Even the National Law Journal is now beating up on the Obama administration, and saying that the White House’s talking point about having no choice but to defend DADT in court is utter bull. I hope someone sends all of these articles to Valerie Jarrett so she can see why everyone is eviscerating her for alleging, repeatedly, that DOJ simply must defend all laws. It’s flat out untrue, as we’ve been saying for well over a year. Unfortunately, this article is behind a firewall, but the summary tells you all you need to know.
DUTY TO DEFEND?:
The Obama administration opposes “Don’t Ask, Don’t Tell,” but it’s still poised to defend the law all the way to the Supreme Court. Justice Department officials say they are duty-bound to defend an act of Congress. Yet history shows that this argument doesn’t always apply. During the last six years, according to records maintained by the Senate, the Bush and Obama administrations told Congress 13 times that they were not defending a federal law in court.
And a reader sent me the article. Here’s a small excerpt:
In 1992, back when Congress could occasionally agree on something, there was bipartisan anger over a beverage called Crazy Horse Malt Liquor because it insulted the memory of a Native American chief who happened to frown on alcohol.
Congress quickly passed a law barring federal approval of any beer label that displayed the words “Crazy Horse.” The brewer promptly sued, and not surprisingly a federal judge found the law unconstitutional under the First Amendment.
When the question of whether to appeal the ruling in Hornell Brewing Co. v. Brady arose, then-Solicitor General Drew Days III decided it would be futile; the law was beyond rescue. “Congress seemed to accept the decision not to go forward,” Days wrote later.
So much for the vaunted governmental “duty to defend” acts of Congress, which has been invoked often in recent weeks in connection with the “Don’t Ask, Don’t Tell” law barring gays from the military — a law that the Obama administration opposes but still is poised to defend. In cases much bigger than Crazy Horse — think Buckley v. Valeo and INS v. Chadha — SGs have been throwing provisions of federal laws under the bus for decades. And Senate records show that, 13 times in the past six years, during both the Bush and Obama administrations, the Justice Department has told Congress it is not defending an act of Congress.
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