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The Doctor.

(17,266 posts)
Sun Feb 19, 2012, 04:27 PM Feb 2012

So is the Department of Justice Independent from the White House or Not?



I remember all the hub-bub about how unethical it was for the President to influence the actions of the DoJ. There were many discussions on DU about how the White House was using the DoJ as a political tool in violation of its charter for independence. There was plenty to go on too. Hell, it was practically blatant.

Now we have a different scenario. Now some seem to be very willing to ignore the fact that the actions of the DoJ are not supposed to be the will of the POTUS and insisting, without any evidence, that Obama is directing the Department to pursue his agenda.

Let's not forget that the DoJ defended DADT even while Obama voiced his opposition to it and ultimately did away with it. With such a stunning example of disagreement between Obama and the DoJ, knowing that Obama cannot actually voice opposition to the actions of the DoJ, and after all the insistence by DUers that the DoJ is independent from the White House...

... Why do so many people continue to insist that the actions of the DoJ are the will of Obama?
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So is the Department of Justice Independent from the White House or Not? (Original Post) The Doctor. Feb 2012 OP
The President is the head of the Executive Branch Angry Dragon Feb 2012 #1
So the President directs the DoJ? The Doctor. Feb 2012 #5
Yes Angry Dragon Feb 2012 #9
Yes. Obama is the Chief Executive. The DoJ is an Executive body. morningfog Feb 2012 #10
The DoJ "Serves at the Pleasure of The President. bvar22 Feb 2012 #63
It is part of the Executive Branch, of which the President is the head. morningfog Feb 2012 #2
Usually only boards or decision making bodies are completely independent federal entities banned from Kos Feb 2012 #4
The Supreme Court is not a board. It is a separate branch. morningfog Feb 2012 #12
So in your opinion, it was okay for Bush to direct the DoJ as well? The Doctor. Feb 2012 #19
As I pointed out above, morningfog Feb 2012 #26
Uh..who appointed Eric Holder? Who does Holder answer to? Who can fire Eric Holder? Tierra_y_Libertad Feb 2012 #3
So Obama directs Holder? The Doctor. Feb 2012 #6
You tell me why. My guess is that Obama wanted them to defend it. Tierra_y_Libertad Feb 2012 #7
That's a terrible guess, The Doctor. Feb 2012 #8
You are confusing words and actions Angry Dragon Feb 2012 #11
So the fact that Obama opposed DADT in both words AND actions is confusing? The Doctor. Feb 2012 #16
Is he opposing "in words AND actions" warrentless wiretapping? Tierra_y_Libertad Feb 2012 #24
These are your words: Angry Dragon Feb 2012 #25
You really don't understand that? The Doctor. Feb 2012 #30
Where are his actions that he opposed DADT?? Angry Dragon Feb 2012 #34
So, he was just a delicate flower unable to stop his own department from defending it? Tierra_y_Libertad Feb 2012 #13
So you're arguing that the POTUS should direct the DoJ? The Doctor. Feb 2012 #18
Yes. And, take responsibility for what he agrees to. Tierra_y_Libertad Feb 2012 #21
This is more of an exercise. The Doctor. Feb 2012 #23
Fine. Does that prevent Obama from firing Holder for not following his policies? Tierra_y_Libertad Feb 2012 #28
Except that isn't quite right. morningfog Feb 2012 #29
Truly a case of apples and orangutans. The Doctor. Feb 2012 #31
All Departments have the power to push a political agenda. morningfog Feb 2012 #32
With nowhere near the effectiveness of the DoJ. The Doctor. Feb 2012 #89
You have gone round and round. My point is simple. morningfog Feb 2012 #92
Are you saying that the other departments in the executive aren't political? Tierra_y_Libertad Feb 2012 #33
Yes dems_rightnow Feb 2012 #22
I think you are right....I'm not sure Obama was really movonne Feb 2012 #14
Are you saying that the DoJ's defense is part of a plan to do away with wireless wiretapping? Tierra_y_Libertad Feb 2012 #17
LOL. Sounds like a lot of people responding to you need to brush up on their FSogol Feb 2012 #15
The DOJ is not an independent agency. It is a department in the Executive Branch which the Office morningfog Feb 2012 #20
But the president SHOULD NOT interfere and get involved, NYC Liberal Feb 2012 #37
He has a duty to manage the departments. It isn't interference. It is morningfog Feb 2012 #39
"How he does it is up to him." Correct. NYC Liberal Feb 2012 #52
We are in agreement. He is in charge and the direction it takes is on morningfog Feb 2012 #56
Yep. And my opinion, to add to that, is that the president should NYC Liberal Feb 2012 #74
All lawyers are required to exercise independent professional judgment jberryhill Feb 2012 #99
I don't know how many times I have to post this. morningfog Feb 2012 #101
Please explain what you know what everyone else is missing......... Angry Dragon Feb 2012 #27
Doesn't anyone remember when the Bush admin fired all those Justice Dept attorneys? FSogol Feb 2012 #35
Thank You Angry Dragon Feb 2012 #36
