Do you believe a President Palin should be allowed to not appeal a ruling striking down Medicare?

[BzaDem]

Poll question: Do you believe a President Palin should be allowed to not appeal a ruling striking down Medicare?

Let's assume that in the first year of a Palin presidency, a conservative group files suit in the district of the most conservative federal judge in the country. The group argues that Medicare violates the 10th amendment of the Constitution, and asks for an immediate injunction prohibiting the HHS from enforcing Medicare. The district judge rules in favor of the conservative group.

President Palin fervently believes that the court ruling is correct, and that Medicare infringes upon powers reserved to the states and the people (violating the 10th amendment).

In this specific situation, should President Palin be legally allowed to not appeal the district court ruling striking down Medicare, based on her belief that Medicare is unconstitutional? Note that this would result in no Medicare checks being written for years, and would allow citizens no remedy to reverse this decision.

Note that this question has NOTHING to do with whether or not you believe Medicare is constitutional. It has ONLY to do with President Palin's beliefs, and whether she should be able to act upon them -- not your beliefs.

[katsy]

1. Medicare is a gov't program for the common good.

How does this address whether the President should appeal a decision that upholds human rights?

Apples and oranges.

Human rights are constitutional, period! That's what the court has ruled. DADT is unconstitutional because it infringes upon civil/human rights.

Creating social programs like medicare is constitutional, period.

Show me otherwise.

[BzaDem]

3. Again, this has nothing to do with whether Medicare is constitutional. It has only to do with

whether or not Palin should be ALLOWED to act on her belief that Medicare is UNCONSTITUTIONAL (resulting in NO REMEDY for citizens who believe otherwise).

[katsy]

20. Look, I'm just saying this is not a valid comparison.

Obviously they CAN act however they wish. That doesn't make their arguments constitutional or moral. If a court is loaded with reactionary judges, the people are screwed.

One may expect that of a palin presidency NOT a Democratic presidency. Unless, that is, there is no difference between the parties.

[BzaDem]

22. I am not asking whether she CAN, I am asking whether doing so would be constitutional.

In other words, if 1 out of 800+ judges is reactionary, and strikes down Medicare, is President Palin LEGALLY and CONSTITUTIONALLY permitted to not appeal, based on her belief?

[katsy]

27. How can I, a moderately sane human, predict how a pp

would interpret the constitution? Same way she interprets the bible, I suppose... literally/reactionary to the extreme with a supply side jesus. What do I know?


Article II, Section I of the Constitution:

"I do solemnly swear 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."

[BzaDem]

29. I'm not asking you to predict anything. I am TELLING you as part of the hypothetical what her

interpretation is. She believes Medicare is unconstitutional.

GIVEN that belief, should she be legally permitted to not appeal a ruling striking down Medicare? This is a very well defined question, and your answer is either yes or no.

[katsy]

32. Her beliefs should have nothing to do with the appeal.

nt

[BzaDem]

33. If she (or the DOJ) can't rely on their constitutional beliefs, then how do they decide?

How do they decide whether or not to appeal? More specifically, how are they legally permitted to decide whether or not to appeal?

[katsy]

34. case law.

[BzaDem]

35. That's my entire point.

They should decide to appeal based upon relevant higher court case law -- not their own beliefs. In this case, there is no higher court case law indicating that DADT is unconstitutional. It is a new argument -- the first decision of its kind. I believe DADT is unconstitutional, but the Supreme Court hasn't even hinted at it. Case law (no matter how bad it is or how wrong it is) indicates that the government SHOULD appeal here. Hopefully they will lose, and produce more case law for the future, but that does not say anything about previous case law.

[katsy]

36. But why appeal DADT?

Why not accept this court's decision?

[BzaDem]

37. You just said that they should look at case law to decide whether to appeal.

Looking at case law here indicates that they should appeal, because there is no higher court case law that indicates that DADT is unconstitutional. I believe it is, but the current state of the case law does not express that opinion.

[katsy]

38. Do they have to make new case law?

Why not let this matter rest with this decision? That is case law also.

[BzaDem]

39. In that case, wouldn't the hypothetical district court striking down Medicare be "case law also?"

[katsy]

40. That could be appealed by any # of aggrieved parties.

Is there any reason this President must appeal the ruling? Can't he choose not to?

[BzaDem]

41. The whole point is that people want Obama not to appeal to FORECLOSE the option of having anyone

appeal. They want the district court DADT opinion to be law of the land without ANY possibility of an appeal by ANYONE.

