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Archive of posts filed under the Duty to Defend category.

The Public Debt Clause and the President’s “Right to Ignore Law”

While I would like to move on from the Public Debt Clause issue, I feel obliged to remark on Katrina vanden Heuvel’s column, entitled “Invoke the 14th — and end the debt standoff,” in the Washington Post today. She writes: President Obama may find that there is only one course left to avoid a global [...]

Not a Creature has Standing, Not Even the House?

When Attorney General Holder announced that the Department of Justice (DOJ) would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in cases where it was being challenged, he committed to “providing Congress a full and fair opportunity to participate in the litigation in those cases.” In response, the Bipartisan Legal Advisory [...]

Somin and Whelan on Defending DOMA

On St. Patrick’s Day, the Federalist Society sponsored a debate on the Hill regarding the Defense of Marriage Act (DOMA) and the President’s duty to defend federal statutes.  Generally speaking, the participants, (Ilya Somin, Ed Whelan and moderator Neomi Rao) were in agreement that the President may properly refuse to defend an unconstitutional statute under [...]

Dellinger and Eastman on Defending DOMA

I just finished listening to an interesting Federalist Society debate between Professors Walter Dellinger and John Eastman relating to the Obama Administration’s refusal to defend the Defense of Marriage Act (DOMA). Two takeaways stand out.  First, in response to my question, Dellinger acknowledged that the decision could not be justified on the grounds that there [...]

Holder, DOMA and the Duty to Defend Federal Statutes

Attorney General Eric Holder has notified Congress, pursuant to 28 USC 530D, that the Justice Department will not defend the constitutionality of the Defense of Marriage Act (DOMA) in two pending cases.  Holder explains that while DOJ has previously defended the constitutionality of DOMA, the current cases were filed “in jurisdictions without precedent on whether sexual-orientation [...]

DADT and the Duty to Defend

Professor Jason Mazzone has a political suggestion for the Obama administration over at Balkinization:  wait until after the November elections to decide whether to appeal a federal court ruling that the “Don’t Ask Don’t Tell” policy is unconstitutional.  Noting that the President has opposed DADT and promised to repeal it, Mazzone argues that “[i]f Republicans [...]

Miranda and the Justice Department’s Duty to Defend Federal Statutes

           In the late 1990s a bank robbery suspect named Charles Dickerson made an incriminating statement while in FBI custody.  Claiming that he had not received Miranda warnings, Dickerson moved to suppress the statement at his trial.  The Fourth Circuit, while finding that no warnings were given, held that the statement was nonetheless admissible under [...]