Of course he doesn't run the day-to-day. But, he certainly is in charge and Holder morningfog Feb 2012 #38
Some here think that DoJ is a rogue outfit answerable to no one. Tierra_y_Libertad Feb 2012 #40
Like who? The Doctor. Feb 2012 #51
Did the SCOTUS appoint Holder? Does the SCOTUS decide who gets what office at DoJ? Tierra_y_Libertad Feb 2012 #69
Does no one remember Archibald Cox? FSogol Feb 2012 #43
Yes. And, I remember Nixon taking flack for firing him. Tierra_y_Libertad Feb 2012 #44
Cox and Nixon was more akin to Bush and the US Attorney firings. morningfog Feb 2012 #48
Fuck. I remember Bork that night. msanthrope Feb 2012 #86
The argument here is to politicize it! treestar Feb 2012 #58
DOMA morningfog Feb 2012 #61
So why aren't you bashing Obama for not letting it go to court and be declared treestar Feb 2012 #77
In regards to his position on DOMA, I applaud his ordering the DOJ to stand down. morningfog Feb 2012 #80
Then it's OK for Republicans too treestar Feb 2012 #84
Are you saying Obama went too far? morningfog Feb 2012 #85
Or, the POTUS could simply ban warrantless wiretapping...which it has not done. Tierra_y_Libertad Feb 2012 #65
You seem to want the POTUS to do whatever he wants treestar Feb 2012 #78
I want the POTUS to do his job and take responsibility for it. Tierra_y_Libertad Feb 2012 #81
"the President has instructed the DOJ not to defend the statute in such cases" Enrique Feb 2012 #72
From many of these responses, it seems that a lot of people NashvilleLefty Feb 2012 #41
How do you reconcile that with Obama's order to Holder to not defend DOMA? morningfog Feb 2012 #42
Then they are doing what the left wants, and holding up a court decision that it is treestar Feb 2012 #55
they are doing what the President ordered them to do Enrique Feb 2012 #73
OK so Republican Presidents can do the same. treestar Feb 2012 #79
Not correct, I spoke to an attorney that worked on this for the White House. stevenleser Feb 2012 #103
well I spoke to Eric Holder Enrique Feb 2012 #105
Without realizing it you just reinforced my point. You just bolded the wrong part and dont have all stevenleser Feb 2012 #107
my only point was the involvement of the President Enrique Feb 2012 #110
Last time I checked, torture was still illegal.. Fumesucker Feb 2012 #45
That is a very good point. The Doctor. Feb 2012 #47
"Why do so many people continue to insist that the actions of the DoJ are the will of Obama?" Fumesucker Feb 2012 #87
Yes, I did. The Doctor. Feb 2012 #88
Well, the DoJ sometimes acts in the interests of the POTUS.. Fumesucker Feb 2012 #90
It depends on the issue... hughee99 Feb 2012 #46
Or the more likely scenario around here.... Son of Gob Feb 2012 #49
Yes, either way, and this works when repukes get into office too. n/t hughee99 Feb 2012 #53
I know! woo me with science Feb 2012 #50
Cute, but lame. The Doctor. Feb 2012 #59
Whether you think he should or should not direct the DOJ, he can and he does. morningfog Feb 2012 #71
Oh please. The behavior and priorities of his DOJ are entirely consistent woo me with science Feb 2012 #93
The President is the head of it treestar Feb 2012 #54
So, it appears that the government is in favor of warrantless wiretapping. Tierra_y_Libertad Feb 2012 #57
If there is a law that includes warrantless wiretapping treestar Feb 2012 #60
Or, the government could decide not to defend it. Tierra_y_Libertad Feb 2012 #64
Then the next administration, which may be Republican treestar Feb 2012 #76
The executive, no matter what party, may run its own DoJ and maintain the separation of powers. Tierra_y_Libertad Feb 2012 #82
Obama stopped defending DOMA. Please address that. morningfog Feb 2012 #83
"The DOJ will always defend a challenged law" bvar22 Feb 2012 #66
I've been offering up this example, yet it has been ignored. morningfog Feb 2012 #68
That means that law will stay in limbo then treestar Feb 2012 #75
No. bvar22 Feb 2012 #91
Obama showed he could order the DOJ to not defend a law: DOMA. morningfog Feb 2012 #67
You're simply wrong, re: "the government...will always defend a challenged law" nt Romulox Feb 2012 #95
Well, it will tend to, then treestar Feb 2012 #96
It will do so in line with its ideology, since the decision is a political one. Romulox Feb 2012 #97
Nope, its not. You need to speak to any of the lawyers who worked on the DOMA decision stevenleser Feb 2012 #104
Post 102 succinctly refutes this very point. No point rehashing it. nt Romulox Feb 2012 #106
Point 102 has no details at all. Figures you would point to it. nt stevenleser Feb 2012 #108
Might be a 'detail': "President Obama has instructed the Justice Department to stop defending..." Romulox Feb 2012 #109
No. It falls under the executive branch. mmonk Feb 2012 #62
President O is the boss madokie Feb 2012 #70
Attorney General Holder "serves at the pleasure" of the President, so no. Romulox Feb 2012 #94
Yes, now go ask your own lawyer to violate federal rule 11 jberryhill Feb 2012 #100
Is your attorney independent from you? jberryhill Feb 2012 #98
this is not a matter of debate Enrique Feb 2012 #102

