©2011 jbjd

Add syndicated columnist Cal Thomas to the ever growing list of disingenuous town criers who, in the wake of President Obama’s decision the Executive branch will refrain from defending against court challenges to DoMA, are shouting a proverbial ‘the sky is falling’ warning to a captive audience ignorantly unaware in this instance, the sky is not only intact but also precisely in the place Congress (the Legislative branch of government) intended it to be.

Here are some snippets from Mr. Thomas’s latest tirade against Obama, “Obama’s duty is to enforce the law”:

President Obama has said his view of same-sex “marriage” is “evolving.” Apparently he thinks that the law should be based on a kind of Darwinian jurisprudence which allows it to “evolve” and become whatever the ruling politicians at a given moment say it is (or isn’t).How else to explain the decision by the president and his attorney general, Eric Holder, not to defend the Defense of Marriage Act, signed into law by President Clinton in 1996?

Now, you have to be real careful reading this double slight of hand.  See, Mr. Thomas begins this article by telling readers right there in the title, Obama has a duty to “enforce” laws.  But here, in the meat of his offering, he changes the word “enforce” to “defend,” correctly stating in simplest terms, Obama has decided not to defend against (court) challenges to the law (filed by aggrieved parties).  In other words, the fed will still define marriage as between same sex partners, for example, when it comes to doling out spousal benefits.

Then, he hurdles a leap and a bound by pointing readers to the false narrative, Obama based his decision that ‘this law means what he says it means’ because his ‘views on gay marriage are evolving.’  On what documentary basis did Mr. Thomas conjure up this ’cause’ and ‘effect’?

Given his recent history, it appears far more likely, Mr. Obama still opposes equal rights when it comes to sexual orientation but is just exercising this tactic because he is gearing up for the 2012 election and, having alienated a good percentage of his gay base, was ordered by his handlers to take steps to herd them back into the D fold.

For example, it took 2 (two) years to even sign into law a bill that indicates an intention to repeal DADT, notwithstanding strong bi-partisan support for the repeal from all political comers, including both  military brass, and military chaplains. Anyway, DADT is still the law of the land; and Obama has not ordered the DoJ to refrain from defending against court challenges to that law.

Despite the big congressional vote in December to repeal DADT, the law is actually still in effect. The repeal legislation doesn’t stop its implementation until 60 days after top Pentagon brass say they’re ready — and the brass say they’re still working on it, and it could take a few more months.

“The appeal is still alive and kicking because Don’t Ask Don’t Tell is still the law of the land,” said Dan Woods, a lawyer representing the Log Cabin Republicans.

“On behalf of our client, we suggested to the government that we would be willing to stay the appeal on one condition: that the government agree not to discharge any service member under Don’t Ask Don’t Tell in the meantime,” Woods told HuffPost. “And the government refused.”

Woods said the Pentagon “is continuing to investigate and process discharges under Don’t Ask Don’t Tell.”

The DOJ lawyers filed their brief Friday even though President Obama, speaking directly to gay service members when he signed the repeal legislation, hailed that December day as marking “the end of a particular struggle that has lasted almost two decades.”

Yep, Obama failed to rescind DADT even as he answered a question regarding his views on same sex marriage by mentioning he had ‘evolving’ views.

In December, the president scored a major legislative victory (with the help of Sens. Joe Lieberman, I-Conn., Susan Collins, R-Maine, and Harry Reid, D-Nev.) in signing the repeal of the “don’t ask, don’t tell” policy, ending the practice of banning gays and lesbians from serving openly in the military.

That was quickly followed by this widely noted answer to a question about same-sex marriage at his year-end news conference in December.

“[M]y feelings about this are constantly evolving. I struggle with this. I have friends, I have people who work for me, who are in powerful, strong, long-lasting gay or lesbian unions. And they are extraordinary people, and this is something that means a lot to them and they care deeply about,” President Obama said.

“At this point, what I’ve said is, is that my baseline is a strong civil union that provides them the protections and the legal rights that married couples have. And I think — and I think that’s the right thing to do. But I recognize that from their perspective it is not enough, and I think is something that we’re going to continue to debate and I personally am going to continue to wrestle with going forward,” he added.

(Note that PBS gets it wrong, too, giving credit to Obama for ending DADT when the bill he signed into law only states an ‘intention’ to end the policy.  As I said earlier, the military is still enforcing the current DADT policy and the DoJ is still defending the military’s use of this policy in court.)

Then, Mr. Thomas gets really dishonest.
Imagine the reaction from the Left had George W. Bush announced his administration would no longer defend Roe v. Wade because he thought it unconstitutional and it would eventually be overturned by the Supreme Court.