[katsy]

42. You just lost me.

Seriously, I'm sorry. Wouldn't the Supreme Court be the only possibility of making the repeal the law of the land?

All lower case constitutional law can be appealed at the supreme court level, right?

[BzaDem]

43. Not when the government is the only one with standing to defend or appeal.

Which is true for many, many laws.

If only the government has standing to appeal/defend, and they decline to appeal, the district court injunction is binding nationwide and there is nothing anyone can do about it. That is likely what would happen if the government didn't appeal DADT. It wouldn't just be the government not appealing -- it would functionally prevent ANYONE from appealing. You can't just walk into court in the middle of a case and say "I want to appeal!" if the parties don't want to.

[katsy]

45. Then why did this DOJ appeal?

Why not let it die?

[BzaDem]

49. You just said that they should look at case law. You answered your own question.

They appealed because the case law said that there is a plausible defense of the law under current doctrine. They appealed because to do otherwise would ignore case law. To do otherwise would be to embark on a path that could be used later to toss out ANY law that ANY president disagrees with.

[katsy]

88. No.

This is just wrong.

The DOJ just refused to appeal the case of religious proselytizing in public parks.

I'm really not okay with this or with the choice to defend the indefensible DADT.

Wrong is wrong. I'm an atheist and a heterosexual and I'm not okay with many of this President's DOJ's judgments. They are not like me.

Instinct should kick in when these pfhuckers go after minorities and good decent people whom sacrifice their lives in service for this country that you are next on their hit list...` be damned the constitution. It's just a freaking piece of paper after all, right?

Die and serve your country while gay but fuck off we hate you anyway because we're users and when we're done, or you think you have the right to be who you are and we'll turn on you. No thanks. I'm so sad for my gay friends and so pissed off that fucking lunatics can now approach me with their BS.

The President should have long ago recognized that we are his moral compass and we are his base and we needed him. Nah. He went to bed with banksters and profiteers.

Sorry for the rant. Really really sorry but I just have to let this out. And then go vote for the democratic candidates. I know. I got their back even as they stab us in the back.

[AlinPA]

2. Unrec: President Palin? Foolish.

[KG]

4. !

:rofl:

[demmiblue]

24. May I join you?

:rofl:

:toast:

[BzaDem]

26. You make a very compelling argument. n/t

[Tesha]

5. Non-sequitur.

Obama has BEEN TOLD BY A JUDGE, IN NO UNCERTAIN TERMS,
that DADT is unconstitutional.

This opinion is shared by many, many legal scholars.

Only Republicans, Mr. Clinton, and Mr. Obama's administration
seem to believe that DADT is Constitutional.

Tesha

[BzaDem]

6. That is identical to the hypothetical posted above. Palin would have been told by a right-wing judge

that Medicare is unconstitutional, in no uncertain terms.

[Tesha]

10. Medicare ISN'T unconstitutional and only a nut would assert so. Non sequitur. (NT)

[BzaDem]

12. Doesn't matter. This has NOTHING to do with whether Medicare is actually Constitutional. It only has

to do with whether Palin should be allowed to act on her belief that Medicare is UNCONSTITUTIONAL, given the opinion of a nut judge that agrees with her.

[polichick]

7. Republican presidents don't hesitate to use their power. nt

[BzaDem]

8. Yes they do. Bush's DOJ vigorously defended McCain-Feingold, and actually won in court. n/t

[polichick]

13. Did Bush disagree with it? (Isn't he the guy who took us to war because he wanted to?) nt

[BzaDem]

15. Not only did he disagree with it -- he actually said so in his signing statement for the law. n/t

He said "the courts will decide the issue," and that he would vigorously defend the law if challenged.

[polichick]

19. Interesting that he would follow the rules, so to speak, on this...

...but didn't mind invading a country based on lies. What a guy!

[Unvanguard]

47. Ironically, they won with the same guy who proceeded to argue against it in Citizens United.

:)

[BzaDem]

50. Exactly. It is stunning to listen to Olsen in FEC v. McConnell and then in Citizens United.

He vigorously defended a law that he absolutely disagreed with, because that's what the rule of law requires.

[itsrobert]

9. She would face a revolt

And it's not likely to happen.

[BzaDem]

11. A revolt that would not change the result.

And the question similarly applies to ANY law that you favor, INCLUDING laws that would not cause any kind of revolt. How would you answer for those laws?

