Integrity Legal

In previous postings on this blog it was noted that the issue of impeaching of President Barack Obama was brought up in the context of the administration’s current position regarding enforcement of the provisions of the so-called “Defense of Marriage Act” (DOMA). At the time of that posting, the notion seemed a bit more far fetched compared to the tone some lawmakers and advocates on Capital Hill are now taking especially in light of the recent events in Libya and what appeared to be partisan acrimony in the lead up to the 11th hour agreement to keep the United States government funded.

Many legislators seem rather fixated upon the President’s recent actions in Libya and elsewhere in North Africa. To quote Representative Ron Paul directly from his recent speech on the floor of the United States House of Representatives (as found at approximately the 2:00 minute mark of the YouTube video referenced in the aforementioned hyperlink):

“It is against international law and it challenges the war powers resolution…”

Meanwhile, dissenting voices are not only heard on the Republican side of the current political aisle as Democratic members of Congress have voiced concern about Mr. Obama’s recent decisions regarding the situation in Libya. To quote directly from Representative Dennis Kucinich (approximately the 2:40 mark) in a video on YouTube from a broadcast which would appear to have initially aired on Russia Today, the Representative summed up his position on Obama’s decision regarding Libya, when asked if the President’s actions were impeachable and for further elaboration on that subject:

…He did not abide by the Constitution…

Readers of this blog are highly encouraged to click upon the hyperlinks above to view these videos in detail in order to gain real insight on these issues. Concurrently, it would appear as though American advocates for Constitutional adherence are becoming increasingly vocal in their opposition to recent policies of the Obama Administration as writer Ben Smith noted in a concise and interesting article on the website Politico, to quote directly from Mr. Smith:

A prominent libertarian constitutional lawyer and civil libertarian has drafted an article of impeachment against President Obama over his attack on Libya, throwing down a legal gauntlet that could be picked up by some Congressional Republicans

Bruce Fein, a former Reagan administration official in the Department of Justice and chairman of American Freedom Agenda writes in his 15-page argument of Obama’s course that “Barack Hussein Obama has mocked the rule of law, endangered the very existence of the Republic and the liberties of the people, and perpetrated an impeachable high crime and misdemeanor.”

This blogger undertook some research regarding Mr. Bruce Fein as he appears to be a very learned individual especially regarding the subject and intentions underlying the drafting of the United States Constitution. Recently, Mr. Fein was featured in a 2 part interview on YouTube’s Alex Jones Channel and his analysis of the issues at play as well as the Constitutional legal principles underlying those issues was highly insightful, especially for those who may be unaccustomed to a truly thoughtful analysis of Constitutional law and the original intentions behind the adoption of the Checks and Balances system inherent to the Separation of Powers embodied within the provisions of the Constitution itself. Many people are under the mistaken impression that the only issues that come up with regard to the United States Constitution pertain to the so-called “Bill of Rights”, the reference to the original 10 Amendments to the Constitution which most clearly elucidates the rights, privileges, and immunities of States and People of the United States of America. However, the provisions regarding the relationships and interrelationships between the Several States and the Federal Government, the People and the Federal Government, the States’ relationships amongst themselves, and the States’ relationship to the People are more clearly defined within the provisions of the US Constitution itself.

One quote that this blogger felt was of most significance during the interview came when Mr. Fein stated (at approximately the 5:20 minute mark of the interview mentioned above):

“…The fundamental rule of law is at stake here.”

Later in this same interview (at approximately the 8:30 minute mark at part 2 of this interview) Mr. Fein went on to take exception with an apparent policy that Americans can be placed upon “assassination lists” if found to be an imminent threat to the country. Mr. Fein took exception with this policy based upon a belief that the United States government is not permitted to take the life of an American Citizen without the due process of law.  He went on to note that the so-called “Patriot Act” is “being used against us” (use of the word us implying the American People). Those interested in these issues are strongly encouraged to click on the links above and review this interview as it is quite insightful.

That said, a final resolution to the issues being brought to the foreground by Representatives such as Mr. Kucinich and Dr. Paul as well as advocates such as Mr. Fein has yet to manifest itself from the bubbling cauldron that is the American political system. To paraphrase Ted “Theodore” Logan from one of this blogger’s all time favorite movies, Bill & Ted’s Excellent Adventure: Strange Things Are Afoot On Capital Hill. How the issues noted above will play out in a Congress that just barely managed to patch together an 11th hour resolution to keep the government funded remains to be seen.