Angry Dragon

(36,693 posts)
1. The President is the head of the Executive Branch
Sun Feb 19, 2012, 04:32 PM
Feb 2012

The DoJ is part of the Executive Branch
The dots are connected

 

morningfog

(18,115 posts)
10. Yes. Obama is the Chief Executive. The DoJ is an Executive body.
Sun Feb 19, 2012, 04:52 PM
Feb 2012

The problem with Bush is that he politicized the Justice Department. Which is different than directing policy. Bush fired US Attorneys because they wouldn't engage in political hits like he wanted them to. That is different than department staff carrying out the legal policies directed by the President or the AG.

bvar22

(39,909 posts)
63. The DoJ "Serves at the Pleasure of The President.
Sun Feb 19, 2012, 07:54 PM
Feb 2012

If the DoJ pisses off The President,
he will serve no more.

The DoJ operates within the the framework dictated BY the President,
and they communicate about that "framework" frequently.
The DoJ doesn't communicate on every little detail,
but on the Biggies, especially those that deal with Party Politics,
you can BET that the "framework" is very narrow.

It is absurd X1000 to believe that the Attorney General can do something that is in conflict with exactly what the President wants.
That is simply the REALITY of "Serving at the Pleasure of the President."

Eric Holder has demonstrated that he is a good little soldier
who doesn't have much of a mind of his own,
which is precisely WHY he was chosen for this job.



You will know them by their WORKS,
not by their excuses.
[font size=5 color=green]Solidarity99![/font][font size=2 color=green]
--------------------------------------------------------------------------------------------------------------------------------[/center]

 

morningfog

(18,115 posts)
2. It is part of the Executive Branch, of which the President is the head.
Sun Feb 19, 2012, 04:37 PM
Feb 2012

The President has the say in how the Department operates. The Office of the President sets the policies of the various departments and agencies.

The majority of staff within departments and agencies carries over, though, from president to president. In that regard they are independent and will folloe the policies of the previous administration until the current one changes it.

 

banned from Kos

(4,017 posts)
4. Usually only boards or decision making bodies are completely independent federal entities
Sun Feb 19, 2012, 04:43 PM
Feb 2012

Supreme Court
Federal Reserve Board
NLRB
FDA

Once filled, the president cannot interfere with decisions of the above.

 

morningfog

(18,115 posts)
12. The Supreme Court is not a board. It is a separate branch.
Sun Feb 19, 2012, 04:54 PM
Feb 2012

There are wholly independent agencies that are under the Executive Branch. But, the DoJ isn't on of them.

 

morningfog

(18,115 posts)
26. As I pointed out above,
Sun Feb 19, 2012, 05:10 PM
Feb 2012

Yes, Bush was within his authority to direct the DOJ. Where Bush went over the line was when he politicized the department, which is different than directing policy. He fired US Attorneys for not participating in his politic hits on Democratic politicians throughout the country. We still have no idea how many of the probably illegal acts and prosecutorial misconducts occurred under Bush.

That is a distinct issue than the president having authority and policy-setting power over a department within the Executive Branch.

Angry Dragon

(36,693 posts)
25. These are your words:
Sun Feb 19, 2012, 05:09 PM
Feb 2012

'Let's not forget that the DoJ defended DADT even while Obama voiced his opposition to it and ultimately did away with it.'

Two different sides. defended is not the same as opposition
Please explain what you are really saying

 

The Doctor.

(17,266 posts)
30. You really don't understand that?
Sun Feb 19, 2012, 05:14 PM
Feb 2012

As for this: "defended is not the same as opposition", who said otherwise? Certainly not I.


Here's what I'm saying: "Obama proved through both words and actions that he opposed DADT. Why then did the DoJ defend it?"

 

Tierra_y_Libertad

(50,414 posts)
13. So, he was just a delicate flower unable to stop his own department from defending it?
Sun Feb 19, 2012, 04:54 PM
Feb 2012

Was he asleep? In a coma? Playing with his dog? Blind drunk?

He's the boss. It's his responsibility to run the executive branch and he's responsible for what they do.

 

Tierra_y_Libertad

(50,414 posts)
21. Yes. And, take responsibility for what he agrees to.
Sun Feb 19, 2012, 05:06 PM
Feb 2012

He does, already, direct the DoJ. He's their boss.

You seem to be arguing that Obama has no power over his own appointees and no responsibility for what they do.

Do you think he shouldn't be held accountable?

 

The Doctor.

(17,266 posts)
23. This is more of an exercise.
Sun Feb 19, 2012, 05:08 PM
Feb 2012

To plumb the depth (or lack thereof) of understanding of the relationship between the POTUS and the DoJ.

Are you unaware that the DoJ is supposed to operate independently of the White House?

 

Tierra_y_Libertad

(50,414 posts)
28. Fine. Does that prevent Obama from firing Holder for not following his policies?
Sun Feb 19, 2012, 05:11 PM
Feb 2012

Or, is his policy to defend warrantless wiretapping?

Is the executive in charge of and responsible for what the executive branch does?

 

morningfog

(18,115 posts)
29. Except that isn't quite right.
Sun Feb 19, 2012, 05:13 PM
Feb 2012

It is wrong for the White House to use the DOJ as a political arm. It is, however, absolutely in charge of setting and guiding policies, just like with every other department in the Executive Branch.

Are you suggesting the State Dept, Defense Dept, Education, Commerce, etc are supposed to operate independently of the White House?

 

The Doctor.

(17,266 posts)
31. Truly a case of apples and orangutans.
Sun Feb 19, 2012, 05:17 PM
Feb 2012

There is a reason the POTUS should not direct the DoJ, and you pretty much stated it. Any direction by the White House can be seen as 'political', and unlike the other agencies, the DoJ has very real power to push a political agenda.
 

morningfog

(18,115 posts)
32. All Departments have the power to push a political agenda.
Sun Feb 19, 2012, 05:21 PM
Feb 2012

There is nothing that separate the DOJ in that regard. Every Department also has the ability to be corrupted and politicized inappropriately.

The role of the Executive Branch is to implement and enforce the laws. From the whitehouse website:

The President is both the head of state and head of government of the United States of America, and Commander-in-Chief of the armed forces.

Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress. Fifteen executive departments — each led by an appointed member of the President's Cabinet — carry out the day-to-day administration of the federal government. They are joined in this by other executive agencies such as the CIA and Environmental Protection Agency, the heads of which are not part of the Cabinet, but who are under the full authority of the President. The President also appoints the heads of more than 50 independent federal commissions, such as the Federal Reserve Board or the Securities and Exchange Commission, as well as federal judges, ambassadors, and other federal offices. The Executive Office of the President (EOP) consists of the immediate staff to the President, along with entities such as the Office of Management and Budget and the Office of the United States Trade Representative.

