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Ben Stein: The Passion of Mel Gibson
August 1, 2006 | 3 comments
The Spectacle Blog
Re: Mr. Obama and Mr. Holder’s “decision” that the “defense of marriage” act is not constitutional and that they will no longer defend it… Correct me if I am wrong, gentle readers, but under the Constitution, and early decisions by Justice Marshall’s Court, doesn’t the Supreme Court decide if a law is constitutional? I cannot recall a president making that decision by himself. I am all for gay men and women to have every right that I have. But isn’t it a dangerous usurpation for the president to now take over the roles of the courts in their ultimate duty — ruling on the constitutionality of laws? Isn’t this about as dangerous an act as a president has ever done? Or am I missing something? Again, I love gay people and want them to be total equals of everyone else. But isn’t there a major constitutional coup going on here?
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More Blog Posts by Ben Stein
http://spectator.org/blog/2011/02/24/a-major-constitutional-coup-go
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Purple Lips| 2.24.11 @ 2:40PM
See my earlier posts concerning the coming Obama Coup and his promotion of Janet Napolitano to Field Marshall. I think Field Marshall von Napolitano has a nice ring to it, don't you. Exciting times!!!!
Kryppic| 2.24.11 @ 2:58PM
An incipient fascist state is arising, rapidly.
America wake up we are loosing the republic.
Alan Brooks| 2.25.11 @ 12:37AM
"An incipient fascist"
You mean Commie? Fascists did not like gays.
Curly| 2.25.11 @ 2:37PM
Commies and Fascists are two sides of the same Statist coin. You libs will never learn.
WL| 2.24.11 @ 2:44PM
I'm not totally sure Mr. Stein...I think it is just one more shot at the Supreme Court.
I predict that this administration will get to a point where the Marshall Precedent of Judicial Review itself will fail to contain their actions...
When the Senate refused to pass Cap and Trade, this administration went down of the road of lawlessness and daring anyone to stop them...
That Mr. Stein is where we are at...
It's not if they will stop or respect law and honored precedent...
It's whether someone can stop them or not.
PhilTheCapitalistPig| 2.24.11 @ 2:48PM
dittos
Mark | 3.9.11 @ 1:16AM
It seems to me it's not so much a matter if anyone can stop them, it's more like does anyone have the balls to stop them.
PhilTheCapitalistPig| 2.24.11 @ 2:47PM
No, you're not missing anything, Mr. Stein. In fact, its just the latest in a long line of examples of Obama declaring his rightgeousness over the courts. Drilling moratorium, Obamacare, now DOMA.
He's so damn smart, that only his opinion matters to him.
cali| 2.24.11 @ 2:47PM
My hunch is that they are testing how much they can get away with; surely they are attempting a coup.
Next may be to suspend elections in 2012, because they can't win fair and square, sowing anarchisitc violence all over the US (remember he's tarting to get his community organisers to expand, agitate etc.). Next, before the election they declare amnesty for all by fiat by the back door.
They will get away with it unless the GOP grows a spine, and put a stop on it. Let's hope they get a clue to see what's going on, and get with the program-the GOP is always slow to act.
PhilTheCapitalistPig| 2.24.11 @ 2:50PM
I agree with everything except the last part about the GOP. Maybe I'm the only one, but I'm proud of guys like Walker and Christie who are aware that they are on the Front Line. Make no mistake, we are at war, at right now the Front Line is in Madison.
If we win this battle we will get the see a domino effect across the states.
THE REVOLUTION IS HERE! REFUSE TO LOSE!
Karl | 2.24.11 @ 2:48PM
Actualy, every elected official takes an oath to defend the Constitution. To me, that means every elected official is obligated to judge whether a law is constitutional and not aid unconstitutional laws into passage. That means, among other things, the President should have vetoed the McCain-Feingold campaign finance bill and not hoped the Supreme Court would "fix it in post-production".
The Administration has the right to decide a law is unconstitutional after all, and quit supporting it. That the current Administration has warped notions about what the Constitution says is a matter for the voters to repent.