Strictly speaking, proceedings such as impeachment have a more political character compared to, say, a legal proceeding, but the outcomes of such proceedings can have legal consequences as well as consequences in the policy arena. To be candid, such events can even have geopolitical consequences as evidenced in the waning days of the Presidency of William Jefferson Clinton or, arguably, those of Richard Nixon or even Andrew Johnson. Therefore, in today’s interconnected world American Presidential impeachment can have ramifications for people as geographically distant as China or the Nations comprising the Association of Southeast Asian Nations (ASEAN).

In real terms, all hyperbole aside: is impeachment possible? Certainly, it is always a technical possibility under the provisions of the United States Constitution. The question to be asked by the observant student of political and legal history in the United States is: can Senatorial removal be considered a real possibility? This is a much murkier issue as the Senate of the United States is currently dominated by members of the Democratic Party who would likely prove less-than-willing to vote to remove a President of their own Party. To put it as simply as possible, it is this blogger’s opinion that notwithstanding the possibility that articles of impeachment may be introduced against Mr. Obama, the possibility of seeing those articles of impeachment adopted by the full House of Representatives is simply that: a possibility.

To sum up, whatever one’s opinions are regarding Mr. Obama’s administration there is one thing that is certain: he will be running for a second Presidential term. Mr. Obama recently announced that he would be seeking the office of the Presidency for a second time. To quote directly from The Link Paper at thelinkpaper.ca:

US President Barack Obama announced his decision to run for a second term as he called upon his supporters to mobilise for the 2012 election campaign. “This campaign is just kicking off,” Obama said on his official website. In a message to his supporters through email, text and video, titled ‘It Begins with Us’, Obama said he would be filing his papers to launch his campaign for a second term.

As of yet, it would appear as though Mr. Obama’s main Presidential challengers have yet to officially reveal themselves. Although the reconvening Congress may be more interesting even than that which very nearly shutdown only mere hours ago.

Tags: Alex Jones, Articles of Impeachment, Barack Obama, Ben Smith, Bruce Fein, Checks and Balances, Defense of Marriage Act, DOMA, Obama Impeachment, Obama To Run For Reelection, Patriot Act, Politico, President Obama, Representative Dennis Kucinich, Representative Ron Paul, Russia Today, Separation of Powers, The Link Paper
Posted in US Constitution | No Comments »

This blogger has been an avid follower of American politics since childhood and as a birthday present to himself this blogger will be following the 2012 election in an effort to contribute some worthwhile commentary on the unfolding campaign and the possible ramifications for Thailand, ASEAN, and Greater Asia. To quote directly from a recent posting on the New York Times official website nytimes.com:

The 2012 presidential campaign is finally getting underway, in fits and starts.

But the election season really arrives on May 2, when the Republican candidates gather in Simi Valley, Calif., for a televised debate at the library of their collective hero, Ronald Reagan.

Or, maybe they won’t.

The article cited above went on to note the fact that very few prospective Republican challengers have come forward at this point to “throw their hat in the ring” regarding a run for the United States presidency. Apparently, former House Speaker Newt Gingrich has taken appropriate legal measures to fully explore the option of campaigning for the presidency, to quote further from the aforementioned article on the New York Times website:

[T]he April 15 fund-raising reports this year are likely to show almost no official campaign fund-raising, with the exception of Newt Gingrich, who announced the formation of an I.R.S. committee that allows him to start collecting money for a potential campaign.

Readers of this blog may recall that Mr. Gingrich recently made some news when questioning President Obama and Attorney General Eric Holder regarding the administration’s position on the issue of enforcement of the so-called Defense of Marriage Act (DOMA). However, it would appear that unlike this blogger, Mr. Gingrich takes exception with Mr. Obama’s position on DOMA not because he is in favor of Americans being able to solemnize a same sex marriage, but because he feels that the Administration’s position on this issue is not in compliance with the United States Constitution as the US President is required to enforce American law.

The most interesting thing that this blogger found noticeable in the above cited article (and this blogger highly encourages readers to click on the links above to read this article in its entirety to gain some perspective on what is shaping up to be an important presidential campaign) was the fact that it made no mention of Representative Ron Paul. Although Dr. Paul has yet to announce his candidacy for the Presidency, and he may not do so, he did win the CPAC straw poll two years running. This accomplishment should not be overlooked as it was a similar victory which saw Mr. Reagan get catapulted to the front of the race for the US Presidency some 30 years ago.

