to see either an end to the Culture Wars or a less dysfunctional government.Report
@mark-thompson
I have sympathy for her. She should not be mocked or harassed for doing porn and she brings up some good points in her argument.
I still think her politics are kind of bonkers and have a bit of cognitive dissonance to them. In that she is esposing generally liberal rhetoric but can’t bring herself to align with liberals and/or the Democratic Party for some reason. She largely seems to ignoring or downplaying the importance of social liberty in libertarian politics and this is a standard critique liberals have of libertarians. If you don’t want to be considered socially conservative, don’t associate with the socially conservative party. Even economically, she sounds closer to the left than she suspects when she blames the sexism on Duke as a matter of socio-economic class by citing the medium income.
I don’t know what her family background is but epousing liberalism while disliking the Democratic Party makes me feel like she grew up in an area/family where being Democratic was considered horrible.
And I am not convinced that the culture wars will ever end because that would assume politics only based on economic and foreign policy matters which might be nice but strikes me as unlikely. There will always be social issues.Report
@leeesq
I don’t think “porn star” actually means she is a star in the porn industry. I assume it is the term-du-jour because “porn actress” probably gets all sorts of sneers.
I mean, I’ll be honest… if I’m watching a porno, I’ll refer to everyone engaged in sex on screen as a “porn star”, whether or not I’ve ever seen them before.Report
It would be a lot easier to openly align with liberals/democrats if they would stop treating libertarian leaning folk as mad uncles who should not be allowed out in polite society.
I have far more in common with the liberals on this site than any republican I’ve met, but because I feel that fostering the good of the individual is better for all than fostering the good of the state, I’m still considered persona non-grata under the big left tent.Report
Kazzy, whatever the proper term is; I still can’t see how a college freshman has time to even do a scene here and there.Report
@leeesq
I think you are being a bit naive or privileged. I knew a guy who worked as a night watchmen all through college to help pay for tuition. People do all sorts of things to get through college including sex work.
@mad-rocket-scientist
The firm disagreements about what seems to benefit the state and what does not. I think a strong welfare state and social safety net including universal healthcare and universal pre-K help the individual. Many libertarians seem to take the opposite tact. This is not a criticism, just an observation. I am not sure that the divide can be bridged on these issues.Report
“Either be with conservatives and the hill they choose to die on or don’t be with them.”
Yeah, because we all remember how every liberal abandoned the Democratic Party when Clinton and first-term Obama said gays shouldn’t be allowed to marry rather than slog it out and try to change the party’s position from within.Report
@mrs- There are all sorts of tics, clichés and habits all groups have. Some of it is just language that people are used to. I know if i something is “regulatory capture” libertarians are far more likely to agree then if i say corrupt big business which is more likely to get a nod from liberals. I’d just as soon have libertarians stop assuming the mantle of Freedom’s only defenders. Most liberals do agree with libertarians on at least some if not many issues, its often the labels get in the way.Report
@greginak
Labels, and often disagreements on methods. Just because I’m not a fan of ObamaCare or many single payer schemes doesn’t mean I don’t want everyone to have access to healthcare & some way to pay for it, only that I see serious flaws in those methods and I think we can do better. I find this true of many of my fellow travelers. But because some libertarians don’t, and many others find the current popular ideas to be troubling, the @newdealer ‘s of the world assume we don’t want people to have health care & decide it’s a gap we can’t bridge.
I’ll give this to the republicans, they may disagree strongly with libertarians in a lot of places, but where their policy goals align more closely, the GOP is more than happy to welcome them into the fold. In general, the democrats are much less welcoming.Report
@mad-rocket-scientist
I don’t think most libertarians want to deny people healthcare. I question whether their preferred policy solutions would get more people healthcare. I question libertarian talking points that universal healthcare will lead to tyranny because there are many countries where it does not like Canada, Israel, France, the UK, Sweden, and almost every other country in Western Europe. I also don’t see centralization as necessarily being an axiomatic bad like many libertarians seem to.Report
I’m still considered persona non-grata under the big left tent.
Hmmm. Well, I don’t think that’s exactly right. I mean, you have a role to play in that as well, no? Like, disagreeing with liberals about … just about everything?Report
“…I still can’t see how a college freshman has time to even do a scene here and there.”
@leeesq
Just because YOU can last for 40 minutes…
Most college freshmen fuck at one point or another. All it takes to turn that into pornography is a video camera.
There are also all those “cam girls”… many of whom appear to be filming from dorm rooms (or quite possibly sets designed to look like dorm rooms).Report
@stillwater
Everything? Really?Report
@newdealer
It’s a matter of degrees. There is, of course, a place for central control*. I merely contend that central control should be carefully considered and very limited. I feel liberals often default too quickly to a central authority. There are big, glaring problems with central authority that I feel liberals don’t always consider in full before just diving in (not that conservatives or libertarians don’t do the same…).
So when you say “Single Payer” & I talk about cost controls & incentives, etc., I’m not saying Single Payer is bad, only that if we don’t have a workable plan to deal with those, then it’s all not much more than an underpants gnome plot. And if the answer to the negatives is, “Well, nothing is perfect”, then I have to wonder just how much better is Single Payer versus what we have such that it is worth the trouble & expense of overhauling the whole system.
I’ll hammer on the conservatives as well on this. Take Scalia(?) and his whole “New Professionalism” as the panacea against police & DA abuses of authority with regard to immunity. Talk about hand waving away the negatives! And look at the mess his casual dismissal of those concerns has left us with.
*I don’t recall which recent post it was on, but someone mentioned that we should have things setup where the fed sets the minimum standard of a given policy, and the states or localities are free to find whatever path they want to meet those standards. That is something I find as acceptable with regard to central control, as opposed to the fed just doing it all because people in MA don’t like the way TX is doing X (absent a constitutional issue).Report
@mad-rocket-scientist
So, where do you agree with liberals that is not a straightforward area of overlap with another group? I.e., you could agree with them on SSM, but that would make you just as consistent with a huge portion of the libertarian tent. So it really comes down to areas where you agree with liberals in opposition to other groups.
None of which defends liberals treating you as persona non grata which they shouldn’t do even if you all agreed that you weren’t a liberal, barring your holding some really egregious position or other*.
* And lets be clear: anti-gun-control view of any kind are such a view for some liberals at some times (like, say, late December 2013 and January 2014). So I’ve no doubt some liberals did treat you as persona non grata during that period, as well as before or after. But some liberals treating you that way doesn’t constitute the whole Big Tent seeing you that way. OTOH, gun control is definitely a very emotional issue for many liberals (not me so much, though I’m fairly pro-gun-control) all the time, so if you feel that way based on your treatment on that issue** by lots of liberals over a long period of time, I can’t really tell you that you’re wrong to feel that way or that I’m surprised. Given your issue priorities, it’s not surprising that you feel that way, and I guess I kind of think it’s one area where potential liberals will always be made to feel somewhat unwelcome (perhaps generally unwelcome, in fact) by existing liberals. Not sure what to do about it; I wish liberals could somehow both have their strong feelings on gun control and also make people who are sympathetic to the label but disagree on that issue also feel welcome, but it seem that in many cases the feelings are just too strong. it’s an area where I think conservatives do better than liberals, if we analogize GC to abortion (though I don’t think that assessment necessarily generalizes past the analogy between those two specific issues).
** OTOH, if it’s on other issues, or other issues as well as gun control, then I’d be interested in hearing about that.
[…Very rambly, sorry. But I wanted to meditate on your observation. Also: it’s good to see you – you were away from commenting for a while, no?]Report
Well, just about, yes. I mean, not about stuff like loving your kids, but almost every substantive political or policy issue, it seems to me. There’s some overlap on desired outcomes, but not the justification for those outcomes. At least that’s my experience in having these types of discussions in the past. Disagreements on the background assumptions each participant brings to the table eventually erupts into wicked slices of contempt as each side increasingly wonders – in exasperation – why the other so persistently fails to grasp the obvious.Report
@leeesq
“Most people also enter college around eighteen or nineteen.”
If “most” means “more than 50%,” you’re probably right. But a substantial number of people (I don’t know what it is, and I admit it’s probably not a majority) are non-traditional and go to college later. Sometimes even to top schools.Report
@jaybird – they want the hill they die on to have his-and-her bathtubs?Report
@jaybird
“Of all the goddamn hills to die on, why in the hell do Conservatives keep dying on the Gay One?”
Well, they sure as hell don’t want to live on it!Report
But it’s such a nicely-gentrified hill!Report
Best brunch in town.Report
I’m going to argue that conservatives keep dying on the gay one out of a sincere if misguided belief that homosexuality is at best wrong-headed if not outright depraved. I’m pretty sure that the Jaybird of the late 1920s and early 1930s would be wondering why conservatives have picked the hill of prohibition and creationism to die on. I wouldn’t agree with the drys or creationists myself but there lots of people who sincerely believe in things that I find silly at best or repellant at worse.Report
why conservatives have picked the hill of prohibition
You may want to re-read that part of the history book.
Wait, do the history books talk about the Progressive Movement of the 1920’s and early 1930’s anymore? I’m going to be the old guy talking about the Rechabites and nobody is going to know what I’m talking about because the history books don’t bother to mention much more than “conservatives banned alcohol until FDR let people drink it again.”Report
Its true that Prohibition was also advocated by many Progressives during the early 20th century. There were wets and drys on all sides. By the late Prohibition era, the die-hard Drys, the ones really opposing the repeal of Prohibition, were mainly in the conservative Dry camp from the Evangelical set.Report
And of course progressives of the 20’s and 30’s were often what we would now call social conservatives. Old time religion was a big thing in the progressive movement.Report
Prohibition was bizarrely popular. IIRC, it passed Congress with roughly two-thirds of both parties in both houses, and was then rejected by only two states.
Looking back, it really makes me wonder what the hell happened.Report
Tim (or whoever else),
Didn’t a large number of state AG’s not only not defend Obamacare, but lead some of the attacks against it? What part of the ACA do they enforce now? The medicaid expansion (provided their governor or his/her predecessor has signed on)? The state exchanges for those states that run their own exchanges?
To what appears to be your main point (and I’m with @zic , I’d like to see a discussion of “enforcement” vs. “defending against constitutional challenges”), do the laws or whatever that establish attorneys generalship state that the AG “shall” defend “every” law under their jurisdiction in court and to the hilt, and that they exercise no discretion either for the sake of their department’s resources or for their policy preferences? My understanding of Obama’s/Holder’s decision in the Windsor case isn’t that the DOJ didn’t defend it, but that it defended it only to the appeals court level and not all the way to the Supreme Court. How has that worked at the state levels? Have the AG’s declined tout court to defend any challenge, or have they at least defended it in the court of first instance? (Sincere questions. My understanding might be off.)
For what it’s worth, one of the reasons I was cheering for Obama to win (even though I voted 3d party) is because I believed it was at least a possibility that whoever Romney might have picked for AG wouldn’t enforce the ACA. So your parody is describing something like common practice, or at least what laypersons like me believe to be common practice enough to base some of our political decisions on.
Now the parallel about gay marriage and religious freedom. I think religious freedom should extend pretty far. But my argument is that your liberty to be part of a religious group that declines to recognize gay marriage ends somewhere before the point that my sister, who has never harmed you in any way but whose orientation is so offensive, isn’t allowed to marry her partner of almost 34 years.
The benefit of clergy we’re expected to extend here in the name of civility and in the assumption of intellectual honesty and good faith argumentation compels me to say that you simply see it differently. Fine.
So here’s a question. Is there ever a law so unconscionable that an AG ought to be able, as a matter of conscience and not merely as a question of allocation of scarce resources, to decline to defend it in court? Or to defend it at the court of first instance but decline to defend it on appeal? You apparently don’t think that gay marriage qualifies, and your reductio to Obamacare suggests you think AG’s should defend that law. But are there some infringements on the right and the good that are so egregious or so plain wrong that they ought never to be defended? (I can see an argument in favor of the categorical “no” answer, even if I’d disagree with it. So I’m not trying to bait you. But I’d like you to answer that question honestly for yourself.)Report
A lot of Republican Attrorney-Generals did lead the judicial campaign against the ACA. They even went so far as to initiate the law-suits and make public statements about refusing to uphold the ACA if it was pased before Obama signed it into law. If Republican state attorney generals have the right to oppose the ACA than I can’t think of good reason to say that Democratic attorney generals have to defend bans on same-sex marriage besides complete hypocricy from the GOP.Report
+1, @leeesqReport
I don’t think the argument here is that the state AGs have to defend the ban. The issue is the proper role of the USAG. That’s an important distinction.Report
He should keep his mouth shut about state AGs and concentrate on firing US attorneys who aren’t loyal partisan foot-soldiers. It’s all about jurisdiction.Report
I see in no way why its improper for the USAG to offer his advise or opinion to State AGs. He isn’t telling them what to do, he has no power to do anything if they do the opposite of his suggestion.Report
My problem with these “Conscience” laws or what-have-you is that these businesses want to have it both ways. They want all of the special privileges the government affords them… tax incentives, permitting rent seeking behavior, barriers to entry for competition, etc…. but then cry foul when these come with a cost. You can’t appeal to the free market when our market is decidedly unfree. Gays pay taxes. Those tax dollars, in part, pay for roads and police and fire departments and urban renewal programs and street sweeping… all things the businesses benefit from. So as long as gay tax dollars are going to those things, tough nuts, you have to serve them just as you’d serve anyone else. Find a way to forgo all those things and discriminate at your leisure.Report
At the same time, isn’t it nevertheless legitimate to say that, unfree as the market is, it should still be as free as possible? Although it isn’t perfectly free now, a further depredation of that freedom is still to be resisted. That seems like a viable argument to me.
The question is really whose freedom matters more — the freedom of a consumer to access the market on the same terms as anyone else, or the freedom of a merchant to do the kind of business and the kind of customer she prefers.Report
This question has really broad applications —
anything from a troublesome person being “run out” of town,
to Obamacare.Report
The problem, @burt-likko , is that the lack-of-freedom in the market exacerbates the negative effects of discrimination. Suppose there is but one baker in a given town. He refuses to sell cakes to gays. “Find another baker!” cry the free marketeers. But there is no other baker. “Open your own bakeshop!” cry the free marketeers. The only problem is there is a limited area zoned for commercial use and it is currently all occupied. And you can’t sell cakes out of your home because the health inspector puts the kibosh on that. “Make more money so you can buy out one of the occupied storefronts!” “Move somewhere else!” cry various free marketeers. At which point I think it is pretty clear which side of the balance is weighed down.
Want to make the markets freer? How about we start with removing the barriers to entry. Then we can talk about sanctioned discrimination.Report
@kazzy I’d argue that there’s a difference between a conscience law that says “You don’t have to provide this sort of service” and one that says “You don’t have to provide service to people you don’t want to.”
Which is why I don’t have a problem saying “Your store can’t refuse to serve gay people” but do have a problem saying “Your store has to fill out prescriptions for contraception.”
But even here, there are exceptions. I wouldn’t oppose a “ladies club” or “gentleman’s cigar club” if a part of the point of the establishment is explicitly to provide a certain kind of service to certain people. (There’d likely be some extra requirements, though. You’d likely have to have a membership system, for example, rather than an open door.)
Gay wedding related stuff is somewhere in the gray area. On the one hand, it’s refusing to provide services to gay people. On the other hand, it’s also refusing to provide service to one type of event that you are not refusing to provide service to what the proprietor genuinely believes is another type of event. For me, at least, the answer here may lie in the type of business you are. If you operate a storefront or not, and if you are selective about your clients more generally.
But I have a harder time for restaurants and such, as the debate in Arizona goes. That seems to come down to serving or not serving gay people.Report
@will-truman
I’ll agree that there are indeed some gray areas. The wedding thing might be one. But the question is, is that baker sanctifying the wedding? Or is he baking a cake? I’d argue the latter and, thus, reject his right to discriminate. A caterer? Or catering hall? Maybe a different story.
However, I am still not all that sympathetic to cries of “Freedom of Conscience” from people who are willingly engaging in a public and publicly supported activity seeking to discriminate against a subset of the public.Report
do have a problem saying “Your store has to fill out prescriptions for contraception.”
My problem with this is that there is licensing involved. Allow me to repeat myself:
A pharmacist has a license to sell X. (Wait, let’s not use “X”. Let’s say “Drug D”.)
A pharmacist has a license to sell Drug D. Drug D is only available with a perscription (“ask your doctor!”).
This entails the following: People who sell Drug D without a license will be arrested and go to jail. People who sell Drug D with a license to people without a prescription will be arrested and go to jail. People who buy Drug D from people with a license but without having a prescription will be arrested and go to jail. And people who try to buy Drug D without a prescription from people without a license to sell Drug D will certainly go to jail, along with the guy without a license.
So when a guy comes along and says “I have a prescription to buy this here Drug D” and the pharmacist says “sorry, we’re Christian Scientists. We only sell bottled water”, that’s a perfect opportunity to open a pharmacy of your own, right? WRONG! The number of licenses handed out by the government is kept artificially low by established pharmacists!
Anyway, make licenses available upon request? I’ll agree with the whole “pharmacists should be allowed to not prescribe stuff they don’t like” argument.Report
@jaybird My wife has a medical license and is capable of performing abortions. Should she be required to perform abortions, since someone unlicensed would be put in jail for performing the abortion? That’s the context I view it in. Not because it’s ludicrous that Clancy should be required to perform abortions, but because it actually is logical, provided we accept the licensure argument. In some ways, the argument is even more compelling because the hardship of finding a doctor willing to perform abortion tends to be greater than that of a pharmacy willing to fill a prescription for contraception.Report
@kazzy The only hesitation I have with regard to cake-bakery is that for some people, a wedding cake is a work of art rather than just a product of craft. So the question, for me, would hinge again on client selectivity. If on the basis of a phone call I ask for a wedding cake for Will and Mary, would they ask when I would like it (knowing nothing about Will and Mary, other than that one is presumably male and the other female) but if I say Will and Clancy they want to know if Clancy is a man or a woman. If they’re non-discriminating as far as who they provide services for, they can’t suddenly become discriminating on the basis of sexuality. On the other hand, if they’re the sort of people that say “We’ll want to get to know you a bit before deciding whether or not to take this job” then I am more sympathetic.
I can tell you for a fact that some people do the latter. My mother recommended somebody to do our wedding cake whose time was limited and only wanted to make cakes for certain couples like never-marrieds, good Catholics (which we aren’t, though she said she was willing to overlook that), and other criteria (in our case, that she was friends with my mother). I am willing to accept that this is an outlier.
On the other hand, if you’re going through an interview process, you’d be harder to sue anyway because the precise reason for rejecting the job would be unknown. So there’s that.Report
Hey @jaybird ! I think you and I are more or less in agreement on this! Hell, we might even be in perfect agreement on it! Before I got to the end of your comment, I thought, “The obvious solution is just to give everyone who wants it a license to dispense the medication.” And then, *BAM*, there it was.
@will-truman
In some ways, we already have the system you described in place. I’ve always wondered how night clubs can get away with servicing select clientele like they do. “Ugly? Back of the line. Three dudes with no women? No dice. A movie star? Right this way.” I did read of a guy who sued over such things but I don’t know where that ever went.
The job interview is an interesting analogy. If a business is limited in how many total people they can accommodate (be it via limited openings for hirings or only so many cakes being made in a day), they are going to have to discriminate one way or another if the demand for their service outpaces their ability to supply it. If a cake maker can only make one cake a day and two couples both want a cake by tomorrow, he’s going to have to choose one over the other. He might go first-come, first-served, he might sell to the highest bidder, or he might meet with them and determine who would be the most pleasant couple to work with. A number of things could factor into that last one and it’d be hard to legislate against that. But if he can churn out 50 cakes a day, is only currently making 25, and a gay customer comes in, I’m not confident he has a right to tell them to go pound sand while he pours a cake’s worth of sugar and flour into the trash can.Report
Should she be required to perform abortions, since someone unlicensed would be put in jail for performing the abortion?
This is where it gets sticky but I see the act of providing, say, Drug D in a bottle in a bag to someone standing across a counter as different in not only degree but kind from, say, scraping a uterus.
As such, I feel fairly confident that I can say “that’s different” and agree that, of course, someone who doesn’t want to provide an abortion shouldn’t be forced to do so.Report
@jaybird
I don’t think it unfair to ask people to meet certain minimum competencies before being allowed to engage in certain acts. Someone who wants to fill prescriptions, for instance, should be able to read and count. Those seem like pretty integral to perform that task. So maybe I would slightly disagree in that I wouldn’t just give out licenses on demand, but might ask someone to read a few words and count a couple things first.
The bar for performing abortions would be necessarily higher.
And I wouldn’t support artificially imposed limits. No “Only 4 pharmacists and 2 abortion providers per 100 people” rules. If all 100 people qualify to be a pharmacist and 99 of them qualify to be an abortion provider, so be it.
By the way, where did you write all this stuff originally? Elsewhere in this thread? Or on another post somewhere?Report
@will-truman
It’s fair to point out, though not a contradiction of your point at all, isn’t it, that both you and Clancy do think she ought to be able to be forced to perform an abortion if it is necessary to save the life of a pregnant woman? Not necessarily that all jurisdictions should have that requirement, but that you wouldn’t object to any that did. Or is that not correct?Report
@jaybird Yeah, that’s an important distinction. In the one instance, the provider is saying “I have religious objections to performing this task and thus will not perform it.” In the other instance, the pharmacist is saying “I have religious objections to you using this item in a particular manner, so I’m not going to sell it to you.” No one is forcing the pharmacist to use the contraceptive herself, nor to place the contraceptive in the customer’s mouth, only to allow the customer to purchase the contraceptive.Report
@michael-drew I would say that emergency situations call for a different set of rules than non-emergency situations. As it happens, Clancy would not have a problem performing an abortion under such circumstances*, but if she did, I don’t think it would be unreasonable in a non-emergency situation that a woman needed to find someone else to perform the procedure. And if I recall from my last discussion with her on the subject, most mother’s-life abortions are not actually emergency situations. Important, obviously, but not urgent.
This is part of why the “emergency contraception” does throw me a bit for a loop, and why I am more conflicted about emergency contraception than I am a monthly prescription. I’d still prefer to find another way to deal with it than to require pharmacies keep it stocked and dispense them.
* – In a non-emergency situation, she would still probably refer the patient to somebody better trained to avoid complications.Report
@jaybird @mark-thompson I’d argue that the buying, stocking, and selling of a product is the performance of an act (or a series of acts). Just as CVS selling tobacco is the performance of an act, even if you’re not lighting up someone’s cigarette. That’s not a decisive argument against requiring it (I’d be open to a pharmacist being required to refer someone to another pharmacy that will sell the contraception, for example, and that too is the performance of an act though one I am more comfortable with), but I don’t put as much stock in the distinction here as you guys do.Report
@will-truman While it’s a required act, it’s not a required act that conceivably violates religious freedom – simply stocking the contraceptives isn’t equivalent to using them. The pharmacist would have to be able to say that simply coming into contact with the chemicals contained in contraceptives violates his religion. Otherwise he’s just stocking materials as required by his license – which in turn is artificially limited.
What’s more, to my knowledge, any stocking requirements would be requirements directed at a pharmacy business, ie, the corporate entity, rather than at the individual pharmacist. That’s a critical distinction for reasons I discussed on New Dealer’s thread the other day; specifically, for-profit businesses can’t have “religious beliefs” in any meaningful sense, and to conclude otherwise is to elide the entire basis for limited corporate liability.
So at that point, all the individual pharmacist is being required to do as a condition of his license is to dispense chemicals that his (separately licensed) business has in stock.Report
@mark-thompson With regard to the first part, you may not be doing it, but you are still participating in a process that you consider to be immoral. As a condition of your ability to do your job. I don’t see the chasm between that and “the state licenses you to practice medicine, and therefore can tell you precisely what services you have to provide.” Which the government can do, should do (sometimes), and does (sometimes), albeit not on the abortion front.
The second part strikes me as an endrun around the fundamental crux of the matter. You can line things up at each point in the process so that everyone has to do their part, but at the end of the day you’re still saying “If you’re a pharmacist, you have to do what you religiously consider to be immoral.”
The rationale you work through may make it constitutionally permissable, though I’m honestly not sure that you actually have to work through the rationale to make it constitutionally permissable. Constitutional permissability appears to be in the details (who is exempt and why, for example, and whether the judges believe that religion is actually be targeted).
But even if we assume Constitutional permissability, and we assume that the government can do it, that doesn’t particularly answer the question or whether or not it should. No matter how you’re working through it, you’re essentially advocating the government saying “If you want to be a pharmacist, as pharmacists are licensed by the state, you must be willing to perform these things you consider to be immoral.”
The government can do this. And sometimes should. Ultimately, though, it’s something that I only believe the government should do under very limited circumstances. Not because it has the capability or it simply wishes that pharmacies and pharmacists would.
Likewise, I can create a very similar framework for doctors/abortions as for pharmacists/contraceptives. Doctors are licensed by the state. Most hospitals don’t have religious beliefs. Hospitals need government money and the government can attach strings to that money. I have difficulty coming up with a framework that says that one is Constitutional and the other is not.
Now, I can come up with reasons why the “should” is different. Participation performance versus active performance, as Jaybird says. I consider that insufficient, though. Especially when there are stronger differences in the other direction (specifically, the degree to which access is actually blocked).
What I fear, by the way, is not the slippery slope. I am not the least bit concerned that the government is going to require that obstetricians (or physicians trained in and practicing such) are going to be required to perform them. Mostly, though, I am not worried about it because the public has so much more tolerance towards anti-abortion sentiment than anti-contraception sentiment. That such a thing hinges (in my view) on how popular or unpopular one’s religious or philosophical beliefs, though, troubles me.
