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Republicans funding antiquated bias: A love letter

by Jeremy Hooper

Nancy Pelosi (D) was all like, [paraphrase] "Hey, defending that awful, unconstitutional Defense of Marriage Act (so-called) is a big waste of moolah, so why don't we, oh, I don't know -- focus on crap that really matter?!" So Speaker BoehnerBoehner (R), now tasked with defending his decision to step in and appease the far-right of his party to the detriment of those actual problems that are in need of actual solutions, has issued a letter attempting to (a) justify why this is even happening at all; and (b) explain why this deeply partisan, completely hostile action merits diverting funds from the Dept. of Justice in order to cover the costly House action.

The complete letter, from the 61st speaker to his predecessor:

Boehner Says DOJ Funds Should Be Cut to Pay for DOMA Defense; Asks Leader Pelosi to Join in Supporting Redirection of Funds

Washington (Apr 18)
House Speaker John Boehner (R-OH) today sent the following letter to Democratic Leader Nancy Pelosi (D-CA) regarding the House’s intent to protect taxpayers from any cost associated with the Obama administration’s refusal to defend the constitutionality of the Defense of Marriage Act in court.

April 18, 2011

The Honorable Nancy Pelosi
Democratic Leader
U.S. House of Representatives
H-204, the Capitol
Washington, DC 20515

Dear Leader Pelosi:

Thank you for your letter of March 11, 2011 regarding the Bipartisan Legal Advisory Group’s (BLAG) decision to defend the constitutionality of the federal statute, Defense of Marriage Act (DOMA). This decision was necessitated by the extraordinary announcement by the current Attorney General, U.S. Department of Justice (DOJ) declining to defend the constitutionality of Section 3 of that Act.

Had the BLAG not taken this action, the constitutionality of the law would have been determined by a unilateral action of the President. By the House taking this action and the steps necessary to defend the law, the House is ensuring that the courts will decide DOMA’s constitutionality.

The burden of defending DOMA, and the resulting costs associated with any litigation that would have otherwise been born by DOJ, has fallen to the House. Obviously, DOJ’s decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA. It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA.

I appreciate that ordinarily DOJ should be in a better position to defend a federal statute in the Courts, both in terms of resource allocations and in expertise of personnel. However, by the President’s action through the Attorney General we have no choice; the House now faces that additional burden and cost. I would also point out that the cost associated with DOJ’s decision is exacerbated by the timing of this decision. Most of these cases are in the middle of lower court litigation and not ripe for Supreme Court review. Had the Attorney General waited until the cases were ripe for certiorari to the Supreme Court, the costs associated with the House defense would have been exponentially lower.

I would welcome your joining me in support of redirecting those resources from the DOJ to the House that would otherwise have been necessary expenses on the Attorney General to defend this federal statute. In the interim, I have directed House Counsel and House Administration Committee to assure that sufficient resources and associated expertise, including outside counsel, are available for appropriately defending the federal statute that the Attorney General refuses to defend.

Thank you.



**Nancy Pelosi responds:

April 18, 2011

The Honorable John A. Boehner
Speaker of the House
H-232, The Capitol
Washington, D.C. 20515

Dear Mr. Speaker:

Thank you for your response earlier today to my letter of March 11, 2011 concerning litigation relating to the Defense of Marriage Act (DOMA). My letter had requested that you provide me with the cost to the House and to taxpayers resulting from the decision of the Republican members of the Bipartisan Legal Advisory Group (BLAG) to hire outside counsel to represent the House in support of the DOMA. You note that President Obama and Attorney General Holder have determined that DOMA is unconstitutional, a conclusion I share, and have declined to engage in further judicial proceedings in defense of the law. As you may know, presidents have acted similarly in the past on at least 50 instances since 1979.

Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel. Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged.

Press reports indicate that the House, at your direction, will intervene today in the Windsor case, which is in a federal court in New York. Ms. Edie Windsor spent more than 40 years with her partner, Ms. Thea Spyer, and they were married in 2007. When Ms. Spyer passed away Ms. Windsor was unable to claim the federal estate marital tax benefit because of DOMA and the federal government imposed estate taxes of more than $360,000 on the money left to her. This case is a prime example of the injustice perpetuated by DOMA on millions of American families.

According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee. Mr. Clement, a former Solicitor General of the United States, is a partner in the Washington firm King & Spalding where he is in charge of the national appellate practice. I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee.

The House of Representatives need not enter into this lengthy and costly litigation. Contrary to the assertion in your letter, a BLAG determination against House involvement in the litigation – which was the position of Democratic Whip Hoyer and me – would not have allowed the constitutionality of the law to “have been determined by a unilateral action of the President.” As you know, only the courts can determine the constitutionality of a statute passed by the Congress.

Thank you again, and I look forward to working together with you on behalf of our country.

best regards,

Democratic Leader

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