David W| 2.24.11 @ 3:13PM
wrong. Any president has the right to veto a bill before it is passed. However, once it is passed it is the law. No administration can pick and chose which laws it wants to enforce. If so, then, as was posted on another site, the next Republican president can unilaterally declare that Roe vs Wade was unconstitutional and not support it. Or can declare the voting rights act/law as unconstitutional and tell the DOJ not to enforce it (oh wait, it already is not enforcing it). Or declare it is unconstitutional for a Federal employee to be in a union (whether there is a law or not).
It is up to the Supreme Court to determine if a passed law is constitutional or not. Congress can determine, while they are debating a law, if it is constitutional or not and then pass it based upon that. However, the court determines true constitutionality, not the Congress (e.g., Obamacare) and not the President.
The President took an oath to defend the Constitution and the Laws of the land. He is violating his oath. I believe that could be considered an impeachable offense (more so than Bill "Blue Dress" Clinton's lying about having sex with Ms. Lewinsky).
Bob White | 2.24.11 @ 7:26PM
That's not true. There are good reasons for Presidents to refuse to execute laws, even laws passed and not vetoed earlier. Look up Myers v US.
Patriot| 2.24.11 @ 10:12PM
But if what you say is true, chaos is inevitable.
Besides, I believe Obama is a rogue President and I don't trust his motives. Didn't he appoint 50 czars or something? Isn't that a shadow government? He's no good IMO.
Bob White | 2.25.11 @ 8:38AM
I would say that chaos is likely, not inevitable. What Obama is doing directly weakens the rule of law and puts in its place Presidential judgment. Where Presidents have done this before it has primarily been to defend Presidential power (e.g. to assert the power to remove an appointee from office as in Myers v US). To assert Presidential power to override the elected representatives in Congress (and in those states that disallow gay marriage) is one of the most blatant assertions of power we've ever seen. Add to that his refusal to defend the southern border in AZ and the refusal to comply with judicial decisions on Obamacare and oil permits in the Gulf -- Obama views himself more as King than constitutionally constrained President.
But the only remedies are impeachment and removal or beating him at the ballot box.
Patriot| 2.25.11 @ 2:44PM
You're quibbling; but in general, you agree with my point.
Thomas| 2.25.11 @ 10:23AM
There is always the danger that a law may be passed which is unconstitutional. And, the chief executive officer has a duty to protect the rights of the inhabitants of the country against harm. In the case where the President believes that a law is unconstitutional he has three choices.
1- He can refuse to enforce that law. This brings with it the danger that he can be charged with nonfeasance, if the courts decide the law is constitutional.
2- He can enforce the law, anyway. Usually, other interested parties will bring this matter before the courts and the constitutionality issue will be decided.
3- The President can bring the matter before the courts for a judgment as to its constitutionality. In this case, it is usually possible to obtain an injunction barring enforcement of the law until the court has ruled.
In the case of the Defense of Marriage Act, the Supreme court has never ruled on the Constitutionality of the Act. And, there are some valid questions as to its constitutionality. while I would have been happier if the President had attempted to certify the questions concerning the DOMA to the Supreme Court, i believe that he is within his rights tae the action that he did. Until there is a final judgment from the SCOTUS, the enforcement of this act will subject to Presidential desire.
Quin| 2.24.11 @ 2:52PM
I love Ben Stein's work, but to answer him: No, this is only a minor constitutional coup, not a major one. But a coup of sorts it definitely is, which is why Stein is right in the basic thrust of his post.
The president must "see that the laws are faithfully executed." He claims he will still do so, on the operational end. He also has a duty, by tradition if not by law, to defend in court any duly passed and signed statute that can reasonably be defended. On the other hand, as an equal branch of government, the executive does have an independent responsibility to refuse to openly violate the Constitution. In practice, this means that if in his view it is OBVIOUS that no REASONABLE constitutional argument can be made in a law's favor, he may instruct DoJ not to defend it in court. The problem here is that nobody in good faith could possibly say DOMA is obviously unreasonable to defend from a constitutional standpoint. In short, a close call or even a semi-close call goes in favor of having the Solicitor General defend the law. It is, after all, a law passed through republican, constitutional processes, reflecting the will of the people. Shannen Coffin, former high DoJ official and former counsel to Dick Cheney, was right yesterday to say Obama's decision is politics masquerading as con-law. It is execrable for Obama to have done -- but, in theory at least, it is within his outer prerogatives.