That’s why my mind continually moves the standard away from “Can we?” to “Must we?” and in the case of contraception, I simply don’t believe we must. Widespread refusal to dispense contraception does not strike me as a realistic possibility (here’s the part where people – not you or Jaybird – lecture me about how I don’t know what it’s like in rural America). If Pharmacy A refuses to dispense it, go to Pharmacy B. Further, to the extent that people do lack easy access to contraception, I think we should work on enabling mail pharmacy and telepharmacy. That wouldn’t just help the theoretical person in the town with the one pharmacy that doesn’t dispense contraception, but would help people who do not live nearby any pharmacies (which is actually a much bigger issue).
Or put another way, while we can make such requirements, it needs to be the solution to a substantial problem. Not because we object to what they’re not doing.
(Also, though I don’t address it, I actually consider this line of discussion to be different than the ACA contraception requirement, which is easier to justify and therefore the scope of the problem is not so severe.)Report
I think it’s simpler than that: If you can’t do your job because of religious objections, find a different job.
I’m all for reasonable allowances for religious issues — the key word is “reasonable”.
But the core job of a pharmacist is to hand out pills to customers with valid prescriptions. If you cannot actually DO THAT, you should not have that job. Your ‘religious objections’ should not be able to block me from filling a valid prescription.
They’re YOUR religious objections, not mine. And if handing out contraceptives is such a burden, why are you in a job that requires you to do so? And why should customers have to suffer because of your religious qualms?
About as far as I’d go is if you had a coworker there, at all times, to handle that for you. No “come back later when Bob’s here” or “Bob will have to do it when he’s free, next” but literally Bob says “Oh yeah, I’ve got your drug” when you’re about to ask for it from Frank.
Because again: The primary, core job of a pharmacist is to hand out the drugs you have a valid prescription for. He gets them from the back and he hands them to you. (Yes, I know there’s a lot of drug interaction stuff and complex stuff back behind the scenes too). That’s his job.
I can’t get those drugs for myself. HE has to do it. And if he’s unwilling to because of his religion, he needs to find another job. If I told my boss that I had religious objections to coding in C++, he would not say “Oh, then we shall code in Perl to accommodate you”. He’d ask why I had applied to a job where working with C++ was gonna happen, since it was right there in the requirements, and then fire me if I didn’t.
And he’d be perfectly right to, no matter how sincere my religious objections to C++ were.Report
I’d argue that absent a really compelling reason, that’s a discussion between employer and employee, and establishment and consumer, rather than between either of them and the government or licensing boards.
Pharmacies often choose not to carry or stock drugs for particular reasons. That their reasons are religious rather than economic or crime-related shouldn’t matter (and actually is unconstitutional).
Pharmacists who work for a pharmacy should have to answer to that pharmacy, who in turn has to answer to the customer. I wouldn’t go to a pharmacy that refused to fill contraception, even for our family’s non-contraceptive needs. (There are some on the right who want to protect the pharmacist from the employer, but I disagree with that. I have a more restricted view of “reasonable accommodation” than do many.)Report
I wonder if we tried to make it much easier to get birth control pills without going through your local pharmacy, how many of the pharmacists advocating for this type of freedom would be in favor of it. If your doctor said, “Here’s your prescription, and here’s the phone number of the manufacturer who will provide it directly to you by mail with no middle man,” would that get industry lobbyists riled up?Report
By the way, where did you write all this stuff originally? Elsewhere in this thread? Or on another post somewhere?
It goes back all the way to 2010!
https://ordinary-times.com/blog/2010/01/15/quote-of-the-day-27
We were so young!Report
@will-truman
I’m fine with a pharmacy making the decision to carry a drug or not (provided they are up front about what they can fill). I am not OK with a pharmacist objecting to dispensing a drug the pharmacy carries, & then demanding government protection from being dismissed.
Nope, sorry. Choices have consequences. You made the choice to be a pharmacist, knowing that such drugs are legal. You make the choice to refuse to dispense such legal drugs to a person with a Rx, you have to live with the consequences of not being employed. Don’t like it, go open your own Pharmacy. You can call it “The Good Pharmacy” (We serve everyone but sluts).Report
@tim-kowal
Of course you have no doubt where I stand on SSM, but that doesn’t prevent me from seeing this as an excellent parody. I missed that word on first reading, and could hardly believe what I was seeing. “Really?” “Realllllyyyy?”
So, well done.Report
Its not really much of a parody when you remember that a lot of Republican state-attorney generals made this actual argument when it came to the ACA. Many of them announced that they would not enforce before it was actually passed. They also filed lawsuits in the courts in an attempt to get declared unconstitutional.Report
Except it’s not the same at all, because the ACA was about states bringing suits against the federal government for an alleged overreach of the constitutionally delegated powers to the federal government.
This is about an agent of the federal government advising state AGs that they don’t have to advocate on behalf of state laws they disagree with.
Now, if you want to say that the conservatives should have thought about federal overreach when DOMA was the law of the land, that’s a very fair point.Report
What Kolohe said. There’s a big difference, it seems to me.Report
If the critique is of Holder stepping out of his lane in voicing this advice to state AGs – just the butting in in state matters by a high federal official, I can be on board for that. But IMO that didn’t seem to be the thrust of Tim’s point, nor is it the point on which he’s receiving pushback in the main, from my way of reading.Report
But IMO that didn’t seem to be the thrust of Tim’s point, nor is it the point on which he’s receiving pushback in the main, from my way of reading.
I think that was the thrust of Tim’s point, and the point on which he’s receiving pushback fails to recognize that.
That is, everyone’s attacking something Tim wasn’t saying.Report
Just that the USAG shouldn’t be speaking to this at all one way or the other?
Nah. His point is an attempted gotcha, saying that if Holder says they don’t have to *defend* SSM bans, then he’s just as much saying they don’t have to *enforce* Obamacare. It’s right in the title.Report
…And I drew him out above to confirm that that is exactly what he’s saying.Report
@michael-drew
Thank you for making my case for me.
The issue is people taking a different view of what is appropriate behavior the USAG’s role in the two cases, based on their ideological preferences for one over the other, and that if you take Holder seriously on SSM, you’d have to also take him seriously if he said that about Obamacare.
And I hope I can be forgiven for suspecting that if Holder had actually said that about Obamacare, that not all liberals would be as instinctively supportive? (Hell, I’ve already admitted that I would have been more likely to overlook the SSM statement than an Obamacare statement, so I’m really not bashing liberals very hard on here–unless saying they’re no better than me is considered overly harsh criticism, which might be a legitimate p.o.v.)Report
Holder might well have said the same thing to state AGs about Obamacare as he did about SSM bans: you don’ t have to defend them. (Defending Obamacare is our job, he might have said. But we can’t either defend or not defend your state’s marriage laws for you.)
What he didn’t say about either is that state AGs don’t have to enforce them – and Tim’s big point is that he essentially did, or in any case that we’re rightly asked to compare what we’d think about him saying state AGs don’t have to defend state marriage laws to what we’d think if he said they don’t have to enforce Obamacare. We all ought to have different reactions to those two things, regardless of our political temperaments.
Now, what would people be saying if he had said that state AGs don’t have to defend Obamacare? Probably, ‘What else is new?’Report
@michael-drew
I think this is going to go down the familiar rabbit hole, and I don’t have the time or interest today. Suffice it to say I disagree, but I’m not going to put the effort into hashing it out.Report
I’ll just say that Van Hollen’s quote on being the ultimate defenders of state constitutions is powerful when applied to issues of state constitutional law. If Tim’s point is to reinforce that point, then it doesn’t illustrate it very well to compare it to a situation in which the issue is one of federal constitutional law.
And it’s not a very compelling comparison to say, hey what would you liberals think if Holder said state AGs don’t have to defend Obamacare? Liberals would truly say, why is Holder spending his time stating the obvious? The bite only comes when Tim switches it to a claim about Holder’s statement implying that he must hold the same view about enforcement in order to be consistent. I defend that claim by reference to his exertions to press exactly that point above.
Liberals were a bit all over the map in their response to this post, whose precise point, in all fairness, is a bit obscure. But that’s Tm’s basic claim, and it’s one on which he deserves pushback. I don’t claim that his claim that any executive that determines that he can’t defend a law must also determine he can’t enforce it is completely invalid. It’s a legitimate claim; it’s just fairly well-established to be contrary to a semi-consensus view on the question. It’s also a distortion, regardless of whether Holder can rightly take that position, of what he is actually saying, which is precisely that state AGs can not defend, but continue to enforce, SSM bans.Report
@michael-drew Putting aside the defend/enforce distinction for now, the Administration is defending the contraception mandate against the lawsuit filed by the Little Sisters of the Poor.Report
Yes, they are. So that shows what? That hey have an assessment of the constitution that renders some things constitutional and others not?Report
And the Administration is also defending the law against the Origination Clause challenge.
It says the parody is on target as far as it goes and that our only disagreement is the use of the word “enforcement” that, in your view, would carry the point beyond the two examples cited.Report
If those examples show the parody is on-target, then I still don’t get the precise target of the parody, or I guess what it proposes to show about its target. Both defenders of this practice of occasionally not defending laws against constitutional challenge and detractors of it will tell you that, whatever else is the case, most laws will be defended, and the ones that won’t will be determined by an executive’s substantive view of what the Constitution says. So I don’t understand what listing laws that an administration that is not defending a law or two is defending demonstrates other than that the person doing the listing has a substantive disagreement with that administration about what the Constitution means.Report
@michael-drew “So I don’t understand what listing laws that an administration that is not defending a law or two is defending demonstrates other than that the person doing the listing has a substantive disagreement with that administration about what the Constitution means.”
And that’s the problem — if all that’s required is the AG have a “substantive disagreement,” it makes a hash of ethical duties and empty promises out of the assurances that these decisions will not be based on politics or policy.Report
And that’s the problem — if all that’s required is the AG have a “substantive disagreement,” it makes a hash of ethical duties and empty promises out of the assurances that these decisions will not be based on politics or policy.
Well, if that’s the problem, then the parody really did shoot wide of the mark since the whole point of the parody is to demonstrate something fundamental about Democrats specifically revealed by their unprincipled conception of process, while your actual target is the fact that State AGs have the discretionary power to enforce legislation based on their own determinations to begin with.
Two entirely different things, it seems to me.Report
Exactly. You can’t demonstrate that the threshold isn’t met by just pointing to some laws they are defending. All that demonstrates is disagreement from your perspective about what laws are constitutional.
You have to say why the law not being defended is not constitutional enough to meet a threshold of unconstitutionality were you would agree this discretion begins – or take the position that no such threshold exists; that they never gain this discretion regardless what the law says.
You can additionally try to show that, in addition to being wrong that the law you have in mind is beyond that threshold, they are also inconsistent in applying the threshold they take to be the one allowing this discretion. but to do that, you have to enunciate yet another threshold – the one you think they are wrongly using.
I suppose you can just try to establish the inconsistency – saying that if they think the case you are interested in is across the threshold, then these others must be too, and they don’t refuse to defend them. But to do that, you likewise have to enunciate the threshold – and also allow for the possibility that substantive difference accounts for their difference in view about whether the law is over the threshold. this gets a little abstract, but we could imagine thresholds that hold if you buy a certain kind of substantive argument about the meaning constitution, but not if they don’t. I.e., if they buy X theory of interpretation, then the law is clearly past the threshold, but if they don’t it obviously won’t be. Maybe this is where we differ, but I personally would expect and endorse administrations of different parties to elect not to defend different laws – and to defend laws that administrations of a different party wouldn’t – [EDIT]because the parties have quite different conceptions of the meaning of the Constitution in some instances. The standard should relate to those substantive views – according to X overall view of the Constitution, how unconstitutional is a given law? I’m not sure how to formulate that standard myself, but that seems like the basic outline it should have.
In any case, just listing laws doesn’t establish what you think any of these thresholds are. That’s what ya gotta do to make the argument.Report
@stillwater The point about state AGs is minor to the parody. While the specifics may vary, all AGs, state and federal, have roughly the same duties to defend the laws. The primary point is to ask: If you are satisfied with the standard Holder articulates for this duty in this case, will you find it equally satisfying in the next case?Report
If you are satisfied with the standard Holder articulates for this duty in this case, will you find it equally satisfying in the next case?
What standard, Tim? Holder said that State AGs could refrain from enforcing anti-SSM laws, which is (apparently) perfectly correct. Additionally, it’s not as if State AGs and Holder aren’t aware that district courts are striking down anti-SSM laws as unconstitutional all over the place. It seems to me that you’re assuming the only reason Holder made those remarks was for propagandistic purposes. Well, sure, you can have it if you like. But without an existing authority granted to State AGs to enforce at their discretion the whole parody collapses.
It seems to me that if you wrote a post about how State AG authority to selectively enforce laws allows politics to encroach on process, then you’d have been on firmer ground (even tho I still don’t see the relevance of Holder’s pointing out the obvious wrt that authority).
To your question: I don’t know how to answer it since I don’t know what issue you think is at stake here. I mean, it seems to me that you’re bunged up about the fact that States AGs get to selectively enforce laws, and you’re using Holder’s words as evidence of why that authority is wrong. But I still don’t understand the relevance of what Holder said to that debate: the authority exists there is a growing body of decisions striking down anti-SSM laws as unconstitutional which AGs can take into account when determining whether to enforce those laws or not.
Do you think he’s politicizing the process by pointing out the obvious? By pressuring States into refraining from enforcing laws that are increasingly viewed as clearly unconstitutional? I mean, I really don’t know what your complaint is.Report
@stillwater I’m given by many of the comments here to believe that many here think that “prosecutorial discretion” is broader than it is — specifically, that it can be politicized. Even Holder denies that politics or policy are valid grounds. But the standard described in the NYT piece, “when laws touch on core constitutional issues like equal protection [or like First Amendment protections -tmk], an attorney general should apply the highest level of scrutiny before reaching a decision on whether to defend it.” In the comments here, I’ve argued two somewhat conflicting views. On the one hand, decisional law offers so many squishy doctrines for deciding cases that this would give a given AG virtually unlimited discretion whether to defend a particular law, leading to a not unreasonable inference that the decision is ultimately driven by politics or policy. On the other hand, the executive has a co-equal duty to interpret the Constitution, so Holder’s standard may be roughly in line with that.
But here again is the point: If you accept the standard when applied to this policy, you must accept it when applied to another. The reason I chose this piece for the parody was because so few words needed to be changed from the original to gore the other fellow’s ox.Report
I was going to pick out that same line that Stillwater did and say that it is a much better formulation of the issue you want to talk about than the OP. SW makes a fair point that Holder isn’t recommending not defending these laws. However, he has declined to defend laws in the past. And taken on its own terms, I don’t in fact disagree with this more to-the-point formulation of Tim’s point. I don’t mind saying that I’m not satisfied with the standard as far as I’ve seen it – but that may largely just be because I haven’t seen the actual standard. The comment in the piece about applied highest scrutiny may not be the actual standard – rather, just a gloss offered to a newspaper reporter. In any case, it’s perfectly fair to wonder what Holder’s standard is and whether it’s satisfactory, and I join Tim in wondering.
It just doesn’t follow that because the standard for not defending laws in unclear, that there would be any less basis to object to future administrations selectively *not enforcing* the law. There would be the same basis as there always was, based on that separate body of precedent and process argument. (The Obama administration’s arguable non-enforcement of certain provisions of Obamacare or immigration law being germane to that point, but entirely unrelated to the news item Tim in fact chose here. You can certainly argue that those examples will establish or change precedent for future administrations’ use of discretion about law enforcement, potentially producing (non-)enforcement actions whose substance liberals will object to but which they won’t be able to object to on process grounds because they accepted Obama’s actions on immigration and federal ACA implementation. OTOH, there is and always has been room for some policy judgment in making law enforcement decisions, so those specifics, too, would have to be argued out when the time came. But those are not the examples Tim seized on to make his point).Report
@michael-drew To reiterate, I did not select this example because of the policy at issue but because the way the original NYT piece was written made it very easy to insert a new policy, which had the effect of putting some of these procedural issues in high relief. I actually would have preferred the policy at issue was immigration or something else, though as I (hotheadedly) pointed out to @jaybird I’m not totally convinced it would have mattered.Report
OK, I think I’m getting it. You think that Holder’s claim that states have discretion in enforcing certain laws based on their own determinations as it applies to anti-SSM laws entails that he’s committed to claiming that states have discretion in enforcing Obamacare provisions. That is, that Holder is essentially empowering state AGs as agents vested with the authority to act on their considered judgment irregardless of state legislation or US Supreme Court findings. Is that it?
But why think that? State AGs have the authority to enforce or not enforce only insofar as the matter is an open question, yes? Seems like the SC would be The Decider on issues of constitutionality and the US Congress is The Decider on nationally enforced legal requirements. You’re attribution to Holder that he’s committed to claiming that State AGs have authority to enforce or not enforce Obamacare given that it’s been deemed constitutional doesn’t follow from anything he’s said.
Again, the only I can square your claims here is that your primary beef is with the broad powers accorded to State AGs in the absence of a definitive ruling regarding constitutional issues. That’s a legitimate beef, it seems to me. But the suggestion that Democrats are exploiting that discretionary power in Holder’s comments about SSM laws still baffles me. Further, that logical consistency commits him to the selective enforcement of Obamacare doesn’t follow from anything he’s said, nor anything you’ve said (it seems to me). Further further, the suggestion that Democrats uniquely exploit State AG provisions and Republicans don’t – which I take was the point of the parody – requires further argument.
Again, if your argument is that broad State AG authority to pick and choose enforcement of existing law is bad practice because it permits politicization of process, that’s one thing. Given that you haven’t argued that view and claim your arguing something else suggests to me that I actually have no idea what the heck your trying to establish in this post and thread. That’s probably on me, tho.Report
I don’t think I’ve suggested, and have never thought that you selected the policy issue you did to make a point about that policy issue. I’m just saying what rhetorical difficulties the example you did choose seem to have for me. And you did choose certain features of your example for a reason, certainly. I.e. it’s much more bothersome to liberals to consider the possibility of state AGs not enforcing Obamacare than it is not defending it, since for the most part, it doesn’t fall to state AGs to defend Obamacare, but to the extent it does, liberals absolutely take for granted that Republican state AGs (and who knows about future GOP USAGs!?!?) won’t defend it, but it will always fall to them to enforce significant parts of it, and there won’t be much liberals can do to stop them from refusing.
But that switch also makes the analogy not just a little less on-point, but substantially misconceived for your purposes (as I understand them, and I had a comment responsding to James get eaten explaining why I think he’s mistaken in thinking that your basic point here is only to make the banal point that, in process discussions, people generally take their stakes to be related very much to specific policy substance, which certainly colors their arguments. No one should seriously deny that – the issue, and you concern here as I understand it, is really calling people on major lapses or hypocrises in even maintaining a plausibly coherent line on process. And for that, the precise details of a given instance or analogy do matter).
In any case, as I say, your recent very concise formulation of the basic point you have to make about what’s reported in this article I think is much more well-founded than your switch-in analogy on ACA enforcement. Basically: are you satisfied with Holder’s standard for when AGs can decline to defend a law’s constitutionality? As I say, I’m not sure I’ve seen a full enunciation of that standard, but I’m not personally satisfied with what I’ve seen. At the same time, that doesn’t mean I disagree with what I have heard, or oppose any given such decision by an AG, or any one of Holder’s past such decisions. It’s just that, as a direct answer to your well-founded question, no, I’m not fully satisfied with as much of the standard as I’ve seen. If there isn’t more than I’ve seen, they should develop and enunciate their standard much more fully.Report
SW,
You think that Holder’s claim that states have discretion in enforcing certain laws based on their own determinations as it applies to anti-SSM laws entails that he’s committed to claiming that states have discretion in enforcing Obamacare provisions.
I’ll let Tim speak for himself as to whether this is his claim. But let’s be clear that if this is Tim’s claim, then it is a distortion, for Holder is not here talking about state AGs’ discretion in enforcement of laws (though of course enforcement necessarily entails some quantum of discretion, even where states are enforcing federal law and this have essentially no latitude to apply constitutional discretion (federal law preempts state law; federal interpretation of the federal constitution supercedes state interpretation thereof – cf. U.S. Civil War, as Holder would no doubt concede), but rather about their discretion in whether or not to defend state laws in court when challenged on the basis of constitutionality under either state or federal constitutions.
Tim would say that, where they exercise that discretion, they ergo surrender the discretion whether or not to continue to enforce such laws, as any compelling constitutional argument against defending a law absolutely must imply a compelling argument not to enforce it. But that is not Eric Holder’s position, so far as I know. He is talking about discretion whether to defend a law in court, but not talking about discretion in how to enforce it while that issue is being decided. Tim, I believe, is essentially saying that he is in fact speaking to both – by his (Eric Holder’s) own meaning. And that’s false, unless I misunderstand the AG.Report
Thanks for that Michael. As if being confused about what Tim’s actually arguing here isn’t enough, I followed him in mis-parodying Holder’s claims as being about enforcing when his actual words were “defending”. Yikes!Report
@james-hanley
Of course you have no doubt where I stand on SSM, but that doesn’t prevent me from seeing this as an excellent parody
Exactly.
I’ll tell ya, the people that were against SSM throwing out the religious liberty card are making Dave very, very angry. However, this is not the place for me to express that. This is the place for me to tip my hat to Tim and find the pushback he’s receiving very amusing.Report
and find the pushback he’s receiving very amusing.
Yes. It may be unusual for me to not be one of those pushing back against Tim, but I agree with your point above about how Holder should not have injected himself into the debate. And while I hadn’t heard about it, so I can’t say for sure what I’d think, I’m not sure that without this parody I would have paid enough attention to see it for what it is. And that, I think, is the outcome that Tim likely was hoping for.Report
I concur, contra what seems to be majority opinion in the comments section.
The difference being that the individual mandate portion of Obamacare’s constitutionality has been definitively resolved (in the affirmative) while SSM bans’ constitutionality is not yet definitively resolved (though it seems extremely doubtful) by way of SCOTUS rulings.
All the same, I’d agree, with sobriety, that an executive charged with defense of her jurisdiction’s laws who, after very serious study and thorough, scholarly examination of the issues, concludes that a particular law is constitutionally indefensible (note that “a particular law” could refer to a provision of a state constitution and the standard against which it is measured being the federal Constitution) has discretion to appropriately determined not to defend that walk against a challenge in court. That would apply whether the subject of the ball is same-sex marriage, medical insurance, or anything else.
So to the extent that the parody of the OP suggests that Obamacare might indeed be allowed to go unchallenged, I would agree that in theory such a thing could happen. In practice, scholarship would not support such a conclusion, so we would not see this actually happen.
None of which is to redeem Eric Holder, who really ought to allow his state level counterparts to do their own jobs, and who should concentrate on doing his own.Report
Sorry, penultimate paragraph got muddled. To the extent the OP suggests a facial challenge to Obamacare implementation might go uncontested would be a better way of phrasing my concept.Report
has discretion to appropriately determined not to defend that walk [law] against a challenge in court.
Having done this do they retain the discretion, and in some cases the duty, to continue to enforce that law until such time as it is made invalid by the courts? Or does a determination not to defend a law against constitutional challenge imply that an argument against its constitutionality exists that is so strong that it must also compel them to at least suspend enforcement until such time as the courts definitively rule on the question (and, if they don’t rule in the way the executive in question agrees with, possibly thereafter as well)?Report
I’ve gone back and forth on this over the years, but I think I’ve largely come to the view that AGs have an ethical obligation to at least put forward a good faith initial defense of laws that get challenged. While there is such a thing as prosecutorial discretion, which is important, I don’t see how prosecutorial discretion concepts can translate to issues of pure defense. We would not, for instance, view it as ethical or appropriate for an AG to just take a default judgment in a tort case against the state, no matter how clear the state’s liability; instead, we’d expect them to instruct their deputies to appear in the case and at minimum attempt to negotiate the most favorable settlement for the state possible under the circumstances.
The state is the AG’s client, and the AG has a duty to defend the state’s interests vigorously under the rules of professional conduct. Just like attorneys in the private sector, that means making a good faith attempt to defend those interests regardless of your personal feelings as to what the outcome should be or even if you personally agree with the arguments you need to put forward. What matters is that the arguments have some basis in existing law.
That’s not to say that AGs have no discretion on such issues – they certainly have discretion to make the defense a relatively low priority and assign it to even a first year deputy AG if they so desire, and if they lose at the trial court level, I don’t think there’s an obligation to appeal.
The difference with the private sector, of course, is that private sector attorneys have the right to decline cases that they find objectionable. But even still, private sector attorneys have no obligation to accept only cases and clients that they like, as long as they advance good faith positions.
To an extent, the notion of an AG declining to defend a state law (or at least arrange for the defense of a state law) feels to me analogous to a private sector attorney agreeing to assist a client with a case such that the client loses the ability to seek alternative counsel, allowing the case to default, and then quitting.
But I’m open to persuasion on this.Report
Mark,
“it’s a stupid law” is not a basis for not defending it.
“it’s probably unconstitutional and I can point to five rulings on that” seems to be a basis for not defending it — but under the much weaker basis of “not wasting public money”
Also, can’t the state legislators run a defense of their law?Report
@michael-drew
do they retain the discretion, and in some cases the duty, to continue to enforce that law until such time as it is made invalid by the courts?