[Ozymanithrax]

14. President Palin's Justice Department would make that decision...

based on either the legal expertise Attorney General Orly Taitz or the perhaps the Vodoo sticks of Secretary of Magic Christine O’Donnell. They would probably tell President Palin that to really wipe away Medicare, it is best to let the SCOTUS determine it's unconstitutionality, since the SCOTUS has the ultimte power under the Constitution to make that decision and set the bar very high.

If you want to discuss the recent case where US District Judge Virginia Phillips declared DADT unconstitutional, we can do that without resort to fantasy.

[The Philosopher]

16. If she can make a reasonable argument

then yes, she can withhold appealing.

[BzaDem]

17. Who decides what's a reasonable argument? She certainly believes her own argument is reasonable. n/t

[Johonny]

18. I support impeaching president Palin!

[walldude]

21. There will never be a President Palin.

And this straw man is getting moldy.

[BzaDem]

23. Then same question with any Republican president. n/t

[Initech]

25. President Palin? Hahahahahaha...

[frylock]

28. do you believe in santa claus?

[JackRiddler]

30. "Let's assume"

[BzaDem]

31. You have never heard of a hypothetical?

:rofl:

[JackRiddler]

66. Have you ever heard of stupid?

[BzaDem]

70. Yes I have, your post being an example. n/t

[joeybee12]

44. Keep digging yourself into that hole

[BzaDem]

52. Thanks again for your persuasive, detailed argument in favor of your position. n/t

:rofl:

[Unvanguard]

46. She should not be allowed to do so.

I find it troublesome that so many people think otherwise. Executive discretion is not something that should be encouraged outside of a narrow, limited subset of circumstances.

Of course, I do not know how comparable the cases are, given the fact that Medicare is an accepted fact of American social policy, embraced by most politicians of both political parties, while DADT is opposed by strong majorities of both the public and Congress.

[Bluenorthwest]

48. What is this even about? Is this aggression so passive that

one needs to read a dozen threads and speak fluent Centrist to comprehend? An string of verbiage straining for something, but what?
Are you trying to sell me insurance? Tell me a joke? What?

[BzaDem]

51. Do you believe that a President can refuse to defend any law that presiden't doesn't like?

For example, do you believe a Republican president can refuse to defend Medicare, if a judge strikes it down?

[jgraz]

53. It doesn't matter what we "believe" she "should" do. The law is clear.

Obama is under no obligation to appeal. Just as Clinton was under no obligation to appeal when a judge struck down the Dornan amendment.

http://gay.americablog.com/2010/10/breaking-clinton-admin-refused-to.html

[BzaDem]

54. How about answering the question?

The question is, should she be legally able to refuse to defend or appeal, solely based upon her belief that Medicare is unconstitutional?

[jgraz]

55. I just did. The law is clear.

If you want to change it once President Palin gets elected, knock yourself out. But right now, Obama is under no obligation to appeal.

[BzaDem]

56. Based solely on the President's or DOJ's belief? n/t

[jgraz]

57. Nope. Based on the law.

Show me where the law requires Obama to appeal this. Unless you can point to an actual law, there is no obligation to appeal.

[BzaDem]

60. "Unless you can point to an actual law, there is no obligation to appeal."

That is false as a general proposition. Many things are required without an actual law spelling out that they are required. The absence of a specific law is not proof positive that something is not required.

My question is, under the law and the Constitution, do you believe a President is legally allowed to refuse to appeal, where the decision to refuse to appeal is made SOLELY on their beliefs (and not on case law)?

[jgraz]

62. Clinton declined just such an appeal with zero consequences

Unless something has changed since then, Obama should be able to do the same. Hell, the guy's hung on to just about every *illegal* power assumed by the Bush regime, yet he's somehow queasy about this? Gimme a break.

[BzaDem]

64. That is not actually true. They appealed, but said in the appeal they actually agreed with the lower

court decision (that the law was unconstitutional), and allowed a third party to come in and defend it. Clinton's solicitor general at the time went on Rachel Maddow tonight and explained it all.

That is an approach consistent with the Constitution, as it allows a defense to be heard (and therefore would not allow President Palin to de facto unilaterally repeal Medicare with no remedy, going against the whole idea that the President enforces the law and not just the law he or she likes).

[jgraz]

67. If true, you're splitting the thinnest of hairs

Here's the statement from Clinton's White House counsel on the appeal:

"Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not."

Do you agree that this White House could put out just such a statement on the DADT ruling? If not, why not? If so, why haven't they?

[BzaDem]

68. That statement was not on appeal. That was immediately before the bill was signed

after they were unable to negotiate the provision out of the bill (completely unrelated to any pending case). Because there was no law at the time this was said, there was no legal challenge at that time, and therefore no case law in favor of upholding the bill.