As regular “jbjd” readers now know,  President Bush nominated to the SCOTUS as Chief Justice, the former Solicitor General who, under his father, President George H. W. Bush, had not only refused to defend against a court challenge to an existing government policy, but also argued against the government policy in federal court, claiming it violated the Equal Protection clause of the 14th Amendment.  See FALSE ADVERTISING.  And he had every right to do so.  Id. Not only that, in 2002, President Bush signed into law legislation which created a formal mechanism for reporting to Congress those cases in which the Executive determined to refrain from defending or enforcing any law.

This is from my Reply to a Comment by markcon, on FALSE ADVERTISING.

markcon, you (and millions of others like you) are being played. In acknowledgment that, from time to time, the Executive decides to refrain from defending (or enforcing or administering) what it considers are unConstitutional laws, Congress passed this law requiring the Executive to report its decision(s).

§ 530D. Report on enforcement of laws
(a) Report.—
(1) In general.— The Attorney General shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice—
(A) establishes or implements a formal or informal policy to refrain—
(i) from enforcing, applying, or administering any provision of any Federal statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional; or
(ii) within any judicial jurisdiction of or within the United States, from adhering to, enforcing, applying, or complying with, any standing rule of decision (binding upon courts of, or inferior to those of, that jurisdiction) established by a final decision of any court of, or superior to those of, that jurisdiction, respecting the interpretation, construction, or application of the Constitution, any statute, rule, regulation, program, policy, or other law whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer;
(B) determines—
(i) to contest affirmatively, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law; or
(ii) to refrain (on the grounds that the provision is unconstitutional) from defending or asserting, in any judicial, administrative, or other proceeding, the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or not to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision; or
(C) approves (other than in circumstances in which a report is submitted to the Joint Committee on Taxation, pursuant to section 6405 of the Internal Revenue Code of 1986) the settlement or compromise (other than in bankruptcy) of any claim, suit, or other action—
(i) against the United States (including any agency or instrumentality thereof) for a sum that exceeds, or is likely to exceed, $2,000,000, excluding prejudgment interest; or
(ii) by the United States (including any agency or instrumentality thereof) pursuant to an agreement, consent decree, or order (or pursuant to any modification of an agreement, consent decree, or order) that provides injunctive or other nonmonetary relief that exceeds, or is likely to exceed, 3 years in duration: Provided, That for purposes of this clause, the term “injunctive or other nonmonetary relief” shall not be understood to include the following, where the same are a matter of public record—
(I) debarments, suspensions, or other exclusions from Government contracts or grants;
(II) mere reporting requirements or agreements (including sanctions for failure to report);
(III) requirements or agreements merely to comply with statutes or regulations;
(IV) requirements or agreements to surrender professional licenses or to cease the practice of professions, occupations, or industries;
(V) any criminal sentence or any requirements or agreements to perform community service, to serve probation, or to participate in supervised release from detention, confinement, or prison; or
(VI) agreements to cooperate with the government in investigations or prosecutions (whether or not the agreement is a matter of public record).
(2) Submission of report to the congress.— For the purposes of paragraph (1), a report shall be considered to be submitted to the Congress if the report is submitted to—
(A) the majority leader and minority leader of the Senate;
(B) the Speaker, majority leader, and minority leader of the House of Representatives;
(C) the chairman and ranking minority member of the Committee on the Judiciary of the House of Representatives and the chairman and ranking minority member of the Committee on the Judiciary of the Senate; and
(D) the Senate Legal Counsel and the General Counsel of the House of Representatives.
(b) Deadline.— A report shall be submitted—
(1) under subsection (a)(1)(A), not later than 30 days after the establishment or implementation of each policy;
(2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination; and
(3) under subsection (a)(1)(C), not later than 30 days after the conclusion of each fiscal-year quarter, with respect to all approvals occurring in such quarter.
(c) Contents.— A report required by subsection (a) shall—
(1) specify the date of the establishment or implementation of the policy described in subsection (a)(1)(A), of the making of the determination described in subsection (a)(1)(B), or of each approval described in subsection (a)(1)(C);
(2) include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination, and the identity of the officer responsible for establishing or implementing such policy, making such determination, or approving such settlement or compromise), except that—
(A) such details may be omitted as may be absolutely necessary to prevent improper disclosure of national-security- or classified information, of any information subject to the deliberative-process-, executive-, attorney-work-product-, or attorney-client privileges, or of any information the disclosure of which is prohibited by section 6103 of the Internal Revenue Code of 1986, or other law or any court order if the fact of each such omission (and the precise ground or grounds therefor) is clearly noted in the statement: Provided, That this subparagraph shall not be construed to deny to the Congress (including any House, Committee, or agency thereof) any such omitted details (or related information) that it lawfully may seek, subsequent to the submission of the report; and
(B) the requirements of this paragraph shall be deemed satisfied—
(i) in the case of an approval described in subsection (a)(1)(C)(i), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the legal and factual basis or bases for the settlement or compromise (if not apparent on the face of documents provided); and
(ii) in the case of an approval described in subsection (a)(1)(C)(ii), if an unredacted copy of the entire settlement agreement and consent decree or order (if any) is provided, along with a statement indicating the injunctive or other nonmonetary relief (if not apparent on the face of documents provided); and
(3) in the case of a determination described in subsection (a)(1)(B) or an approval described in subsection (a)(1)(C), indicate the nature, tribunal, identifying information, and status of the proceeding, suit, or action.
(d) Declaration.— In the case of a determination described in subsection (a)(1)(B), the representative of the United States participating in the proceeding shall make a clear declaration in the proceeding that any position expressed as to the constitutionality of the provision involved is the position of the executive branch of the Federal Government (or, as applicable, of the President or of any executive agency or military department).
(e) Applicability to the President and to Executive Agencies and Military Departments.— The reporting, declaration, and other provisions of this section relating to the Attorney General and other officers of the Department of Justice shall apply to the President (but only with respect to the promulgation of any unclassified Executive order or similar memorandum or order), to the head of each executive agency or military department (as defined, respectively, in sections 105 and 102 of title 5, United States Code) that establishes or implements a policy described in subsection (a)(1)(A) or is authorized to conduct litigation, and to the officers of such executive agency.—D000-.html