Shorter @mark-thompson
“It’s a contested issue with no clear-cut answer.”Report
…Actually, from what I can tell, Mark is speaking to whether they can claim the discretion @burt-likko references in the first instance, not to my follow-on question (the one at the heart of Tim’s parody).Report
@mark-thompson
Attorney Generals are elected officials in the United States and not appointed ones. Whether they should be elected or not is an entirely different question but it seems perfectly kosher to me that an AG can run on a platform of “I think laws X, Y, and Z in our state are unjust, immoral, and unconstitutional, and I am going to fight to change them and will not defend them in court.” I believe Kamela Harris did exactly this when she ran for AG of California.
Lawyers also have an ethical obligation to not make arguments that they consider impossible or take cases that they consider unwinnable. The Attorney General of Nevada said she could not meet heightened scrutiny when it was announced as the standard in the 9th Circuit’s GlaxoSmithKline case as the standard for laws involving classification for sexual orientation. Was it wrong for her to say that if she sincerely believed it from all her years of experience as a lawyer?Report
@mark-thompson, largely in agreement with your approach here. And as you grasp, the issue is neither SSM nor the ACA, but the AG’s duty to defend laws generally.
Though I wonder what difference you see between defending a law in the lower court, where you do find an ethical obligation, and continuing the defense on appeal, where you do not. The decision of one judge may provide some political cover, but that seems not relevant to the discussion of ethics. Review is
notan important function in any legal action. This is particularly so where there are factual issues involved. For example, if the AG believes that the trial judge incorrectly excluded admissible evidence or vice versa, and that this could be grounds for reversible error, then does the AG have an obligation to appeal, in your view? What about an obligation to move for mistrial if grounds exist?Seems to me that the AG is in for a penny, in for a pound.
But thinking about your comment, I see three permissible scenarios for the AG:
1. The AG finds there is no non-frivolous defense to be made and so does not make it.
2. The AG finds there is a non-frivolous basis to defend the law, but conscientiously objects to defending it. In this case, the AG should find a deputy to defend it. If conscience dictates, perhaps the AG should even recuse him- or herself.
3. The law is non-frivolous and not objectionable on conscience grounds, but the AG just finds it bad policy. Unfortunately for the AG, he or she must defend the law anyway.
In both (2) and (3), a full and vigorous defense ought to be made.
Consider the public defenders as an analogy. I don’t know how these men and women do it, but prosecutors could not sleep at night if they believed they were shooting on an open net, so to speak. Our legal system only works if attorneys are doing their jobs 100%. Even if attorneys in reality don’t always give 100%, we certainly should not institutionalize a policy where attorneys can give less because they’re just not into it.Report
Well, I think she has discretion to say so, but I’m interested in @mark-thompson ‘ stake. If the NV AG defends the law in the trial court and loses, is her duty then discharged — or must she file an appeal, too?
I’d agree that if there is a colorable claim to validity, the AG does have a duty to appeal, but if in the AG’s opinion the case law is decisive and overwhelming, then I see no duty that she bash her head against the wall.Report
@newdealer Whether AGs are elected or appointed depends on the state – NJ’s AG is appointed, for instance. But even if elected, there is something really troublesome to me about the notion of simply defaulting entirely on a suit because the AG wants the state to lose as a policy matter. That raises the possibility of collaborative lawsuits, and what’s more, I don’t see how a political platform excuses an attorney from their ethical duties once hired (ie, elected) – an AG couldn’t run, for instance, on a platform of withholding exculpatory evidence and then use that platform as a defense to the ensuing breach of ethics.
Regardless, election results cannot be read as providing such specific mandates, and it’s not as if legislators aren’t also getting elected for the specific purpose of enacting and repealing laws. Along those lines, it also seems to me to be a clear usurpation of legislative power for an AG to just allow duly-enacted legislation to be wiped off the books through intentional inaction. Prosecutorial discretion is one thing – the executive branch in any government needs to be able to decide its enforcement priorities since enforcing everything uniformly is simply not possible, and prosecutorial discretion does not bind future administrations. But simply defaulting to allow a duly enacted law to which the AG objects to be permanently wiped off the books is really problematic. Would it have been ethical, for instance, for a hypothetical Goldwater Administration to have simply allowed the Civil Rights Act to get overturned by defaulting in all suits challenging the Constitutionality thereof?
And while an attorney has no obligation to take on hopeless cases, it’s difficult to imagine the realistic circumstance in which defending a law would meaningfully be “hopeless.” You’d need something where binding precedent expressly and unambiguously prohibits the law – and, more than that, you’d need something where the law’s very existence caused a cognizable harm – otherwise the AG could avoid having to defend it simply by declining to prosecute anyone under it (which, as I already indicated, is a valid exercise of prosecutorial discretion). While I find none of the arguments against SSM persuasive, it is hardly the case that those arguments are frivolous in a legal sense, and certainly there have been a good number of courts before whom those arguments have won.
@tim-kowal Your decision matrix is pretty much exactly what I had in mind as well.
In terms of why I don’t think there’s an obligation to appeal, I think at the stage where a judge has actually ruled the statute unconstitutional after a trial (or on summary judgment) and an AG has to make an affirmative decision whether or not to appeal, it starts to look a lot more like prosecutorial discretion. In theory at that point, an argument could be made that the law is no longer on the books (at least in the relevant judge’s jurisdiction), and thus there is no longer anything to defend; at minimum at that point, the decision becomes less about trying to defend the law and more about trying to have the law reinstated.
But more importantly, filing an appeal is an affirmative and proactive step that I think fits more with prosecutorial discretion. There are a lot of things that can and should go into the calculation of whether to appeal, and to an extent refusing to appeal could even fit into a good faith strategy to defend the law (e.g., leaving the decision at the trial court level may or may not render it of questionable precedential effect outside of the judge’s jurisdiction). Other things that can factor into the appeal decision are routinely things like weighing the importance of the law versus the costs of appeal and the likelihood of success. While these latter are things that may theoretically also be weighed at the trial court level, I think that the AG is now theoretically trying to reinstate a law rather than defend it brings these factors into play.
To stick with my previously mentioned analogy of a tort suit against the state, AG’s routinely settle such suits or, if they lose, may uncontroversially decline to appeal if they determine that it’s just not worth the effort and would just be throwing good money after bad.
That said, while I don’t think there’s necessarily an ethical obligation to appeal, I do think that in most instances of laws being overturned, AGs should appeal as a matter of good public policy in order to avoid inconsistent outcomes.Report
@mark-thompson I think about it this way. In my practice, we enter into a retainer with a client. That retainer spells out whether we, the attorneys, will also handle the appeal or whether it will be the subject of a new retainer or an amendment to the retainer if and when the need arises.
What would happen if we didn’t have the retainer? Is there a gap-filler rule? I don’t know, actually, but my guess is that in the absence of anything to the contrary, a general retainer to represent a client in a litigation would include the appeal. There’s not as a clean a break between trial and appeal as one might think. Planning the appeal begins early on, and by the time of trial, the attorney must be sure they are not waiving arguments or inviting error, which would doom their client on appeal. After trial, there is the work of requesting statements of decision, objecting to the statement of decision, deciding whether to move to vacate the judgment or move for a new trial in order to preserve issues for appeal. While the client may decide to hire an appellate specialist, much of the fate of the appeal is dictated by the trial attorney and especially their choices during and after trial. For those reasons, it cannot easily be said that the trial attorney has no obligations to protect the client’s appellate rights.
Even if my conclusion is wrong, there is still an important difference in the AG context. A client in a civil action whose attorney refuses to handle the appeal can hire a new attorney. Not so easy for the AG’s client — the AG is likely all the people have to defend the laws.Report
@mark-thompson & @tim-kowal
Where are you guys getting all of this? Just reasoning through it from an analogy about the obligations of private attorneys?Report
@tim-kowal I wasn’t trying to deny that trial counsel should be intimately involved with any appeals. My point was more that the decision whether something is worth appealing at all is something that strikes me as closer to a proactive exercise of prosecutorial discretion than to a purely reactive defense of a lawsuit.
That said, even in this respect I’d distinguish between appeals where the state lost in the trial court and appeals where the state won in the trial court. If the state wins in the trial court, then I think the AG continues to possess a duty to defend the law vigorously on the appellate level if the plaintiff appeals. It’s only if the state loses on the trial level that I think the duty to defend fades. The distinction for me is one of proactivity versus reactivity and one of defending a law that is on the books versus seeking to reinstate a law that has already been invalidated by a portion of a nominally coequal branch of government.
I also have a hard time saying that there’s an obligation to pursue an initial appeal if there’s not also an obligation to then petition for certiorari from the state’s highest court if you lose that initial appeal, even though in practice we clearly expect that attorneys will frequently drop appeals upon losing at that level without pursuing certioriari. If we’re not going to demand AGs seek cert on every issue they lose on both the trial and appellate levels, then I don’t think we can demand that they appeal every issue they lose on the trial level. To me, the ethical obligation to defend the law (or at least arrange for its defense) ends once there’s a final trial court order.Report
I’m no constitutional scholar, nor am I a lawyer, but this:
To me, the ethical obligation to defend the law (or at least arrange for its defense) ends once there’s a final trial court order.
this seems about right to me.
Actually, especially if you disagree with the law, you should take it to a final trial court order. The reason why is fairly obvious: there’s actually a guarantee that you won’t be AG indefinitely and getting bad law invalidated by a court prevents the bad law from being implemented by the next AG unless he takes up the pennon and continues the journey.Report
Suppose the law in AZ (and other states) passes constitutional challenge; and people can, on religious grounds, discriminate against gay people. Could we have a Wiccan movie-theatre owner who won’t sell tickets to Catholics? An atheist restaurant owner who won’t serve Christians? A Muslim grocery-store owner who won’t serve Jews? A Seventh Day Adventist fashion designer who won’t sell clothes to people who eat meat? Just how are people supposed to prove they belong/don’t belong to the group targeted for exclusion?
But what really confuses me here is the concept of sin, and how one should, as an individual, grapple with our capacity for evil. It’s as if one person’s ticket to heaven is dependent on the actions of others instead of their own actions; and the focus of this makes it is more important to judge others for their perceived sins on this earth then it is to battle one’s own temptations. It’s like you get to heaven not by your own battle with your inner demons, but with the number of scalps you trade in at the pearly gates.Report
This sort of law is just begging for a Discordian to set up shop there.
“In order to enter my shop (or, say, be treated for being sick) you must
forswear all oaths and jump around in a silly hat.”Report
I asked the following question elsewhere: Does the right to ban gays because of issues of conscience extend to gays who are chaste?Report
it … does… just like you have the right to ban people practicing animal sacrifices (if your religion says that’s bad).
BUT — I’m not aware of any mainstream religion currently being that much of a hardass about the point. MOST of them seem to be on the “sin of Onan” business, where it’s the deed not the person. Or at least that’s what they claim.Report
Suppose the law in AZ (and other states) passes constitutional challenge; and people can, on religious grounds, discriminate against gay people, etc., etc.,etc…
Have you read SB 1062?
It redefines the free exercise of religion to not only include practice but observance. In other words, any violation of a right of conscience of any kind is considered a violation of free exercise. Based on Burt’s post about the Elaine Photography case, this is not how free exercise jurisprudence works (conscience can be burdened so long as it doesn’t burden one’s ability to practice is how i understand it).
Just how are people supposed to prove they belong/don’t belong to the group targeted for exclusion?
I don’t mean to be flippant to you personally, but given that these laws are specifically geared to allow people of faith to bypass anti-discrimination laws, it’s my belief that no one really cares.
What has annoyed me about the debates I’ve been in about this law (some of which so nasty that I would have received a ban from this place 20x over) is that my biggest fights have been with libertarians.Report
I don’t mean to be flippant to you personally, but given that these laws are specifically geared to allow people of faith to bypass anti-discrimination laws, it’s my belief that no one really cares.
And below, Tim says,
Feels like a perpetual motion machine on self destruct.Report
And I should add this definition, also from Tim here:
That’s where the energy comes from, no? And @tim-kowal , I don’t mean to be picking on you here in any way, I’m trying to comprehend; for me, there’s cognitive dissonance with, on the one hand, trying to ‘other’ specific groups in the name of religious freedom, and on the other, fearing that we’re fly apart a the seams because people are seeking to self-segregate, to disengage because they fear change.
But from what I see, the greater damage, what you’re describing above, comes from fearing change and hiding from it. The change itself? I’ve seen no evidence that SSM or teaching evolution in schools has caused any harm, except to the people who’ve disengaged fearing that harm.
I must truly be missing something; but what I see is fear of cultural decay actually being a primary cause of that decay.Report
I’m with Dave and Prof. James, here. I think Tim makes a strong point about political/governmental powers, the rule of law, duties of office, etc. It seems to me that Tim’s parody should lead to reflection on the (general) issue. If you’re not ok with Tim’s scenario, but you are ok with the real-life scenario, why?
From what I gather, most people who are taking Tim to task aren’t really putting forward a strong case for why they hold that apparent inconsistency. Sure, there are difference between ACA and anti-SSM laws, but that’s kind of beside the point (…or if you think it isn’t beside the point, I’d say the burden is on you to unpack exactly why it isn’t).
Further, despite all the attacks on Tim about anti-SSM or anti-gay laws (or comments about dying on the gay hill), Tim didn’t actually introduce SSM or anti-gay bigotry into this conversation. He really seems to be looking at the rule of law/political side of an AG talking about not enforcing/defending laws.
Jaybird is probably right about which hill is worthwhile to die on, and I’m certainly on the opposite side of Tim on the SSM debate, but none of that discredits Tim’s point, and the unwillingness of people to concede that Tim does have a point (even if it’s tangential to the actual SSM or ACA debates) is just another example of the tribal my-team-vs-yours style of politics that many of us around here decry.Report
As a trollish post, this one seems to be working magnificently.
I do not doubt this is not what Tim intended.
I agree, the lefties around here should stop getting trolled.Report
I’m pretty sure Tim intended to raise people’s hackles (hell, that’s what blogging is about), but I cannot sign on to the idea that it was in an attempt to troll. If people are getting trolled, it’s self-inflicted.
Which maybe makes Tim a genius.Report
It’s too fishing intelligent to be dismissed as trolling.Report
@jm3z-aitch with that I totally disagree. It’s poorly thought out, and I made my case for that upthread; and Tim actually backed down. He’s comparing unequal things; enforcing a law vs. defending a law. And he’s done so in a way to provoke outrage of liberals (and to offend a good many people who read/comment here who just happen to be in the group he’s happy to see victims of discrimination.)
I realize that you’re on a mission to attack liberal privilege, but I suggest that this might not be the best place for waging such an offensive.Report
I admit that I think that gay marriage and other discriminatory laws are the perfect hill to die on. Holder seems to be saying that, if state AGs believe that laws are unconstitutionally discriminatory, after careful review, they shouldn’t feel compelled to defend them. That seems like a pretty good place to stage a discussion of the rule of law versus institutionalized discrimination, and the processes by which we end the latter without completely doing away with the former. The ACA is a much less suitable candidate for such a discussion, making the parody miss the mark by a pretty wide margin. But I think it’s a discussion worth having.Report
James,
Good trolling is intelligent.
To post once, and then get thousands of responses? That takes Work, and a fiendishly good understanding of your audience.
Jon,
agree with you. sorry if i wasn’t clear above.
zic,
also agree with you. point could have been made better, and a lot less wrangling saved.Report
Or put differently, the parody only hits the mark if you share Tim’s fetishization of process. If you don’t, then the parody fails to get at the real issues, which is how we balance difficult questions of fairness and justice with equally difficult questions of the application of law.Report
zic, I already admitted that I was more likely to overlook Holder’s statement about SSM than I would have a similar statement about Obamacare, so I’m hardly attacking any privilege that I don’t share in this case.
Sure, the two cases aren’t perfectly analogous, but how often do perfect analogies occur? I think attacking the imperfections of the analogy is just a way to avoid thinking about whether our view of Holder’s words are shaped not by our view of the proper state/federal relationship (or not wholly) but by the particular policy at issue–that is, would we in fact have the same reaction if the policies the AG suggested need not be defended were ones we liked.
I think all the attacks here fail to take a moment to ponder that question.Report
@chris
the parody only hits the mark if you share Tim’s fetishization of process
Ahem. Why do you think we invented elections and the concept of due process? If process is made subservient to our ends, you can wave goodbye to your liberties. If process is to be lauded when it serves our particular policy goals, and derided when it does not, then we are asking for the unconstrained tyranny of whomever can grab power.
As Alexander Bickel said, the highest morality is almost always the morality of process.
Yes, like anything, process can be overfetishized (that’s why England created the courts of equity, because the courts of law had fetishized process to the point of too frequently denying justice), but if you think that’s what Tim’s done here, I’m going to argue that you are far off base.Report
Chris, if you don’t share Tim’s “fetishization” with process, but Tim’s parody scenario upsets you because the AG should say no such thing (while the real scenario doesn’t upset you), shouldn’t that cause some self-reflection?
I’ve gone at it with Tim before, and I’m sure it could happen again, but I think a fair reading of this post leads to the conclusion that it was a pretty good parody.Report
Jonathan, if you don’t share his process fetish (and I don’t mean that in the sexual sense, in case that’s not obvious), and the parody upsets you, you have been deceived. The deception is in hiding the real issue — the balance of equality and the rule of law — by placing it in a discussion of a policy that doesn’t really involve discrimination of the sort that raises the issue. So, if I would be offended by Holder saying what he says in Tim’s parody, it would likely be because there’s no clear reason for him to say it, because there is no tension between rule of law and institutionalized discrimination, which is the issue. It’s what made Holder say what he said. It’s the discussion point. Without addressing it, we haven’t addressed what Holder did. Since Tim’s parody ignores it, it misses the mark.Report
think attacking the imperfections of the analogy is just a way to avoid thinking about whether our view of Holder’s words are shaped not by our view of the proper state/federal relationship (or not wholly) but by the particular policy at issue–that is, would we in fact have the same reaction if the policies the AG suggested need not be defended were ones we liked.
Nope. I’m still not buying it. I gave an example of not enforcing a law — Deep Water Horizon. While GWB was in office, there were incidents of civil rights law violations AGs opted not to defend in court, this became something of controversy, and a couple of attorneys were removed from office because of this.
This is not new territory; it’s how the law works. If there’s any real controversy, it’s that Holder answered a question about his role and how he views it, and projected that same role on to state AGs in an interview, and there’s absolutely no context given to his answer in the NYT piece.
I posted a link up thread from Cornell Law School that gets at the history of defending and enforcing laws and the constitutional duty of the Executive. Based on reading that, I think that most of the people expressing concern in the original NYT piece are holding up a double standard — if I want the right to choose to defend/enforce or not; that’s okay, but the other side has got to hew the line that provides me with greatest procedural opportunity to thwart.
Total trolling. And only smart if you fool most of the people most of the time and the other side doesn’t troll you back.
There is no ‘there’ there. Tim’s conflated enforcing ACA with defending DOMA and claimed it’s a double standard, and done so based on trolling quotes from on a topic that’s not given proper context to start out with; because despite those trolling quotes in the NYT, AGs are not constitutionally mandated to defend laws adopted by a state; quite the opposite. They have a constitutional obligation to uphold the Federal and their State’s constitutions, and when they deem a law to be unconstitutional, their duty is to uphold the constitution.Report
If process is made subservient to our ends, you can wave goodbye to your liberties. If process is to be lauded when it serves our particular policy goals, and derided when it does not, then we are asking for the unconstrained tyranny of whomever can grab power.
I agree with this. However, if there are great and immediate ills resulting from laws, and those laws are protected only by an absolute adherence to process, is there not some leeway in our defense and/or enforcement of those laws? Can’t we have that conversation, at least? Tim doesn’t think we can, obviously (not just from this post, but from his previous ones on his process fetishism). And perhaps the same is true for those who place their own ends above any other consideration. But you and I, we’re not dogmatists. We can have it, can’t we?Report
@zic I didn’t “back down.” I stipulated that for the purposes of the argument the distinction between defend and enforce is one without a difference, and then asked you to explain what the difference is. Unless I missed it, I did not see you offer one. Along those lines, the three scenarios concerning the AG’s duty to defend that I outlined in response to Mark upthread seem, in the main, to similarly apply to enforcement.Report
If process is made subservient to our ends, you can wave goodbye to your liberties. If process is to be lauded when it serves our particular policy goals, and derided when it does not, then we are asking for the unconstrained tyranny of whomever can grab power.
I’m still confused about all this. I have yet to understand the target of the parody since it only works by presupposing that Holder is politicizing a process, yet everyone appears to agree that that process (selective enforcement by State AGs justified by their own determinations) exists in any event. If that’s the case, then the most serious criticism we could make of Holder is that he acted with impropriety, not that he’s violating or acting inconsistently with due process.
I mean, if the argument is that Holder shouldn’t have stuck his Federal fingers into the State pie, then fine. But where’s the process violation in that? (I mean, seriously, I’m just not seeing it. I must be confused, yes?)Report
On the other hand, if the argument is that State and Federal AG’s shouldn’t have the discretion to selectively enforce various laws because that’s a violation of process, then what the hell does Holder have to do with anything except as an example of a fully general instance of process violations?Report
@tim-kowal you admitted that you were conflating with the caveat that you thought it didn’t matter. The conflation, you finally agreed of enforcement = defense happened. You didn’t think it mattered.
I still disagree with that, you’ve compared unequal things to make a point and done so in a way to be offensive to many, many people here.
Again, as far as I can tell, I’m the only person who’s offered an outside source that actually proffers the existing precedent on defending and enforcing by the executive; there is considerably history here, dating back to the Sedition Act. And you are trying to make laws that would have different levels of scrutiny comparable for scrutiny.
Simply not buying this as anything more then sour grapes that your sides not doing as well as you’d like it to do.
But the best analogy, the one you didn’t reach for, might have been the Unitary Executive and all that wonderful legal justification expressed in John Yoo’s memos. That’s the ground you should have mined for this parody.Report
Still, I took Tim’s point to be: the laws are in place, and there is a process for getting rid of them (both a democratic and a legal one). Holder’s statements appear to attempt to circumvent those processes. Therefore, what Holder did is contrary to the rule of law. If you recognize how problematic this is in the case of a law you like (as in the parody), then you should recognize it in the case of a law you dislike (the NYT article).Report
Therefore, what Holder did is contrary to the rule of law.
Holder, as far as I can tell, reiterated a view of State AGs discretionary powers that everyone – including State AGs – believes to exist. So how could his expressing that power constitute a process violation? That he expressed that held power in the context of enforcing Gay Marriage laws seems irrelevant to me wrt to *that* point.
Again, it just seems like impropriety rather than a process violation. The process violation, based on what I’ve gathered from comments in this post, is that State AGs have the discretionary power to begin with. So it seems to me. And that’s a different point.
Granted, if the point of the parody is to highlight liberal/Dem hypocrisy, then it works. But only by presupposing something that isn’t in fact the case. (Of course, I could be very confused about this.)Report
If that is the case, then it makes the parody miss the mark twice.Report
@chris “However, if there are great and immediate ills resulting from laws, and those laws are protected only by an absolute adherence to process, is there not some leeway in our defense and/or enforcement of those laws?”
I’ve addressed this in the past. My answer is yes, but we have to draw lawyerly standards. “Immediate” is good, but I’d actually argue not strictly necessary, as you’ll see in a moment. “Great ills” is too subjective. What is “great” and what is an “ill” may vary from person to person. The standard I would apply is a grievance that threatens the safety of the people or the existence of the union. Yes, it is quite a high standard, which is as it should be: We should have a strong presumption of sorting out policy issues through the political and constitutional processes. But as we know, there can be grievances within the process itself. In such cases, the basis for the presumption in favor of process is lost. Instead, the change will come, one way or another, from without. The courts are among the last waypoints before civil unrest and disunion, and so in such instances, the courts should act. Slavery and Jim Crow fall into this category.Report
The standard I would apply is a grievance that threatens the safety of the people or the existence of the union.
And now we have the basis for a conversation. I would say that this is too great a standard, because it means that smaller minorities, or smaller targets of discrimination, will likely not qualify.
I would argue that if there is a clear, well-defined, and systematic violation of a group’s civil rights, it is possible to start a conversation, at the very least, about how to remedy that before the democratic or judicial process gets there.Report
I think @north gets it right pretty much top to bottom here.
As I was reading through the comments, the entire affair reminded me of the swinging gates of opinion on Executive Orders, and how those who defended them most voraciously during the Bush administration call Obama a tyrant for using them, and vise versa.
Unlike North (and JB), I’m kind of glad Tim used SSM. It’s good, I think, to have these things pointed out on issues I feel strongly about, because it helps me separate the governance issue and the emotional litmus-test issue. Kind of like how thinking about Skokie helps me wrap my head around the First Amendment in a way thinking about the banning of Lolita just can’t. Which helps me, anyway, even if it doesn’t help others.
Although to be just a bit churlish, I now find myself wishing I could get in a time machine and visit Tim back when the Bush administration was announcing it was going to prosecute Oregon doctors who lawfully helped terminally ill patients end their own lives, despite the fact that they were breaking no federal or state laws. I’d be curious to see if he was as supportive of Alberto Gonzoles’s similarly loud and public announcement that the AG office would be ignoring laws of which he himself thought as immoral as I find DOMA.Report
Well I certainly approve of being though right top to bottom but I think I missed what I’m right about (ohhh ohhh! Is it everything?).Report
Tod — As you know, I was goofing off in a band the first half of Bush’s term and in the law school black hole most of the second half, so I don’t recall having formed any opinions about the Administration during that time. I do try to apply the same rules to everyone. But if your point is that it would be easier for me to do that retroactively than in the moment, that’s a fair point.