That is very different than the current case, where the law has been enforced for 17 years and has circuit court case law directly on point in upholding the law since it was enacted (most recently last year in the First Circuit).

Given that current case law provides a plausible defense for upholding a law, they need to appeal. What they SAY in the appeal is their choice alone, so they could in theory make the argument that all case on point should be overturned or distinguished (and I hope they do that) and tell the court that it should find someone else to defend the law if it so chooses. In their defense of the law below, they actually declined to make most of the arguments that could possibly sustain it, and barely introduced any evidence. Their defense of the law was so minimal to the Republicans in Congress that they are trying to get an additional person on the case to more vigorously defend it, calling Obama's defense "a sham."

But regardless, the important thing is to give the opportunity for the higher courts to decide. What the government says in the appeal is not the issue -- the issue is that there is a formal appeal that gives the appeals courts a chance to decide. You may call it splitting hairs, but this "splitting hairs" is the difference between a President that can de facto unilaterally repeal any law of Congress that they can find one of 700+ district judges to strike down, and a President that can't do that.

[jgraz]

74. Again, your hairsplitting is irrelevant

And your doomsday scenario is implausible at best. A President can't just "find" a judge to strike down a law. The President would have to establish standing to be a plaintiff in the case, and in order for the ruling to stick, they would also have to show that no one else had standing to appeal. That's a pretty unlikely, if not impossible, scenario.

[BzaDem]

75. You think the US government wouldn't have standing in a facial challenge against US law?

Are you being serious?

"They would also have to show that no one else had standing to appeal."

Are you aware of how severely the Supreme Court has limited entire categories of standing? It is not only a possible scenario, by very likely for entire categories of laws. (By likely, I mean likely to reach the point where the sitting President will have a choice to appeal or not, with no remedy if they do not.)

More generally, we are fortunate that previous governments generally do not share your view. Bush's justice department vigorously defended McCain-Feingold, so much so that they actually won in the Supreme Court by 5-4 in 2003. This was despite Bush declaring in his signing statement that he didn't really think the parts they later successfully defended were constitutional (but that he would leave it to the courts to decide).

I'm amazed that some people are in favor of so much unilateral executive power for domestic policy, despite being so (correctly) opposed to unlimited unilateral executive power in other domains. It's as if they can't remember the last time a Republican was President. Then again, I think many people's arguments for being "unenthusiastic" to vote indicate severe amnesia, so maybe that explains both stances.

[jgraz]

76. So you're saying that Obama himself could have brought a lawsuit against DADT?

Or any other anti-gay law? But if he won he'd have no choice but to appeal his own victory?

Are you being serious?

[BzaDem]

78. If I were saying that, I wouldn't be being serious. But I happen not to be saying that.

The US government has standing to defend the laws of the US against a facial challenge. I never said anything about standing to challenge; we are obviously talking about standing to defend.

[jgraz]

79. So explain how a President can "find" a judge to overturn any law he wishes.

If a President does not have standing to challenge, then how does your doomsday scenario come about?

[BzaDem]

80. A President doesn't have to find a judge -- an ideological zeolot of the President's party will do

that all by themself.

As an example of successful judge-shopping, the 21 states trying to overturn the healthcare law did not do so in the Florida district in which the Florida attorney general worked. They went over 200 miles away, to get it in front of a conservative Reagan appointee. This is paying dividends for them, since the judge's denial of the motion to dismiss framed the issues EXACTLY the same way as a far right libertarian legal scholar did in his briefs. This is distinct from the Michigan case, which held that of course the government can enact Healthcare reform.

(While I suspect you would be happy to see the healthcare bill struck down, try to see it as an illustrative example of what can happen to any major law under your theory.)

Your argument (that being able to subjectively decide not to appeal doesn't give the President enormous power to de facto repeal laws) relies on two flawed propositions:

1) There won't be an ideological nut ready and willing to file suit the moment a right wing President gets elected
2) There won't be an ideological judge ready and willing to rule for the ideological nut in 1), out of 700+ judges

[jgraz]

85. At the very least, you agree that the admin does not have to mount a vigorous defense, right?

Their "defense" can consist of a statement that they believe the law is unconstitutional.

Since they've decided they're going to appeal, let's see if they actually argue the case. That would be incredibly unfortunate.

[alfredo]

58. They are appealing, but arguing DADT is unconstitutional.

They want it to go to the Supreme court. That way a future Republican president and Republican congress can't bring it back.

