Can the President refuse to defend a law?

After it was announced that the Obama Administration would no longer defend DOMA in court, Republican Massachusetts Senator Scott Brown had the following comment today:

"...We can't have presidents deciding what laws are constitutional and what laws are not. That is a function of the judicial branch, not the executive."

Brown is echoing what many Republicans have said. He is also betraying his own ignorance of the American political system. As a sitting United States Senator, that is rather sad.

In reality, *no* branch of government has been designated the specific function of declaring laws unconstitutional - not even the Judiciary. While it is often said the Judiciary fills that role, the fact is that nowhere does the US Constitution authorize the Supreme Court to do so. The seed of that 'authority' was planted in 1803, when the Court decided in Marbury vs. Madison that a Congressionally-enacted law was invalid due to its unconstitutionality.

However, the development of that authority within the Judiciary does not mean that other branches of government are free to ignore issues on Constitutionality. When the President takes his oath of office, he specifically swears the following:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The President takes an oath to defend the US Constitution. He is not defending the Constitution if he or his administration are trying to preserve laws which violate that same Constitution.

The error Scott Brown makes - and one which many critics of Obama's decision are making - is the adoption of a simplistic view of government that ignores the overriding importance of the concept of the separation and balance of powers between the three branches of government.

On a simple level, it is often said that the Legislature "makes" the laws, and the Executive "carries out the laws." But that view skews the balance of power and makes it appear as if the President is merely a servant or administrator to Congress, whose only function is to do as he is told. Such a view sees the Legislature as superior to the President, and able to order him about to carry out their orders.

That is NOT how the structure of our national government was envisioned. Rather, it was conceived as being comprised of three separate branches, co-equal, each providing checks and balances to the others...and deliberately inefficient and inexact in the exercise of its powers. The ability of one branch to "check" another branch is one of the most basic features of the American System.

In 1788, within months of the adoption of the Constitution, James Madison, quoting the great political philosopher Baron de Montesquieu, wrote in Federalist Paper No. 47,

"When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner."

In other words, when these two branches 'merge' - or when one branch of government has the authority both to create laws AND force them to be carried out - tyranny may result.

It IS the President's responsibility to defend the Constitution...just as it is the Legislature's responsibility, AND the Judiciary's responsibility. No branch of government is 'superior,' and none is merely a servant to carry out the wishes of the other.

We see this all the time in less controversial settings:

Congress passes a law, and the Supreme Court refuses to convict someone under it.

The President authorizes a program, and Congress refuses to authorize spending to carry it out.

A Legislature passes laws against smoking marijuana, and the Executive branch (Mayors, Police Departments) choose NOT to enforce that law during a huge rock concert.

A president nominates Judges and Cabinet Appointees, and the Senate refuses to vote them up or down.

This happens on a regular basis. There is nothing different in the present case. Congress passed a law, DOMA, that is clearly Unconstitutional on multiple levels. Several Courts have already held that DOMA is Unconstitutional. The President is merely carrying out his responsibilities under the US Constitution to defend that document against laws which violate both its letter and spirit. It is a messy system, but it is messy on purpose...and any effort to insist that the President merely do as Congress tells him is certainly as un-American as it gets.

BREAKING: Obama will not defend DOMA

US Attorney General Eric Holder has announced that the US will no longer defend Sec 3of DOMA (“Defense of Marriage Act”) in court. This section prevented the Federal Government (and is agencies, such as the IRS) from recognizing the legitimacy of same-sex marriages validly performed in the 5 states and District of Columbia where such marriages are legal, and resulted in tax and survivorship inequities. This means that for all practical purposes, the recent rulings by Federal Courts in the northeast holding DOMA to be an unconstitutional overreach of federal authority into state matters will stand.

From Holders statement:

“...After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation...”

Humanity, Love, and Heartbreak...

This post is for all who believe that "Gay Marriage" is not "real marriage," who believe that people with AIDS "get what they deserve," and who are so devoted to free markets in health care that they lose sight of humanity. If you read it prepare to have your heart ripped out. It was authored, and is reposted annually on this day, by Joe Jervis of Joe.My.God. (The Village Voice's choice as Best Blog in NYC)


I Will Hold You Ten Times

1. I will hold you, Daniel.

2. The lesions don't bother me, I will hold you.

3. I will pretend nothing is wrong when you want me to pretend and when you want me to hold you, I will hold you.

4. I will make plans with you to go to your favorite places that we both know you can no longer go and I will sit with you and look at your pictures of these places and I will hold you.