On the American left President Obama is, naturally, the likely choice for the Democratic nomination, but even that should not be viewed as a foregone conclusion especially in light of the fact that some within the Democratic Party have called for a primary challenge against Mr. Obama. To quote directly from a posting on February 2, 2011 from the website Politifi.com:

WASHINGTON – Rep. Dennis Kucinich (D-OH) said Thursday that President Barack Obama “absolutely” ought to face a Democratic primary challenge from the left in 2012, predicting it would make him “stronger.” “I think primaries can have the opportunity of raising the issues and make the Democratic Candidate a stronger Candidate,” Kucinich told CSPAN’s Washington Journal.

Some commentators took Mr. Kucinich to mean that he was interested in running for the Presidency as a Democrat, but it would appear, at least for now, that this is not the case. However, the mere fact that the notion has been put forth introduces the possibility that Mr. Obama could face a primary challenge from within his own Party. How he would fare in such circumstances remains to be seen, but this blogger would not rule out the notion of a Democratic challenger while bearing in mind that Mr. Obama is a strong campaigner who would be a formidable opponent, especially in a Democratic primary.

For related information please see: Patriot Act Extension.

Tags: Barack Obama, Campaign 2012, Campaign for the White House, Defense of Marriage Act, Dennis Kucinich, DOMA, Election 2012, Newt Gingrich, Presidential Election, Ron Paul, Same Sex Marriage, US Constitution
Posted in Election 2012 | No Comments »

In what could possibly be one of the most convoluted political and legal issues currently in the American zeitgeist it has been reported by various sources that President Barack Obama is under pressure from many different groups regarding his recent decision not to enforce key provisions of the so-called “Defense of Marriage Act” (DOMA). To quote directly from an article posted on AfricaOnline.com:

Former Speaker of the House Newt Gingrich suggested last week that President Obama overstepped his constitutional bounds when he announced he would no longer defend Defense of Marriage Act in court.

In matters pertaining to United States Constitutional law the lines between the political and legal spheres begin to blur and for this reason the issues surrounding what may be the most interesting legal situation in recent history are difficult to sort out for those who have not kept up with the evolving posture of this issue. To provide a brief summation: the United States Federal government is currently barred from recognizing marriages between same-sex couples pursuant to the provisions of the Defense of Marriage Act (DOMA). Meanwhile, 7 jurisdictions in the United States, including 6 sovereign States, currently license same sex unions. Meanwhile, many sovereign American States have promulgated State Constitutional amendments forbidding recognition of marriage between same sex couples. Currently, there is a case that has been adjudicated by the Massachusetts Federal District Court which found that States have a fundamental right to marry those within their jurisdiction. Amongst advocates of States’ Rights, the significant issue in the DOMA cases is: FEDERAL recognition of same sex marriages legalized and solemnized within the States’ jurisdiction. To continue quoting Mr. Gingrich according to AfricaOnline.com:

“Imagine that Governor Palin had become president,” Gingrich said. “Imagine that she had announced that Roe versus Wade in her view was unconstitutional and therefore the United States government would no longer protect anyone’s right to have an abortion because she personally had decided it should be changed. The news media would have gone crazy. The New York Times would have demanded her impeachment.”

For those unfamiliar with the Roe versus Wade decision, this was the Supreme Court case which allowed women to receive abortions based upon an interpretation of the US Constitution. It is interesting that Mr. Gingrich noted the lack of “Mainstream Media” attention to this issue as there are those who could argue that the issue of equal rights for the LGBT community is an issue often overlooked by major media outlets. Clearly, the issue of same sex marriage is provoking strong reaction from various sectors of the American political spectrum, to quote directly from the website ThinkProgress.org:

Now, in the right’s furor over the administration’s announcement that it will not defend the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), Rep. Trent Franks (R-AZ) is calling for Obama to be impeached.

After the Arizona Republican advocated defunding the Department of Justice if it does not defend Section 3 of DOMA – “I would support that in a moment,” remarked Franks – he went on to say that he would “absolutely” favor impeaching President Obama and Attorney General Eric Holder if such a move “could gain collective support”…

It would appear as though this issue is causing a great deal of political turmoil for Mr. Obama, but what is even more interesting are the underlying issues at stake for both the LGBT community and the sovereign States which comprise the United States of America.