[cbdo2007]

59. Sorry but I really don't even understand the question. I don't know Palin's beliefs.

[BzaDem]

61. My hypothetical presupposes that Palin believes Medicare is unconstitutional. n/t

[AsahinaKimi]

63. Wait, wouldn't that be her majesty the QUEEN PALIN? After all...

It would have to be a take over of the entire US government before she's ever in the White House, and only if she used the Knights that go "meep" because they would be the only ones who would be stupid enough to follow her.

[Touchdown]

65. I never use the word "FAIL" because I think it's overused and cliche.

But you and this... Well, you get the idea.:eyes:

[BzaDem]

71. The funny thing is, the fact that you are so uncomfortable with a yes or no question that you can't

even answer it, shows the FAIL in this case isn't with the OP, but rather with your post.

[Touchdown]

72. Really? And how do you feel about that?

Does it make you uncomfortable? Do you feel invalidated as a human? There may be a childhood experience that influenced your reactions.

Psychoanalyze a turnip. You might win with it.

[BzaDem]

73. Not really.

It's just more evidence that you can't back up your own opinion. The issue of executive power has little to do with anyone's childhood experience. :rofl:

[Touchdown]

77. Now I see.

It's not emotional trauma. It's an intelligence issue. I can't help you with that. Sorry.

Nice smiley. I'm sure you feel better now.

[Radical Activist]

69. I don't want a dictator who can ignore laws passed by Congress.

Unfortunately, that means accepting that the President is bound by bad laws until they can be changed. I'm not looking for another Bush who abuses his powers.

[JonLP24]

86. Right

So these Senators are in favor of dictatorship.

Udall and Gillibrand originally sent the letter to Holder in September. They are now joined by Senators John Kerry (D-MA), Charles Schumer (D-N.Y.), Roland Burris (D-IL), Sheldon Whitehouse (D-R.I.), Mary Landrieu (D-LA), Bernard Sanders (I-VT), Jeff Merkley (D-OR), Jeanne Shaheen (D-N.H.), Tim Johnson (D-S.D.), Al Franken (D-MN), Barbara Boxer (D-CA), Russ Feingold (D-WI), Frank Lautenberg (D-N.J.), Richard Durbin (D-IL), Bob Menendez (D-N.J.), Michael Bennet (D-CO), Barbara Mikulski (D-MD), Sherrod Brown (D-OH), and Ben Cardin (D-MD). The additional signatures are a testament to the support in the U.S. Senate for repeal of “Don’t Ask, Don’t Tell.”

http://prop8trialtracker.com/2010/10/12/21-senators-urge-obama%E2%80%99s-justice-department-not-to-appeal-dadt-injunction/

Decided not to do an optional appeal is not dictatorship by any stretch of the imagination..

[BlueCheese]

81. How far does she have to appeal it, in your opinion?

All the way to the Supreme Court? Does she actually have to try hard, or can she put up an intentionally weak case? In any case, I doubt any federal judge would rule Medicare as a whole unconstitutional.

As a practical matter, governments choose which laws to enforce and which not to all the time, whether directly by not prosecuting certain things (marijuana possession in some states), or indirectly by funding priorities. They certainly don't enforce all laws equally.

[BzaDem]

82. If there is a plausible defense under current doctrine

they have to appeal it up to the highest court that authored the current doctrine that provides for a plausible defense (which will usually be the Supreme Court).


"Does she actually have to try hard, or can she put up an intentionally weak case?"

If they want to put up an intentionally weak case, they should appeal but admit that they agree the lower court ruling is valid, and let a third party come in and defend it. That's what Clinton did to a similar law in the 90s. The important thing is not that the government itself is defending the law, but that the government does not act in a way which prevents ANY defense of the law from being aired to a higher court that can decide the law.

"As a practical matter, governments choose which laws to enforce and which not to all the time"

We are talking here about defending or not defending against a facial challenge to the law. That is not simply not spending a lot of money to enforce the law -- that is literally letting it get wiped from the books, as if Congress never enacted it in the first place. That is an extraordinarily dangerous power to invest in the President.

[BlueCheese]

83. Obviously...

... we're talking about Obama's appeal of the DADT decision.

In this case, do you think Obama should step aide and let a third party come in? It would certainly get ride of most of the bad symbolism of having the United States continue to try and maintain this kind of discrimination.

[BzaDem]

84. Sure, that would be fine. n/t

[frylock]

87. DOJ Declines To Appeal Ruling Allowing Christianists To Proselytize In Parks

http://joemygod.blogspot.com/2010/10/doj-declines-to-appeal-ruling-allowing.html