5. I will ride with you on the train to your doctor's office and when you get sick in the station, I will hold you.

6. I will see the Post-It notes you put all over the house reminding yourself to do everyday things like "Turn off stove" and "Lock front door" and I'll pretend the disease isn't robbing your mind and when you tell me something for the third time in ten minutes, I won't let you know, I will hold you.

7. I will go to Safeway with you because you need to get out into the world, and when the diarrhea overwhelms you and you shit your pants in the middle of the store, I will call us a cab and in the cab, I will hold you.

8. I will make you mix-tapes of our favorite songs from last summer, just like you asked me to, and when the memories make you sad instead of happy and you throw the tapes in the trash, I won't get angry, I will hold you.

9. I will sit up all night with you because the fevers and night sweats won't let you sleep. In the morning, I will change your drenched sheets and help you out of the shower and when you weep from the sight of your withered body in the mirror on the bathroom door, I will hold you.

10. I will hold you, Daniel.

Making sense of the NH Republicans...and the UNPUBLISHED poll....

In the wake of yesterday's election of Jack Kimball over Juliana Bergeron as New Hampshire State Republican Chair, many news articles have attempted to present this as a battle between "two sides." And in America, we tend to simply battles into just two sides: Republicans vs. Democrats, Packers vs. Bears, Yankees vs. Red Sox, Toby Keith vs. The Dixie Chicks. But the reality behind the scenes is that the state GOP can be divided into at least three different factions, and the direction the party - and the State - will take is a function of how those coalitions come together - or fall apart - on individual issues.

In brief, the three main factions are The Establishment Yankees, The Theocrats, and the Libertarians.

The Establishment Yankees are best represented by the House of Sununu and the House of Gregg, two Republican families that have dominated NH politics for 40 years. These two families provided State Party Chairs, Senators, Governors, and White House Advisors (Sununu The Elder was Bush the Elder's Chief of Staff). And while the Sununus tended towards very conservative politics, their base has been the old tyme Republicans who worked the polls in the past, provided the votes, and had moderate tendencies (The McCain - Romney faction)

The Theocrats are a vocal, blistering minority of social conservatives, most of whom have moved in from out of state. They belong to Bible, Pentecostal, and Independent Churches. The Home Educate in droves. They are Pro-Life. And they have found their voice in the Cornerstone Policy Institute and its mouthpiece, Ken Smith. They are both fiscal and social conservatives, but it is the social issues that inflame their passions and drive them to organize and campaign and vote. When choosing candidates, they are the ones most likely to ask in a knowing whisper, "Is he saved?"

The Libertarians draw from two sources: young, fresh blood, drawn to the Granite State by its traditional bent towards libertarianism and publicity from organizations such as the Free State Project and the New Hampshire Liberty Alliance (Not to be confused with the House Republican Alliance); and from old tyme Yankees who have rejected some of the 'entrenched' politics of the Establishment Houses (see above). This group is fiscally conservative...but quite socially tolerant, if not liberal. This is the faction within the GOP seeking to preserve Marriage Equality through a variety of approaches (including getting government out of marriage all together), and support medical marijuana (as well as outright decriminalization).

To muddy the waters, there are many news reports trumpeting the success of Tea Party favorite Jack Kimball. But the Tea Party movement, while united on fiscal issues, is extremely fractured on social issues, and does not speak with one voice (a mistake often made by those on the left when commenting on the Tea Party).

And so, the recent election fell along these lines:

Julia Bergeron, Chair of the Cheshire County GOP, who rose through the ranks working within and for the party. Unsurprisingly, she had the support of The Establishment, including most of the GOP Senators, 4 of 5 Executive Councillors, and the House of Sununu.

Jack Kimball, former candidate for Governor, businessman, and Tea Party activist.

But where did they stand on the issues?

