Sen. Gillibrand to Speaker Boehner: Don't flush cash, time, goodwill down unconstitutional drain
FOR IMMEDIATE RELEASE
Wednesday, March 2, 2011
GILLIBRAND TO HOUSE GOP: DON’T SPEND TAXPAYER MONEY DEFENDING UNCONSTITUTIONAL DOMA LAW
Urges House Leadership to Refrain From Appointing Special Counsel At Unnecessary Cost To Taxpayers, Detracting from Shared Goals of Cutting Wasteful Spending and Creating Jobs
Washington, D.C. – After House Republican leadership announced yesterday they would consider taking action to defend the Defense of Marriage Act (DOMA) against recent legal challenges, despite the Justice Department’s finding that Section 3 of the law is unconstitutional, U.S. Senator Kirsten Gillibrand is writing to House Speaker John Boehner this morning urging him not to appoint special counsel at unnecessary cost to taxpayers, while distracting from the shared goals of cutting wasteful spending and creating jobs.
In an interview this past weekend, Speaker Boehner told the Christian Broadcasting Network that the House of Representatives are “researching all the options available to us.” House Majority Leader Eric Cantor announced at a press conference on Monday that House Republicans would take action to defend DOMA challenges.
“It is in the best interests of taxpayers and the constitution for you to refrain from appointing special counsel to defend this law,” wrote Senator Gillibrand to Speaker Boehner. “Instead, we must focus our attention on creating jobs and increasing America’s competitiveness in an increasingly competitive global market. The appointment of special counsel and pursuit of this case is a drain on resources, time, and energy and is not in America’s economic and social interests.”
Senator Dianne Feinstein (D-CA) has announced she will introduce repeal legislation in the US Senate and Rep. Jerrold Nadler (D-NY) will do the same in the House. Gillibrand looks forward to working with her colleagues to pass the repeal of this discriminatory law.
The full text of Gillibrand’s letter is below:
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The Honorable John Boehner
Speaker of the House of Representatives
Washington, D.C. 20515
Dear Mr. Speaker,
I am writing to bring to your attention a matter of profound importance regarding the posture the Administration has taken in the forthcoming cases, Windsor v. United States and Pedersen v. Office of Personnel Management. These cases, as you are aware, have been brought in federal courts in the Second Circuit, where there is no controlling case law regarding what standard of review should be applied to challenges to sexual orientation discrimination, including discrimination in federal benefits and privileges related to marriage. In a letter to you last week, the Attorney General advised that the Administration has concluded that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and therefore will cease to defend the statute in pending litigation. It is in the best interests of taxpayers and the constitution for you to refrain from appointing special counsel to defend this law. A decision to appoint special counsel would be an unnecessary cost to taxpayers, and would detract from our shared goal of cutting wasteful spending and creating jobs.
The executive branch’s responsibility to defend federal laws is not absolute, particularly in instances such as the present case, where the federal law is in direct conflict with the confines of the Constitution. At this critical economic juncture in our nation’s history, it is imperative that we as legislators do not devote resources to defending an antiquated and unconstitutional law.
Instead, we must focus our attention on creating jobs and increasing America’s competitiveness in an increasingly competitive global market. The appointment of special counsel and pursuit of this case is a drain on resources, time, and energy and is not in America’s economic and social interests.
As you are aware, Article IV of the United States Constitution requires the President to enforce federal law, including the Constitution. This authority requires that every law is to be carried out so far as it is consistent with the Constitution, and no further. There is ample, well documented evidence of the long history of the executive branch’s refusal to defend laws that it finds to be unconstitutional. This record includes instances such as Thomas Jefferson’s refusal to enforce the Sedition Act and more recently, when then-Deputy Solicitor General John Roberts refused to defend federal statutes that required minority preferences in broadcast licensing in Metro Broadcasting v. Federal Communications Commission. Roberts, appearing on behalf of the United States as amicus curiae, and the Department of Justice not only did not defend the federal statutes, but also urged the Court to declare these statutes unconstitutional. They argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. Roberts further urged the court to reject the deference to Congress and to apply strict scrutiny to federal affirmative action programs. At that time, Congress did not appoint special counsel to defend this law in the White House’s stead, but instead deferred to the President’s constitutional authority. Congress should do the same in this case.
I urge you to consider this position as you prepare a formal response to the aforementioned cases. Thank you for your attention to this urgent matter. I look forward to hearing from you.
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