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DarkSteven -> RE: DOMA is dead (2/27/2011 8:50:35 AM)
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quote:
ORIGINAL: KenDckey
yeah I am trying to oversimplify Steven. The theory is that all one needs to overthrow a law is a judge to rule against it and lack of will to appeal. The President thru his Secretary of Justice determines the will. When judge shopping (and I think we can all agree that we can find a judge that will probably rule whatever way we want on any given issue), we look at getting what we want. Like the 16 states that sued in FL on the constitutionality of Obamacare. They won. While going thru the appeals system, because the POTUS has determined he like this law, I am sure that there will be a great many motions. Then, no matter which way the appealate judge rules, it will be appealed again.
In the VA case, VA wanted to bypass that expense and time, and go straight to SCOTUS. It was going to happen anyway, why waste the time and expense? Then, if the Solicitor General is good and represents the law showing that it is legal, the issue will be resolved making mincemeat pretty much out of the FL case. It would also solve the greater issue of whether Congress can dictate how we spend our individual funds and whether or not they can criminalize thru taxes or depending upon the ruling, some other manner, our individual spending habits.
This is a much greater outstanding question than Obamacare. Now back to the issue of the POTUS just dropping support for a law. If, as the FL case is, continues thru the Apeals system as normal, and assuming it takes years, as many cases do, and assuming that a Republican POTUS comes to pass, then he can default on the judgement in FL and allow the Obamacare to die.
Now is this the way that we want laws to die. To some I think so. They are so wrapped around the individual issue, they forgot the broader implications. To others, and I count myself here, I think not. They believe that the POTUS should ALWAYS defend a law that was passed by his or a previous POTUS's term. And defend it to the fullest extent giving it the best defense possible.
I strongly disagree with the way that you are painting this. You make it sound like judges decide based on coin flips and dart throws, or that judges have strong conservative/liberal biases that are well known and that the plaintiff can pick and choose which one he gets. The judges I have known took pains to be impartial and go by the law, not at all legislating from the bench.
You also seem to feel that a President is obligated to appeal a decision against him. I have no idea why. It's like invading another country - just because we have the ability to do so does not mean that we should. The President is in command of a tremendous amount of resources, and there is no reason he should squander them if he does not believe he should chase something.
If VA does not bypass lower level courts and go straight to the Supreme Court, then the lower level judges don't get a chance to weigh in. Technically, the SCOTUS judgment will override the lower level one, but in actual fact, the SCOTUS will build on the reasoning from the lower level court and not reject it completely. So it's almost like the SCOTUS is outsourcing some of their work to a lower level court. You seem to feel like reviewing the case at a lower level is a waste of time, and I disagree.
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