Juliana Bergeron was seen by some as a 'moderate,' by others as a conservative...and Marriage Equality was the lightning rod issue. Bergeron was not very clear where she stood: she voted against including an anti-same-sex marriage plank in the state GOP platform, and afterwards stated, “I’m 100 percent for our platform, but we have to respect those who don’t agree with every portion of it..." But she also made statements such as, “I have never been a proponent of gay marriage; I support traditional marriage." Her attempt to negotiate a bitter feud between pro-Equality and Anti-Equality Republicans in the Town of Swanzey resulted in her being seen as 'liberal' on this issue: she lost the support of Cheshire Republican strongman (and former NH Christian Coalition Chair George Fellendorf), and could not secure the support of one of five Executive Councillors, David Wheeler of Milford, a hero of the Theocrat faction.

Kimball, on the other hand, who cut his teeth on fiscal, not social, issues, came out with this beaut: “I won’t tolerate our party deviating from its conservative platform,” he told NHJournal.com. “I plan to get involved in activities at the Statehouse if and when I think we are straying from our platform."

In getting elected, Kimball attempted to make his agreement with the socially conservative platform very clear.

However, his actions belie his words: He then said Thursday he would name abortion rights supporters and U.S. Senate candidates Bill Binnie, of New Castle, and Jim Bender, of Hollis, to co-chair the GOP Finance Committee. Binnie openly appealed to abortion rights supporters in his unsuccessful campaign for Senate, and while news reports claim that he supports the the state’s same-sex marriage law, he told your Blogger, to his face, that he opposed it.

In the end, Bergeron had the Establishment. Kimball had the Libertarians (who were suspicious of Bergeron's moderation on fiscal issues) and the Theocrats, who were unimpressed with the strength of her support for the social issues in the Platform...though it's not certain that Kimball's action will support his words.

It was a close vote: 222-199.

Now, the straw poll...the media are announcing Mitt Romney's win among the delegates (an Establishment win), even if they are ignoring Ron Paul's second place showing (a Libertarian win).

But the "other story" is the poll that is not being reported. Delegates were asked, in a second poll, to indicate ALL the candidates they could support. Here are the results:

Tim Pawlenty 46
Michele Bachmann 44
Mitt Romney 42
Rick Santorum 41
Sarah Palin 38
Ron Paul 38
Jim Demint 34
Mike Huckabee 29
Mike Pence 24
Paul Ryan 24
Gary Johnson 20
Rudy Guiliiani 20
Haley Barbour 19
Newt Gingrich 19
John Bolton 15
Judd Gregg 15
Joe Arpaio 12
Donald Trump 11
John Thune 10
Mitch Daniels 9
Herman Cain 8
Jon Huntsman, Jr. 6
George Pataki 5
Scott Brown 4
John Cornyn 2
Tom Tancredo 1
Steven King 1

Notice the cluster of hard-line social conservatives at the top of the list: Pawlenty, Bachmann [shudder], DeMint, Huckabee, Santorum, Palin.

Notice the Libertarians in the second tier: Paul, Johnson

Notice no one gets more than 1/3 of the delegates voting.

Any appearance of a united, monolithic NH Republican Party is a news media invention. Any announcement that the "Tea Party" has taken over is premature and unhelpful. The NH GOP remains divided between its three camps. In the short term there will be an unpredictable dance between these camps..in the long term, as The Establishment dies off and loses ground....we will see a war between social conservatives and social libertarians. Who knows how far off that was is...

The Ceilidh House: a personal retrospective on a special Pub

This past weekend, I got to take a brief trip to Albany, NY, to participate in an event sponsored by Bear Albany. "Bears," for those of you who may not know, are a 'subset' of the gay male 'community': a little (or a lot) heavier and hairier than the models you find on the cover of Mens Fitness or dancing in a g-string. "Bear Runs" take place just about every weekend of the year, all around the world, and each one serves as sort as a 'reunion-party.' Having been to many of these, I can say that "Bears" are the nicest, most 'normal,' accepting, easy-going, non-judgemental bunch of gay men you could ever meet.

Two bars, ROCKS, and the Water Works, served as host locations for this weekend, and at one of them, a familiar looking face came up to me and said,

"You know, the Ceilidh House changed my life."

