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Going to debate is emerging today about a key moment in yesterday's Supreme Court hearing over the defense of marriage act or don't -- as it's called.
-- in 2011 President Obama and attorney general Eric Holder decided that that law was unconstitutional.
And it's a law on the books that they.
And so while they continue to enforce it they refused to defend it in court.
That prompted conservative leaning justice Antonin Scalia to ask yesterday from the bench.
Whether the Justice Department is now in a place where it will just decide when it -- And will defend the law.
If we're living in this new world.
Where the attorney general can simply decide.
When -- it's it's unconstitutional.
But it's not so unconstitutional but I'm not willing to enforce it.
If we're in this new world I I don't want these cases.
Like this to come before this court all the time.
And I think they will come all the time if that's if it effects the the new regime in the Justice Department that we're dealing.
Genealogy secular he's chief counsel for the American center for law and justice and -- are -- -- as an attorney and South Carolina Democratic Party chair.
This so interesting because when Eric Holder first came out and said.
I am not going to spend with this law just law that's been passed is on the books and was signed into law by president I'm not gonna defend it.
The people said but it's a law can considering -- gonna have to.
And then it was pointed out well it's not the first time in history doesn't have very often does not the first time in history.
That an attorney general has made such -- decision Justice Scalia doesn't seem to be persuaded.
By the fact that it may have happened in the past.
Well it's not happened in the past in the same context as this one where.
The law was -- on the books passed signed into law was a -- a valid law was being enforced and -- the attorney general the president.
Decide on the -- and that's not a law they're going to enforce.
-- -- going to offensive -- the not gonna defend it.
-- -- not defended and actually the brief that I filed at the Supreme Court -- states.
On the in the -- a case did not deal with the merits of -- -- -- your -- defense of marriage act or not -- this issue.
Of whether in fact the base of the new executive branch of the government.
Can instruct the attorney general the president instructed attorney general not to enforce a law that is in fact constitutional.
At least a rational basis for its constitutionality.
And that certainly the arbiter of what's constitutional and what's not.
-- should not be the attorney general the United States that's what that's -- cases -- brought before.
The Supreme Court so argument was simple this is a we -- public we don't live in a monarchy the president doesn't get it to pick and choose.
The loss and negative it was a -- cited President Obama had little got a -- -- -- congress passed Benedict said same sex couples were entitled to the same federal benefits.
As as the other married couples and then another president comes -- that you know what I don't like that law I think you know.
It's probably not constitutional.
Noted -- -- how would the other side react to that.
Not too well so that helped put -- -- the other day about same sex marriage and focuses on judiciary -- I had -- Well I mean I think first of all your guest has confused enforcement with defending it -- the statute.
The laws being enforced the question is if it's challenged.
Do you defend it as being constitutional when you believe it's not and I think they have an ethical duty.
That they enforce it as long as it's a valid law -- be there's note and several times in the past administrations Republican and Democrat.
Democratic and not the way it ended.
Defended statutes are there in the breaks I mean I'm not gonna -- -- that the audience that the what and it -- -- -- -- Lowell let me finish.
There are several times they've not done that and many times -- state statutes have been passed.
Banning for saying the same.
African Americans are -- white people in Virginia.
That was not defended.
By the administration they took no position but here's -- with the most -- bank.
This is about federalism to some extent natural wasn't a federal offense this is a federal law that's it's -- and that's the federal government -- -- to take -- -- think this is it.
Let me tell it didn't ask you this.
For Eric Holder to be the one in their defending.
Because his well oath and obligation is to faithfully defend the laws of the constitution of the United States.
And you cannot have a situation.
There's two very limited exceptions to that rule one is when a presidential power is at stake not applicable here.
And one where there is absolutely no rational basis upon which it law can be deemed constitutional here the courts have gone both ways and I think all the justices and knowledge.
That -- could've been defended what concerns Justice Scalia was the fact that what you just said Megan.
That the state the federal government here made a determination on the road to not defend a federal law -- -- when you bring up loving vs Virginia these other cases absolutely irrelevant different situation completely it's very.
Absolutely not applicable this up federal law that they are going to enforcement not the -- and -- argument was all who can defend it nobody saw that what are you end up with so that the president.
It's ridiculous harness that what else wants that you know were threatening his case about whether the people who had to step in to defend -- which were basically that that.
With the house Republicans right it wasn't -- thousand Robbins that I had a final word go in there and that what's called the bipartisan legal advisory group that is what it's a little accident had advised me to go in and demanded that's rather be a hornet's -- of the Supreme Court wondering well the US standing -- -- -- Dick let me ask you this I mean right at what it does set sort of managing precedent what -- we had a president rubio in the future and he decided.
All I care is not would not commented -- and I don't want to go defend it it what it's a constitutional challenges.
Well I mean obviously somebody would that would defendant and I think got somebody would contestant let's let's let's -- Put it this context let's say would complicate it -- yeah.
I think that's our president -- and deliberately to make that's -- -- could it be cut back on the coffee maybe we could finish this.
The let's say this that the company had little off Le let let let's say the congress passes a law that says you've got to register every firearm.
Arm and it passes the -- the president signs it.
And then nine the next administration somebody challenges that law under the Second Amendment.
The administration forces it.
Should the administration defend that law -- mean it's whose ox is being gored in in this case it's people I want don't want -- -- he married.
Being here -- that's my.
-- -- defending document Carson.
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