Yes, that basic tenet is: Don't make preposterous arguments, especially when you represent the Department of Justice and the United States.
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Two points. First, while DOJ’s refusal to defend is (AFAIK) totally unjustified, it is no more unjustified than the refusal to defend DOMA.
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I address that point in the post, and
@DanielJHemel does so at greater length here. I don't think the comparison holds up to scrutiny.https://slate.com/news-and-politics/2018/06/the-trump-dojs-obamacare-decision-is-baseless-unprecedented.html … -
I’ve read both your pieces (just read Dans) and understand your point of view. I just do not agree.
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Basically you are arguing for new (and differing) standards for justifying refusals to defend and that DOMA/ACA fall on different sides of the standard
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My position is 1. These are not the standard 2. Should not be the standard 3. Even if they were the standard, debatable whether they justify distinguishing between DOMA/ACA
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A consistent person could oppose both Obama’s DOMA non-defense and Trump’s ACA non-defense. But the two are different in that the DOMA brief was based on a generalizable legal principle that DOJ could and did defend in other cases. The ACA brief is not.
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I agree the ACA argument is a technical legal argument rather than an application of a broad standard. This makes it in some ways more like Dickerson. But what is basis for saying that makes refusal to defend weaker?
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Because DOJ plainly doesn’t believe this BS argument. Which is a common position for a lawyer, even a DOJ lawyer to be in! But not when taking the extraordinarily rare position that a statute should be invalidated.
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Thanks, Atul. These are worrisome days.
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Beginning to understand why “red” stands for GOP. The blood of millions pours down on their hands. The children w/o parents, the ill, the weak, the victims of natural disasters, anyone who has seen the back of the govt instead of feeling their helping hand
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Except for , the lowest unemployment in 20 years 3.8 pct and best consumer confidence numbers in 18 years . Lowest black and Hispanic unemployment. I guess that’s not helping as it’s not a handout
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Fuckwit!
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I can see you are both classy and articulate
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How is this different than what the Obama administration did with DOMA? Note: I'm glad DOMA is gone and I think what is happening to the ACA is wrong. But let's not wrap up in 'rule of law' flags.
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We are headed for a new polity, with states separating into cliques. Could be good for progressive states. Think of Worst Trade Deal Ever: we send our money to those lesser developed states, and they send us their Senators to pollute the Senate. Awful trade!
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The piece’s soft pedaling of 2011 abandonment of DOMA is not intellectually honest, IMO. This country is either going to have to seriously grapple with various longstanding structural problems like those highlighted by Unitary Executive theory or descend into autocracy.
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Dark days indeed
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