The President has the power either to sign legislation into law or to veto bills enacted by Congress, although Congress may override a veto with a two-thirds vote of both houses. The Executive Branch conducts diplomacy with other nations, and the President has the power to negotiate and sign treaties, which also must be ratified by two-thirds of the Senate. The President can issue executive orders, which direct executive officers or clarify and further existing laws. The President also has unlimited power to extend pardons and clemencies for federal crimes, except in cases of impeachment.


http://www.whitehouse.gov/our-government/executive-branch

The Departments, the Cabinet are under the full authority of the President. The DOJ is no exception.
 

The Doctor.

(17,266 posts)
89. With nowhere near the effectiveness of the DoJ.
Mon Feb 20, 2012, 06:54 AM
Feb 2012

Upon careful reading, you might have noticed I emphasized that in my post.

That's why Bush used the DoJ to manipulate elections. The Department of Education can't prosecute a Senator a month before an election. There is a reason the independence of the DoJ is supposed to be sacrosanct.

Can you not understand that difference?
 

morningfog

(18,115 posts)
92. You have gone round and round. My point is simple.
Mon Feb 20, 2012, 10:45 AM
Feb 2012

The answer to your original OP it, no, the DOJ is NOT and independent body. It is a department of the Executive Branch, of which Obama is currently the head.

He directs and oversees the DOJ, just like State, Defense, Education, etc. The potential for political abuse may be greater, that is debatable. But, that is different than your question and the position you and other have taken in this thread. Obama does have the authority to, and does direct and head the DOJ. It has been suggested that he is not the head or that he is barred from guiding or directing or influencing the DOJ. All of these are incorrect positions.

The AG, of the DOJ, is a Cabinet member. The Cabinet and the departments have no power under the Constitution. They can only advise the President. Then, the President orders and directs them as he sees fit to implement and execute the laws.

Examples that prove Obama directs, and is responsible for, the DOJ:

Obama administration will no longer defend DOMA
http://www.cbsnews.com/8301-503544_162-20035398-503544.html

Obama ordered the DOJ to quit defending DOMA in court, the DOJ followed his order.

U.S. Issues New Deportation Policy’s First Reprieves
http://www.nytimes.com/2011/08/23/us/23immig.html

Obama ordered review of all pending deportation cases. He established a new policy: "Under the policy, immigration authorities will use powers of prosecutorial discretion in existing law to suspend the deportations of most immigrants who, although they have committed immigration violations (which generally are civil offenses), have not been convicted of crimes.

In particular, officials will look to halt deportations of longtime residents with clean police records who came here illegally when they were children, or are close family of military service members, or are parents or spouses of American citizens." The Obama Administration also will recognize same-sex marriages as families under this review (which is not federal law).

This is a clear example of how and when a president gets involved with the DOJ, and when and how they SHOULD.

I have provided you with two easy examples, there are more. Your premise that the the DOJ is an independent body is just factually wrong. You position that the President should not get involved is a valid position. However, I strongly disagree. The President's involvement in these two examples show the real power and positive impact Presidential involvement of a Department within his Branch can have for thousands of individuals.

 

Tierra_y_Libertad

(50,414 posts)
33. Are you saying that the other departments in the executive aren't political?
Sun Feb 19, 2012, 05:23 PM
Feb 2012

Or, their actions are not seen as political? Or, that Holder wasn't a political appointment?

You're really stretching to justify Obama's defense of warrantless wiretapping.

dems_rightnow

(1,956 posts)
22. Yes
Sun Feb 19, 2012, 05:08 PM
Feb 2012
http://abcnews.go.com/blogs/politics/2011/02/president-obama-instructs-justice-department-to-stop-defending-defense-of-marriage-act-calls-clinton/

"President Obama has instructed the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which has since 1996 allowed states to refuse to recognize same-sex partnerships legally recognized in other states.

President Obama believes that section – Section 3 — “is unconstitutional” given the Due Process Clause of the Fifth Amendment (including its equal protection component), Holder wrote, and the president has instructed the Department of Justice to no longer defend the law in those two lawsuits."

movonne

(9,623 posts)
14. I think you are right....I'm not sure Obama was really
Sun Feb 19, 2012, 04:56 PM
Feb 2012

against DADT but for political reasons played it that way....having Holder push it through..

 

Tierra_y_Libertad

(50,414 posts)
17. Are you saying that the DoJ's defense is part of a plan to do away with wireless wiretapping?
Sun Feb 19, 2012, 05:02 PM
Feb 2012

Based on their defense of DADT?

FSogol

(45,312 posts)
15. LOL. Sounds like a lot of people responding to you need to brush up on their
Sun Feb 19, 2012, 05:00 PM
Feb 2012

High School Government courses.

Keep up the good fight. K& R.

 

morningfog

(18,115 posts)
20. The DOJ is not an independent agency. It is a department in the Executive Branch which the Office
Sun Feb 19, 2012, 05:06 PM
Feb 2012

of the President heads, leads and directs.

NYC Liberal

(20,132 posts)
37. But the president SHOULD NOT interfere and get involved,
Sun Feb 19, 2012, 05:37 PM
Feb 2012

whether he has the legal authority to do so or not.

 

morningfog

(18,115 posts)
39. He has a duty to manage the departments. It isn't interference. It is
Sun Feb 19, 2012, 05:41 PM
Feb 2012

implementing and defending the laws of the US. How he does it is up to him. The actions of the DOJ are Executive Branch actions. No different than State, Defense, Education, etc.

NYC Liberal

(20,132 posts)
52. "How he does it is up to him." Correct.
Sun Feb 19, 2012, 07:32 PM
Feb 2012

And the president can choose to allow the DOJ to remain as independent as possible so as not potentially taint investigations or cases, or give the appearance of such.

 

morningfog

(18,115 posts)
56. We are in agreement. He is in charge and the direction it takes is on
Sun Feb 19, 2012, 07:38 PM
Feb 2012

his discretion and direction.

