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eihwaz -> RE: DOMA is dead (2/25/2011 4:09:35 PM)
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POTUS will no longer defend the law against constitutional challenge, but will continue to enforce it. While rare, such stances by POTUS are not without precedent:
In the case of Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S. 547 (1990), Acting Solicitor General John G. Roberts declined to defend the constitutionality of certain statutes requiring minority preferences in broadcast licensing and, in fact, urged the Court to declare them unconstitutional. (SCOTUS rejected Acting SG Roberts's arguments by a 5-4 vote.)
United States v. Lovett (328 U.S. 303 (1946). The SG, representing the United States as defendant, nonetheless joined with those who argued that a particular statute was an unconstitutional bill of attainder. (The SCOTUS agreed.)
INS v. Chadha (462 U.S. 919 (1983). Pursuant to a provision of the Immigration and Nationality Act, the INS implemented a "one house veto" of the House of Representatives that ordered the INS to overturn its suspension of Chadha's suspension. Nonetheless, the INS -- represented by the SG -- argued that the one house veto provision was unconstitutional.
Morrison v. Olson (487 U.S. 654 (1988). Pursuant to the Ethics in Government Act of 1978, the AG requested appointment of an independent counsel to investigate possible wrongdoing by a Department official. The SG appeared before the SCOTUS as amicus curiae to argue that the independent counsel provisions of the Act violated the constitutional separation of powers.
Simkins v. Moses H. Cone Memorial Hospital (323 F.2d 959 4th Circuit, 1963). A federal statute permitted the Surgeon General to condition federal funding for hospital construction on assurance of an applying State that the hospital facilities in question did not discriminate on account of race. However, the statute also explicitly instructed the Surgeon General to make an exception to this requirement where discrimination was accompanied by so-called "separate but equal" hospital facilities for all races. The Surgeon General subsequently approved funding under the statute for hospitals which were openly discriminatory. The DoJ intervened on behalf of the United States in a private class action brought by black physicians, dentists, and patients against the hospitals, and joined the plaintiffs in arguing against the constitutionality of the statute.
Turner Broadcasting Svs. Inc. v FCC (93-94, 512 U.S. 622, 1994). Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 1992 (the "must carry" provisions) require cable operators to carry on their systems a prescribed number of signals of local commercial and qualified noncommercial stations. The Act was enacted over President George H.W. Bush's veto. The President stated that one of the reasons for his veto was that the must carry provisions were unconstitutional. In subsequent litigation challenging the constitutionality of the must carry provisions, the DoJ declined to defend the their constitutionality "consistent with President Bush's veto message to Congress."
ETA correct typos
ETA case citations
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