Now, the Ceilidh House was a Celtic Pub that I co-owned in Westmoreland, NH from 2007-2008. It swiftly developed a very loyal, wonderful "fan base," people I still consider some of my best friends in the world. Friends who would clear tables if necessary, help new patrons figure out the quirks of the place, spend their money, and offer their support and friendship. They helped set up our musical events, and prepared party favors for New Years Eve. The Ceilidh House "regulars" became sort of a private 'Club,' and the Ceilidh House was their clubhouse. In the single instance where we had trouble with some young drunk punks who came in and gave me a hard time...it was a combination of employees and patrons who actually beat the crap out of them and sequestered them in the parking lot until the police - and the ambulance - arrived. I am incredibly grateful and have wonderful memories of that Pub.

The clientele was an eclectic mix: friends, singing compatriots, collegiates, local "townies," karaoke enthusiasts, celtophiles, music-lovers, rugby clubbers, an afterwork crowd from the city of Keene, and snowmobilers and cross-country skiiers who would happen upon our pub. And on one Wednesday evening a month, we sponsored Bear Night: with no gay bar anywhere within a 90 minute radius, The Ceilidh House became a meeting and reunion center of sorts for gay men from a three state area.

He continued:

"I never realized there were other guys out there like me. I used to drive 75 miles just to come on Bear Night, and stay over. It has changed the course of my entire future."

We hugged, and he and his friends disappeared among the 250+ men dancing to technoversions of Lady Gaga on the dance floor...

I can never quite figure out how to sort out my emotions when things like that happen. And it wasn't the first time. I often hear my friends refer to the "Ceilidh House" gang...and I am at a loss for words to describe the bittersweet mix of deep pain and fondness I instantly feel.

As the Ceilidh House entered its first winter, it was quite clear that its financial survival was very much in question...and equally clear that my business partner and I had less and less of the common vision we had when the Pub was launched.

The revenue was no where what had been represented to us as typical in the past before we signed the lease, even on our best nights.

The cost of rent and heating oil (for a three story uninsulated barn with living quarters in the basement) ate up a third of the monthly intake. It's location on a hilly, rural stretch of road often made winter weekend visits treacherous: a single freezing rain storm on the weekend would destroy our ability to make ends meet for that month.

My partner's approach to management was more that of a "landed proprietor" than a "working partner." I could not get him to arrange for the beer tanks to be filled, to put up a simple employee schedule, or to open or close on time. On our explosively packed opening weekend...he took off with a friend and left me alone to work the crowd. I would bartend or cook; he would learn neither, but insisted on hiring others. On our single most profitable party - Mardi Gras - he chose not to show up to help at all. He cut short a training session I arranged with him to balance the financial books, to go on a date. He refused to allow me to sell ownership shares to our loyal clientele to raise capital to get through the winters. Eventually, as revenues fell, costs increased, and the task of keeping the Pub afloat took its physical and emotional toll on me, it was clear we were not going to be able to work together.

And so, in March 2008, I relinquished my ownership position and never returned. Most of my patrons were shocked, and many of them continued to try and help the Ceilidh House survive.

And I was left in a terrible, no-win situation: I could explain to each and every person why I needed to leave, and why it would eventually close, and what the problems were - - but what would that accomplish? Sure, I could 'justify' my decision to leave, but I would be bad-mouthing a place that people loved, and which, to be honest, I hoped would survive. I had no right to hasten the Pub's demise by talking poorly about it, and I did not want to be blamed for seeking to destroy it through such talk.

And so, I said nothing to anybody.

It was one of the hardest things I have ever done. And in my mind, my friends - all those who had helped me for months and enjoyed the Ceilidh House - must have been hurt, insulted, and bewildered, wondering why I walked out on it all without so much as an explanation. But what could I say? It hurt, and still does, but I felt that the short-term pain would eventually give way to longer-term understanding.

Three months after I left, the Ceilidh House closed.

I have seen my recipes - some of which were unique to the Ceilidh House - show up in the menus of other area restaurants, and have smiled. Every former patron I meet, whether an 'old friend' or not, still speaks fondly of 'what we had.'