NYC Liberal

(20,132 posts)
74. Yep. And my opinion, to add to that, is that the president should
Sun Feb 19, 2012, 09:04 PM
Feb 2012

leave the DOJ alone as much as possible even if he does have the power to "interfere"

 

jberryhill

(62,444 posts)
99. All lawyers are required to exercise independent professional judgment
Fri Feb 24, 2012, 12:05 PM
Feb 2012

Go ahead, tell your attorney - whom you hired and whom you pay - to do something against that attorney's understanding of an ethical or other independent professional obligation, and find out how far you can "direct" your own attorney.

 

morningfog

(18,115 posts)
101. I don't know how many times I have to post this.
Fri Feb 24, 2012, 01:44 PM
Feb 2012

Obama directs the DOJ and they listen. I am not talking about meddling within a case, but on setting the direction and policy.

http://www.cbsnews.com/8301-503544_162-20035398-503544.html

http://www.nytimes.com/2011/08/23/us/23immig.html?_r=1

These are just two quick examples of Obama ordering the DOJ to not defend a law or to change enforcement.

FSogol

(45,312 posts)
35. Doesn't anyone remember when the Bush admin fired all those Justice Dept attorneys?
Sun Feb 19, 2012, 05:27 PM
Feb 2012

While Bush is welcome to fire whomever he wanted in his cabinet, it was wrong since it violated the separation of the DOJ from the President. Sure, the DOJ is part of the President's cabinet, but there has always been a separation of political activity by the President from the DOJ. Obama can ask Holder to resign, but he cannot change anything that the DOJ is working on. In the past, Presidents usually didn't even comment on pending cases to avoid that conflict of interest. Holder has the ability to investigate whatever he wants. To insist that Obama is running the day-to-day activity of the DOJ is silly.

Here's an article from 2007 when Bush fired those attorneys.
http://www.mcclatchydc.com/2007/06/18/17061/politics-weakens-justice-dept.html

 

morningfog

(18,115 posts)
38. Of course he doesn't run the day-to-day. But, he certainly is in charge and Holder
Sun Feb 19, 2012, 05:39 PM
Feb 2012

has to do what he directs. He could fire Holder tomorrow if he wasn't implementing or defending the law as he thinks it should be.

Bush was wrong because he politicized the Department, which is different than setting how policies will be implemented. The DOJ is a department, in the Executive, just like State, Defense, Education, etc.

Which is why elections matter. New administrations set the policies.

 

Tierra_y_Libertad

(50,414 posts)
69. Did the SCOTUS appoint Holder? Does the SCOTUS decide who gets what office at DoJ?
Sun Feb 19, 2012, 08:12 PM
Feb 2012

You seem unaware that the DoJ is part of the Executive Branch and under its control.

 

Tierra_y_Libertad

(50,414 posts)
44. Yes. And, I remember Nixon taking flack for firing him.
Sun Feb 19, 2012, 05:54 PM
Feb 2012

So? Is Obama afraid of taking the flack for running his departments?

 

morningfog

(18,115 posts)
48. Cox and Nixon was more akin to Bush and the US Attorney firings.
Sun Feb 19, 2012, 06:37 PM
Feb 2012

Both Presidents were using the DOJ as a political arm, which is not permissible. And which is wholly different than directing an executive department, including the Justice Department, on policy implementation and execution.

treestar

(82,383 posts)
58. The argument here is to politicize it!
Sun Feb 19, 2012, 07:41 PM
Feb 2012

We don't like law x, so the DOJ should just roll over and not defend it. That way it does not go to the Court and the issue remains up in the air. Because apparently we're afraid of the court. And of the system. Because Republicans are no different from Democrats and so Republicans influences the Court's make-up may as well be in office as Democrats.

The left who complain about this are in essence saying the POTUS should abuse the position to enforce only laws we like, and should snap his fingers and say, "DADT is not more, because we're not going to defend it."

Then if a Republican President did something like that, the reverse would occur. How dare the Republican President not collect taxes (that'd be a similar thing). How dare the Republican President not defend the constitutionality of the welfare law in court?

treestar

(82,383 posts)
77. So why aren't you bashing Obama for not letting it go to court and be declared
Sun Feb 19, 2012, 09:13 PM
Feb 2012

unconstitutional?

It is, isn't it?

 

morningfog

(18,115 posts)
80. In regards to his position on DOMA, I applaud his ordering the DOJ to stand down.
Sun Feb 19, 2012, 09:20 PM
Feb 2012

The cases are still be defended, just not by the DOJ. I do think it is unconstitutional, whether this Supreme Court in these cases would agree is another question.

I like seeing the President get involved and influence DOJ actions. It is entirely proper and worthwhile.

 

Tierra_y_Libertad

(50,414 posts)
65. Or, the POTUS could simply ban warrantless wiretapping...which it has not done.
Sun Feb 19, 2012, 07:58 PM
Feb 2012

2+2 = 4. This administration favors warrantless wiretapping.

treestar

(82,383 posts)
78. You seem to want the POTUS to do whatever he wants
Sun Feb 19, 2012, 09:14 PM
Feb 2012

Without regard to the law. Not all wiretapping is illegal. There is warrantless wiretapping that may be constitutional. The Courts decide, not the President, or you or some committee. That's our system.

 

Tierra_y_Libertad

(50,414 posts)
81. I want the POTUS to do his job and take responsibility for it.
Sun Feb 19, 2012, 09:40 PM
Feb 2012

If he wants warrantless wiretapping, which he obviously does, then he should do what he is doing in not ordering the DoJ to stop defending it. He should also be held to account by the people for doing so. Which is precisely what is happening here.

That's our system.