To be clear, this blogger fully believes that the right to marry whomever one chooses to marry is a fundamental inalienable right and equal protection of that right should be accorded to members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community. In this blogger’s personal opinion, if two people wish to consensually enter into a marital union, then their respective genders should not be relevant for purposes of government recognition of that union. However, there is an even stronger argument in favor of requiring Federal recognition of same sex marriage and this argument stems from the fact that 6 states have allowed some form of same sex union (civil union or marriage). Clearly, States have traditionally been vested with the power to solemnize and legalize marriages within their respective jurisdictions and the Federal government should be required to recognize such unions, but the provisions of DOMA preclude such recognition. For example, same sex bi-national couples who have legalized a marriage in, say, Massachusetts cannot be accorded the same immigration benefits as their different-sex counterparts pursuant to the provisions of DOMA. There has been some discussion of legislation such as the Uniting American Families Act (UAFA) which would rectify this problem in the context of United States immigration, but this still leaves a fundamental question unanswered: when did the Federal government get the right to dictate to the States what shall constitute a marriage?

As to the Obama Administration’s decision to not pursue cases in support of the Defense of Marriage Act: the sentiment is laudable, but ultimately this action may not be in the best interests of the LGBT community as such inaction results in fewer, if any, cases or controversies coming before the Supreme Court thereby removing the platform for the Supreme Court to make a broad binding decision regarding the Defense of Marriage Act itself (and possibly the overall issue of same sex marriage in general), the Full Faith and Credit Clause, and the other legal issues, such as discrimination against same sex bi-national couples, which come “part and parcel” with continued enforcement of the Defense of Marriage Act.

It is this blogger’s personal opinion that the United States Supreme Court will find in favor of recognition of same sex marriage, but in what could prove to be a sort of convoluted decision wherein Justices such as Scalia, Thomas, and Roberts find in favor of the right of the States to set policy regarding who can get married within their jurisdiction while the more “liberal” or “civil libertarian” wing of the Court finds in favor of granting same sex couples the right to Federal recognition of a legally solemnized State marriage based more upon a finding that the issue is one of civil rights.

For related information please see: LGBT Visa.

Tags: Add new tag, Attorney General Eric Holder, Barack Obama, civil rights, Constituional Law, Defense of Marriage Act, DOMA, Full Faith and Credit Clause, LGBT Rights, Newt Gingrich, Obama Administration, Representative Trent Franks, same sex civil union, Same Sex Marriage, same sex visa, States' Rights, Supreme Court, Trent Franks, uafa, Uniting American Families Act, US Consitution
Posted in Editorial, lgbt immigration, Opinion, same sex visa, States' Rights, US Constitution | 1 Comment »

It recently came to this blogger’s attention that the Attorney General of the United States, apparently at the request of the President, has opted to discontinue pursuing cases that would enforce the provisions of section 3 of the so-called “Defense of Marriage Act” (DOMA). To quote directly from a letter written from United States Attorney General Eric Holder to the Speaker of the United States House of Representatives the Attorney General noted:

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 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 Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.

The administration of this blog highly recommends that those reading this posting click on the links above to read the Attorney General’s actual letter to Congress regarding this matter. That said, the administration of President Barack Obama should be guardedly commended for their position on this controversial and important matter. This announcement could be a boon to the LGBT community and the unfortunate same sex bi-national couples who are separated due to the fact that there has yet to be passage of legislation such as the Uniting American Families Act (UAFA) which would circumvent DOMA and thereby allow those persons married to someone of the same sex to petition for immigration benefits in the same manner as their different sex counterparts. Bearing that in mind, there are some who could argue that the administration’s position on the issue could cause some unanticipated problems for those who wish to see swift equalization of rights for the LGBT Community, at least in the short term. Such an argument could be based upon the fact that failure to pursue these cases could lead to a situation where the public is unable to get the issue before the Supreme Court (more analysis on this below). To continue quoting from the Attorney General’s letter to Congress:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.

As noted in the first sentence of this above cited paragraph, the administration’s decision not to pursue Federal cases to block recognition of same sex marriages could theoretically stall efforts at ultimate recognition of same sex marriage in the Courts. The reason for this is based upon the fact that Courts can only “make new law” when there is a “case or controversy” pending before them. The President’s failure to pursue such cases could effectively blunts efforts to get same sex marriages recognized in the Courts. To put it simply: a case involving the issue of the Defense of Marriage Act (DOMA) can only get before an Appellate Court (including the Supreme Court) if the party that lost in the lower court brings an appeal. Where the Obama administration has stated that they have changed their position on the issue of judicial scrutiny of same sex couples the fact still remains that in order for the Courts to render a final decision on the issue, a case must be properly brought before them. The Holder letter went on to note:

We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.