I also think you’re right about the effect of the SSM example, though I regret what it does to our discourse, mine included — personal accusations make me uncharacteristically angry. But for the reasons you state and for others, Culture War issues have lots of meta significance — i.e., even putting aside the policy, there is much to be said about how we process and discourse about them. These issues are at the heart of the distrust in the media of a great number of Americans, distrust in government such as the potential double standard teed up in Holder’s comments, distrust in our academics and experts, and so on. Our society is coming apart — not because we have different ideas, but because of the perceived cheating. The miracle of 1800, repeated every 4-8 years or so, depends on a basic trust among our polity: we acquiesce in others’ policies, even though we disagree, so long as we trust our institutions to honestly broker the ideas and give ours a fair shake by the time of the next election. If that trust goes, so does our union, I fear.
This is the gist of what @chris calls my “fetish” about process.Report
Oops. I. realizing I should have said @jonathan-mcleod , not @north .
But you probably are right about everything, North, so I’m not going to bother correcting it in the comment.Report
By the way, I use fetish in Marxian, not the Freudian sense. Only the latter has an unavoidably sexual character. In this case, I simply mean treating process as an object in itself, independent of its function or individual instances. It is an object divorced of all context and reason. If it weren’t, the parody would be immediately seen as silly and irrelevant, at best a distraction from the actual issue of an instance of process being in the way of not progress, not partisan political ends, but fairness and justice, and have a discussion about that instead of a discussion of the violation of process itself.Report
@tim-kowal , I think you may have just hit upon the biggest single difference between each of our thinking — perhaps the difference in which all of our various other disagreements are rooted:
“Our society is coming apart”
I have no idea how you get here.Report
@tod-kelly You wrote an entire series called “Sailing Away to Irrelevance.” We only disagree on the irrelevance part. But factions of our polity are, in fear, “sailing away” from one another.Report
Tod, lots of non-conservatives think that our society is coming apart they just put the emphasis on different things as evidence of this. Liberals who see American society coming apart tend to focus on income inequality, corporate power, and the decline of unions.Report
@chris
I simply mean treating process as an object in itself, independent of its function or individual instances. It is an object divorced of all context and reason. If it weren’t, the parody would be immediately seen as silly and irrelevant,
Funny, I neither fetishize process in that sense, nor agree that the parody is silly, I must be particularly stupid about one or more of law, politics, or parody.Report
@james-hanley well, I’m obviously not going to be the one who accuses you of being ignorant of those things, as I’ve known you too long over two blogs for, well, way too many years for us not to have shared a beer yet. However, I will put my argument like this (and I wouldn’t make an argument if I thought it were obvious; I have given reasons why I think it misses the mark): Holder’s reasoning is that the laws may be unconstitutional and discriminatory (those two things are not exclusive, I just add the discriminatory part to cover all of the bases). Let’s stipulate that Tim is right, and this is anti-process (some have argued here that it isn’t, and I haven’t seen a rebuttal, but we’ll stipulate). We have two possibilities: we can simply stop there, and say that because it goes against the process, it is wrong, or we can have a discussion about why and whether it is possible to justify going against the process. If we want to have that discussion about the ACA, we’re essentially having a partisan political discussion, unless Tim or another opponent of the ACA wants to make the argument that it discriminates against some population in a way that, after careful study, state AGs may have decided is unconstitutional and violates their fundamental civil rights (I know the argument has been made about some religious groups, but that seems to have been handled pretty well by the administration exempting them from the problematic parts of the law). If we have that discussion about gay marriage, we’re having a civil rights discussion, and asking whether it is possible for AGs who have determined, again after careful study, that laws violate fundamental civil rights and are clearly unconstitutional, to go against the process, not by striking the laws off the books, but by failing to defend and/or enforce them (I won’t get into the battle over that distinction here). So, by comparing the gay rights issue to the ACA, we’re either focusing exclusively on process, or comparing apples to lawnmowers, and missing the very reason that Holder himself gives for doing what he’s done.Report
@tim-kowal Yeah, that might be the disconnect between the two of is right there.
I think society has shown it’s capable of withstanding a political party making as ass of itself.Report
@chris
I think it’s much simpler than that. If John Ashcroft had said state attorney generals shouldn’t defend [some liberal policy whose constitutionality had been called into question but hadn’t definitively been ruled unconstitutional] if they thought it was unconstitutional, how would liberals have reacted?
Everything else is just dissecting the specifics of the particular example in a way that appears to me to be an effort at avoiding the heart of the question by critiquing its style.Report
Re: Society coming apart, TK, and ND.
Whether right or left, those who think society is coming apart are mistaking change for collapse.Report
\ If John Ashcroft had said state attorney generals shouldn’t defend [some liberal policy whose constitutionality had been called into question but hadn’t definitively been ruled unconstitutional] if they thought it was unconstitutional, how would liberals have reacted?
Freaked out, while conservatives (at places like NR and Volokh) made learned-sounding noises about why Ashcroft was correct. That doesn’t lead to an answer, though, it just makes both sides of the argument look purely partisan.Report
james,
If John Ashcroft had said state attorney generals shouldn’t defend [some liberal policy whose constitutionality had been called into question but hadn’t definitively been ruled unconstitutional] if they thought it was unconstitutional, how would liberals have reacted?
If that’s the way the parody is understood, then it misses the mark again. Holder never said that State AGs shouldn’t defend the policy, he said (at least according the NYT linky) that they could, which seems to be uncontroversially accepted as a practice that State AGs can engage in.
Mr. Holder was careful not to encourage his state counterparts to disavow their own laws, but said that officials who have carefully studied bans on gay marriage could refuse to defend them.Report
@stillwater –The more you split hairs, the more it looks to me like excessive legalism in an effort to avoid addressing the underlying idea.
@mike-schilling–that sounds pretty fair. (I’m not suggesting everyone would have the same anser, of course.)Report
the more it looks to me like excessive legalism in an effort to avoid addressing the underlying idea.
Explain it to me. I have no idea what it is.Report
I’ve tried, but clearly I’ve been unsuccessful. I can’t think of any better way to explain it.Report
When I say we’re coming apart, I mean, in addition to the Charles Murray sense — whose “preach what they practice” line has enormous explanatory power — institutional distrust and the relatively recent opportunities to live a balkanized existence. There has always been change, so the changes themselves are not particularly important. New is old. It’s the way we are changing and the new opportunities we have to adapt to those changes. We don’t have to get our news from the same places or consume the same entertainment. Increasingly, we don’t get our facts from the same experts, as the Academy has become politicized, or at least reasonably perceived as such. Distrust in institutions may or may not be new, but it drives people to examine their expanding bevy of options. Homeschooling and co-op schooling are becoming popular where I am. And we have more leisure time to forge these custom-made realities. The wealth and opportunities we enjoy today are unique in history.
So we are not coming apart because of any especially new forces doing the pulling. No, we’ve always wanted to come apart. We just weren’t empowered to do so, held together by economic and political forces. Increasingly, this is no longer so.Report
@james-hanley If the purpose of the parody is to show that people react to things based on purely partisan grounds, rather than on reasoned ones, then I suppose it hits the mark. I didn’t take that to be the purpose of the parody, or at least not its sole purpose.
If we want to debate gay marriage, that’s cool. If we want to debate whether gay marriage justifies going around rather than through the democratic and legal processes, that’s cool too. This parody doesn’t really allow either of those. Instead, it invites a discussion of whether this is actually a move within those processes or outside of them, which is also cool to have, I suppose, but doesn’t really address why Holder did it, which is important to determining whether it’s justified even if it’s outside of those processes.Report
@chris
This parody doesn’t really allow either of those.
Yeah, I have to admit it’s pretty unfair of Tim to set up his parody so that it doesn’t open up the conversations other people want to have.Report
Can we talk about what Tim would like to see these AGs actually do?
When we get a clear picture of what we’re actually talking about, when the rubber meets the road, maybe we’ll have a lot more clarity of what he’s complaining about what isn’t happening.Report
It’s vital that process, as defined by law, custom, and precedent, be followed precisely. Do not try to subvert that via excessive legalism.Report
The process, which Tim holds sacrosanct, in this case is comprised of the legislative and legal processes by which the laws can be done away with. The point of his parody, I took it, was to point out that people get upset about someone doing an end around and effectively neutralizing laws when those people disagree with them, but not when they agree with them.
My argument all along has been that, while it may be true that people simply react as partisans (which would be an uninteresting point, because, I mean, duh), it is actually possible to justify such an end around, and the reason I think it may be justified in the case of same sex marriage — that is, because it is egregiously and obviously discriminatory for no rational reason — is just such a justification. Since, I suspect, that’s why many people who aren’t merely blind partisans would not be upset with what Holder is done, I see the parody as missing the mark, because it fails to address the reasons why people might agree with Holder other than “well, I like same sex marriage.”Report
Chris,
Jonathan, if you don’t share his process fetish (and I don’t mean that in the sexual sense, in case that’s not obvious), and the parody upsets you, you have been deceived. The deception is in hiding the real issue — the balance of equality and the rule of law — by placing it in a discussion of a policy that doesn’t really involve discrimination of the sort that raises the issue.
If I wrote the exact post that Tim wrote and you knew that I was a staunch advocate of SSM, would your reaction to this be the same?Report
@dave two things: 1.) I’m not reacting to this post alone, but to Tim’s past writings on process (which I probably called process fetishism back then). 2.) If you wrote this post as a comparison to what Holder did with SSM, regardless of whether you put process above ends as absolutely as Tim (see his standard for going around the process above to see what I mean), I would have the same reaction, because unless the process is the thing, and the only thing, to talk about, the parody misses the mark.
In sum, I would say it misses the mark, though perhaps not call your position process fetishism unless you’d written Tim’s previous posts on process.Report
@dave context matters.
To draw meaning from a president’s words, historians don’t study those words in isolation, but in the context of the times and the rest of the president’s words and policies. So I’m not sure that the same parody, the exact same words, written by Hanley or by Chris or by you would mean the same things as this particular set of words written by Tim; particularly in a setting where most of the readers (and virtually all of the people commenting) already have the context firmly fixed.Report
Zic,
Your point seems similar to one Pierre made. I think Tim was getting attacked for things he said elsewhere and for positions he holds about SSM. I think what your’e saying is that I could have gotten pushback on the grounds that my parody wasn’t funny but I wouldn’t have been criticized for my use of examples.
I think I’ve been lost in this discussion for reasons not having to do with what he said here but for things said elsewhere. Obviously, I can’t avoid how people respond to others but I don’t know how I feel about that.
Tim and I are definitely not on the same side on the SSM debate but I didn’t think twice when I decided to set that aside (as it is, as I mentioned before, I’ve had some brawls on a friend’s facebook page – like “get the fish out of here you asshole” brawls). I took the parody for what it was and went about my business. No harm no foul. I guess context is everything and maybe there’s history. I don’t have to like it though.Report
@dave I hear you; and I’m considering. The SSM gets my ire; but I’ve got family history here that’s taught me the folly of this bigotry. Hard.
Still, my fault with the parody remains conflating unequal things; and it didn’t take too much effort to flush out better (to my mind) examples of the legal double standard Tim seems to suggest he’s making.
I quoted a couple of his responses in two other comments; responses speaking to the confusion and dislocation he sees developing; the coming-apart of community. Those struck me deeply, I’ll be considering them for days to come. It’s a more honest view; a revealing instead of an attacking, and it has the power to change conversations instead of push us back to our fortresses. I wish for more of that, and less of this.
That said for future context.Report
Dave, as I said above, I think same sex marriage is a great issue on which to have this discussion, and I haven’t criticized Tim for his position on it. I disagree with him, I think his views are antiquated and unjustifiable, but my criticism has strictly been that the parody is misguided because the two issues are different on the relevant dimension(s). I likely would have said the same thing if, instead of picking the ACA, he’d picked another set of laws that conservatives like and liberals don’t, but that didn’t deal with civil rights and institutionalized discrimination.
Though I do think that Jay’s right, by choosing this hill, Tim made it certain that few people would hear him. I’m not sure being heard was his goal, though. I think he wanted to make a point about partisan perceptions, and I think because he compared apples to oranges, even that goal was missed (even if he did get some highly partisan reactions).Report
Chris,
my criticism has strictly been that the parody is misguided because the two issues are different on the relevant dimension(s)
I would argue otherwise. The Supreme Court decision did not end the debate on the PPACA. In fact, it reaffirmed the anti-commandeering principle when the court struck down the coercive nature of the Medicaid expansion (now it allows states to opt out).
Under current law, it is unconstitutional to require states and state resources to carry out federal laws. States are well within their right to cooperate but cooperation is not required. From what I understand, the PPACA only requests that the states set up the exchanges. It’s unconstitutional to force it (see Printz v United States). States can say “no thanks” and do nothing and leave it up to the feds to come in and do it (of course, once that happens, the states can’t interfere with that).
In that context, seeing that the enforcement of the PPACA at the state level as far as what the states are being asked to do is still a very live issue (there may be legal challenges brewing), the second I read Tim’s title, I burst out into laughter.
Now that I think about it, zic was right. Context is everything.
In any event:
Dave, as I said above, I think same sex marriage is a great issue on which to have this discussion
Here on this thread? I don’t see that as necessary. However, because of the change in the dynamic of the SSM debate, which got thrown up several notches because of what AZ is attempting to do, there are topics that are probably more interesting related to it – religious liberty and anti-discrimination laws being two of them.
In 2009, in the early days of OT, Iowa legalized same sex marriage via the Varnum v Brien decision. I think after that decision, the National Organization of Marriage produced its “Coming Storm” video listing a parade of horribles that would come about from legalizing same sex marriage. Predictably, it involved the rights of Christians. Big surprise there. Mark Thompson wrote a post demonstrating how it all had nothing to do with marriage and everything to do with anti-discrimination law.
Last year, Burt Likko wrote a post about the Elaine Photography case out of New Mexico, a case very similar to what was described by NOW in 2009. It was a great post and it highlighted all the problems with Elaine Photography’s defense.
Arizona’s SB 1062 addresses every one of those shortcomings. It would provide protection to religious freedom at a degree that is far greater than federal-level free exercise provision because it would include as free exercise per the state definition the “observance” of beliefs (basically any and every possible right of conscience gets lumped into free exercise).
There are very good reasons to be alarmed by the bill. I won’t get into them here as I was hoping to write a brief post about it (yet, here I am “stuck” in conversation ;)).
SSM is a good albeit heated topic to discuss, but given that it’s almost a foregone conclusion that SSM will become the law of the land in all 50 states in a relatively short period of time (if not by the legislative process but the courts), where do we go with the discussion? I say religious liberty and anti-discrimination laws if only because this is the direction opponents of SSM are starting to take. The way they’ve played the “liberty” and “live and let live” cards, you’d think the entire opposition to same sex marriage had a mass conversion to libertarianism.Report
Dave, now that’s the way to do it. You’ve argued that they are similar on the relevant dimension. I disagree, but we can have a conversation about it now, and how it relates to the process.Report
Dave, now that’s the way to do it. You’ve argued that they are similar on the relevant dimension. I disagree, but we can have a conversation about it now, and how it relates to the process.
Pardon my being an idiot…
In other words, the fact that we understand each other’s conclusions and thought processes and respectfully disagree allows us to move on to a different conversation about process? I would concur.
I am somewhat ashamed to admit it but when things got “too far in the weeds” and a bit heated, I backed away from the conversation. It would help me if I knew the process you wanted to discuss and I can perhaps respond accordingly. I put myself a bit out of the loop in that conversation.Report
@dave Ugh, I responded in the wrong place:
https://ordinary-times.com/blog/2014/02/24/holder-says-state-attorneys-general-dont-have-to-enforce-obamacare#comment-717389Report
I honestly don’t get this. The complaint is that Holder has no business giving advice to state AGs, In fact, that it’s improper for him to do so. Then why the hell is he scheduled to address the National Association of Attorneys General at a conference on Tuesday? Shouldn’t whoever is in charge of the agenda have realized the conflict and picked someone else?Report
He’ll probably talk about his golf game.Report
Out of curiosity, what would a state AG enforcing the ban on gay marriage actually look like?
“If anyone has reason why these two should not be wed, speak now or forever hold your peace.”
“I do. I am the Attorney General of the State of (State). Officers!” Jackbooted thugs (not the racial sense of the word) stomp into the room, mother of the groom gets a rifle butt into her face. The AG continues “We’ve got a ban against gay marriages in this here state. Maybe you should have looked into that.”
The priest pipes up. “We have the religious freedom to perform this ceremony!”
*BANG*
“Overruled.”Report
“A gay marriage, eh? Looks like you forget to post the …”
(Takes off sunglasses)
“bans”.
(Underling whispers in AG’s ear that that pun only works visually. AG slugs him.)Report
I was just thinking through this too. It’s even more wacky when it comes to laws like the those protecting cake-makers and the like. What would executive non-enforcement look like? It seems to me, those laws are more or less about protecting business from being sued for making those choices. Executive non-enforcement shouldn’t change the way judges and juries do or don’t award damages for this discrimination. So what would executive non-enforcement of a law preventing civil damages from being awarded to would-be patrons who were discriminated against? It would have to be some kind of action to attempt to step in and somehow award damages despite the court not doing so – which there’s basically no mechanism for.
Maybe this is mistaken – maybe these laws are written as exceptions to criminal nondiscrimination laws, so that nonenforcement would mean prosecuting a company just as any civil rights division would do against companies that discriminated against blacks or so forth. But is that what happens, or do such laws pretty much just create strong bases on which to sue for damages? My impression is it was the latter, but I’d be interested to hear from those who know.Report
I ask because it seems to me that “enforcing” a ban on gay marriage, in practice, would require such things as:
1) failure to recognize automatic inheritance between partners, all of the deceased’s goods immediately go into probate
2) failure to recognize familial status when it comes to such things as hospital visitation rights
3) failure to recognize familial status when it comes to such things as adoption rights
Or is “failure to recognize” still too weak? Should the government put its back into making certain that these statuses are not recognized at all?
What does the AG doing his job, as is right and proper, look like *IN PRACTICE*?Report
“Out of curiosity, what would a state AG enforcing the ban on gay marriage actually look like?”
Priest: “You may now kiss your husband.”
Grooms: [lean in to kiss]
AG: “NOOOOOOOOOO!” [dramatically shoves conveniently placed buxom women in between the two grooms, intercepting the kiss] “That was a close one.”Report
I laughed, loudly.Report
AG: “NOOOOOOOOOO!” [dramatically shoves conveniently placed buxom women
So THAT’S why Spitzer was keeping them around…Report
Oh, on this blog’s left-leaningness, I will say this:
While there are very few religious/social conservatives here (and the ones who are here are rather trollish… I mean, someone might say that, but not me… get it, not me?), it is one of the few places on the web that leans left socially, but where the economic and in some cases the social arguments of liberals get a lot of push back from regular commenters. Perhaps not as much push back as social conservative arguments, but that’s more a matter of sheer numbers, I suppose.Report
@chris When I was making the pitch to Vikram to join up, I described us as basically running a spectrum from liberal to libertarian. I think that still holds as much today as then.
It’s also true that our liberals are less economically leftward than is often the case. Leaving left-left types with quite a bit of opposition…
However…
Our libertarians are cut from a different cloth. It’s not just that they’re not socially conservative, it’s that they’re (compared to most libertarians I’ve known) hostile to conservatism in general. And the GOP. Mitt Romney had almost no defenders, and it wasn’t for being a squish.
Which is fine. However…
It does create a dynamic wherein not only are conservative ideas rejected, but the totality of their worldview is rejected and rejected most vehemently. Further, it skews virtually any discussion we have on partisan politics. There are points where it feels to me like I could describe a situation as being 90% the GOP’s fault and 10% the Democrats’ fault and I will spend far, far more time defending the 10% than the 90% as I expect to hear about False Equivalence and “Both-Sides-Do-It.”
And it’s not just me. Anything that resembles a defense of the GOP or conservatives sticks out like a sore thumb and people respond accordingly. Never mind Roger, it doesn’t matter how many times Jaybird says that Republicans are terrible, we all know what he’s really getting at (false equivalence, or something, which is cover for the Republicans). Even Hanley has seen it. It becomes people in donkey shirts searching around for elephant underpants. Because that’s mostly what there is to find. Haven’t seen Koz in a while.
I’m not saying that lefties and libertarians each and both don’t get a lot of pushback. Everybody does, and honestly many of the best conversations I’ve seen here actually involve issues of fracture between those two groups. But it all leaves Tim as a pretty big outlier.
To be honest, I sympathized with the frustration of his comment. It’s actually kind of ironic that it was directed at Jaybird, but it was surprising (though I guess not really) how quickly my commenting frequency when down when I decided to stop participating in conversations about how terrible conservatives are. My reasoning was not so much based on personal offense, but that it’s from my perspective it’s kind of dull because I don’t really agree but also don’t feel compelled to debate ten people at once.
This comment is deeply unfair to most liberals on the site. It’s not their fault that they are a group of ten debating a group of two or three. And comparatively few are always wanting to shift the discussion to the true evilness of the other guy (or who simply discuss things in that manner). But even that contingent is probably more numerous than the actual number of even nominal conservatives we have. Or to put it another way, MA really never had a home here… but there is a reason that he thought he did.
I’m probably going to stop speaking up about this eventually. I don’t think it’s really a fixable issue, and it’s certainly not something that was set out for. For my own part, I could make it easier on myself by not staking out rightward positions in response to all of this, which I do.
Truly, this is one of the best environments there is. (What was it I was told by a venerable commenter on Unfogged? Oh yes “How about you go fuck yourself, you libertarian shitbag. You are everything that is wrong with the world.”) It is truly in its sea of virtues that the vices are so apparent. That doesn’t stop it from being exhausting, though.Report
It becomes people in donkey shirts searching around for elephant underpants.
Ummm, thanks for that image, I guess.Report
Garanimals were invented to prevent people mixing donkey and elephant clothes. We have the technology to prevent this “It becomes people in donkey shirts searching around for elephant underpants.”Report
@will-truman I agree that the “look how evil conservatives are” thing is annoying. Hell, I’m on the left and it annoys me. Granted, I don’t like liberals much more than I like conservatives, but I’m at least on the side of the spectrum that isn’t being pilloried. But we have people like you and Hanley who are confident enough, in an environment that is not exactly friendly, to push back, and while Hanley has gotten into some really nasty arguments, that often looks like it’s as much a clash of personalities as it is a clash of ideologies, even if its magnified by ideology. I don’t see that in most of the places populated primarily by liberals, mostly because “populated primarily by liberals” quickly becomes “populated entirely by liberals” in most of the blogosphere.
I should also note that, even in recent threads, I’ve pushed back on the Republicans are uniquely evil theme.Report
@james-hanley
“Ummm, thanks for that image, I guess”.
Don’t knock it ’till you try it.Report
I guess I agree. Kind of — but only to a point.
I reject this idea I hear all the time these days that this site somehow drives conservatives away. Yeah, we have liberals that aren’t overly polite to the Rogers and James’s (or whoever) of the world, but it’s hardly like Duck, Farmer, Koz, Art, Tom, Bob et al were the type that went out of their way with snuggles and hugs. At the risk of sounding overly-libertarian, on a site where we welcome all (well, most) viewpoints, I think the number of people we have on any side of the aisle is largely market driven. If we existed in 2003, I think you’d find that we would have skewed largely so-con and neo-con.
Much like liberals of the early 80s, I think conservatives today prefer to be in places where they aren’t challenged that much. Bob and Tom’s circumstances were both unique and extreme. But as to the rest of our regular traditional conservatives, I don’t think it’s a coincidence that they were happy to show up here constantly up through the 2012 election telling everyone they were going to bury us and dance on our elective corpses, and then largely disappeared pretty much overnight after their party got its collective asses handed to them. (Tim being an obvious exception, and thankfully so.)
Don’t get me wrong, I really want more traditional social conservative voices here — and when I say here, I mean on the masthead. But invariably when we reach out to them, they’re either non-traditional conservatives (in the mold of you, Dennis, or Burt) or they want to stay in places where they don’t have to deal with much disagreement.
If the Dems get drummed out in 2014 and 2016, I think you’ll see the traditional conservatives come back here, and the liberal influence largely wane. One of the downsides of a site that welcomes differing political camps is that we’ll always hedge to the bandwagon.Report
@tod-kelly
I also think that we just have a broader array of ideologies represented here than in most other places or than what the typical dichotomy generally allows for. I mean, we know we have a strong libertarian crowd, with some real diversity there. In many ways, Murali has some social conservative strands to his thinking, but obviously coming from a very different place than American social conservatism. While I don’t deny skewing left, I have some libertarian tendencies and often get frustrated with liberal doctrine. If you look at the most “stereotypically liberal” writers here (the Healthy Commotion guys), they often generate a ton of pushback — though it doesn’t always have the same vitriol that I see directed at conservatives.
tl;dr: This place is more complex than most and too complex for a simple left/right analysis.Report
I find it worthy of remark that we can name a much longer list of conservative and other right-leaning commenters who have largely absented themselves from our community, than liberal and other left-leaners. We can agree that ideology does not necessarily correspond to boorishness, but I’m not sure that boorishness alone, or even the idea of majority-norm-enforcement, is helpful in figuring out what it is that seems to push right-of-center folks away from here at what I suspect is a higher rate than attrition.
Navel-gazing to follow.
@tod-kelly ‘s comment is the fifth time in as many weeks I’ve been told that I’m viewed as a conservative, sometimes online and sometimes in meatworld. Which is funny to me, and a bit uncomfortable, because I don’t think of myself as a conservative particularly anymore, and in fact the last time I can recall identifying with that movement was in the mid- to late-nineties. And I’m all good with that as a matter of self-image. But I find it puts me a bit off-balance to discover that I am still perceived as more conservative than not.