Handy| 2.24.11 @ 3:58PM
Oh, barfaroo.
Andrew Jackson said, "John Marshall has made his decision, now let him enforce it." And that was after the Cherokee question had been adjudicated. DOMA is just sitting out there in limbo as of now.
Before this thing gets rolling, it is time to outlaw all marriages and end the "Marriagetocracy."
Patriot| 2.24.11 @ 4:21PM
Let's see how loud the liberals squeal when President Palin negates ObamaCare.
gearjammer| 2.24.11 @ 5:30PM
And all the green and enviro nut junk. Did Either Bush issue an executive order. The Gipper ?
ncatty| 2.24.11 @ 4:02PM
Your analysis is correct, Quin.
Paul| 2.25.11 @ 5:52PM
Actually, I can in good faith tell you DOMA is obviously unreasonable.
First, there is nothing to defend against. My marriage is not affected one bit by another couple getting married.
Second, taking away rights to one group of taxpaying Americans based on the (primarily) religious beliefs of another group is the definition of unconstitutional.
Was Shannen Coffin all up in arms about Bush's Presidential Signing Statements and their breach of the separation of powers?
Curly| 2.26.11 @ 6:30PM
There's no "right" to marriage, screwball. Quit making stuff up.
Greg| 2.24.11 @ 2:55PM
I have to disagree with Ben Stein on this point. Every constitutional officer at the federal level has to protect and defend the constitution to the best of his ability. If the president believes that the law does not comport with the constitution, then I would hope that he would not press forward with enforcing the law. If congress disagrees, then they may bring a suit to compel enforcement, or impeach the man.
No man should be compelled to enforce what he does not believe is lawful. However, and this is the key point, he should be prepared to face the consequences of that refusal, in this case, impeachment, conviction, and removal from office.
L. E. Powers| 2.24.11 @ 3:15PM
Nicely stated, Greg. I was about to make the same point. We are not a nation that blindly obeys orders that have been given us from others; but we have to have the courage of our convictions and live with the consequences.
Wayne | 2.24.11 @ 4:02PM
This law has been in effect for a long time. Obama had every opportunity to change it as a senator. He could have run against it but didn't. Mr. Stein is right, as we know Obama does not care a whit about the constitution.
Handy| 2.24.11 @ 4:42PM
Greg, and with respect to the previous posters to your comment,
We get all wrapped around the axle about enforcing and not enforcing stuff. Here's where the rubber meets the road.
No one is entitled to issue an illegal order, and no on can be compelled to obey such an order.
If Congress passes a law that says I must stick up a pharmacy to satisfy their drug addictions, that would be an illegal order. Should the President enforce such a law if I don't rob the drug store?
This whole thing is so simple. Just outlaw marriage and stop conferring preferential treatment on married people. I support the GROMA (Get Rid Of Marriage Act).
And, I am not kidding.
Mike | 2.24.11 @ 6:29PM
"If Congress passes a law that says I must stick up a pharmacy to satisfy their drug addictions, that would be an illegal order. Should the President enforce such a law if I don't rob the drug store?"
You all ready satisfy their drug addiction on April 15. Spending other people's money like drunken sailors. ;-)
JD522| 2.24.11 @ 2:56PM
Remember when W's "signing statements", which merely stated his opinion of or objection to some aspect of a bill he was signing into law, were supposed to threated the very foundations of the Republic? Now Obama is unilaterally deciding not to defend a Federal law in court because he has decided it is unconstitutional. And the compliant press is fine with this. (Well, what do you expect from the same peopel who accept Holder's DoJ declining to prosecute civil rights case involving victims of the "wrong" color and dropping a case it had already won against criminals of the "right" color without a peep?)
Regards,
Joe
Rowan| 2.24.11 @ 2:58PM
Thank you for saying what I've been saying ever since I heard the news. This "gentleman" has no respect for our laws or our Constitution, as he has made perfectly clear, yet again. (I use "gentleman" advisedly, since as a lady, I won't stoop to his level and use invective.)
Rick V.| 2.24.11 @ 3:14PM
Hey, O'Barry is a constitutional scholar. We all knew that before his ordination. Too bad nobody asked what country's constitution he was an expert of.