Enrique

(27,461 posts)
72. "the President has instructed the DOJ not to defend the statute in such cases"
Sun Feb 19, 2012, 08:39 PM
Feb 2012
President Obama has instructed the Justice Department to no longer defend the constitutionality of the Defense of Marriage Act, or DOMA, the legal prohibition on federal recognition of same-sex marriages.

Attorney General Eric Holder said in a statement that the department will stop defending the policy because it has now been challenged in the Second Circuit, "which has no established or binding standard for how laws concerning sexual orientation should be treated."

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," he said. "The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President's determination."


http://www.cbsnews.com/8301-503544_162-20035398-503544.html

NashvilleLefty

(811 posts)
41. From many of these responses, it seems that a lot of people
Sun Feb 19, 2012, 05:45 PM
Feb 2012

don't understand that the DoJ has to prosecute the LAW as written by Congress and interpreted by the courts, regardless of Administration polices.

DADT is a perfect example. Obama didn't agree with DADT. However, DADT was the "law of the land" and thus the DoJ was obligated to prosecute it, whether Obama or even the DoJ itself agreed with it or not. Therefore, Obama worked to change the law.

I think that's the disconnect that a lot of people miss, the distnction between "policy" and "law". The DoJ has to prosecute the Law as it stands, regardless of policy or opinion.

 

morningfog

(18,115 posts)
42. How do you reconcile that with Obama's order to Holder to not defend DOMA?
Sun Feb 19, 2012, 05:49 PM
Feb 2012

An order which Holder and the DOJ are following.

The truth is, the DOJ is a department of the Executive Branch. It is no different than any other department. Holder is no different than any other Cabinet member.

treestar

(82,383 posts)
55. Then they are doing what the left wants, and holding up a court decision that it is
Sun Feb 19, 2012, 07:37 PM
Feb 2012

unconstitutional. Weird how it's seen as better to dodge that than to get it over with.

Enrique

(27,461 posts)
73. they are doing what the President ordered them to do
Sun Feb 19, 2012, 08:50 PM
Feb 2012

in this case, the President ordered the DOJ to take an action that the left approved of.

treestar

(82,383 posts)
79. OK so Republican Presidents can do the same.
Sun Feb 19, 2012, 09:15 PM
Feb 2012

Surprised you're not criticizing the Administration for not having the "balls" to let the Courts decide - must be afraid the DOMA will actually be held to be constitutional.

 

stevenleser

(32,886 posts)
103. Not correct, I spoke to an attorney that worked on this for the White House.
Fri Feb 24, 2012, 02:09 PM
Feb 2012

The administration was very careful to use a number of lower court and SCOTUS decisions to make the case that they believed that the particular portions of DOMA were clearly unconstitutional and therefore should not be enforced.

The upshot of that is, if the SCOTUS directly finds that those portions are Constitutional, the White House would start enforcing them again.

Enrique

(27,461 posts)
105. well I spoke to Eric Holder
Fri Feb 24, 2012, 02:13 PM
Feb 2012

and he told me:

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," he said. "The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President's determination."


http://www.cbsnews.com/8301-503544_162-20035398-503544.html

 

stevenleser

(32,886 posts)
107. Without realizing it you just reinforced my point. You just bolded the wrong part and dont have all
Fri Feb 24, 2012, 02:22 PM
Feb 2012

the details:

"fails to meet that standard and is therefore unconstitutional." - is the part you SHOULD have bolded.


Below is the full text of Holder's statement. Note that it is a statement and does not include the painstaking work done by attorneys to show that Section 3 is UnConstitutional.
http://www.justice.gov/opa/pr/2011/February/11-ag-222.html

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASEWednesday, February 23, 2011Statement of the Attorney General on Litigation Involving the Defense of Marriage Act

WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.

Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.

Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.

Fumesucker

(45,851 posts)
45. Last time I checked, torture was still illegal..
Sun Feb 19, 2012, 05:56 PM
Feb 2012

And yet there have been remarkably few prosecutions for torture when we all know it happened.

 

The Doctor.

(17,266 posts)
47. That is a very good point.
Sun Feb 19, 2012, 06:29 PM
Feb 2012

It also shoots a hole in the 'apolitical' notion of discharge of duties with relation to the POTUS.

But we know why they couldn't pursue prosecution of war crimes by the BA. You've perhaps made the best case (whether you know it or not) for political influence of the DoJ in order to prevent an outcome.

Do you know what that outcome would have been?

Fumesucker

(45,851 posts)
87. "Why do so many people continue to insist that the actions of the DoJ are the will of Obama?"
Mon Feb 20, 2012, 04:55 AM
Feb 2012

I answered your question in the OP and you respond with another question?

 

The Doctor.

(17,266 posts)
88. Yes, I did.
Mon Feb 20, 2012, 06:38 AM
Feb 2012

I also acknowledged that the DoJ does sometimes act in the interest of the POTUS and the nation. But that doesn't mean the POTUS directs the DoJ in executive or political matters.

If the question is too difficult, I'll understand.

Fumesucker

(45,851 posts)
90. Well, the DoJ sometimes acts in the interests of the POTUS..
Mon Feb 20, 2012, 08:25 AM
Feb 2012

The nation I'm not so sure about..

The fact is though that your OP is false, the DoJ does indeed do things at the behest of the POTUS, it has always been thus and it's exceedingly unlikely to change..

hughee99

(16,113 posts)
46. It depends on the issue...
Sun Feb 19, 2012, 06:04 PM
Feb 2012

Did the DOJ do something you like? Then Yeah! Obama, it was HIS call or at least HIS appointee that did it. Did they do something you don't? Well, you can't blame Obama, HE's not the head of the DOJ and it's not "proper" for him to be calling the shots there anyway.