@james-hanley articulated my current thoughts on the matter very nicely the other day: “ideology is the enemy.” This, it seems to me, is eminently correct. (Notwithstanding the good Professor’s plainly erroneous views about pizza and the Beatles.)Report
@chris I hear ya. Whatever else one might say about it, we do continue to have lively discussions here. It’s one of the big things that sets us apart. I attribute it to the awesomeness of the tribe, as well as the libertarian-liberal split that keeps things from getting too echoed. The anti-GOP sentiment is remarkable in part because it’s the one thing almost everybody agrees on!Report
Yes and no. It’s not at all that the liberals here are particularly impolite or aggressive. Quite the opposite! We have real quality liberals here and comparatively few “problem cases.” (This is in contrast to the days when we had more affiliation with Balloon Juice.) It’s that they are numerous enough and persistent enough, though, that it does create a very different environment for a conservative commenting here than a liberal one. And we have enough of an imbalance that in recent months, the strident liberals outnumber the total number of conservatives, even if the strident liberals are not really the issue.
If we needed liberal contributors, I can think of four or five people I could reach out to right now. Conservatives? Well I know a fair number of them, but it would be a much more difficult sell. The most interested conservatives would likely be the most confrontational one, which I think is part of why so many of the conservatives we have coming and going are of a particular Scottesque stripe, and why TVD was more active a contributor than the others have been.
For my own part, I’ve been sitting on the outline of a post about GOP and demographics for a few weeks now. Multiple conservative authors have commented about the exhaustion factor involved with writing conservative commentary.
Which creates something of a cycle. The less conservative contribution (both on the masthead and in the comments) the less contribution we get. This aspect of the dynamic not all that different from the race and gender ones that have been discussed. As such…
On this I disagree. Well I mean it’s market-driven in that we don’t discriminate (or try not to, pretty successfully I think). But it matters what is being written. The general attitudes on display towards conservatives – even if everybody was perfectly polite and considerate to the conservatives here – matter. Much of this is something that is completely beyond management’s ability to do anything about, or would require steps rightfully unthinkable to us, but it’s there regardless. However…
I agree with this and think it’s a significant factor. This is an issue with multiple causes. There is probably some truth to the bandwagon theory as well.
To reiterate an important point: This site still rocks. The liberals here (mostly) rock. The libertarians rock. The apolitical stuff rocks. It’s still the best site/community on the Internet, which I hear is a pretty big place. I’ve given up on a lot of other places (sometimes intermittently, like OTB), but not this one.Report
@burt-likko
I wonder if there is some self-selection bias with regards to the types of conservative commenters we get compared to the types of liberal commenters we get. As @tod-kelly (I think it was Tod?) notes, there seems to be a greater tendency (at least right now) among conservatives to stay in more ideologically homogenous places on the net. Which means the ones we get here might be atypical in some way. And the ones who’ve left certainly were rather extreme in their views and/or their manner of delivery. I don’t know that we get that same breed of liberal around here, for one reason or another.
I’ll fully concede that none of this is immune from group think and biases and whathaveyou. Only that the list of chased-away conservative commenters and the list of chased-away liberal commenters is not an apples-to-apples comparison.
All that said, I’d gladly like to see a wider spread of thoughtful folks ’round these parts.
As to you being identified as a conservative, I never thought of you as such and still tend not to. In fact, the only time I remember thinking of you as one was when you appeared in the video-cast discussion on conservatism. And my initial response was, “Him?”Report
@will-truman your observations on the ease of finding liberal voices vs. conservative voices to contribute is most excellent.
But I think it might, in part, flow from epistemic closure, too. Leave that nest, and you are on offense, which tends to grow into trolling. Within the next, (and this goes for both liberals and conservatives), bashing and disregard and othering are too often the norm; and people so engaged don’t even hear how offensive such talk typically can be.
If I had a dollar for every time I heard a Republican politician use the word “liberal” as a cuss word during the 2000’s, I’d be a wealthy woman. It was, if you remember, so extreme that liberals began calling themselves progressives. Since Obama won the White House, we see the pendulum swing the other way, and now ‘conservative’ is the dirty word. But any use of these labels to other, to shut down conversation, to be rude doesn’t really help.
(And I think I learned to be more aware of that from you, here, some while back.)Report
I really hate the term “epistemic closure.” I’d rather just call it closed mindedness, or myopia (particularly since there’s a better use of the phrase already).
Pet peeve out of the way, then, I don’t think it’s fair to conservatives to say that, anytime they step outside of their echo chambers, they either have nothing to say or they’re trolling. For one, this is undeniably true of most people, because most people are limited in their thinking. But it also ignores the fact that there are a lot of intelligent, well-read, highly educated conservatives. They may not get knee deep in the game of partisan politics because, on their side, partisan politics have been co-opted by ignorant zealots and the opportunistic people who take advantage of ignorant zealots, but this place is capable of having conversations about political issues without getting bogged down in partisan politics, so it seems like a good place for such conservatives. Hell, Tim is one. So are some of the disenchanted Republicans and former Republicans hereabouts.
I really think the reason that there are fewer conservatives of Tim’s ilk here is that they’ became outnumbered, and a lot of people just don’t find it fun or interesting to have conversations in which the whole discussion is turned against you, or you and a couple other people. And there’s no easy way to change that, because the numbers aren’t going to change dramatically over night.Report
I don’t know Chris, on one level, you’re right, I was speaking in stereotype, and that’s always dangerous.
But I also read a lot of conservative media; and I see a lot of liberal/progressive voices trying to engage there in a way I rarely see conservative voices trying to engage here (engage constructively, not troll).
Certainly, there are thoughtful and deep-thinking conservatives just as their are koolaid-drinking liberals. But I think there may be more at the root, and I suspect it has to do with how people deal with ambiguity, change, and fear; in particular, if you view change as something that can be directed toward a greater-good or something uncontrollable that rents the fabric of society.
If your view is toward maintaining tradition as essential for maintaining the fabric of society, are you going to engage voices as readily who will challenge that?
I have difficulties stepping far enough outside my liberal privilege to see that liberals want to rent the fabric of society; to my view, they want to shelter more people with that fabric; and so are more willing to comfortably engage diverse viewpoints. But I freely admit, too, that this flows from my liberal privilege, and I’d love to have a conservative’s take on these tendencies.
But it is group talk; it’s stuff to measure over large numbers of people with statistics, not something to measure anecdotally with individuals.Report
@chris I actually didn’t take @zic ‘s comment that way. Or rather, I took her to say that most people turn confrontational (“trollish”) outside their comfort zone, though in the case of the dynamics here and now we’re talking about conservatives leaving RedState for here (I think?). Which I do think contributes to the dynamic a little bit. I have seen minority voices grow more coarse over time. I have felt the pull myself at certain times, on certain subjects. It’s so hard to remember “You’re trying to reach out to people, not lash at them.”
I also thought the next paragraph made a good point. The demolishing of the word “liberal” was a form of triumphalism on the part of conservatives (though I’d place it well before 2000, perhaps owing to having grown up in a red state?). There is a wind of triumphalism on the center-left these days, one that I seem to see here and elsewhere, regarding and treating dissenters as a nuisance to be condemned rather than someone with whom engagement should be bothered with.
This is all Very Broad Brush observations.To the extent that I am not imagining things, it actually ties in a couple of the issues I see.Report
I honestly think that a good chunk of the dynamic is that when entering ideologically adverse territory, more confrontational and less constructive people are more likely to participate. Over at OTB, where they have a more stridently Democratic community than we do here, conservative commenters over there tend hard towards the confrontational. Much more so than here. In fact, other than trumwill-types who limit their engagement, I think the only conservative constructive voice over there is Pinky, who comments over here as well. They don’t have a Marchmaine, KenB, or even a George Turner.Report
Just want to “ditto” what Will Truman said. And as far as changing things, I don’t think it’s purely a numbers game — I think if this site as a whole really wanted to encourage participation by reasonable conservatives, it could do so. It would involve actively pushing people to stay open-minded, having more posts engaging reasonable conservatives politely rather than pointing and laughing at Fox News and other such nut-picking, etc. But someone with authority would have to decide that and make it happen, because AFAICT the majority are happy enough to have this be basically a liberal-to-liberaltarian site. Not that there’s anything wrong with that per se — I assume it’s not far from where Erik and Mark would want it to be anyway.Report
And FWIW I’m no conservative — if you asked me to cast the deciding vote on all of today’s major issues, I’d come out somewhere between liberal and libertarian. I just find myself more annoyed these days by the ideological antics of my own (former?) “side” rather than the other side, so that’s where I tend to push back. And also I have the liberal’s love for the underdog — conservatives are definitely that around here.Report
@will-truman @kazzy @burt-likko
I think you are may be missing my “market” point. Let me try again.
We don’t have fewer conservatives in an open forum because non-conservative people have better ideas, or argue better, or are better behaved. We have fewer traditional conservatives in an open forum because they are, politically speaking, the country’s perceived losers at the moment.
It’s like NBA sports sites / stations. Four years ago, you couldn’t find a Pacer fan joining in to conversations save your life – but you couldn’t swing a cat and not hit a Heat fan. This year, Pacer fans are all over sports sites, and they call all the sports talk stations time, because the Pacers are suddenly contenders. Everyone wants to talk about their team when they’re doing well, or at least when they have a puncher’s chance. But Charlotte Bobcat fans have better things to do than talk about the Charlotte Bobcats — especially with Pacer and Heat fans.
It’s the same here. When a political party/leader/movement loses badly, regularly, and embarrassingly, like the GOP has done since ’10, suddenly everyone from that group disappears. S**t, the day after Obama tanked and embarrassed himself in the first debate, you’d have thought we’d never had a liberal here.
Like I say, if the GOP drubs the Dems this fall, we’ll pick up some conservatives — and we’ll probably lose some liberals for while. That’s just the way of things, I think.
@kenb
I’m not sure exactly what you would have us do. We actually do step in, and historically speaking, more for the so-cons than anyone else. (Admittedly this has less to do with a preference for conservatives as it does that the most ban-able people here have been overwhelmingly left-leaning.)
The one exception is to this are the issues that bump up against gay rights. On that front, we editors probably do err on the side of leaving views we find personally offensive to fend for themselves amongst the commons. This might be a bug or a feature, depending on who you are.
And all that being said, I really would love to get another traditional conservative on the masthead. Forget about being “fair” or not for a minute — it would make this site more interesting than it already is.Report
Yeah I think a lot of the people are correct on the electoral fluctuations thing. Koz and Mike @ Big Stick (an arch paleolibertarian) both kapoofed after Obama won 2012 though to Mike’s great credit he did specifically make a point of conceding that he’d been mistaken before departing. I’m still in mourning over some of the other clever conservatives who absented themselves through dubious behavior (oddly I don’t mourn our banned liberal trolls but then they generally weren’t very bright).
Part of this, I suspect, is the GOP is kind of embarrassing right now. Like seriously, even if you adhere to conservative ideologies to say the GOP is an imperfect avatar of conservative desires is understating it. Hell, the Tea Party came about primarily so people who are arch conservatives could shuck the GOP label. That’s a big deal. The Democratic Party, well, I don’t know; I’ve come late to them in that I came of political age during Clinton so in MY lifetime they’ve been the functional party. I mean they’re the liberal party, vis a vis the GOP but seriously the liberal left doesn’t even play at thinking the Dems are –their- party the way the conservative right considers the GOP –their- party. Also the Dems do not crawl over broken glass for liberal approval the way the GOP does for conservative plaundits. The cynics and the wonks (aka my people) are pretty in control with the Democratic party.
But back to my original point, if I was a conservative I’d be pretty dispirited right now. I mean the GOP is in disarray and conservatives feel kind of in disarray too. You see them describing the Democrats as hard left socialists and crazy Marxists and then you look off to the actual left wing and the real socialists and crazy Marxists are rolling their eyes so hard their necks are cracking. If conservatives can’t even accurately or realistically describe their opponents then how are they ever going to beat them? If I was a conservative then I’d feel pretty shabby about the current state of affairs, watching my movement pounding the fish out of straw men, believing their own propaganda* and worst of all getting grifted like crazy by all the movement conservative media figures.
At conservative sites you’re safe and comfortable and at screaming cage matches like Balloon Juice you can just hurtle names and venom but at the middle of the road places like The League you have to defend your movement at a speaking tone. Man that’s tough, I’d wanna stick to the safe places or the combat zones if I was a conservative too!
*Which is not to say the Dems don’t have propaganda but I just don’t get the feeling that most liberals (and certainly not the Democratic Party) actually believes their propaganda down in their bones.Report
@north,
I’m pretty sure Mike at the big stick is our own Mike Dwyer, and he is definitely not a paleolibertarian.Report
Yes, I think North meant to write “Mike Farmer”.Report
Yeah I think I mixed up my mikes.Report
@north – this is why you always do a Mike check beforehand.Report
I should admit shamefacedly that I didn’t really *get* the parody until I read @james-hanley ‘s comment above. The more stubborn part of me wants to say I still see the disanalogies at exactly those points that are important for the analogy at all. But that’s just a combination of defensiveness and contrition for not reading the analogy aright.
Truth be told, to answer the question @dave asked of Chris above (“If I wrote the exact post that Tim wrote and you knew that I was a staunch advocate of SSM, would your reaction to this be the same?”), I would say no. In part that’s because I’ve read a good sample of Tim’s other arguments on ssm and a few other issues, and I much more quickly jump to uncharitable conclusions about what appear to me to be the gaping inconsistencies and the refusal to admit to them when those apparent consistencies are pointed out.
That part of my answer is a bit of a dodge, though, because Dave’s question is really about the question the parody poses, which I now (I hope) understand a little better, to wit: “how do we feel about prosecutorial discretion when it comes to not defending laws when the laws in questions are ones we like as opposed to ones we don’t like?”
That’s a tricky thing thing to answer honestly, which is why the parody seems to work for some people as a parody. The truth is, I’ve been uncomfortable about the decisions not to defend ssm laws. I’d probably be a heckuva lot more uncomfortable if it were a question of a law I actually liked and wanted to get passed. How does that parse with my comments above? I’ll let anyone who cares to compare them and point out the
disanalogiesinconsistencies, which are there at least by implication.But this all brings me back to why I didn’t–and to some extent still don’t–*get* the parody. If a future AG Aschcroft#2Gonzales#2 gives a statement in which he suggests that state AG’s have the prerogatives not to continue to defend, say, an anti-gay-discrimination law after a district court overturns it…..then I’d probably feel the AG Aschcroft#2Gonzales#2 overstepped his bounds and shouldn’t be giving “advice” to state AG’s. If I complained too loudly, though, I think I’d be wrong. It wouldn’t be as if the state AG’s hadn’t thought of that before or were simply waiting for the green light from the fed AG. I guess you could say they got the idea from team Obama’s refusals to defend and can now cite it as precedent. But it’s not like AG Aschcroft#2Gonzales#2 gave them the green light. He just uttered an opinion that wasn’t his business to utter in his official capacity.Report
@james-hanley
Yeah, I have to admit it’s pretty unfair of Tim to set up his parody so that it doesn’t open up the conversations other people want to have.
So far, the (on topic) conversations have been:
1.) Is gay marriage the hill Tim/conservatives want to die on?
2.) Defending vs enforcing.
3.) Did Holder actually do anything that’s not within his (legal/constitutional/whatever) purview? With Still and others saying no, this is perfectly normal and legal and whathaveyou.
Which of these are the conversations that you think Tim wanted to have? We know (2) is out, because he’s said so. Obviously (1) is not where he was trying to go. Is (3) the conversation he wanted to have? Is that what his parody is getting at? If so, mission accomplished, even if it hasn’t gone anywhere, and even if it only gets us part way to a reasoned and knowledgeable discussion of what Holder said.
I’m not as worried about the conversation that Tim wanted to have as I am about whether he addresses the relevant issues at all. And as I’ve said, unless you think process is as sacrosanct as Tim does, he hasn’t. In fact, I think he’s hidden the relevant issues by using an issue that’s not comparable in his parody. There’s a word for that. And that’s the only reason I’ve addressed the parody at all.
And if you go back to my first comment on the subject, you’ll note that I addressed it as a way of saying I think gay marriage is the right issue on which to have this discussion, in contrast to what Tim’s critics were saying. I just wish we’d had the discussion on that issue, but because the parody failed, we’re not. You and I are the only ones who’ve really talked about it at all.Report
I don’t think he wants any 3 of those conversations.
I’m not as worried about the conversation that Tim wanted to have as I am about whether he addresses the relevant issues at all.
For your definitions of relevant, which brings back around to who gets to choose what conversations Tim should have.
because the parody failed,
Did it fail? That’s a surprisingly absolute statement given that several folks here claim to have gotten it. I suspect there’s something, somethings, that group generally has in common, too.Report
@james-hanley
Speaking at least for myself, I think a lot of the speculation on whether the parody worked is sour grapes at not having gotten it. And again, I’m speaking for myself, who didn’t get it.
This reminds of an incident during my undergrad years, when Colorado’s Anti-Gay Amendment 2 was up for consideration. (This was the law later invalidated by Romer v. Evans.) A supporter of gay rights wrote a letter to the school newspaper in which he tried to parody the common arguments in support of the amendment, but replaced “gays” with “Asians” (or maybe he said “Asian Americans”). He got a huge backlash from people who thought he was genuinely attacking Asians. He wrote a second letter apologizing and explaining why he wrote what he had written.
Was that the right subject for a parody? At the time, I didn’t think so. Even though I was only 18 or 19 years old and even though I supported Amendment 2 (I was pretty anti-gay at the time), I saw why and how that letter was a parody, and I didn’t think the letter writer was targeting Asians. In fact, he seemed to be relying on the sense that people were not as bigoted, or at least not as openly bigoted, toward Asians as they were then toward gays.
In retrospect, however, I do think something puts that parody in the “wrong” category. If people were not as openly bigoted toward Asians then, there were still (and probably are still) invidious stereotypes, mostly of the “model minority” type, but also of the “Confucius say” type. Also, that was the early 1990s and the anti-Japanese (read sometimes as anti-Asian) sentiment still persisted that had arisen from fears that the recovering US economy was being undermined by Asian and especially Japanese economic competition. (This was also northern Colorado, a very white place. In my freshman year, I’d sometimes go to my 8am lecture centers very early and be the first one there, and on at least 1 occasion I came and saw that each desk had a small KKK flyer on it. In my senior year in college, it was not uncommon to see an occasional poster on the campus bulletin boards advertising a local militia movement.)
In that environment, I don’t think such a parody worked. That environment has many dissimilarities from 2014 and gay marriage/gay rights. But one point to me at least is clear. No matter how logically consistent the reasoning is and no matter how analogous the parody is, the environment is going to govern how certain hot-button issues are received. I think part of that environment includes the inconsistencies and spirit of prior argumentation offered by the author of the parody. That’s a personal attack, I admit, and I’d have been a better person if I had worked hard enough to see through whatever my personal response was to what was actually parodied (I also don’t like wasting my 10 free NYT hits per month, but to be honest I rarely use all 10). But I addressed the environmental issue and not the parody.
And again, I think most of the reaction, at least from me, comes from not having gotten the parody to begin with and it’s not fun not to get the joke.Report
“Was that the right subject for a parody? At the time, I didn’t think so.”
Err….I meant “At the time, I thought so.”Report
Pierre,
I agree with all of that, but would add that partof the environment is the OT’s liberal lean. So in a sense it was the wrong audience. But then that’s why we need Tim here, so that audience is occasionally asked to confront ideas they’d rather not. Not being willing to confront those ideas, that’s not Tim’s fault is it?
I know that folks here are here rather than elsewhere because they don’t want a true echo chamber, they do want to hear other voices. But it’s awfully easy to inadvertently push in the direction of an echo chamber. I wish some folks would step back a bit and say, “If Mark, Dave, Burt and Jonathan all think there’s something there, maybe there really is.”Report
Getting the parody and the parody working as parody are two different things. I get it. I think it misses the mark by a pretty wide margin. I’ve given my reasons for this. If the only argument against them is that they’re not Tim’s reasons, well, see the 3 conversations that have resulted, and decide whether it’s been successful on Tim’s terms either. If it fails to address what Holder did, and it fails to achieve whatever conversation or shed whatever light Tim wants it to, it either missed the mark, or we’re a bunch of dolts.Report
we’re a bunch of dolts
No, but I have seen more than a few examples where something so obvious to me on the surface gets taken to the extremes of analysis paralysis to the point where any connection to the original point is gone. That’s not my thing. As it is, I hear intellectual masturbation makes people go blind. 😉Report
@chris
I don’t think you’re all a bunch of dolts. But I think it’s notable that those who are are at least somewhat approving of Tim’s parody tend to 1) be less liberal/left than the OT median and 2) have more background in constitutional law. That doesn’t prove we’re right, but one way or another I think it means something.Report
@james-hanley
Yeah, I guess I see your point. Also, the parody would have been really boring if Tim had chosen a less controversial subject than the ACA.Report
I find Tim’s attempt at “parody” impossibly obscure.
Is he saying this: “It is hypocritical for Holder to be in favor of AG’s not enforcing and/or defending-in-court some laws but not others. Hahahahaha. So funny.” Maybe it’s true that you should defend some laws and not others. That seems to be a position many people hold. Maybe it should be argued for and against in a debate, but it hardly seems like a thing you can parody just by saying: “Look at the hypocrite who is in favor of defending some laws but not others.”
To parody instead of arguing is to assume that the position deserves ridicule instead of reasoned debate. Sure, some positions do deserve ridicule: belief in death panels, GW denialism, homophobic policies, birtherism, not being in favor of the civil rights movement, etc. But some policies don’t deserve ridicule.
Haha, look at the hypocrite Shazbot who thinks some policies deserve ridicule and others don’t. I am “parodying” him.Report
To parody instead of arguing is to assume that the position deserves ridicule instead of reasoned debate.
Not true, whatever one thinks of Tim’s piece. Parody is designed to highlight problematic elements; to make us think by causing us to recognize contradictions.
Of course I suspect some folks thought Swift truly wanted to eat babies.Report
The claim “AG’s should not defend these laws but should defend others” is not an absurd contradiction. it is not prima facie and obviously wrong.
Swift was satirizing obviously morally horrible claims and vaccuous stupidity that the problem of the poor can be solved if such and such. (“Imagine a real Ebenezer Scrooge saying “Are their no prisons? No work houses?” Such claims were made and reflected stupidity and cruelty. That is the sort of attitude Swift is mocking.)
Indeed to analogize what Swift was satirizing with the reasonable position -if even you disagree with it, it is reasonable- that Holder holds is exactly what I think is wrongheaded here.Report
@michael-drew
This isn’t about gun control per se. I mean, yes, I diverge from a lot of liberals on that issue, but I also diverge from a lot of conservatives as well, and for different reasons. Still, guns alone doesn’t seem to be the issue.
What it boils down to is that I share the liberals desire for specific outcomes, as do many libertarians. What we disagree on is not the endgame, but the path taken to achieve that endgame. It frustrates me that we share a lot of the same goals, but because our ideologies on the process to achieve those common goals don’t gel, libertarians tend to get sidelined & ignored, or worse, treated with derision.
With conservatives, we have even fewer common goals, but conservatives at least give us a voice at the table. Libertarians are regularly guests on conservative media outlets, and some even have their own shows & columns. They argue & engage with us not just in blogs, but on the national stage as well.
Let me put it to you this way, Will’s comment at the end here:
How about you go fuck yourself, you libertarian shitbag. You are everything that is wrong with the world
Is something I encounter almost daily on the more liberal sites I haunt, and only rarely on the more conservative ones.Report
In all fairness to us liberals (some of us tote guns too), some of the “poster children” for the libertarian cause are anything but.
If you willing associate (or god forbid, take money from) shitbags, you’ll pardon me if my first instinct is to treat you as an enemy.[incidentally, This is why Brin does such a good job at sticking up for the libertarian cause around dkos. he understands how to say “I’m not part of THAT, I’m part of YOU!”]
Now, that last bit? That’s personal for me. It’s not so much for a lot of other people, and maybe you’ve got more cred kvetching at them.Report
If I had to waste my time here telling the liberal commenters here, “I’m not PART of that, I’m part of YOU”, I wouldn’t be here. I’m not kissing anyone’s ass nor will I try to win people over that can only see me for the views held by other people. I have neither the time nor patience for fishing idiots and that’s why I don’t waste time at dkos.
People wonder why I say labels suck. There ya go.Report
Dave,
oh, of course, we’re all special little snowflakes, not a one alike.
Who never ever listen to propaganda from any side,
and always make up our minds in completely rational ways.
LOL.
How long until we can stop using the label “middle class”?Report
@mad-rocket-scientist
Part of not wanting to get side-linded is also giving in on some of your processes. Maybe the solution for housing is more pro-development, more upzoning, and more building quickly while still maintaining safe and clean guidelines but the other end is maybe doing a more single payer and not free market approach to healthcare.
You give a little and get a little.Report
@newdealer et. al.
Keep in mind that I’m talking big picture here, not OT. Part of the reason I comment here at OT, and post from time to time, is precisely because I feel welcome under this little tent.
Let me put it this way, while we all may disagree, I am quite confident that should the opportunity present itself, we would all happily sit down and share a meal and some lively, but respectful, discussions.Report
Is something I encounter almost daily on the more liberal sites I haunt, and only rarely on the more conservative ones.
Quick question – how many commenters offered you one-way tickets to Somalia?
My experience is that the people that hold my libertarian-ish views are most abused by the doctrinaire libertarians with their “faux-libertarian” attacks. Beta liberals? Nah, I flex my biceps and they back off. 😉Report
@dave
I’ve lost count. Which, seeing as how I’ve actually spent 3 months in Somalia, is kinda funny.Report
PS I’ve been commenting here & there, just also busy with a toddler, everyone in the house having colds & a stomach bug, and building a tool to help simulate mixing tanks for the Chemical Processing Industry.Report
@mad-rocket-scientist
Just saw this reply. Thanks for it.