DRed| 2.24.11 @ 3:24PM
Obama's not the first president to do this, so no, it's not a coup of any kind. Here's a justice department memo from 1994 that discusses the issue:
http://www.justice.gov/olc/nonexcut.htm
Patriot| 2.24.11 @ 4:41PM
Wasn't Clinton in office in 1994? Figures.
DRed| 2.24.11 @ 4:45PM
It figures you didn't bother reading that memo, because then you'd know that ol Slick Willy was hardly the first president to do it either. Don't let the facts get in the way of a good rant about how Obama is the most tyranical tyrant in history-I mean, he wasn't even born in America, right?
Patriot| 2.24.11 @ 5:41PM
So, you're a Birther, troll? Probably a Truther, too, clown.
Paul| 2.25.11 @ 6:02PM
I think that was written in jest... less time being a flag waving "patriot" ranting about tyranny and more time reading might help your argument.
Patriot| 2.26.11 @ 5:18PM
Mine was written in jest, too. My comprehension skills aren't the ones in question, moron.
Bob White | 2.24.11 @ 3:27PM
The Supreme Court does not have a monopoly power to determine what is constitutional and what is not. In fact, the primary enforcer of constitutionality is the Congress (given the most deference because they are elected); secondary is the President by virtue of his veto.
This does not imply that the President has free rein to ignore laws willy-nilly and perhaps change his mind at a later date and start enforcing them again. This would effectively destroy rule of law. A sane Congress would impeach the President for that, but it's been a while since we've had a sane Congress.
Look here for an excellent discussion of the issue of refusing to execute a law the President deems unconstitutional:
http://www.stinque.com/2010/10.....stitution/
Recall though that the President has merely asserted his intention not to defend a particular section of one law when challenged in court. Is the duty to defend US laws in court a part of or equivalent to the duty to enforce the law?
Wayne | 2.24.11 @ 4:03PM
So any President in your opinion can interpret the constitution ANY way he chooses.
Patriot| 2.24.11 @ 4:24PM
We're no longer a nation of laws with King Obama ruling us..
Bob White | 2.24.11 @ 7:24PM
Yes, he can. But the Congress can also impeach him for doing so (on the argument that he is not properly fulfilling his Article II responsibility to execute the laws as written).
Read the article I linked to. It gives a good example of when Congress passed a law prohibiting the President from removing certain people from office. Pres. Grant recognized that taking away that power from the President would make it impossible to run the gov't. You could have insubordinate people working for you who were ignoring the President's will and he would be prevented from firing them. Eventually, Wilson just ignored the law that all Presidents had disliked and the Supreme Court agreed with him.
So the only check on the President's refusal to implement laws he deems unconstitutional is to impeach and remove him.
Patriot| 2.24.11 @ 9:56PM
We may be able to impeach the clod, but I doubt if the Senate has enough votes for removal.
Bob White | 2.24.11 @ 3:31PM
Bernard Nussbaum, counsel to Clinton, wrote a memo that touches on these issues:
http://www.justice.gov/olc/signing.htm
PattyMor| 2.24.11 @ 3:47PM
This is a very lawless and tyrannical president. He has made himself the executive, legislative, and the judicial branches of gov'ment. He has sued states just trying to keep illegal aliens out. He has defied TWO court orders. And yet, on he goes like the energizer bunny.
As Mark Levin says, we are living under tyranny.
tj| 2.24.11 @ 3:48PM
Constitutional Scholar my azzzz. Just a plain ole thug
PhilTheCapitalistPig| 2.24.11 @ 4:57PM
He's keepin' it gangsta!
E | 2.24.11 @ 3:57PM
Indeed! Since when does the President decide what laws we keep and what laws we don't? Not to mention since when is the President entitled to ignore court rulings he doesn't like?
Also, I have one observation about the current marriage issue: Homosexuals do have the right to marry--they have the right to marry a person of the opposite sex. What the activists are really after is special, extra rights and not equal rights. They already have equal rights with everyone else. No one is saying they can't get married. That is not the issue. The issue is a fundamental (and ultimately arbitrary) redefining of the oldest human institution. Marriage is by definition the union of one man and one woman for life. To try and change that is to say words mean nothing and we have no ground to stand upon. I believe this is overlooked or ignored in most discussions about this issue.