(FYI, Congress passed this ‘reporting’ law back in 2002. (Following this link and its successor, above; you can see, first the text appears in the numbered “public law” and then, the law is codified into the appropriate spot in the U.S. Code.)


I zealously try to post information that will inform but not titillate.  Then again, with all due deference to Mr. Thomas, I am only a blogger and not a syndicated columnist.


  1. bob strauss says:

    jbjd | March 12, 2011 at 4:13 pm |

    bob strauss | March 12, 2011 at 11:36 am |

    The Boston Globe: “native born” does not equal “natural born” for Presidential eligibility.
    Posted in Uncategorized on March 12, 2011 by naturalborncitizen

    You may add The Boston Globe to the growing list of influential media sources who have expressed the opinion that simply being born in the United States does not qualify one to be President. Recently, this blog pointed to a similar opinion in the New York Tribune. These pre-dated Breckenridge Long’s similar opinion as stated in the Chicago Legal News.

    Leo characterizes this as a “crucially relevant article,” but his hyperbolic conclusion is wrong again. The Boston Globe did not define NBC, which definition, of course, would have no precedential effect, anyway. Rather, a writer employed by the paper opined in an advice column, what he thought the definition could be.

    More inconsequential distractions, more than 2 (two) years after the last Presidential election and less than 2 (two) years until the next.

    1. No law requires that Electors only elect a President who is a NBC.
    2. No binding definition of NBC exists until a federal appellate court rules on such definition, in a holding in a case directly on point.

    The only illegal act that documentary evidence available in the public record supports occurred is this. Members of the D Party swore to state election officials Obama is Constitutionally eligible for President without ascertaining beforehand this was true, only to get these officials to print his name on the ballot in states with laws requiring names on the ballot will be limited to those candidates qualified for the job.

    Keep talking and debating whose opinions of legal definitions should prevail (or passing new election laws) instead of focusing on enforcing existing ballot laws; and watch Obama win re-election in 2012
    jbjd, I see what you are saying. Since there is no codified definition of natural born Citizen, anyone making a determination of who is, and who isn’t, a natural born Citizen, has no guide lines to go to by in making that determination. So, anyone can say they are a natural born Citizen, based on what their opinion of a natural born Citizen may be, even if it is a different opinion than most everyone else, and makes no sense, as far as the framers of the Constitution were concerned about national security.

    This shortcoming needs to be addressed by our lawmakers. We need to have honesty in our elections, and eligibility requirements need to mean something.

    bob strauss: Close. Codifying a definition is only one step; getting a federal appellate court ruling in a case directly on point is the seminal step in settling on a definition of NBC. However, fabricating the appropriate case that could achieve this end, requires a little imagination. I figured, by establishing a definition of NBC suitable to qualify a candidate to appear on a state ballot, this would invite challenge on the basis, states had no right to define NBC for the purpose of establishing Presidential eligibility (as opposed to ballot eligibility). In this way, I could foresee, finally arriving at a legal definition of NBC.

