SCOTUS May Throw Out DOMA Cases Due to DOJ Refusal to Defend
30th March 2013
In each DOMA lawsuit—including Windsor—the Obama Department of Justice (DOJ) has a responsibility to defend DOMA against a constitutional challenge. But President Obama declared that he believes DOMA is unconstitutional and ordered DOJ not to defend it.
The justices discussed whether this means no federal court has jurisdiction to decide the lawsuit. Article III of the Constitution only gives federal courts jurisdiction to decide a “case or controversy.” As the Supreme Court has repeatedly held, an essential element of this is that the lawsuit must be adversarial, meaning both parties try to win the case by making a good-faith argument to persuade the court to side with them.
So much for that bit about ‘take care that the laws be faithfully executed’ in the Constitution. In a Real Country this would mean Obama’s impeachment. But we don’t live in a Real Country any more.