Tom Conway | 2.24.11 @ 5:01PM
Of course you are right, but our omnipotent Pres is above all that silly Supreme Court procedural nonsense; remember how he change the bankrupcy laws, and without a wimper from anyone.
Occam's Tool| 2.24.11 @ 5:02PM
Well, Ben, this type of scurrilous, despicable, nogoodnik behavior is what I would expect from a lawyer trained in the Ivies. The Ivy Leagues, and Yale and Harvard in particular, have a long trail of slimy, despicable, evil grads.
DRed| 2.24.11 @ 5:11PM
Hey, just because Ben was completely wrong about this it doesn't mean you have to trash his alma mater.
Patriot| 2.24.11 @ 5:37PM
No one said Ben was wrong but you, clown.
DRed| 2.24.11 @ 5:58PM
Yes, but he's factually wrong. Obama is not the first president who elected to selectively defend a law. If you want to argue that he's wrong to do so in general, or for this particular law, then have at it. But if you're going to claim he's the first president to do so, then you're just wrong.
Patriot| 2.24.11 @ 7:01PM
You just made my point for me--again.
Chris Future | 2.24.11 @ 7:58PM
By this action, he has basically put himself and his preferences above the law. What other laws will he decide NOT to enforce? Illegal immigration? Race crimes against whites? Violence by union thugs? Why stop now?
Stan Redmond| 2.24.11 @ 11:19PM
The second amandment is uncostitutional. Stop enforcing that.
Obama hear our prayers...
beebop| 2.25.11 @ 5:38AM
Please offer something that is a cogent argument. Thanks so much ....
Stan Redmond| 2.25.11 @ 1:02PM
Ehhh... Satire is never good if it needs explaining... So my apologies.
Youtube is full of Obama Prayer clips and "2nd amendment unconstitutional" from Obamatons. Yes, the absurdity of argueing constitutional amendments being unconstitutional is obvious but it hasn't stopped Obama.
ehb001| 2.25.11 @ 2:20AM
You are damn right there is a constitutional coup occurring! Why is nothing being done about this administration's law breaking? They just seem to be getting a free pass each time they do something like this. Like not obeying the judge that ruled Obamacare unconstitutional. Like ignoring the judge that overruled Obama's ban on drilling for oil in the Gulf. I could go on.
I could not believe it when I heard it on the radio today. I guess they are trying to see how much they can get away with and maybe they think that people are more tuned in to the upset in the Mideast. If we don't pay attention, we will pay in other ways. Loss of liberty is usually permanent. I don't want to lose mine.
Sam Brasel| 2.25.11 @ 8:54AM
Ben, sometimes it's best to leave legal issues to the experts in order to avoid embarrassing oneself as you have just done. Yes, you did miss something! A retraction is needed, although I doubt you will issue one. From Media Matters:
"The Department of Justice recently announced that it will no longer defend Section Three of the Defense of Marriage Act following a review, in conjunction with the White House, that found that its definition of marriage as a "legal union between one man and one woman" is unconstitutional. But that does not mean [...] that the administration will stop enforcing the law. Indeed, the Justice Department has stressed that the Executive Branch will continue to enforce the law until Congress repeals Section Three or a court renders the section unconstitutional."
Stan Redmond| 2.25.11 @ 1:10PM
so DOMA proponents only need to find a judge and declare it constitutional is all, right? Like Ombamacare? The law is now defined by what the last judge says it is and not through legislation. Personally I don't care if Marsha wants to marry her pet turtle. I don't want to live under the tyranny of a king's ruling followed up by a politically motivated judge.
Patriot| 2.26.11 @ 5:22PM
Stein is a legal expert, moron. Please do a little research next time so you don't embarrass yourself. And, please--refrain from quoting the illegitimate, Soros' bought Media Matters. You're a disgrace.
Sam Brasel| 2.27.11 @ 6:31AM
It's ironic. Mr. Stein specifically stated in his post "Correct me if I am wrong." Media Matters has corrected him; I've informed him of the correction; Patriot has indirectly affirmed the correction by carefully declining to dispute a single word of it; and Mr. Stein still hasn't issued a correction or retraction. Why say "correct me if I'm wrong" if one doesn't mean it? Shouldn't Mr. Stein be concerned that his readers will infer from this that he writes in bad faith?