    I hate that so many pundits have intentionally sidetracked so much of the public’s energy on scrutinizing obscure legal treatises, or centuries old newspaper articles in a selfish attempt to recruit supporters of this definition or that, as promoted by the soothsayer. Because even assuming the federal courts had defined NBC; since no documentary evidence exists in the public record with regard to Obama’s birth credentials, how does anyone know whether Obama satisfies that definition? Which leaves us back at the tack I first advised 2 (two) years ago now, which is, if you believe he is not a NBC, challenge his ability to appear on the ballot in those states that require candidate qualification for office to appear on the ballot.

    This focus on what is the definition of NBC is a waste of time and energy. And the longer this distraction of ‘what is the definition of NBC’ goes on the more I think, this is the point! ADMINISTRATOR

    • bob strauss says:

      This focus on what is the definition of NBC is a waste of time and energy. And the longer this distraction of ‘what is the definition of NBC’ goes on the more I think, this is the point! ADMINISTRATOR
      I think the Obama camp is playing the NBC game to hide the real issue, which is he is not a Citizen of this country at all.

      Several states are considering eligibility laws to exclude ineligible candidates from being on the ballot. Some states want to make it effective in 2013, after the next election, so as not to embarrass Obama. Obama is the catalyst for the law in the first place, why not make it apply to him and all the other candidates? Constitutional crisis is an understatement.

      I remember also, there was an amicus brief filed along with the states challenging Obamacare’s constitutionality. The brief said the health care law was unconstitutional because it was signed into law by an unconstitutional POTUS. What is it going to take to wake up our lawmakers, it does the country no good for them to bury their heads in the sand.

      bob strauss: Even assuming Obama is Constitutionally ineligible for POTUS, this does not create a “Constitutional crisis”! Please, stop equating Constitutional ineligibility with the proverbial end of the Republic. I repeat, Obama was lawfully elected into office, following all of the steps prescribed in the Constitution. Everything he has done while in office has the official imprimatur of the Presidency. Every act and omission. And the only way to peacefully remove him from office is through the Constitutionally prescribed practice of Impeachment.

      No amicus brief asserting Obama has no authority as President on the basis he is not a NBC is worth the paper on which it is printed; and the legal practitioner drafting such document is incompetent. No documentary evidence available in the public record establishes Obama is not a NBC. And, as I have often said, even if he is, no law prohibited Electors from electing him.

      Citizens from states with existing ballot eligibility laws who have not filed citizen complaints of election fraud against the D’s who swore to Obama’s Constitutional eligibility; or, worse, those citizens who have as of yet failed to look up their laws, are to blame for this situation. After all, we cannot reasonably expect crooks not to steal (an election); rather, we need to safeguard our valuables (in this case, our state ballots).

      And in my opinion, every blog that focuses on the inane aspects of an on-line political ad, such as folds or shadows; or whether denying access to the document register of a state agency violates state regulations; or whether a newspaper pundit 2 (two) centuries ago reasoned the word ‘native’ does not equal ‘natural born,’ shares an increasing amount of blame. But the most complicit in continuing this situation are the larger blogs set up like ‘newspapers,’ who deal in junk ‘reporting’ disguised as news instead of rallying their readers to take the only steps necessary to expose the cabal behind the curtain: demand state A’sG investigate election fraud viz a viz swearing candidate Obama was qualified for office so as to get state election officials to print his name on the 2008 ballot.

      Picture this. A man successfully bamboozled a whole country into electing him its President in 2008 without establishing he is Constitutionally eligible for the job. Two plus years later, citizens who suspect he is ineligible finally figure out, they could keep him out of office by keeping him off the ballot, and discuss passing ballot eligibility laws, none of which will be in effect before the next election. Even citizens in some states with existing laws (for example, GA) have unsuccessfully endeavored to pass new laws, having never compelled enforcement of those laws already in existence. To paraphrase your question, who is burying whose head in the sand? ADMINISTRATOR

  2. Poljot says:

    It was a useful workout for me to find your webpage. It definitely stretches the limits with the mind when you discover very nice information and make an effort to interpret it accurately. I am going to look through this web site oft on my PC. Thanks for sharing

    Poljot: Thank you; and welcome. Now that you have found this information reliable and easy to digest, please, send your friends. ADMINISTRATOR

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