I lost money, and I left many good friends hurt and bewildered. But every once in a while, I have an unexpected experience like the one I had this weekend...and I realize, in the long run, in spite of the difficulties...it was all very, very good. I think the healing is finally complete.

The Tucson aftermath, civility, and freedom...

I don't expect many people to agree with this post...but that's never stopped me before.

Growing up, I remember some of the icons of the news reporting industry: Walter Cronkite. Peter Jennings. Edwin Newman. Ted Koppel. Chet Huntley. David Brinkley. John Chancellor. Roger Mudd. Tom Brokaw.

These reporters, though they they had their personal opinions, attempted to report news - information - with objective facts. Though often accused of being 'slanted' one way or another, they saw their jobs as providing information, and not entertaining or outright campaigning.

Today (with notable exceptions such as George Stephanopoulos and Robin Roberts), Americans don't seem to want to hear 'news.' We prefer to hear partisan, angry finger-pointing...and we are entertained by this. On the right, Fox News is stacked with talking heads who use anger and alienation to attract viewership. Glenn Beck, Bill O'Reilly, and Ann Coulter never let an opportunity pass to offer their opinion on the news without a good dose of outrage.

But the left is not immune from this. Keith Olberman is just as prone to name-calling and passionate rants as O'Reilly, and Rachel Maddow drips with disdain and self-righteous superiority as she discusses the right. Bloggers (and their reader's comments) on both the left and right regularly say things in print they would hesitate to say in a face-to-face situation.

The Internet has insulated us from the need for civility.

We have decided that we would rather be entertained by comedians posing as newscasters or have our opinions and passions "confirmed," than actually be informed by news and information.

In the wake of the Tucson shootings, many blogs and commentators have retreated into the Blame Game. Blogs on the left have ripped the right for the anger and hate that has emanated from some right-wing sites. But in so doing, they are blind to the fact that they themselves are engaged in the same thing: Divide, Blame, Marginalize, Disdain. Define "The Other Side" as evil, and affix the blame on THEM.

A child who taunts a dog every day is not blameless when one day the gate is open and the dog chooses to bite in return.

Partisan Division is a Two-Way Street, and BOTH the Left and the Right are equally guilty. The problem with the lack of civil discourse is not the "Other Side"....The problem is the Man in the Mirror.

But equally as troubling as this irresponsible, childish move away from "real news" are the recent calls to 'clamp down' on basic freedoms as a result of the shootings. Stricter Gun Control. Restrictions on "Hate Speech." Pima County, Arizona Sheriff Clarence Dupnik was right when he recognized the atmosphere of hate and division that the media has engendered...but the suggestion that free speech needs to be monitored or prohibited runs counter to the most basic of American freedoms.

The efforts to 'control' Americans have a parallel in "Star Wars": Senator Palpatine, speaking to the Senate, convinces them that the Republic is under attack...and to give him extraordinary powers to answer that threat. The eventual result, of course, is that Senator Palpatine becomes Emperor Palpatine, and the Republic becomes the Evil Empire...leading to the Rebellion.

The United States has always been a disorderly, raucous, free-wheeling nation. To quote Ben Franklin from the musical 1776, "we're less refined, more vulgar" than Europe. "We require a new nation."

It was a bad enough blow to liberty when the Patriot Act was enacted. Current calls to restrict speech and firearms ownership to preserve order at the expense of liberty is the slippery slope that moves us towards The Evil Empire. And once the Evil Empire is in place, the 'rebellion' will grow.

I fear we may be in a no-win situation here:

Calls grow for greater security.

Freedoms are reduced.

That encourages black-market and 'under the radar' activities. And it encourages Defiance.

Defiance speaks the language of Violence and Resistance.

Calls for Resistance increase the calls for greater security.

Those desiring Security and those desiring Liberty demonize the other side, and draw hard and fast lines.

The first American Civil War has clear geographic lines. I'm not sure how the next lines will be drawn.

I *do* know that I am tired of Republican AND Democratic partisanship, and the rhetoric of BOTH the left and the right...and am destined, I think, to wander an in an Independent wilderness for the rest of my life while my country decides who and what it wants to be, and how its going to get there...Ive had it with both "sides."