Son of Gob

(1,502 posts)
49. Or the more likely scenario around here....
Sun Feb 19, 2012, 07:02 PM
Feb 2012

Did the DOJ do something you don't like? Then Yeah! Obama, it was HIS call or at least HIS appointee that did it. Did they do something you do like? Well, you can't credit Obama, HE's not the head of the DOJ and it's not "proper" for him to be calling the shots there anyway.

woo me with science

(32,139 posts)
50. I know!
Sun Feb 19, 2012, 07:19 PM
Feb 2012

His whole administration keeps doing this to him! It is like they ALL are corporatists and right-leaning, and they keep sneaking out and doing right-leaning and corporatist things, and he had no idea!

People should not lie during job interviews. And I am sure that they are all blackmailing him in a very mean way, too, because he never even *complains* about it.

It is sooooooo unfair.

 

The Doctor.

(17,266 posts)
59. Cute, but lame.
Sun Feb 19, 2012, 07:42 PM
Feb 2012

So you believe the President should direct the DoJ.

Did Obama do so with regard to the move to dismiss the suit over wiretaps?
 

morningfog

(18,115 posts)
71. Whether you think he should or should not direct the DOJ, he can and he does.
Sun Feb 19, 2012, 08:32 PM
Feb 2012

He is the head of the Executive, the DOJ is a Department in the Executive. See, for example:

http://www.cbsnews.com/8301-503544_162-20035398-503544.html

We can debate whether he should or should not make comments and orders on specific issues. But, there is no debate on whether or not he has the power. He certainly does.

woo me with science

(32,139 posts)
93. Oh please. The behavior and priorities of his DOJ are entirely consistent
Mon Feb 20, 2012, 11:45 AM
Feb 2012

Last edited Mon Feb 20, 2012, 12:27 PM - Edit history (2)

with the behavior and priorities of the rest of his administration, which has been right-leaning and corporatist since Day One. That's just reality and history.

To claim that what they do is somehow against the President's wishes and priorities is about the most ludicrous CYA tactic for the President that we have seen lately on DU. You are asking us to believe that the President secretly has a liberal DOJ in his heart, when his own administration appointments and his own policy record fly in the face of that, and when he has never expressed a shred of discomfort with anything they are doing.

The "debating" tactics around here are getting beyond silly. When did claiming secret motives for the President that clearly contradict everything he has said and done since he took office take the place of a reasonable argument? ....Because that is exactly what you are doing here. It is like trying to claim that the Pope secretly wishes his bishops were spreading Lutheranism when he keeps appointing them and behaving like a Catholic himself. There is no evidence whatsoever for this message you are trying to send.



treestar

(82,383 posts)
54. The President is the head of it
Sun Feb 19, 2012, 07:36 PM
Feb 2012

Given that, over the years, huge bureaucracies will develop and a new President should not come in and change everything. It would be inefficient.

But that's not the point. The DOJ, that is the government side of a legal issue, will always defend a challenged law. There is nothing wrong with that. It was a law duly passed and it is the government's job to argue in favor of it.

treestar

(82,383 posts)
60. If there is a law that includes warrantless wiretapping
Sun Feb 19, 2012, 07:44 PM
Feb 2012

It is the government's job to argue that it is constitutional. That doesn't stop the challenger from arguing that it is not. The Court then decides. This argument is saying not to defend a law so it does not go to court so the conclusion remains up in the air. It's living in some lala land where the POTUS is the Court.

And then you could not say anything if an R President decided that welfare was unconstitutional and refused to challenge a case that said that it was.

The Challenger to a law is not always right. That's what you're assuming.

 

Tierra_y_Libertad

(50,414 posts)
64. Or, the government could decide not to defend it.
Sun Feb 19, 2012, 07:56 PM
Feb 2012

There is a separation of powers for a reason. The executive branch can wield powers just as readily as the courts can.

If doing so proves to be unconstitutional then the courts, or the congress, or both, can intervene.

In any case, it appears that this administration is in favor of warrantless wiretapping...or it would ban doing it.

Right?

treestar

(82,383 posts)
76. Then the next administration, which may be Republican
Sun Feb 19, 2012, 09:11 PM
Feb 2012

can do the same thing. And you have no complaints on that? So it's OK if say the R President decides not to defend a law some right wing nut challenges as unconstitutional.

Our system may be frustrating in its insistence on separation of powers and courts hearing both sides, but that's why it's not a dictatorship.

 

Tierra_y_Libertad

(50,414 posts)
82. The executive, no matter what party, may run its own DoJ and maintain the separation of powers.
Sun Feb 19, 2012, 09:47 PM
Feb 2012

Do you think it is unconstitutional, or dictatorial, for the executive branch to run it's own departments? He is not impinging on the Judicial Branch if he fires Holder for not following his policies. What's being contended here is that Holder is doing so with his approval. His approval of warrantless wiretapping...which is dictatorial..even if "legal".

bvar22

(39,909 posts)
66. "The DOJ will always defend a challenged law"
Sun Feb 19, 2012, 08:03 PM
Feb 2012

That is absolutely FALSE.
The DoJ is free to chose which they defend, and which they do NOT defend.

Here is the PROOF!
"AG Holder: DOJ Won’t Defend a Challenge to DOMA Brought by Members of Military"

Feb 17, 2012 5:20pm

"Attorney General Eric Holder sent House Speaker John Boehner a letter today to inform him that the Department of Justice will not defend the Defense of Marriage Act (DOMA) in a challenge brought by current and former active duty members of the United States military. In the lawsuit, the litigants seek various federal benefits for their same -sex spouses — medical and dental insurance, basic housing allowances, visitation rights in military hospitals and survivor benefits."

http://abcnews.go.com/blogs/politics/2012/02/ag-holder-doj-wont-defend-a-challenge-to-doma-brought-by-members-of-military/


You still have time to correct your mistake.