Interpretation of this line of the letter is critical for the future of same sex marriage cases pending before the Courts because the Obama administration (or a later administration, for that matter) may be placed in a position in which they are forced to appeal against a ruling in favor of same sex couples in order for the issue to be brought to the official attention of the higher Courts (most especially the United States Supreme Court). Failure on the part of the Obama administration to pursue the government’s current position in favor of DOMA all the way to the Supreme Court could lead to a situation, not unlike that once seen in the cases involving the old Widow’s Penalty in an immigration context, where same sex marriage is ruled legal in, say, the Second Circuit, but might not be legalized across the United States if the Attorney General’s office refuses to request certiorari from the United States Supreme Court and simply opts to accept the 2nd Circuit’s ruling.

At the same time, the administration is not actively involved in efforts to discourage recognition of same sex marriages. From a political standpoint, the President’s apparent decision to discontinue pursuit of such cases is rather shrewd in that, as noted in the last sentence of the paragraph cited above, it allows the administration to avoid something of a “political hot potato” without actually doing anything that might offend those arrayed against the recognition of same sex marriage. Meanwhile, as a practical matter, the administration’s decision changes nothing about the current state of affairs with regard to same sex marriage. In fact, if the administration refuses to appeal such cases to the Supreme Court, they would effectively close off one of the two avenues by which DOMA could be overturned (the other being outright repeal by the US Congress). The Defense of Marriage Act remains “on the books” and therefore continues to be an impediment to Federal recognition of same sex marriage (even those solemnized and legalized by the States).

From this blogger’s perspective, the administration appears to be attempting to make efforts in support of the LGBT community on the issue of same sex marriage, but in reality the two branches of government that can truly make a change to the current Federal policy on same sex marriage are the legislative branch of government and the judiciary. At present, two significant cases are pending in the judicial system. One case in California attacks DOMA from more of a civil right’s perspective while the Massachusetts Federal District Court found DOMA unconstitutional based upon, among other things, an analysis of that State’s (or more accurately: Commonwealth’s) inherent right to solemnize and legalize marriages within their jurisdiction. To quote directly from the opinion in the Massachusetts case:

State control over marital status determinations predates the Constitution. Prior to the American Revolution, colonial legislatures, rather than Parliament, established the rules and regulations regarding marriage in the colonies. And, when the United States first declared its independence from England, the founding legislation of each state included regulations regarding marital status determinations.

Many analyze this issue from the perspective of the Equal Protection Clause of the United States Constitution. There is a very valid argument that discriminating against same sex couples due to their gender/sexual orientation is a violation of Equal Protection. However, the argument in favor of the States’ inherent rights to make rules and regulations regarding marriages within their jurisdiction is a potent argument which should not be overlooked. Equal Rights for the LGBT community is a Civil Rights matter, but where 6 Sovereign States and the District of Columbia have taken the initiative and allowed same sex unions it begs the question: why is the Federal government contravening clear State policy on matters that have traditionally been within the exclusive bailiwick of the States?

This blogger has repeatedly written postings analyzing the issue of same sex marriage from the perspective of States’ Rights as well as Full Faith and Credit Clause of the United States Constitution. What is the most interesting aspect of this issue from the blogger’s perspective is the fact that the more socially conservative wing of the Supreme Sourt could end up voting in favor a same sex marriage based upon a States’ Rights line of thought. To quote directly from the dissenting opinion written by Justice Scalia in the Lawrence v. Texas case (which both the Chief Justice of the United States Supreme Court and Justice Thomas joined):

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

All of the Justices noted above dissented in the Lawrence opinion based upon the reasoning that the States’ retain the right to regulate homosexual conduct within their jurisdiction. The Court itself went the other way in that decision, but the above citation from the dissent is important because it shows that those Justices might rule favorably upon an issue involving Federal recognition of same sex marriage if the underlying facts were to show that the State sovereign had duly recognized such unions pursuant to their aforementioned “police powers” noted in the Massachusetts case cited above.

As of yet, these issues remain to be resolved, but one thing is clear: the political winds are changing with regard to LGBT rights. However, said rights have yet to be fully secured and until such time as they are advocates for equal marriage rights should continue to monitor this issue.

Tags: Barack Obama, Defense of Marriage Act, DOMA, Eric Holder, Full Faith and Credit, Full Faith and Credit Clause, LGBT, Same Sex Marriage, uafa, Uniting American Families Act
Posted in lgbt immigration, News, same sex visa, States' Rights, US Constitution | No Comments »