John Flanagan | 2.25.11 @ 11:29AM
Since when has the rule of law or the Constitution been important to President Obama? Choosing to not defend DOMA on the part of the Obama Justice Dept is an unconstitutional act in of itself. The Obama administration has been in the process of deconstructing the laws, values, and morals of our land through any means possible. Without a doubt, this man must not be re-elected.
markrite| 2.26.11 @ 10:42AM
Isn't Hussein Obama just the gift that keeps on giving? At least in terms of possible IMPEACHABLE offenses he is. Maybe HERE'S the way of finally GETTING RID OF THIS POMPOUS OVERREACHING ASS. For here's the concept Prez Obama is depositing with the American people: If he doesn't LIKE a federal law signed by a previous president, why, ignore it, don't defend it, and PRETEND that it doesn't exist! How simple, and SO LIKE the way he conducts the presidency. When discussing the Libyan crisis, NEVER MENTION the name of the MURDEROUS TYRANT WACKO QADDAFO as being the one who generated it until nearly the end is coming for Qaddafi, after all he's said KIND THINGS about "THE ONE," wouldn't want to OFFEND the murderous tyrant, he might have to be diddled over when it all blows over. Uh oh, here comes the "I" word again.
People, the TIME HAS COME! Let's send Obummer packing by IMPEACHING him, but this time let the SENATE FOLLOW THROUGH and REMOVE him from the presidency. One final thought: anybody else noticed that, if impeachment happens, for the third time in U.S. history, it's been a DEMOCRATIC president that it happened to? Just a coincidence? GOD BLESS, MARKRITE
Byron Mullet| 2.27.11 @ 5:46PM
By disregarding laws and the Constitution, Pres. Obama is identifying with every anti-government protester in the world.
GRL| 3.25.11 @ 12:46AM
I think this blog post is premised on a misunderstanding of the roles of executive and legislative brach government officials in interpreting the Constitutin.
Every elected official, in every brach of government is supposed to uphold and defend he Constitution as they affirm they will do in their oaths of office. This means that every offical has an obligation to engage only in acts that are constitutional, and, as prerequisite to so doing, make a determination of what is constitutional and wha is not. The Supreme Court is supposed to resolve conflicts in interpretations whn they arise in "cases and controverses."
This has a lot of implications, not all of them comforting, especially in areas like nullification.
MsAngeeDepp| 3.25.11 @ 12:19PM
Coming from someone who has to take a lot of Family Law and Public Policy classes, I am just as outraged as you are.
Good point there Sir!
FastTimesNews| 3.31.11 @ 5:35PM
Most of you guys posting here are preposterous. You lack basic understanding as to the difference between "defend" and "enforce." Not defending it means that, if challenged, the administration won't take it up (remember the time the GOP gov. of CA did the exact same thing with gay marriage? You know, the second actor-governor of that state). Enforce means prosecution. As to not respecting law, I refer you to Mr. Holder himself: "“This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.”
Mr. Stein, who I know will never, ever, read this, is either a liar or ignorant. There is no conspiracy from what you call Socialists (not actual Socialists, mind you) to rob you of liberties, nor to suspend elections, nor do any of the sort. I strongly encourage you all (and I will be ignored here) to read from sources besides this rag or the Washington Times.
And as to an earlier post I saw, more judges have ruled against plaintiffs trying to overturn the Patient Care and Affordable Care Act. Last I saw, it was 12-2 to uphold the law as written, though most (10/12) were because the plaintiffs had no standing. So much for failing to uphold judges' decisions. They're all in appeal.
One last note: in 1990, an acting solicitor general told the Supreme Court he would not defend the FCC's affirmative-action program, because it "could not withstand the exacting scrutiny required by the Constitution.” That acting solicitor-general was now Chief Justice John Roberts. Conservatives: you may explode now.
weddingdresses | 6.27.11 @ 5:03AM
See my earlier posts concerning the coming Obama Coup and his promotion of Janet Napolitano to Field Marshall. I think Field Marshall von Napolitano has a nice ring to it, don't you. Exciting times!!!!