You will know them by their WORKS,
not by their excuses.
[font size=5 color=green]Solidarity99![/font][font size=2 color=green]
--------------------------------------------------------------------------------------------------------------------------------[/center]

 

morningfog

(18,115 posts)
68. I've been offering up this example, yet it has been ignored.
Sun Feb 19, 2012, 08:11 PM
Feb 2012

The fact is, Obama is in charge. He can choose to direct the DOJ when he wants. When he allows the DOJ to defend a law, he is at a minimum not concerned with the outcome of the challenge. Or, he supports it.

treestar

(82,383 posts)
75. That means that law will stay in limbo then
Sun Feb 19, 2012, 09:10 PM
Feb 2012

Maybe they read too many blogs and started "listening."

Still, generally there is nothing wrong with the government defending a law. The challenger gets their day in court, too. The Court hears both sides and then decides.

Your way would allow Republicans to do the same, too. Leaving a lot of laws in limbo, with different circuit rulings.

People who started the legal outrage meme need to admit their mistake and back off. Find other Obama bashing themes, because this one is ridiculous.

bvar22

(39,909 posts)
91. No.
Mon Feb 20, 2012, 10:25 AM
Feb 2012

People who INSISTED that the DoJ MUST defend every single challenge because That's their JOB
need to put on their Big Boy Pants,
admit they were WRONG,
correct their mistake,
and move on with Lesson Learned.

The Attorney General has the discretion to defend or not,
and White House Policy CAN be determined by which they choose to defend.
There is certainly something WRONG in choosing the defend the FISA Amendment,
and immunity for the Telecoms
for spying on Americans without a warrant,
or do YOU read the 4th Amendment differently?

Apply the Bullshit Test:
If Bush and the Republicans had done this,
(giving the government the power to spy on Americans without a warrant,
and giving retroactive immunity to the Telecoms)
would you be supporting it?

Would you be saying,
"Just doing their job.
Purely Routine.
Nothing to see here.
Manufactured outrage"





You will know them by their WORKS,
not by their excuses.
[font size=5 color=green]Solidarity99![/font][font size=2 color=green]
--------------------------------------------------------------------------------------------------------------------------------[/center]






 

morningfog

(18,115 posts)
67. Obama showed he could order the DOJ to not defend a law: DOMA.
Sun Feb 19, 2012, 08:08 PM
Feb 2012

The gig is up. He is in charge. What the DOJ pursues, defends or ignores are all products of the Chief Executive.

treestar

(82,383 posts)
96. Well, it will tend to, then
Wed Feb 22, 2012, 04:18 PM
Feb 2012

Did you get equally angry every time the government defended a particular challenged search as being valid under the 4th Amendment? And what if the court found it did not violate the 4th Amendment? Then the courts are in on it too?

Romulox

(25,960 posts)
97. It will do so in line with its ideology, since the decision is a political one.
Fri Feb 24, 2012, 10:43 AM
Feb 2012

It is incorrect to represent the decision of the Presidentially appointed Attorney General as apolitical, your attempts to change the subject notwithstanding.

 

stevenleser

(32,886 posts)
104. Nope, its not. You need to speak to any of the lawyers who worked on the DOMA decision
Fri Feb 24, 2012, 02:11 PM
Feb 2012

they will tell you. It is a strictly legal argument that they painstakingly tied to various court rulings. Its not a simple "we dont like the law so we are not enforcing it."

madokie

(51,076 posts)
70. President O is the boss
Sun Feb 19, 2012, 08:20 PM
Feb 2012

out of respect for the office he holds, the people of the united states and the head, Eric Holder, of the DOJ, he has to stay an arms length away. Not everything that Holder does is going to be what President O likes and vice versa. Thats how Democracy works after all.

Romulox

(25,960 posts)
94. Attorney General Holder "serves at the pleasure" of the President, so no.
Mon Feb 20, 2012, 11:53 AM
Feb 2012

In addition, it is the job of the US Attorney General to "give his advice and opinion on questions of law when required by the President." (28 USC § 511)

So again, uh uh.

 

jberryhill

(62,444 posts)
100. Yes, now go ask your own lawyer to violate federal rule 11
Fri Feb 24, 2012, 12:09 PM
Feb 2012

The statute you cite actually provides an important clue. When an attorney renders an opinion to a client, it is the independent opinion of the attorney, and not "the opinion the client requested".

You can fire your attorney, but you cannot direct your attorney to do things which the attorney believes to be in violation of a rule.
 

jberryhill

(62,444 posts)
98. Is your attorney independent from you?
Fri Feb 24, 2012, 12:02 PM
Feb 2012

Even if you hire an attorney to help you with a problem, there are things that attorney can do for you, and there are things the attorney can't do for you. Unlike other people you hire to do things, the attorney has an obligation to exercise independent professional judgment.

People are sometimes surprised by that. I've seen situations where people with utterly frivolous and meritless claims or defenses think it is a matter of simply offering a premium rate in order to get me to do things I cannot or will not do.

You can hire an attorney, but that does not give you either the right or the ability to direct that attorney's actions in ways that impair or conflict with that attorney's independent professional judgment.

Enrique

(27,461 posts)
102. this is not a matter of debate
Fri Feb 24, 2012, 01:48 PM
Feb 2012

it is an indisputable fact that at times the White House directs the DOJ.

One of those times, contrary to your OP, involves DOMA.

http://abcnews.go.com/blogs/politics/2011/02/president-obama-instructs-justice-department-to-stop-defending-defense-of-marriage-act-calls-clinton/

"President Obama has instructed the Justice Department to stop defending the constitutionality of the Defense of Marriage Act, which has since 1996 allowed states to refuse to recognize same-sex partnerships legally recognized in other states.

President Obama believes that section – Section 3 — “is unconstitutional” given the Due Process Clause of the Fifth Amendment (including its equal protection component), Holder wrote, and the president has instructed the Department of Justice to no longer defend the law in those two lawsuits."
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