This clarifies things a bit – I think I initially misunderstood you. In this comment, if I am not mistaken, you pretty much self identify as libertarian, though I’m not totally clear:
“It frustrates me that we share a lot of the same goals, but because our ideologies on the process to achieve those common goals don’t gel, libertarians tend to get sidelined & ignored, or worse, treated with derision.
With conservatives, we have even fewer common goals, but conservatives at least give us a voice at the table. Libertarians are regularly guests on conservative media outlets, and some even have their own shows & columns. They argue & engage with us not just in blogs, but on the national stage as well.”
Ultimately, it shouldn’t matter at all how you self-identify: people should treat you civilly and reasonably if you treat them that way. But the curiosity I was expressing in the previous comment was based on a misunderstand if I ma not mistaken even now: I thought you were saying that you received this treatment by being open about some areas where you departed from liberals in the course of basically attempting be included with liberals by expressing significant agreement with them on a series of issues – i.e. to establish yourself as a heterodox liberal among liberals. I wouldn’t be shocked to hear that you received some bad treatment at that, but I’d be a little surprised to hear that it was universal or ubiquitous or often very extreme.
OTOH, if your were generally presenting the views of libertarians, i.e. expressing some common general aims as you suggest, but expressing considerable and broad-based disagreement about means and approaches, analysis, and specific policies, then unfortunately, I’m not at all surprised to hear about that experience. After all, we know how unpleasant conversations between liberals and libertarians can become – and the mode of disagreement is often precisely bitter fighting over how best to achieve largely shared aims. so, if you were just more or less a libertarian doing what libertarians do when talking to liberals, by no means do I condone any incivility or unreasonableness, but I wouldn’t have expressed any surprise to hear about almost any amount of it that you encountered.
Perhaps I just missed your comments recently – I’ve been a bit in-and-out lately as well.Report
@michael-drew
Yeah, pretty much your last paragraph there.
I believe I’ve spelled this out before, but I’m not a die-hard free-market libertarian, I’m more of an anti-authority libertarian. And not because authority in & of itself is bad (I was in the military after all, and truly enjoyed the experience), but because the current system of authority we have in the US is almost utterly unaccountable to the people it purports to serve. And this is, I believe, the natural tendency of all authority, absent extremely tight controls, popular involvement, & complete transparency. So since I believe (& I would not have to work very hard to prove that it is) our bureaucratic machine is severely broken, I tend to default to the alternative system (free-er markets), that while also not perfect, at least helps to alleviate the worst abuses of authority to a degree.Report
This would be funny, if it didn’t prove my point.Report
@chris
My argument all along has been that, while it may be true that people simply react as partisans (which would be an uninteresting point, because, I mean, duh), it is actually possible to justify such an end around, and the reason I think it may be justified in the case of same sex marriage — that is, because it is egregiously and obviously discriminatory for no rational reason — is just such a justification. Since, I suspect, that’s why many people who aren’t merely blind partisans would not be upset with what Holder is done, I see the parody as missing the mark, because it fails to address the reasons why people might agree with Holder other than “well, I like same sex marriage.”
I don’t think there’s any justification at all for the end-run. An attorney general is an agent of the executive branch. By the time an attorney general is faced with a situation where he/she must an enforce a law, the executive branch’s role in determining the constitutionality of legislation has long passed (that power being the veto). The duty of an attorney general is to defend the laws of a state all the way through every possible court challenge. That applies as much to laws I like as to laws I do not like.
In our system, once a law is passed, within the process itself (outside of an amendment), the constitutionality is determined by the courts. It is a judicial power that has a process that goes along with it, a process that is supposed to give each side of a case the opportunity to present it’s case. An attorney general that unilaterally decides to not enforce a law in court triggers several major issues for me:
1. It’s exercising a judicial power that is not constitutionally vested in that office. It’s a serious separation of powers issue for me. The opinion of the AG is meaningless. It’s the courts that matter. With all due respect to the more liberal among us, I have a hard time seeing why they would have a hard time with this given the vigorous enforcement of individual rights that have come through judicial decisions going back to the Warren Court.
2. The state’s interests are not best represented if an attorney general does this. Justice is best served when the best arguments are made in a court of law.
3. Whatever we want to say about having a process fetish, this alternative replaces that with no process at all. It’s nothing more than an arbitrary determination based on whatever values are held in that office at that time. I don’t want to go there.
4. Regarding (3), it is not only an arbitrary decision but there are no limiting principles. There is no reason to lower the standard from “egregious” to simply “unconstitutional”.
5. You said, because it is egregiously and obviously discriminatory for no rational reason — is just such a justification. I have always agreed with this, but a lot of people didn’t and it took a very long time for the people, the courts and the state legislatures to come around.
Had an attorney general attempted what some are doing now in 2004, not only would the people of that state called for his or her head, but my guess is the federal courts would have come up with the most flimsy rational basis reason for not taking this case or ruling to uphold a one-man one-woman definition of marriage, as New York State’s highest court did in 2006’s Hernandes v Robles.
I don’t see myself as a process fetishist at all. I see myself as a constitutionalist that believes very strongly in the rule of law. I would like nothing more to see every and any same sex marriage or law targeting gays wiped out of existence and if it requires the courts, so be it. However, I don’t like seeing the people that are supposed to advocate those laws not doing it. At the end of the day, they’d probably lose in court. Still, the process matters even if the result is inevitable.
For me, this is how the rule of law is respected. AG Holder is entitled to his opinions but I’m entitled to disagree. I’m not going to change my opinion because the laws in questions are laws I don’t like. I’m sorry but I won’t do it.Report
So what would an AG upholding these laws look like in practice?
Upholding bans on “non-relatives” visiting people in hospitals? Upholding probate for the property of same-sex couples when one passes? Refusal to recognize adoption rights?
I mean, I understand what it would mean if the AG said that State AGs needed to uphold Federal Law as it pertained to Marijuana: it would involve doors being kicked in and dogs being shot.
What are we upset that State AGs are not doing?Report
Jaybird,
The “bans” I am thinking of are the marriage laws defining it between a man and a woman. They prevent gay couples from receiving the same legal benefits. The way to enforce that is to deny benefits. It’s not a ban on same-sex ceremonies per se. It’s legal privileges.
What are we upset that State AGs are not doing?
Providing some defense in a court of law as to why the state has decided to exclude gay couples from the legal benefits of marriage. I understand that will be much easier said than done. I understand that an AG will likely be walking into a courtroom with its ass attached and out of it holding it on a silver platter. Still, it ought to do its job.
I’m not suggesting the state kick down doors to interfere with private ceremonies. Come on. I would NEVER suggest that.Report
I’m not suggesting the state kick down doors to interfere with private ceremonies. Come on. I would NEVER suggest that.
I’m not suggesting that you would. I *AM*, however, really noticing that we’re all talking around what we’re saying the AGs should *ACTUALLY* do. We’re talking about the process and making sure that the law is enforced or whatnot but nobody is saying what that would actually *MEAN*.
Should Eric Holder come out and say “State AGs, when a gay guy does (whatever), I want you to be there and (make sure that X happens/actively prevent X from happening)”.
It seems pretty obvious to me that (whatever) would pretty danged innocuous and ensuring/preventing X would be pretty danged ugly.
Given that that is obvious to me, it seems equally obvious to me that coming out and saying “I’m upset that the AGs are not going out of their way to do something pretty danged ugly” is extremely easily argued against (though I can see someone making it is because they know that the ugly policy would fall in short order after being publicly upheld).
It’s much less ugly to talk about the importance of the process and the importance of Holder following it. When we talk about specifics, however, suddenly we understand exactly why Holder is saying what he’s saying and, it seems to me, it’s fair to ask whether someone is saying “I think that AGs should go into courtrooms and do something very, very ugly indeed.”Report
We’re talking about the process and making sure that the law is enforced or whatnot but nobody is saying what that would actually *MEAN*.
In my case of an AG defending a SSM ban in a court of law, it would mean that they present their case even though the chance of winning by now is close to 0% if not that number given the heighted scrutiny applied to laws targeting people based on sexual orientation.
Perhaps I’m in a bit of a “cop out” position because I can make these arguments with the confidence that the risk of an injustice happening to people whose rights I support is very slim.
Should Eric Holder come out and say “State AGs, when a gay guy does (whatever), I want you to be there and (make sure that X happens/actively prevent X from happening)”.
If Holder expects that statement to be binding on the State AGs then no. I’d rather him not speak his opinion on these matters given the litigation going on, but if he does, I’m not going to be “upset”. That is an emotional response that I have not had here.
It seems pretty obvious to me that (whatever) would pretty danged innocuous and ensuring/preventing X would be pretty danged ugly.
Given that that is obvious to me, it seems equally obvious to me that coming out and saying “I’m upset that the AGs are not going out of their way to do something pretty danged ugly” is extremely easily argued against (though I can see someone making it is because they know that the ugly policy would fall in short order after being publicly upheld).
That sounds like the argument I just made although I don’t think the word upset would apply but I got ya.
When we talk about specifics, however, suddenly we understand exactly why Holder is saying what he’s saying and, it seems to me, it’s fair to ask whether someone is saying “I think that AGs should go into courtrooms and do something very, very ugly indeed.”
That is a very fair albeit blunt description of the argument I made. I am asking state AGs to do just that as badly as I want them not to. I would rather catch hell from you for holding this position based on my belief about the rule of law than deviate away because this provides the result I want faster than it otherwise may happen.
I remember how high passions ran during the early years of the “War on Terror”. Civil libertarian positions, especially those regarding the rights of Muslims were routinely crapped on by people that tried to play the “liberty vs. security” card on me. I was treated far worse, of course, but I respectfully draw my line here.
I know it may upset people but I’m pretty resolute on this point. I have very strong pro-SSM leanings too, but I guess I’m just old-fashioned in other ways.Report
I remember how high passions ran during the early years of the “War on Terror”. Civil libertarian positions, especially those regarding the rights of Muslims were routinely crapped on by people that tried to play the “liberty vs. security” card on me. I was treated far worse, of course, but I respectfully draw my line here.
@dave as I recall, there were all sorts of laws offered up, too. I don’t think (m)any got on the books. If they did, an AG who found those laws to be a constitutional violation would need this type of shortcut while the procedural/legislative/judicial sorted it out.Report
If they did, an AG who found those laws to be a constitutional violation would need this type of shortcut while the procedural/legislative/judicial sorted it out.
Has a shortcut or needs a shortcut? One suggests it exists in the process. Another suggests it needs to be added.
You sound so 19th Century today. 😉Report
Nice. I am rather an old-fashioned girl; I know how to smoke a ham and churn butter.
But I think you get my drift; the oath to uphold the constitution creates the ‘shortcut,’ the process that is outside process; going all the way back to the Sedition Act.Report
Dave, I can appreciate the argument that in order to, for example, end an awful, awful policy that we need to apply it across the board and let everybody see how it gets applied. We saw this for Prohibition, for example, and we’re seeing it with the War on Drugs, for another.
At this point, however, we’re at the point where the bans against SSM are unlikely to stand once they make it all the way to the SCotUS and, at this point, it strikes me that there are more than enough AGs who will do their damnedest to put their backs into defending the law… throwing a handful of half-assed cases beforehand isn’t going to help much with anything nor are we in any particular danger of the system losing credibility because of unequal application of laws. That ship sailed.
We’re now in a situation where we want to deal with giving a whole bunch of people hassle on top of the whole bunch of people who will be hassled anyway. I don’t see any value being added by having the state AGs deliberately defend these laws and more value added by what Holder did.
If we’re going to have a corrupt system anyway, we might as well have it corrupt in favor of the individual from time to time.Report
I kind of second @dave’s point here. This goes to Rawls’s account of two kinds of rules
If we are to say that particular legal institutions are justified, then the logic of the practice/institution requires us to abide by actions that are justified under the practice, or else we are not implementing the practice properly.Report
@dave
I’m just not at all clear that the rule of law requires the government to take any given position about the constitutionality of any law on the books at all when it comes in for examination by courts. Rather, what in practice compels them to argue so much for the constitutionality of existing laws are practical and political imperatives and, even more profoundly, one (two?) of the basic imperatives of government: stability and predictability. If the government radically changed course on its position about constitutionality of laws very often, it would create significant uncertainty and start to erode the stability of the system in which the rule of law operates (which stability is also a major purpose of the rule of law, to be sure). Such changes would also entail significant practical institutional challenges to the extent they resulted in changed legal regimes, which further constrains the range of governments’ legal argumentation. And, further, government legal arguments are always significantly shaped by political pressures: they are where they are in some part because the politics have taken them there. Hence, there would be (and is) political resistance to change.
All that said, the government does in fact change its legal argumentation over time, including, as we’ve seen, occasionally declining to defend laws. I don’t think it’s the case that the rule of law requires immutability in legal argumentation, to include that step.
And this actually contradicts some of what I conceded to Tim elsewhere, but in fact I’m not actually sure I think that government lawyers in top positions of authority (most gov’t lawyers I think simply develop the specifics of the basic arguments dictated to them by superiors) shouldn’t develop their arguments according to their good-faith view of the meaning of the constitution, guided by the interpretations of the courts as all legal constitutional arguments made in actual courts must be, and also by the imperatives/considerations listed above with the exception of the political constraint, (though of course we know that in fact that will always play a part). This is in stark contrast to their responsibilities in enforcing the laws, where any such latitude is much, much more limited (and that’s a difficult discussion, I think).
In any case, it’s not clear to me that the rule of law dictates that the job of an AG/Justice Department is always or even presumptively to argue for the constitutionality of any law on the books. Other considerations tend to make that the job in a large number of instance, as it happens, but the rule of law is not what dictates that. More broadly, the job of an AG/Justice Dept. is instead to enforce the laws consistent with the constitution, I think.
Can you provide a fuller argument for your position that it’s the rule of law that dictates that the job of an AG/Justice Department is at least presumptively to argue for/defend the constitutionality of any law on the books when it’s challenged, and some authority to back it up?Report
…I *would* say that it’s probably the job of the system broadly, and Justice Departments more specifically, to see to it that the law always *gets a defense* when reviewed. If a party more intellectually convinced of a law’s constitutionality is interested in making its defense and the Justice Department (state or fed) finds a law to be sufficiently suspect that its strong inclination is not to defend it, then I don’t really see any problem with allowing a more interested outside party – those with a more proper interest in maintaining it as active law, its constituency as it were – to provide the defense. If no one steps up t make a defense, then I would agree that the DOJ needs to step up to provide a (at least) pro-forma defense.Report
One can think of a law as a defendant, charged with the crime of unconstitutionality. Every defendant deserves a good defense.
As Justice Marshall said, it is emphatically the duty and province of the judicial department to say what the law is, to set a law beside the Constitution and see if it squares up with it. That doesn’t mean the executive branch should not also be thinking carefully about what the law is, and the judicial branch, but any duly passed legislation has a presumption of constitutional innocence. And in our legal tradition, the best way to test the charge of unconstitutionality vs. the presumption of legal innocence is to present the best legal argument on each side, through a sequence of cases, until we get a definitive ruling from SCOTUS.
Shortcutting that process may, as a general rule, be an unwise practice, as it smacks of political expediency rather than the rule of law. As much as the march toward a SCOTUS ruling in SSM seems almost purely pro forma at this point, it’s wise to look up from the issue in which we are currently embroiled and consider what kind of precedents we are encouraging.
Given that these are my thoughts on the matter, I am with @dave when he writes:
I would rather catch hell…for holding this position based on my belief about the rule of law than deviate away because this provides the result I want faster than it otherwise may happen.Report
I don’t have the same feeling that automatic defenses of all laws by the Justice Department even smacks of the rule of law. What smacks of the rule of law to me would be defenses of constitutional laws. Justice departments are establishment institutions, so to a very great extent their judgements will follow and track court decisions on that, but to some small extent they’ll depart. Also, in your formulation, it smacks of the rule of law for laws to get a defense when challenged. But it doesn’t seem necessary to me that that defense come from the Justice Department.
But what most smacks of the rule of law to me is for the Justice Department to consistently enforce the law. That’s where the rule of law is really at stake.
The question was whether the rule of law requires a near-automatic defense by the relevant justice department of any law that’s challenged – not what most “smacks” of the rule of law. I don’t think you answered that. In my view the rule of law requires one thing about the arguments that government lawyers must make regarding laws under challenge for consistency with the Constitution: that their arguments be consistent with the meaning of the Constitution, understood in reference to their good-conscience reading thereof, as informed by active judicial interpretations. If government lawyers can’t make a defense of a law that’s consistent with that understanding, they should step aside and let an interested party with a differing conscience take up the defense. Only if no one they can judge competent will do that should they step back in to make a defense of a law whose arguments they truly believe are not constitutionally viable.Report
I don’t have the same feeling that automatic defenses of all laws by the Justice Department even smacks of the rule of law.
I’d say it does so rather more than executive branch officials deciding on the constitutionality of laws. But maybe you didn’t have the same objection to Bush’s signing statements that I did. 😉
What smacks of the rule of law to me would be defenses of constitutional laws.
That pretty strongly begs the question of what laws are constitutional, doesn’t it? Or who gets to make that authoritative determination.Report
What smacks of the rule of law to me would be defenses of constitutional laws.
That pretty strongly begs the question of what laws are constitutional, doesn’t it? Or who gets to make that authoritative determination.
Only to the extent that we think the rule of law is implicated in these decisions about defending laws, which I am saying it largely isn’t. To the extent it is, it’s in these ways: first, most important by far, arguments that are clearly contradictory to the meaning of the Constitution must not be made by gov’t officials, pursuant to the rule of law. Then, I think could be a lesser obligation to defend laws that are clearly constitutional by established precedent, though I’m not really decided on that. As I say, I’m not clear how the rule of law creates that obligation, so I’m not sure it exists at all, to be honest. Anything where there is any considerable doubt, I don’t think there is a rule of law obligation to defend the law. OTOH, the main job of the AG/SG/DOJ is to present the legal arguments of the government, and in the great great majority of those cases, those will be arguments to defend the laws – for a variety of reasons I’ve discussed in this thread and others I’m sure I haven’t thought about.
Does this require top government lawyers to make determinations for their administrations – i.e. for the Executive, but only speaking for the Executive (and only for the particular administrations inhabiting the Executive branch in a particular term) – about what the constitution means as interpreted by courts, how that applies to cases and laws, and what the arguments supporting those positions will be? Yes! That’s exactly a task that top Department of Justice lawyers are charged with doing. Is it unilateral? For that purpose alone – determining what a given administration’s arguments about the Constitution and the laws will be – sure. Again, that’s what Justice Departments are charged with doing. But that category of government action – if we should even call it action (and, sure, we probably should) – is subordinate and pursuant to a process in which the Executive is not at all a unilateral actor, but merelyy submits arguments to courts, who take actual and unilateral action.
Signing statements are statements about the Executive’s intent to enforce laws quite often arguably using interpretations of those laws that departed from the intent of Congress (or else what’s the point?). I’ve been at pains to say that discretion on enforcement of laws is much, much more limited than discretion in what arguments to make to courts about laws’ constitutionality. (People can disagree with that, but I think I have a degree of establishment consensus on my side on that point.) Enforcement is the unilateral province of the executive (though of course checked by courts – but ultimately enforcement actions ordered by courts are carried out the executive), and enforcing laws does constitute government action in the most concrete of senses, so to me the rule of law is ever so much more clearly implicated by the government taking independent interpretive initiative contrary to courts or legislative interpretations when carrying out or planning actual enforcement actions. That is what the rule of law exists to govern. That being said, governments have to interpret court orders and the meaning of laws and the constitution to some extent in order enforce laws – it’s never immaculate. That’s just a reality we can’t ever truly move beyond.
Also, I’ll say that my reaction to signing statements was essentially one of content not process. I didn’t love it on process grounds, but the real problem was the interpretation they were giving. I don’t know that I have a problem with signing statements as a formal matter, but that doesn’t mean I can’t think that a president is making too extensive use of them or basing his on dubious constitutional interpretation.
But that’s my whole point: I’m happy to allow for these kinds of latitude (again, though, on enforcement far less than on legal defenses of laws, and thus to a more limited extent on something like signing statements that go to enforcement) and then duke it out on the substantive constitutional arguments being made than to try to take all the legitimate latitude out of the system. If you don’t allow for the latitude, you just end up with a more brittle and lawless system, since we know that it will be taken regardless. There’s room and reason to allow for governments with significantly different constitutional understandings to express those through policy and interpretive latitude: this allows the people to better understand what the differing views are and what they’ll mean in practice and choose. If you don’t allow room for those differences to be expressed in policy in the open, then they get directed into less transparent kinds of actions and policy, which preserves a formal procedural consistency but separates the governed from a clear view of the kinds of constitutional disagreement that will in practice be expressed in differing approaches to interpretation and application regardless of whether you openly allow for it or not.Report
I think there is a lot of room between process is sacrosanct and no process at all. I don’t think either of the extremes is likely to result in the best outcomes. Instead, we have to come up with what might justify going around, rather than through processes. We have 3 answers in this thread, Tim’s in which it is only justifiable when the country is about to implode, yours in which it is never justifiable, and mine in which it is justifiable when there are egregious injustices that could take years to work their way through the legislative or court processes.Report
It should be noted that when two of the most egregious laws in our history were passed in 1798, the Alien and Sedition Acts, James Madison, in his Virginia Resolution, appealed to the very processes that allowed the laws to be passed in the first place. We know what happened in 1800: the process worked.
We can kill ourselves trying to develop a standard for “egregious” nor would I want to get into comparisons trying to figure out which horrible act was more horrible than the other.
Mine opinion is probably closer to Tim’s since the only time we should consider abandoning the process is when the process has completely failed. Abandoning the process would require abandoning the government and most likely exercising a natural right of revolution. I doubt we’ll see that anytime soon though.Report
And I would say that the process has failed when obvious injustices continue. I wouldn’t have been upset if attorney generals had said they were not going to enforce the different sentencing guidelines for crack and powder cocaine, for example.Report
I’d encourage the various sides in this debate to look at Eric Holder’s actual speech in front of the National Association of Attorneys General. Mostly the second half applies to this conversation. Here,
http://www.justice.gov/iso/opa/ag/speeches/2014/ag-speech-140225.html
In my view, one side of this argument has reified the adversarial process. The goal is not court disputes for court disputes’ sake, with AG’s as oppositional ciphers whenever a case is lost. The goal is justice, and AG’s must possess some discretion in determining what that looks like and what that means – they are a part of the process of determining what the constitution means beyond simply the arguments made in court. Altogether, I buy the case Holder makes (far more clearly than I have) in his speech.Report
@chris
And I would say that the process has failed when obvious injustices continue.
1. Obvious to whom? Does this argument hold for injustices that are obvious to conservatives or libertarians, or only for injustices that people who agree with us on the important issues see?
2. Given the rapid progress over the past decade on SSM, even though the obvious (to you and me) injustice of disallowing it in many states still continues, I think it would be a pretty wild claim to say the process has failed, or even that it is showing any likelihood of failing.
@creon-critic
The goal is justice, and AG’s must possess some discretion in determining what that looks like and what that means
As phrased, I don’t think anybody would dispute that, because it’s not “discretion” that is doing the work here, it’s “some” that is doing all the heavy lifting.Report
That’s a determination that you’d want elected officials to make, with the knowledge that if they make a bad decision, they’re going to pay for it in the next election.Report
@jm3z-aitch
Some discretion in this instance. Well, the discretion to decline to defend laws that uphold an invidious kind of discrimination likely rooted in animus (evidenced by the legislative record) towards a minority group; laws that in the USAG (and several state AG’s) judgement contravenes the constitutional guarantee of equal protection under the law (among others).
Laws that run contrary to what Holder calls “our highest ideals – realized in the form of landmark Supreme Court rulings, from Brown to Zablocki, from Romer to Lawrence, from Loving to Windsor”.
Reading about the President’s obligation to see that laws are faithfully executed over at Findlaw* and a particular phrase stood out to me, “repugnant to… rights secured and protected by the Constitution”. Post-Windsor, I don’t see why the USAG or state AGs should persist in making a not only a losing argument, but an argument they find is destructive, or repugnant, to rights in the constitution.
* http://constitution.findlaw.com/article2/annotation16.htmlReport
No, Chris, that’s totally wrong. Because then you’re making decisions on constitutionality of laws specifically subject to popular opinion.
I don’t think AGs must necessarily defend the constitutionality of a law to the utmost of their being in every single imaginable case, but an understanding that they should give a vigorous defense to all laws except in the most unusual instances is a far better practice than having them defer to the (current and possibly short-lived) will of the people.
And that is a hill I’m willing to die on.Report
If we’re not going to rely on elections, then the only avenue is the courts, because at least in theory, they’re the only ones not subject to popular opinion. Though as we see with gay marriage, the courts pretty much wait for popular opinion anyway.Report
@creon-critic
Well, the discretion to decline to defend laws that uphold an invidious kind of discrimination likely rooted in animus (evidenced by the legislative record) towards a minority group; laws that in the USAG (and several state AG’s) judgement contravenes the constitutional guarantee of equal protection under the law (among others).
But there’s still a bit of question-begging going on, because “invidious discrimination” and “denial of equal protection” are judicial determinations. I don’t think that’s generally–with generally doing all the heavy lifting here, I admit–the proper purview of the AG.
