Barr’s decision to not defend the ACA and even to join the legal challenge against it is a direct assault on our democratic and republican form of government
This is the most outrageous thing to come from the Trump Administration yet. 1/33 tinyurl.com/y33npxx
Barr’s decision against defending the ACA and even to join the challenge against it (which has been brought by a coalition of state attorneys general) is a direct assault on our democratic and republican form of government. 2/33
You think?
This is not a debatable question, with two sides to it.
So far as our constitutional form of government is concerned, there is only one side. 3/33
A federal law is a bill that has been passed by both houses of Congress and signed into law by the president.
That process doesn’t define what a GOOD law is, but it certainly does define what ANY law is: what makes a law a law (also called an act or enactment). 4/33
The command to enforce federal laws (which is the job of the Attorney General) necessarily includes the command to defend any enactment when it is challenged in court — whether the president or the attorney general agrees with the law or not. 5/33
The president and his attorney general are perfectly free to criticize any law they want to publicly — even vilify it. After all, they don’t lose their First Amendment rights when they take their oaths of office. 6/33
But they aren’t at liberty to choose which laws they will enforce and defend in court either.
Even a bad law is a law and must be defended in court by the Attorney General, because defending U.S. laws in court is one of the essential, necessary ways that laws are enforced. 7/33
The DOJ’s own mission statement couldn’t be clearer. It begins: “To ENFORCE THE LAW and defend the interests of the United States ACCORDING TO THE LAW.” [emphasis mine] 8/33 justice.gov/about
Very regrettably, a precedent was set for Barr’s decision by Obama’s attorney general Eric Holder, when he chose to end the DOJ’s defense of a portion of the Defense of Marriage Act, which denied federal government recognition to same-sex marriages. 9/33
The question whether Holder’s decision was constitutional (it wasn’t, because until it was struck down by the courts the DOMA *was* the law) needs to be clearly and carefully distinguished from the question whether the Defense of Marriage Act was a GOOD law. 10/33
What Holder (and Obama) did was a terrible precedent because it set the stage for scofflaws like Trump and Barr to leave any law that they don’t like (and there are probably thousands of them) undefended in court by the government. 11/33
Eric Posner, a professor at the University of Chicago Law School, made two arguments defending Holder’s decision, which he presumably would apply as well to Barr’s decision with respect to the ACA.
Posner’s arguments are bad arguments. 12/33
First, Posner tries to complicate the issue with the contention that there is considerable legal and political disagreement about the extent of presidential power over foreign affairs. 13/33
But this defense did not apply to the Holder decision, nor could it have any application to Barr’s decision. (Neither the Defense of Marriage Act nor the ACA involves issues of foreign policy or national defense.) 14/33
On the domestic front , Posner claims that Holder’s decision to not defend DOMA in court was defensible because the DOJ makes decisions about not enforcing laws all the time. 15/33
But this defense fails to hit its mark, too, because all the examples Posner cites are instances in which the DOJ claims that it lacked the resources to enforce many laws that are on the books. 16/33
This argument fails to apply to either Holder’s decision or Barr’s. Neither one claimed that his decision to not defend the federal laws in question, and even to join in lawsuits against them, were made because of budgetary constraints! 17/33
No, Barr’s decision was made purely and simply because he (and Trump) don’t like the ACA. 18/33
Most appallingly, Barr doesn’t even try to defend his decision on legal grounds.
At least Holder had grounds for thinking that the Defense of Marriage Act was unconstitutional. (It was in fact struck down by the courts.) 19/33
But Barr has no such grounds for his decision.
In fact, most of the legal experts who have weighed in say that the litigation that several state attorney generals have brought against the ACA has so little merit that they have virtually no chance of prevailing in court. 20/33
Finally, let it be noted that Barr could not defend his decision on the grounds that an attorney general should not have to defend a law in which he or she (or his or her president) doesn’t believe. 21/33
In fact, this happens all the time. Furthermore, an attorney general is a lawyer, and a lawyer is TRAINED in law school to be able to argue both sides of a case. 22/33
As I argued in a post yesterday, Trump and his minions (like Barr) are trying to tear down what they see as the “deep state.” 23/33
But what they call the “deep state” is simply the executive branch as it has been created and funded by successive Congresses through bills that have been signed into law by previous presidents. 24/33
This “deep state,” which roughly has the shape of a pyramid, has been put in place to ensure that the laws that Congress has enacted are enforced and implemented. 25/33
(This definition from Wikipedia puts the matter very clearly: “A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called AN ACT OF THE *LEGISLATURE,* or a statute. 26/33)
The president sits atop the executive branch pyramid, and his constitutional function is to EXECUTE those laws — whether he or she likes them or not.
It’s not for the president to decide whether any given law should be enforced or defended by his attorney general in court. 27/33
Barr’s decision is a very dangerous step towards authoritarian Supreme Leaderism — which for Trump is something devoutly to be wished. 28/33
It represents an open defiance of the constitutional order.
It was that when Holder made a similar move, but it is even more pernicious and dangerous now because Trump has an AG who holds what’s called the doctrine of the “unitary executive.” 29/33
It’s great potential for mischief — even evil — is on full display now in its defense of Trumpism. 30/33
Trump, through Barr, is saying to Congress in effect: You’ve passed laws (maybe even over my veto); now try to enforce them! And you’re on your own when it comes to defending them in court! 31/33
This is not the way any of this is supposed to work. It’s not even the way it CAN work. 32/33
This has to be nipped in the bud now. Democrats should and must be up in arms about it. If Barr doesn’t recede, it must be seen as grounds for impeachment. 33/33
PS: The correct link to the Slate article by David R. Lurie to which I refer in the first part of this thread is
