DOMA Defense is “Unprecedented.” Do we take a shot?

March 27th, 2013

The Chief Justice said that the Obama Administrations decision not to defend this law, while still appealing it was “Unprecedented.”

CHIEF JUSTICE ROBERTS: Okay. So putting 14 Lovett aside, since none of this was discussed, is there 15 any, any case? 16

MR. SRINIVASAN: No, I don’t know of one. 17 But these — but, Mr. Chief Justice, with all due 18 respect -­ 19

CHIEF JUSTICE ROBERTS: So this is totally 20 unprecedented. You’re asking us to do something we have 21 never done before to reach the issue in this case. 22

MR. SRINIVASAN: Let me say two things about 23 that if I might, Your Honor. First is that it’s — it’s 24 unusual, but that’s not at all surprising, because 25 the -­

CHIEF JUSTICE ROBERTS: No, it’s not just -­ 2 it’s not unusual. It’s totally unprecedented.

MR. SRINIVASAN: Well, it’s totally 4 unprecedented in one respect, Your Honor. If you look 5 at Chadha — okay, the second point I’d make. Let me 6 make one point at the outset, though, which is that 7 whether it’s totally unusual or largely unusual, I grant 8 you that it doesn’t happen. But the reason it doesn’t 9 happen is because — I wouldn’t confuse a numerator with 10 a denominator. This set of circumstances just doesn’t 11 arise very often.

What a great title for a book! Or a drinking game.

Scalia channeled his inner Aladdin and said this was a whole “new world.”

14 JUSTICE SCALIA: It has not arisen very 15 often in the past, because in the past, when I was at 16 the Office of Legal Counsel, there was an opinion of the 17 Office of Legal Counsel which says that the Attorney 18 General will defend the laws of the United States, 19 except in two circumstances: Number one, where the 20 basis for the alleged unconstitutionality has to do with 21 presidential powers. When the presidential powers are 22 involved, he’s the lawyer for the President. So he can 23 say, we think the statute’s unconstitutional, I won’t 24 defend it. 25 20 The second situation is where no possible rational argument could be made in defense of it. Now, 2 neither of those situations exists here. And I’m 3 wondering if we’re living in this new world where the 4 Attorney General can simply decide, yeah, it’s 5 unconstitutional, but it’s not so unconstitutional that 6 I’m not willing to enforce it, if we’re in this new 7 world, I — 8 before this 9 I don’t want these cases like this to come Court all the time. And I think they will come all the time if 10 that’s — if that’s — if that’s the new regime in the 11 Justice Department that we’re dealing with.

New regime at DOJ. Ouch.