Now, if a state passes a law that is so clearly contravened by a solid history of judicial legislation, such as mandating segregated schools for black and white students, sure, I’ll agree. But such cases are actually pretty rare, because as stupid as a lot of state legislators are, most often there’s someone there who isn’t quite so stupid and points out to them why their proposed law is a non-starter that could only serve to waste a lot of state resources if the AG in fact chose to defend it.Report
It is my understanding that when prosecuting, the state has an obligation to make certain they can make a case; that DA’s often don’t press charges if they don’t stand a chance of winning. Is this true?
If so, I would think the same process would, to some degree, apply to defending. We are, after all, talking about a precious resource. The law on the books from the 1950’s, deemed perfectly reasonable at the time, may have a lot of judicial precedence undermining it in the interim; and that same discretion about the use of the precious resource — the state’s legal resources — would also be an important consideration in a decision to defend.
(I am just thinking out loud here; not saying this is a valid argument, but one worth considering.)Report
@chris
If we’re not going to rely on elections, then the only avenue is the courts, because at least in theory, they’re the only ones not subject to popular opinion. Though as we see with gay marriage, the courts pretty much wait for popular opinion anyway.
There’s a character in an old … comic strip, I think, that famously said something like “the court follows the illictions.” And that’s a common theme. One of the best books, imo, about the courts, constitutional law, and social change is The Hollow Hope, by Gerald Rosenberg, which argues that when the courts get too far out in front of the public, their opinions lack the legitimacy to produce the change supporters of their rulings hope for.
That’s unavoidable. In any organization there are innumerable means of resistance and sabotage, for those clever enough to find and employ them, so the Court is strongest when it ratifies the will of the people.
(I could also spin off here and talk about the Court’s “countermajoritarian difficulty.” but I’ll resist that temptation for now.)
But, and here’s a big but that to my mind overwhelms your position, the Court is responding to something very different than what a politicized state AG is responding to. First, they are responding to the most well developed arguments on either side of the issue. Second, they are responding to a much broader set of people–the whole public of the U.S., not a sub-set that may be more or less representative. Third, they are more likely to be responding to long-term public will, not just the short-term ideas that have excited the emotions of the public for a day.Report
@jm3z-aitch
As I understand it, Holder’s speech says in part, look, as AG I can apply heightened scrutiny to these anti-gay laws and see that they fail the test. The federal judiciary’s opinions post-Windsor have been pretty clear. As far as I’ve read, none of the state-level anti-gay laws post-Windsor have survived. @mark-thompson mentioned not bringing frivolous cases, that could be a term of art that I’m misappropriating, but at some point don’t anti-gay laws’ defense become frivolous, or exactly like a legislature trying to promulgate segregationist laws today? Can an AG contribute to deciding when that point is reached?Report
@zic,
I think that’s a fair point. But unless the Supreme Court has made a definitive ruling, it’s almost always (almost) the case that there’s a reasonable chance of winning.
Even then, sometimes the Court reverses its prior rulings, which means even a definitive SCOTUS ruling doesn’t necessarily demonstrate that there’s no reasonable chance of winning.Report
@creon-critic Yes, at some point such defenses can become frivolous. However, that point is clearly not reached yet – none of the decisions have been binding outside of their particular jurisdiction, and I think only one has gotten through the initial appellate level at this point.Report
James, Chris, Dave, others,
I have a question for you cats. Here’s an article talking about what I take to be one of Tim’s points in this post: the politicization of process. The topic of the post is that conservatives are mulling the prospects of suing Obama for selective enforcement of the law (eg, not deporting illegal immigrants) and some of the arguments being bandied about on the Hill. Leaving aside that the writer (Milbank) isn’t being very charitable to conservatives here and focusing instead on the content of the conservative criticism – that the Obama Admin isn’t abiding by process – I have a question: Is it possible to arrive at a conception of process that isn’t either political in it’s very nature (because of the construction of the rules themselves) or politicizeable (because of the flexibility of those rules)? And the context of that question assumes what I take to be Tim’s point in this post – that determinations to selectively defend/enforce can be made at the Executives considered discretion.Report
@creon-critic
at some point don’t anti-gay laws’ defense become frivolous, or exactly like a legislature trying to promulgate segregationist laws today?
Yes. When SCOTUS has made as definitive a ruling as they have on segregation. They’ve almost made that definitive ruling, and I’d take a wager against anyone who thinks they won’t in the next couple of years. But they haven’t yet.
Can an AG contribute to deciding when that point is reached?
As a general rule, no. I won’t say never.Report
James,
I don’t think AGs must necessarily defend the constitutionality of a law to the utmost of their being in every single imaginable case, but an understanding that they should give a vigorous defense to all laws except in the most unusual instances is a far better practice than having them defer to the (current and possibly short-lived) will of the people.
I hear ya. But in the context of a post parodying Holder for suggesting that State AGs need not defend antiSSM laws, I’m not sure – again! – that I’m understanding what’s going on here. Given what you wrote above, is it not reasonable to conclude that Holder is in fact saying exactly what you just said: that state AGs are justified in not enforcing what they view as an unconstitutional even tho that state law reflects the will of the people?Report
Is it possible to arrive at a conception of process that isn’t either political in it’s very nature (because of the construction of the rules themselves) or politicizeable (because of the flexibility of those rules)?
No time to read the article right now, but as an institutionalist I can answer this with 100% confidence. The answer is no, with no equivocation.
And the context of that question assumes what I take to be Tim’s point in this post – that determinations to selectively defend/enforce can be made at the Executives considered discretion.
Not to be dismissive of the assumption, as discussion can reasonably be grounded in it, but the answer above doesn’t change whether we ground it in this assumption or not.Report
@stillwater
It’s not unreasonable. It’s not unreasonable to conclude the opposite, either.
And I’m going to stand my ground on the issue of when it’s appropriate for an AG to do so. As I said somewhere on this page, there is no definitive legal ruling on SSM yet, and as Mark said rather more precisely, all the rulings so far apply only within their jurisdictions.Report
@jm3z-aitch Eh, at the point where there’s binding precedent that is directly on point, I think the obligation to defend the law goes away. At that stage, the only way to defend it is by arguing that existing precedent is wrong on some purely normative level. Making purely normative arguments in which one does not believe is not making good faith arguments in my book, and I don’t think government officials should be any more free to make bad faith arguments than other attorneys. At that point, to the extent there can be any defense, it would need to be that the given plaintiffs lack standing because the law, while on the books, isn’t being enforced and is in no danger of being enforced. If that defense is available, then AGs should still be required to at least file a motion to dismiss on those grounds (if only to avoid the state having to pay damages to the plaintiffs). But in a lot of states that defense wouldn’t be available because of declaratory judgment rules.
That said, even there, an appropriate response would be to acknowledge the binding precedent and move to dismiss on grounds that the case is moot. Which wouldn’t be defending the law, but it at least wouldn’t be defaulting either.Report
@mark-thompson I don’t understand this.
Defending the law would require a plaintiff who’s claiming some harm from the law.
Moving to dismiss would, so it seems to me, entail moving to dismiss that harm; where as not defending would by acknowledging the harm.Report
Still, no, there is no such thing, particularly since the institutions and processes are created, altered, and maintained by power.
James, while it’s true that courts have to at least give the impression that they’re relying on arguments, not merely on public opinion, I’m not sure it’s significantly less true of political office holders. If they simply say, “We’re not going to enforce this, because we don’t feel like it/because our constituents don’t want us to,” they’re probably going to take a bath in the media. And as long as you have to have give a pretty damned good reason (reasons that will be judged by the legislature, the courts, and the electorate) for not enforcing/defending laws, I think you have a pretty high standard for doing so. Not as high as you or Dave or Tim might want, but high enough for me.Report
@jm3z-aitch , maybe also @mark-thompson
So what’s strange to me is that you (both?) think we’re in a liminal space with regards to gay rights and heightened scrutiny, with Windsor being a gateway to a further Scotus decision that will be decisive. I think the USAG can legitimately say, henceforth in light of Windsor, the position of the US is we’re out of that transition space and into recognizing these anti-gay laws for what they are: at minimum failing heightened scrutiny. Maybe I’m reading too much into Windsor, but isn’t that a component of the AG’s job, deciding what the position of the US is in light of a Scotus opinion? (Also, I recognize this doesn’t necessarily get at what an AG can do prior to Windsor, because in fact the Obama administration declined and had BLAG move forward in place of the DoJ.)Report
@mark-thompson–I would agree with that completely. Only lack of precision in my writing created the impression that my view differs.
@creon-critic–I think the USAG is pretty constrained by Windsor, but explicitly the states are not (although implicitly, as Scalia so angrily noted, they are).
Sometimes you go through the proper forms for form’s sake, even knowing the outcome. If I have a student who’s failed everything in the class to date, but shows up for the final exam, despite my 100% correct prediction about them also failing that final exam, and despite the mathematical certainty that a perfect score on the exam would not keep them from failing the class, I do grade that exam with the same attention and standards I would grade any other exam.
Only by adhering to process except in the most unusual of cases do we maintain the understanding of the importance of process. When we start excusing exceptions from process, we create huge risks of arbitrary exercise of authority, which would result in more injustice than we’re likely to experience by following procedure through to its slowly unfolding denouement. There are exceptions, yes. But even those exceptions are sometimes procedurally described, such as presidential pardons. Or as Mark and I have both emphasized, when there is a clearcut definitive ruling of the highest court, which is itself a sort of procedural rule, even if informal rather than written down. So the “non-procedural” exceptions, while not unimaginable or nonexistent, should be treated as rare beasties justified only in the most unusual of situations.
“We’re almost there and this is really important” is not the kind of situation that justifies the exception.
I’m off to class now, so won’t be able to respond for a while.Report
@zic Standing jurisprudence is a unique morass, and I’ve no time to respond in any kind of detail right now, but basically such a defense would entail saying that the plaintiffs have failed to allege a specific and cognizable injury. This comes up quite frequently, actually. You can’t just say “I’m injured” and get standing, and what constitutes an actual and specific injury is a sufficiently complicated game that absent actual enforcement of the unconstitutional law, it’s difficult for plaintiffs to overcome. Of course, if the law actually does get enforced against a given plaintiff or is likely to be so enforced, then this changes. But if the AG is actually enforcing the law despite precedent that the law is unconstitutional, then odds are pretty good that the AG fully supports the law.
@creon-critic I don’t have a problem with Holder taking the position, post-Windsor, that anti-SSM laws are unconstitutional. I have a problem with him telling state-level AGs that if they personally agree with that assessment, they should just default should they be sued.Report
@mark-thompson
We’re talking in circles here.
You seemed to suggest that the appropriate action for an AG being asked to defend a law of questionable constitutionality was to file a motion for dismissal; which would, to my mind, equal a defense of the law, it lets it stand as enacted; dismissing the case dismisses the claim of harm.
Inversely, failing to defend the law would suggest the AG sees the harm the plaintiff is pressing in his/her suit, and finds that this complaint has precedence on case law suggests the plaintiff’s complaint is legitimate; so not defending it would be a defacto win to the plaintiff.
I am going on a presumption that the plaintiff has standing to bring the challenge.Report
By the time an attorney general is faced with a situation where he/she must an enforce a law, the executive branch’s role in determining the constitutionality of legislation has long passed (that power being the veto). The duty of an attorney general is to defend the laws of a state all the way through every possible court challenge. That applies as much to laws I like as to laws I do not like.
I disagree with this. The power of veto only rests with the Executive in office at the time a law is adopted; and the unintended consequences of that law may only become evident over time, when that executive is no longer in office.
Additionally, it precludes one of the most basic premises of democracy — the ability of the voters to opt for a different direction. It leaves out the importance of legal precedence and change in our view of rights over time. As SSM wonderfully demonstrates; the law adopted defining marriage between as being between one man and one woman, which was considered perfectly (for some) rational in 2000, might well be viewed by that same voter as a denial of rights now because the national tone had changed.
And our system is based on the premise that a person can challenge the law in court if, for some reason, they’re deemed to have standing by being harmed by that law.
But historically not defending or enforcing a law has long precedent (again, see that link I provided to Cornell Law School above). For example, the Obama administration announced they would no longer enforce DADT while the law was still law, but it had been revoked by Congress and soon would no longer be the law. The Bush administration opted to not enforce many environmental laws that it perceived as infringing on businesses. And all administrations re-write the rules for laws to better reflect their preferences.
The members if the Executive branch, both president/governor and AG, are sworn to uphold the constitution, either federal and/or state; they are not sworn to uphold all laws passed no matter what. And their responsibility to uphold the constitution would require that they have a path to not enforce or defend laws that are, with changes in precedent and time, viewed as unconstitutional. This is part of the process, not external to the process.Report
The power of veto only rests with the Executive in office at the time a law is adopted; and the unintended consequences of that law may only become evident over time, when that executive is no longer in office.
I think that’s what I said. Yes, constitutional issues can and often do arise long after laws are passed for a number of different reasons, but I fail to see how that should involve the Executive Branch outside of it’s constitutionally vested powers. I’ll continue…
Additionally, it precludes one of the most basic premises of democracy — the ability of the voters to opt for a different direction. It leaves out the importance of legal precedence and change in our view of rights over time.
Actually, I would and do encourage this before having an AG decide to not enforce a law. I’m sorry if I didn’t make that clear. I support this and the people can make this decision anytime. I didn’t realize I sounded so anti-democratic.
I also apologize if I presented a static view of rights. I don’t believe I have that.
As SSM wonderfully demonstrates; the law adopted defining marriage between as being between one man and one woman, which was considered perfectly (for some) rational in 2000, might well be viewed by that same voter as a denial of rights now because the national tone had changed.
It also demonstrates the problem of individuals acting unilaterally to decide whether or not a law is just or constitutional. As it is, look at what happened after SSM was legalized in MA in 2003.
And our system is based on the premise that a person can challenge the law in court if, for some reason, they’re deemed to have standing by being harmed by that law.
Serious question. Did I really come across as being against the idea of the courts deciding these matters?
I’m truly sorry if I did. To the extent that my view of process differs from someone more conservative than I, I think one of the most significant differences is that I have no problem with the courts getting into these debates, especially SSM. Historically, conservatives have been critical of the judicial involvement and would rather see the people decide this.
I don’t see SSM questions before courts as tinkering with political institutions. I see the laws as restrictions targeting groups of people on the basis of who those people are. That is VERY much the realm of the courts and has been for decades.
But historically not defending or enforcing a law has long precedent (again, see that link I provided to Cornell Law School above).
That’s a fair point (ND made it as well, maybe Mark) but it doesn’t sway my opinion. I could argue that prior to 1937, we had 150 years of Supreme Court precedent that defined “commerce” as “commerce”.
I’m aware that this happen and I’m not going to scream that by happening it’s the be-all end-all of the rule of law. However, I don’t like the idea as a matter of principle.
The members if the Executive branch, both president/governor and AG, are sworn to uphold the constitution, either federal and/or state; they are not sworn to uphold all laws passed no matter what.
Having spent the last five months immersed in early American history, constitutional theory and the intellectual and constitutional arguments developed by the 19th Century states rights advocates for the justification of secession and nullification for a post I still need to complete, this is EXACTLY what they argued. They use the language “in pursuance thereof” from Article VI, Section 2 – The Supremacy Clause.
I don’t say this to insult you. I say this because I’ve seen these arguments before and they always beg the question of who gets to decide what is and what is not constitutional.
And their responsibility to uphold the constitution would require that they have a path to not enforce or defend laws that are, with changes in precedent and time, viewed as unconstitutional. This is part of the process, not external to the process.
Your basis is on practice and precedent. Mine is on the Constitution. The federal constitution is pretty straightforward here. The Take Care Clause of Article II provides no such discretion to the Executive Branch. The power to answer these questions falls to the article Article III judicial power. My guess is that state constitutions are structured in a similar fashion.
An AG refusing to defend a law does not get its legitimacy from the process itself because there is no process and no one has made a constitutional argument remotely close to the contrary. However, one can argue that doesn’t matter because it could get its legitimacy through the popular support of the people (in fact, that’s the only way something like this flies). At best, this is a quasi-substitute for a legislative referendum and I’m not sure how I even feel about it.
I respectfully dissent. The legitimacy still comes from outside the process.Report
@dave
It also demonstrates the problem of individuals acting unilaterally to decide whether or not a law is just or constitutional.
these arguments … they always beg the question of who gets to decide what is and what is not constitutional.
An AG refusing to defend a law does not get its legitimacy from the process itself because there is no process …
I think if we abstracted away from any particular issue, most people would find these points pretty compelling.The difficulty comes in when we start talking about issues that matter to us, because then it’s hard to see the value of these general principles–they’re obscured by our focus on the terrible wrong we see.
It’s often said that the wheels of justice turn slowly but grind exceedingly fine. Whatever the fineness of the outcome, it’s understandable that people become frustrated and impatient with the slowness, especially when they’re focused on what seems to them a terrible wrong. And sometimes process is the problem. But not often, and in law patience is truly a virtue.Report
An AG is no more unilaterally deciding on the constitutionality of a law if she does not defend its constitutionality than if she argues for its constitutionality – or for that matter for some reason argues against it. Lawyers have to decide what arguments they’re going to make: that’s not the same as deciding a case.
You have to decide for yourself whether a law is constitutional or not to make any argument at all about it’s constitutionality. You’re not making a unilateral decision about it’s constitutionality by doing that, at least not for any purpose outside of your argument. That’s what the courts do.Report
You have to decide for yourself whether a law is constitutional or not to make any argument at all about it’s constitutionality
Apparently you weren’t on the debate team?Report
Fair. But the arguments we’re talking about will be – are, necessarily! – arguments that the law is constitutional – we’re all clear on that. We’re saying that AGs *are compelled by the rule of law* to make exactly those arguments.Report
…So: “You have to decide for the purpose of your argument whether the law is constitutional or not if you’re going to make any argument at all that it is constitutional, or not constitutional, (or implying one of those, as an AG not making an argument pretty much does).”Report
…Are we saying that in making those determinations about what arguments to make, that government lawyers shouldn’t consult what they themselves actually think the Constitution means at all? That there is some exact set of derivable legal arguments that “an official in their position” should make that’s entirely independent of their own understanding of the law? That’s horse pucky if so.Report
Are we saying that in making those determinations about what arguments to make, that government lawyers shouldn’t consult what they themselves actually think the Constitution means at all?
…And this was meant to apply to decisions about formulating arguments of all kinds – not just whether to argue for/against, but how to formulate arguments for, as well. Officials have to consult their own understandings in order to do this. Given that, occasionally they’ll be unable to defend a law using arguments they can stand behind. Lawyers have to be able to make arguments they don’t fully believe in or think aren’t winners. That doesn’t imply that highly placed government officials charged with interpreting the Constitution and precedent ought to make arguments in their official capacities they think flatly contradict those.Report
Michael,
I’m trying to finish another post and have some things to do. If James doesn’t address your points and I don’t get to them right away, I’ll treat this as a comment rescue.
I have some thoughts and as much as I’d like to get drawn into a discussion, it’ll take my whole day. LOL.Report
Thanks, Dave. I’ll look forward to it. If I were to have my druthers, I’d rather you use this comment as your jumping-off point, but of cours it’s up to you. This sub-thread deals with the same questions more or less, but doesn’t really reflect my saying about them what I’m really trying to say, whereas that comment does, more or less.
…But even there, just so it’s clear, I’m moving a bit out in front of where I might actually sit on much of this in a non-stimulated state, in order to bring some of the questions into relief. Notice that the form of that comment is broadly, “I tend to think ~A, but I’d like to hear a fuller version of your argument for A.”Report
Thanks Michael. I’ll start there and I appreciate the guidance.Report
@michael-drew There’s a distinction to be made here between “what arguments to make” and whether to defend a law’s Constitutionality. The former is just an attorney exercising their professional judgment, as long as the arguments they make are non-frivolous and made in a good faith attempt to represent the client’s – in this case, the state’s – defined interest; but declining to even defend a suit, and just defaulting thereon, when there’s any non-frivolous defenses available, is malpractice.
What’s more, states are to a large extent legal fictions, just as corporations are legal fictions. In many respects, a state literally is its laws. As such, it has a clear and unassailable interest in defending its laws if they are challenged. To simply default on such a challenge can thus never be in its interest.
And finally, let’s be very clear that an AG herself need not make any actual arguments in such a case. All she needs to do is not stand in the way of her deputies handling the case as they would any other case.Report
Are we saying that in making those determinations about what arguments to make, that government lawyers shouldn’t consult what they themselves actually think the Constitution means at all?
I can’t even comprehend how a lawyer could construct a constitutional argument without thinking about what they think the Constitution means. If I want to make the best argument for a law’s constitutionality, when I really think it isn’t constitutional, I’m going to have to consult my own views on what makes it unconstitutional, so I can attack those.
If you mean, should they defend a law even when they think it’s unconstitutional, I’d say, yes, just as a criminal defense attorney should give a vigorous defense to a defendant even when he’s convinced the defendant is guilty.
I think there’s a whole lot of heavy lifting being done in these arguments by the AG’s duty to defend the Constitution. But that doesn’t mean he gets to decide on his own what the Constitution means, and defend only those things that he’s sure are constitutional. The Supreme Court is the final authority on that–as Justice Jackson said, not final because they’re infallible, but infallible because they’re final–and even with separation of powers, AGs ought to give a hell of a lot of deference to that role of the Court.
The best way–I think–an AG can participate in making authoritative decisions about what the Constitution means is to present the best possible arguments in favor of a challenged law, giving the Supreme Court the best material with which to work, not by deciding what the Constitution means and choosing not to defend a law based on his own unilateral judgement.
(I’m going to stick on the word “unilateral.” It wasn’t intended to mean that the AG was the final arbiter for the country of a law’s constitutionality, just that the AG could determine by him/herself, on his/her own authority in the case of states, by the authority of the prez in the case of the USAG, whether a law was constitutional enough to be worth defending. Unilateral is an objectively correct description of that situation.)Report
@mark-thompson
I definitely acknowledge that distinction. I still just don’t think it forecloses the possibility that there will times when an AG/department can’t defend a law. I’m somewhat dubious about this analogy between private representation and the position of AG. And I don’t accept that it’s definitionally in the interest of the state that always every single one of its laws be constitutionally vindicated – hence it’s not necessarily malpractice not to seek it. the client is not really the state or the laws, but ultimately, the people in whose name they were established, who are protected from those laws by the Constitution. It would be malpractice not to zealously advocate for that client – whose interest is to have all constitutionally legitimate laws defended, but to have no unconstitutional laws inflicted on them. The analogy is further complicated by the fact the client isn’t personally present or able to be consulted – nor is it “a” client – it’s a plural, internally unresolved body politic. So, to the extent we guide ourselves by reference to private legal representation, we find these attorneys in the position of having to construct an idea about the interests of their client. To my way of thinking, the best way to do that is to make the best interpretation possible of the meaning of the document that represents those interests at the most general level to the government – the Constitution. that, in turn, should be primarily guided by existing interpretations of the nations primary constitutional interpreters – the courts – but also by reference to personal study, reflection, and public conscience.
AGs themselves don’t have to make whatever the defense will be made, but they do have authority over and are responsible for all the legal arguments their departments produce. If the department is in a position of defending a law whose defense an Attorney General does not think can be made with legitimate constitutional arguments, then I think she would be justified in directing the department not to make the argument. Of course, if she’s merely ambivalent, which is the case probably in many or most cases of judicial review of laws, then of course it’s perfectly acceptable to leave the formulation of arguments to subordinates. Obviously, that happens all the time. If she can countenance the argument being made by her department, then she should let it be made. But if not, she should direct it not be made.Report
I also think that they should often defend laws they think are unconstitutional, because that will often represent situations in which there are very plausible way to argue that in fact get you all the way to a conclusion that the law is constitutional, that are legitimate and not defective arguments, but in which they think there are even more convincing arguments, equally legitimate and not defective, that show it is unconstitutional.
I’m saying it’s legitimate for an attorney general to determine not to defend a law if he thinks there are no arguments that are not seriously defective – by way of simply getting the meaning of the constitution plainly wrong – to make that gets you to the conclusion that the law is constitutional. At that point, I don’t personally want them putting the USG on the record saying that an argument of that degree of defect in fact establishes the constitutionality of a law, just in order to ensure that *the USG* gives the law the best constitutional defense it can possibly get. Others can give it its defense (and there is an established track record of this occurring). *If no others can or will*, only then would I want the USG stepping back in and making those arguments. and at that point, I would probably want them to stipulate that these are only *the best available arguments* – not arguments that actually succeed in defending the law’s constitutionality, though I can see why that might not be workable.
I suppose you could say, Well, they could do that all the time if that’s how they feel about any given case. But it would be equally malpractice for a defense attorney to say, “These are the best arguments for my client’s innocence. I don’t think they should establish reasonable doubt of his innocence for you, but here they are.” I think that’s simply a faulty analogy. And in any case, criminal process ensures that the accused will be provided competent counsel, not that they will be given a defense by any particular attorney.Report
James,
I think if we abstracted away from any particular issue, most people would find these points pretty compelling.The difficulty comes in when we start talking about issues that matter to us, because then it’s hard to see the value of these general principles–they’re obscured by our focus on the terrible wrong we see.
While I’m in the process of writing a response to Michael, I think this is why our side of the debate is so fun. We’re not facing an uphill battle. We’re scaling a cliff, but I’m in good shape. I won’t tire. 😉
We’ll probably lose too. When that happens, we’ll wait until a gay couple sues a state based on some future so-called religious liberty law. When the Attorney General says “You know what, anti-discrimination laws violate the First Amendment’s protection of free association. The market will punish this behavior.”, we’ll see how people think about the heroics of the Executive Branch.
