[Cross-posted at Pam’s House Blend]
I’m not vouching for the specific numbers that Tony Mauro cites in this Law.com item about the DOJ (not) defending laws, but they seem believable.
Not that it will matter, of course – but I think its worth noting:
In 1992, back when Congress could occasionally agree on something, there was bipartisan anger over a beverage called Crazy Horse Malt Liquor because it insulted the memory of a Native American chief who happened to frown on alcohol.
Congress quickly passed a law barring federal approval of any beer label that displayed the words “Crazy Horse.” The brewer promptly sued, and not surprisingly a federal judge found the law unconstitutional under the First Amendment.
When the question of whether to appeal the ruling in Hornell Brewing Co. v. Brady arose, then-Solicitor General Drew Days III decided it would be futile; the law was beyond rescue. “Congress seemed to accept the decision not to go forward,” Days wrote later.
So much for the vaunted governmental “duty to defend” acts of Congress, which has been invoked often in recent weeks in connection with the “don’t ask, don’t tell” law barring gays from the military — a law that the Obama administration opposes but still is poised to defend. In cases much bigger than Crazy Horse — think Buckley v. Valeo and INS v. Chadha — SGs have been throwing provisions of federal laws under the bus for decades. And Senate records show that, 13 times in the past six years, during both the Bush and Obama administrations, the Justice Department has told Congress it is not defending an act of Congress.
Having passed this item along, I want to toss out a hypothetical:
- Its 2011, and somehow the Colorado transsexual birth certificate statute ends up as an issue before a state district court judge in one of the state’s more conservative counties – lets say: a Colorado-born post-op trans woman attempts to update her birth certificate after SRS, the administrative agency in charge refuses, and the woman then tries to get a judge to order the agency to do its job.
- The judge rules that the birth certificate statute, enacted by the Colorado Legislature in 1984, is null and void because of the state’s anti-same-sex marriage constitutional amendment, reasoning that transsexuals are just attempting to do an illegitimate end run around the intent to ‘protect traditional marriage’ that Colorado voters enshrined into the state’s constitution – and the constitution trumps a statute.
- Governor Tom Tancredo says that he agrees with the district judge and orders the state not to defend the transsexual law.
- The transsexual involved in the case in which the ruling occurred either has no ability to appeal it herself, can’t find a legal eagle outfit to help her or just gets discouraged and gives up, leaving the ruling to stand (take your pick.)
- Ergo, under the DADT-is-now-history theory, a district court ruling from the middle of nowhere invalidates transsexual existence in all of Colorado.
What say you all?
And will anyone care when if something like this happens?