Funny. The older I get the more I find living constitutionalism distasteful. It has nothing to do with the court decisions or the political views of the people that argue from this perspective (and I do mean nothing) but everything to do with the “if it’s good and just, it’s constitutional”. I’m too formalist for that. At the very least, I’ll settle for limiting principles on power.
Regarding originalist grounds and gay rights, Randy Barnett has covered this in an originalist defense of Lawrence v Texas. I wouldn’t call his view conclusive as conservative originalists disagree but there are originalist defenses for striking down SSM bans. I’ll leave it at that.
http://www.cato.org/publications/commentary/kennedys-libertarian-revolutionReport
Funny. The older I get the more I find living constitutionalism distasteful. It has nothing to do with the court decisions or the political views of the people that argue from this perspective (and I do mean nothing) but everything to do with the “if it’s good and just, it’s constitutional”. I’m too formalist for that. At the very least, I’ll settle for limiting principles on power.
Having spent some time in civil courts listening to divorce proceedings/settlement challenges, and having spent some time talking with court-appointed advocates for domestic abuse victims, I totally agree with this. And advocate once told me that the quicker someone plays the constitution card, the more likely it is that they actually are highly abusive, and find constitutionalism a defense/justification for their actions.Report
Dave,
If a gay couple sued the state over the constitutionality of a religious liberty law and the state AG separately thought anti-discrimination laws were unconstitutional, then wouldn’t the AG be very likely to step in to defend the religious liberty law? It doesn’t seem like a case where the problem is the AG simply absenting itself from the case.
This is exactly a good example of why thinking that the rule of law dictates positions on arguable legal questions to government lawyers doesn’t really hold together (though it can dictate they not make arguments very clearly inconsistent with the Constitution). Laws frequently conflict, or in any case plausibly seem to and need to be resolved. It’s a principle source of the need for judicial interpretation. Well, that seeming or at least ostensible conflict would face any advocate, including AGs, as much as judges. An AG would have to develop an argument about how a religious liberty law of this kind would interact with nondiscrimination laws. The result would almost surely be engagement with the case of some kind. Are you saying that actions like Holder’s would make our side’s view on SSm or gay rights more likely to have a conservative AG argue to defend the religious liberty law against the nondiscrimination law? Maybe a little, but I certainly would have expected that to be the result regardless. And in any case, it’s not an a example of refusing to defend a law by absenting oneself from a case, it’s an example of taking a position in a case in which laws seem to have opposing effects. that’s something we’d always have expected AGs etc. to do anyway.
Maybe a better example would be where there is no religious liberty law, and a business owner appeals a judgement under nondiscrimination law against him on the basis that you lay out against nondiscrimination laws. An AG agrees with his argument and refuses to defend the case. If the AG’s feeling really is that he honestly can’t offer a defense of the law consistent with the constitutions, that’s fine, then I don’t want him to. I have extreme (much greater??) confidence in the ability of and the certainty that outside groups would step in a provide a rip-roaring defense of the law. The judge would not lack for the best arguments to consider in the case. I’m extremely comfortable with that.Report
…I don’t mean to take you away from writing your response, though. I just wanted to make clear that I would be willing to bite that particular bullet. I’m sure there are bullets you could come up with that I would be less thrilled about biting, though.Report
Michael, by the time I’m done responding to you, I will have written a book. 😉
I kid, of course, but there are so many different angles I have to address across several posts and I’m not sure I can get to all of this – let me start with your recent post.
If a gay couple sued the state over the constitutionality of a religious liberty law and the state AG separately thought anti-discrimination laws were unconstitutional, then wouldn’t the AG be very likely to step in to defend the religious liberty law? It doesn’t seem like a case where the problem is the AG simply absenting itself from the case.
I think there are three problems with doing this.
The first is that Holder’s own words in the article Creon Critic provided show that this course of action is extraordinary and should be used only when on firm constitutional grounds. Let’s say a state AG is defending a same sex marriage law and rather than arguing before the Supreme Court as it’s constituted today, there are seven justices that hold Justice Scalia’s views. Does the state win or do proponents of marriage equality win?
Unfortunately, the definition of firm constitutional grounds depends on how one views how the Supreme Court would decide a case (absent established and binding federal precedent then yes, AGs should defer). That’s guesswork.
The second problem is the nature of sovereignty in our constitutional system. The government is not the ultimate authority. The people are sovereigns and they’ve delegated sovereign powers to both the state and federal governments (for the feds, there is a sovereign American people). Using the federal government, unless Article II’s Take Care Clause somehow vests the Executive Branch with “taking care” in the way that it decides IF laws get enforced, then the people never delegated that power to the Executive. When I say it is outside the rule of law, I say it because the people, who are the true legal authority behind the Constitution, ever granted a de facto power of nullification to the Executive. I think the historical case here is pretty strong. This probably explains Holder’s view in (1).
The third problem is that any law that is challenged in court is not a challenge per se to the government but to the sovereigns, the people. As James may have mentioned, we have to have some degree of a presumption of constitutionality to duly enacted legislation as they will have likely passed constitutional muster from two branches of government. It does not mean that they are right but an initial presumption of constitutionality is required. Obviously, any challenge to a law may impede the Executive’s ability to take care that it’s executed, it must face that challenge not based on its own views of a law but as representatives of the people.
I’m hoping that tying the rule of law to sovereignty reinforces the points I made before because I think this is the key. This is why Holder urged caution. He understands that it’s not the AG’s role to do this. Extenuating circumstances can be considered. However, as much as I support SSM, I’m not sure this qualifies.
Laws frequently conflict, or in any case plausibly seem to and need to be resolved.
Of course. We agree.
It’s a principle source of the need for judicial interpretation.
I would go further and say a binding judicial resolution.
An AG would have to develop an argument about how a religious liberty law of this kind would interact with nondiscrimination laws. The result would almost surely be engagement with the case of some kind.
I’m not suggesting that AGs not engage in cases. I’m suggesting that they stay within their legal boundaries and engage in the case in a manner that has been vested in them by the ruling authorities they represent, whether or not it’s the people of the United States or the people of the several states. They can look into things as much as they’d like but, as I mentioned, because there should be a presumption of constitutionality on their behalf, they have to start from there.
Are you saying that actions like Holder’s would make our side’s view on SSm or gay rights more likely to have a conservative AG argue to defend the religious liberty law against the nondiscrimination law? Maybe a little, but I certainly would have expected that to be the result regardless.
I’m not sure if I said or meant that, but that seems more plausible in your scenario. If you’re suggesting that it doesn’t matter, then I’d agree. I doubt it does at this point.
And in any case, it’s not an a example of refusing to defend a law by absenting oneself from a case, it’s an example of taking a position in a case in which laws seem to have opposing effects. that’s something we’d always have expected AGs etc. to do anyway.
I think my point is that they are constitutionally bound to take only one position unless the circumstances very much warrant otherwise or there is binding federal precedent on the matter. My three-point explanation was my best attempt to write out a defense of my rule of law concept in under 10 minutes. Otherwise, I’m going to get so deep into constitutional theory that people will fall asleep at their desks.Report
@michael-drew
No worries. I’ll do the best I can and if it doesn’t make it in the combox here, it’ll be a comment rescue. I’ll write a post. If I recall, you and I had a discussion once and when I went back to argue some points, I found an old post where you commented and I never responded. My response was four years late. I’ll do better this time. 😉
Don’t bite the bullet on anything. It does me no good to debate pushovers.Report
I won’t address each point; I’m not sure we’re really connecting on the key points here, as each of us is only has half an eye on this.
I just want to affirm one point: I absolutely agree that there should be, and I think there is, a presumption of constitutionality that all AGs operate with with regard to duly passed laws. I would even acknowledge that that presumption stems from the rule of law via separation of powers. (What I dispute comes from the rule of law in the obligation to defend even constitutional laws).
I’m only talking about situations where a lack of viable arguments is problematic enough that it defeats this presumption. The presumption isn’t absolute, in other words. So that if your argument was only that in the DOMA case, or in most of the cases Holder is talking about at the state level, the situation simply doesn’t rise to the level of constitutional nonviability that should defeat that presumption, I wouldn’t push back on that at all – that’s everyone’s assessment to make on his own. I’m pushing back because you’re arguing against any situation ever being able to defeat that presumption, and that that presumption, which stems from the rule of law, also dictates that the laws be defended, or at least that’s what I understand you to be arguing. My position is that the presumption is there, but it’s only a presumption and can be defeated by unavoidable reasons to think viable arguments for a law’s constitutionality can’t be made. Further, I don’t think that the presumption of the constitutionality of laws,and thus the rule of law, is itself what creates an obligation on the part of Executives to defend the laws in court. Rather, I think it’s other imperatives of government (maintaining a public display of consistency and coherence, protecting stability and predictability of governance) that create the norm that as a presumptive matter, the Executive will defend the law when challenged under the Constitution.Report
@dave
Your argument here is pretty strong, and I see where you’re coming from. So much, in fact, that I’m inclined to change my view. I don’t like the idea of potentially arbitrary action by the executive branch and such arbitrary action correlates strongly with the “not gonna defend any more” positions some AG’s have adopted and that Holder seems to encourage.
Even if I do eventually adopt your view, though, I probably wouldn’t carry it so far as to say that [emphasis mine] “[t]he duty of an attorney general is to defend the laws of a state all the way through every possible court challenge.”
Maybe they ought to defend the law in the court of first instance (or original jurisdiction, or whatever the proper terminology is), but I do think it’s possible that after that court or the immediate appeals, the AG might justly decide not to spend the resources defending a law. I imagine such a determination can be justly made on the basis of the following criteria: 1) available resources (so many challenges, so little money); 2) the likelihood of success (it’s been litigated all over and the precedent suggests it won’t win); and 3) the facial wrongness of the law (it invidiously discriminates).
I imagine you’re probably not categorically opposed to 1) and perhaps not to 2), either, because those are less ideologically charged criteria. You might say a decision based on such criteria is unfortunate inasmuch as the state is not getting the benefit of zealous representation to defend its own laws, but those prudential concerns are as much an outgrowth of the state’s own budgeting and staffing priorities. If the legislature/Congress doesn’t provide the budget, then they can’t expect their laws to be enforced as robustly and the executive might have to make hard choices. (And perhaps it needs to be said that Holder is not appealing to these prudential concerns when he speaks on what state AG’s could do.)
Therefore, your chief disagreement is with criterion 3), and that is also the point along which I’m coming around to seeing the issue as you do because you have presented a hard to refute argument.
Still, here are my reservations before I cede the position entirely, and these reservations are based on my view that it’s hard to separate 3) from 1) and 2). If the prudential concerns are so overwhelming–criteria 1) or 2) or both are in plain view and the odds are so heavily stacked against success–I have a hard time imagining that it’s an arbitrary violation of process for an AG to decide he/she doesn’t want to put the parties through the added uncertainty of yet another appeal. If the gay couple gets its victory in a district or local court and on first appeal that decision is affirmed, why take it to the state supreme court and put them through the additional hardship?
SSM is perhaps a red herring here. One effect of defending the case onward, for example, could be a state-court-of-last-resort decision affirming ssm more broadly than the local or appeals court decisions. I’d be more concerned about a law that results in unjust imprisonment. In such a case, continuing to defend such a law would mean more and more people would be imprisoned under it until the law is declared unconstitutional by the duly constituted courts, at which point I’m not even sure if those imprisoned under it can get a remedy. (How does it work when, for example, a commonly used search and seizure technique is found unconstitutional? Do all people who had been convicted under the prior evidence-gathering regime now have a case for appeal? If they do, where are they going to get the resources?)
As to the last point about “a law that results in unjust imprisonment” I’m stumped as to finding a real world example that works in the same way that the ssm cases do, where refusing to defend against a loss at a lower-level court can effectively re-align policies. Even my parenthetical example of search and seizure has more to do with executive branch practice (i.e., police departments as the executive arm of the law) than it does with a legislature-enacted policy.
Anyway, that’s how I see it.Report
@pierre-corneille
I haven’t forgotten about this either. I’ll try to write a response that addresses both yours and Michael’s points. I rarely get into longer discussions here so I should step up when I can. Great comments btw.Report
Thanks, Dave, I look forward to reading your response.Report
@pierre-corneille
Still, here are my reservations before I cede the position entirely, and these reservations are based on my view that it’s hard to separate 3) from 1) and 2). If the prudential concerns are so overwhelming–criteria 1) or 2) or both are in plain view and the odds are so heavily stacked against success–I have a hard time imagining that it’s an arbitrary violation of process for an AG to decide he/she doesn’t want to put the parties through the added uncertainty of yet another appeal.
I don’t there would be any reason to cede the position based on the response I wrote to Michael late last night (sorry, I don’t know how to link to my comments). I’ve backed off a bit from a more absolute position to one where the only substantive issue between Micheal and I is drawing the definitive boundary.
One effect of defending the case onward, for example, could be a state-court-of-last-resort decision affirming ssm more broadly than the local or appeals court decisions.
That’s what the Prop 8 proponents wanted after the State of California chose not to defend Prop 8 further in federal court (I think). In a way, I think the only way to get resolution on these matters is through those courts of highest resort (barring constitutional amendments).
SSM proponents would probably want this broad ruling too, especially now because they think that they can win. The Ninth Circuit case that applied heightened scrutiny to sexual orientation took an already strong case for striking down one-man one-woman marriage laws and made them very difficult to overcome. On that note I can see why AGs could have dropped their cases, especially if their arguments were only sufficient on rational basis grounds and nothing more.
To your last paragraph, I’m struggling to find an example. I hope the response I typed to Michael addressed the points you raised that I didn’t address here. I plan on adding another response to this later this evening. I hope this helps.Report
Thanks, Dave. It sure does help, and I appreciate the response and the other one you gave to Michael below. I don’t think our disagreement is that far apart.
By the way, I think you can find the direct link to a comment by clicking on the date portion of the comment and then using that link in a href tag. I’m usually too lazy to do such things myself. Maybe there’s a quicker way to do it.Report
AG elections.
Now we know where to put the next $100 million.
Signed,
David and Charles KochReport
+1 to this. There seems to be an undercurrent in some of the discussion here that AGs are dispassionate constitutional scholars sincerely considering the constitutionality of laws, rather than elected officials responding to a political constituency (at the state level) or appointed officials accountable to an elected official responding to a political constituency (at the federal level).Report
Yeah,
You play this out and the only conclusion I can come to that doesn’t lead to madness is an AG appointed by the legislative branch (State and Federal.)Report
The Justice Department, political? Thanks a lot, Obama!Report
By the way, I regret I cannot partake in the excellent continuing discussion, but I’m slammed with deadlines this week. Hopefully I can pick up by the weekend and perhaps do a follow-up post next week.
In the meantime, Richard Epstein has an interesting post at Ricochet (if you’re not reading Ricochet, you don’t know nothin’ about modern conservatives): http://ricochet.com/main-feed/A-Response-to-John-on-AGs-Refusing-to-Enforce-Gay-Marriage-LawsReport
@tim-kowal
That’s a good article, but it raises two questions for me, one on-topic, the other a tangent.
The on-topic question is, in the case of the Oregon AG, since she’s in the 9th Circuit where the Circuit Court has ruled that the rational basis test is appropriate, how much should that play into our evaluation of the propriety of her decision, as contra the lack of a SCOTUS ruling on the SSM issue? I ask because I’m honestly not sure, and would like to hear what others say.
The off-topic one is, is Epstein right about state judges when he writes:
A person can generally appeal an unfavorable state judge reading of the Constitution, potentially up to SCOTUS (leaving aside the boring procedural details), where that decision can be overturned. And aren’t state judges pretty much bound by USSC rulings? Not in the sense of punishment if they rule differently, but that their decisions are unlikely to stand on appeal. So either Epstein is very wrong, or I’m very much missing something here.Report
I think you may be conflating SCOTUS and the Constitution. While the Constitution is the law of the land and thus binding on state courts via the Supremacy Clause, decisions of the Supreme Court are only similarly binding via disputed views about the effect of Marbury: Is the decisional law equal to the Constitution? I’d say no. There are other reasons why the Court’s decisions are taken as final — I think it was Cooper or maybe O’Connor’s opinion in Boerne (I could be way off) that suggested the proper interplay was when one branch found another’s view of the Constitution to be wrong, the other branch could/should push back and not just roll over.
Even if I’m off here, Epstein deserves a lot of deference AFAIC, so I err against concluding he’s wrong about something.Report
Tim,
I agree about Epstein. His standing in the field is a smidgen higher than mine for pretty good reasons. So my “either he’s wrong or I am” was weighted toward me either being wrong or misunderstanding what he was saying. But I’m still not following. I get what you’re saying about pushback, and agree with that model. But as a practical matter–perhaps setting aside theory–since the USSC can directly overrule a state judge’s interpretation, is the pushback a state judge can give really an actual check on the SC?
I suppose if on appeal the SC reverses a prior ruling and upholds the state judge’s ruling that could be considered a check in the pushback model. I’m just not quite sure how the Constitutional reference matters much to that approach. Is it because in the absence of saying they’re bound by the Constitution they would feel more bound to follow SC precedent? I can see that, as theory, but it seems that in that case any who didn’t follow precedent would be even more likely to be reviewed, and the arguments that persuaded them more likely to get to the SC.
Perhaps it’s that the normative professional standards that would develop around that system might make them less likely to push back, because in that case doing so would be clearly contravening proper authority, whereas in our current system they can push back by reference to the higher authority of the Constitution? I would doubt the Framers were actually thinking anything like that, but that’s an effect that I can see as plausible; in fact I’d be so bold as to say probable.
Just kind of thinking out loud here, not trying to argue.Report
Tough questions. Epstein’s piece and lots of the comments here require more pondering than I can give them now. I will say that I think it’s not hugely important whether a state court can give “effective” pushback to SCOTUS. Noodling on Epstein’s examples, could a state continue to segregate schools after Brown v. Board? Is that effective pushback? To make the point clearer, what if a single state kept a single school segregated? Not much effective pushback, but seems certain we’d hear about it if so.
The question could be made more interesting if the cited reason was that segregation was still technically legal so long as it could truly be made equal. I heard one constitutional law scholar remark that Brown actually didn’t overrule Plessy’s central holding of separate but equal. Instead, Brown said that the empirical evidence shows that, in the context of education, separate happens not to be equal. Conceptually, at least, this suggests that the government could try harder to make separate but equal facilities. Now that might have been useful pushback, since, assuming the original premise is correct, SCOTUS might have gotten an opportunity to replace Brown with a more principled decision.Report
[Should go without saying, but when I say “replace Brown with a more principled decision,” I mean same result but based on principle rather than social science.]Report
Tim,
Thanks. As I noted, it was off-topic, but happened to catch my eye and make me ponder.Report
This was a pretty relevant quote from the Epstein article. I don’t have as much time to chew through that as I’d like given that I have some things to tend to here. Still…
My quarrel here is with how best to explicate that requirement. The issue here is not whether she thinks that there is no way to sustain the traditional ban on gay marriage even under the low rational basis test. The question is whether she can say with confidence that the Supreme Court is wedded to that position. I don’t think that can be done. Report
My word, @dave from a few grafs down we get:
There is certainly an air of concern trolling to the whole piece; the last sentence is a masterwork of it; right up there with homo=pedo.Report
@tim-kowal Epstein’s argument about state judges doesn’t make much sense to me outside of a purely theoretical sense. If he’s saying that, even if there is binding federal precedent, AGs have a duty to defend the law in constitutional challenges thereto in state court, I disagree with him, but I don’t see why that conclusion is of any practical import – with clear binding federal precedent, what sane plaintiff would ever choose to challenge the law in state court (and if the plaintiff’s insane, you don’t even get to the point of having to defend the law because insane pro se rants are pretty easy to dismiss)?
But if he’s saying that AGs have a duty to actively enforce statutes that have been ruled clearly unconstitutional, even if they agree that the statutes are unconstitutional…well, that makes no sense whatsoever. The only way to reach such a conclusion is to assume that there’s no such thing as prosecutorial discretion and that AGs have limitless resources to fully prosecute every single violation of law that comes to their office’s attention. Admittedly, I draw a significant distinction between enforcement and defense that you (and Epstein?) seem to oppose, but regardless of that distinction, the reality of limited resources dictates that there be at least a modicum of prosecutorial discretion.
I have a really hard time concluding that any duty to proactively defend and enforce the constitutionality of statutes extends past the stage where binding federal precedent has been set.Report
Frankly, I don’t completely understand Epstein’s article, so I don’t know whether I agree with all of it.
But man, is he smart. So if we disagree with him, I have to assume it’s only because these particular ideas only work among an advanced race of aliens.Report
It seems to me that there are more laws on the books than can be enforced, let alone vigorously, by any AG.
Given that “we need fewer laws until we have few enough that all can be enforced by any AG” is not on the table, we’re stuck saying “well, some laws will be enforced and some won’t.”
So we’re stuck figuring out which ones we won’t enforce. I can think of a handful of reasons that, if we’ve limited resources, we will choose different ones to enforce than these. The ones I can think of to choose these to enforce are cynical.Report
@michael-drew
I think I’m getting where you’re going and will try to respond to some of these points:
I’m only talking about situations where a lack of viable arguments is problematic enough that it defeats this presumption. The presumption isn’t absolute, in other words.
I’m coming around to this point of view. My position of presumption is rooted not specifically in the Take Care Clause of Article II but a rule I constructed from it (construction, not interpretation). It’s not an iron clad rule. Point conceded.
Where do we draw the line? I would say that two conditions are required. The first we would need to know that the Supreme Court would rule overwhelmingly in favor of striking down a law. I wouldn’t want to see 5-4. I’d rather see 7-2 or better. That’s just me. The second condition is enough political support so that any choice to not defend a law in court doesn’t cause widespread political repercussions. After all, if the AG ultimately serves the people that are the authority under the Constitution and the people want to see the law he is defending struck down, while it’s a bit less formal than I prefer, I doubt the people in general are going to care.
I’m pushing back because you’re arguing against any situation ever being able to defeat that presumption, and that that presumption, which stems from the rule of law, also dictates that the laws be defended, or at least that’s what I understand you to be arguing. My position is that the presumption is there, but it’s only a presumption and can be defeated by unavoidable reasons to think viable arguments for a law’s constitutionality can’t be made.
I think at this point, I realize that I was probably asking the impossible. I’m certainly more persuaded by this and think our differences on this point have been narrowed down to where the line is drawn. In a worst case scenario, the government announces that it doesn’t want to continue a case and a private party that can somehow demonstrate standing takes it (if that’s even possible).
Further, I don’t think that the presumption of the constitutionality of laws,and thus the rule of law, is itself what creates an obligation on the part of Executives to defend the laws in court. Rather, I think it’s other imperatives of government (maintaining a public display of consistency and coherence, protecting stability and predictability of governance) that create the norm that as a presumptive matter, the Executive will defend the law when challenged under the Constitution.
Here is where I am going to push back a bit. Today, the reasons you cite are fair points. However, in the first third of the 20th Century, when the Progressive movement was pushing for increased centralized power, the reasons the Executive were defending these bills had nothing to do with stability or predictability (especially given that some of the proposed laws took the scope of federal power far beyond what had been constitutionally accepted up until that time. You can argue political reasons for doing it and maybe there were some good ones. I’m not sure if they were the same reasons you cite though.
I’d have to think about this a little more and it’s almost 1 AM here. Your view seems more concrete (especially given the politicized nature over law) but the imperatives of government can change over time. My view is based on abstract background assumptions that go into the constitutional framework. That’s how I get to the rule of law. I think it’s more consistent that political imperatives but that doesn’t mean that political imperatives don’t matter.
I hope this helps. It’s 1 am and I’m brain dead.Report
Great responses, Dave. I appreciate it.
As I suggested, a bit, maybe a lot, of this is prodding on my part to try to get to the root of some of the questions. That’s definitely what I’m doing on the last point you raise, and I completely understand you pushing back on it – indeed, I’m excited to see exactly what can be said about this.
I’m not at all fully convinced I’m right about the rule of law bit of my argument (and I also don’t claim it’s the most important point in all this at all). I’m pushing at it to get at what the basis for it really might or might not be. Mostly, I’m just curious about it, because in your and James’ arguments when the thread was starting, I found nearly all the links in your arguments to be sound, but I found myself wondering about the the basis for that one.
I think I’m being so vocal about it because I’ve realized that it’s a point I’ve had a latent curiosity about that I never quite was able to put a fine point on what the question I was curious about was – but that turns out to be pretty much it. And it matters to me because, while I certainly agree that in order to maintain the broad public sense that the laws are being applied and interpreted in an impartial way as well as tend to the other imperatives I’ve mentioned, AGs can hardly be doing this in a willy-nilly way or just based on simple policy preference, it’s a different category of argument entirely to say that they are formally obligated under the rule of law to defend laws either absolutely or up until to X standard of constitutional defectiveness is satisfied. That would (as you’ve acknowledged) render this whole record of AGs occasionally making these determinations much, much more problematic than apparently it was thought to be by some critical group of elite watchers. As you have pointed out, that’s hardly proof that such an obligation doesn’t exist. But neither did I really see where you had established that it does. So it became a point of curiosity for me (which is not to say that I have no personal stake in the issue – I will and have copped to feeling that it’s better if we allow for some degree of expressive outlet for these official to express what we really do need to recognize are broadly divergent views of constitutional meaning that we have among governing factions right now. There will be times that officials will have severe constitutional objections to something that do not reflect a consensus view about the constitution; I actually kind of want to see a way for those to get aired out and examined by the public for both their intellectual justifications and their effects).
But also to some extent, I’ve been saying “I don’t think it’s so” so much just to motivate you to see if you could find the basis on which we could agree that you’re right. 😉Report