Alex Blaze

Strange behavior

Filed By Alex Blaze | December 07, 2009 3:30 PM | comments

Filed in: Politics
Tags: DOJ, federal judge, health care benefits, John Berry, lesbian, LGBT, same-sex partner

Bil posted video this weekend of John Berry, the head of the OPM, discussing that case where a federal judge ordered the government to pay for the health care benefits of a lesbian employee's partner. The Obama Adminstration refused to do that and blocked Blue Cross/Blue Shield from making the payment. Here's a rough transcript of Berry's explanation:

She was looking at this, and both her and the Justice Department, and Matt's here from the Justice Department, concluded that basically neither I nor the president have the authority to do this. Which is why Congresswoman Baldwin's legislation is so essential. And why the administration is inaudible on behalf of it it and is helping work with her to get it done. Because it will give me the authority to do it and as soon as we get it, the president will signed it we'll do it.

Now the judge has ordered me to go ahead and do it. And the lawyers are, you know, finding out what what we can do or not and they're going to tell me what I can do. And if the Justice Department says we can pay it, I'd be happy to pay it. If I can't, I can't.

The Administration has 30 days to respond to the judge, and I sure hope they find a better argument than this. Because what it appears like Berry is saying is that any random Justice Department employee's legal opinion outweighs that of a federal judge. I'm trying to look for another way to read it, but he's clearly saying that at judge's legal opinion is a nice afterthought, but the real legal decisions that govern the administration are made in-house.

Am I the only one who thinks this sounds familiar to another lawless administration's reasons for ignoring established law? And does this mean that if I hire a lawyer, and they tell me I don't have to follow a judge's order, that I don't have to? Because that'd be sweet.


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Regretfully, I can't remember where I recently read this line by Peter Lorre from "The Maltese Falcon" or to what it was being applied, but how apt for Berry:

"I certainly wish you would have invented a more reasonable story. I felt distinctly like an idiot repeating it."

But I can credit someone named Abby commenting on Signorile's site for this:

"Shortly after the U.S. Constitution was adopted, the U.S. Supreme Court in a case called Marbury v. Madison declared that federal courts have the right to review both legislation adopted by Congress and actions taken by the President or other parts of the executive branch, declare them unconstitutional, and enforce those court orders. That's what happened here: two judges of the federal 9th Circuit Court of Appeals held that applying DOMA to deny medical insurance coverage to same-sex married partners of court employees was unconstitutional. Those decisions supersede both DOMA and any OPM regulations under it, at least as applied to these two employees. Berry and the Obama Administration are simply using DOMA as a smokescreen to protect themselves against conservative backlash, when they could just as easily use the court's ruling as a shield against any criticism. They simply don't have the guts to do it, just as they don't have the guts to stand by their supposed convictions in the lawsuits against DADT to say, yes, we agree it's unconstitutional and we will not defend it. And, contrary to what the DOJ has been saying, they DO have the power to refuse to enforce unconstitutional laws. They are just too spineless to do it."

Contrast that with sometime Constitutional law professor Obama's excuse to Anderson Cooper months back about why he won't issue an executive order to stop gay discharges until DADT is repealed:

“I also want to make sure that we are not simply ignoring a congressional law. If Congress passes a law that is constitutionally valid, then it's not appropriate for the executive branch simply to say, we will not enforce a law.”

PROBLEM: neither DADT nor DOMA have been declared "constitutionally valid." That would require a ruling from the US Supreme Court which has refused, so far, to rule on either.

No less ignominious than Berry's disingenuousness Saturday was the insistence during the same event by gay Congresspersons Baldwin and Polis [singing the same song Barney Frank already has] of why can't we just leave Britney er Barack alone?

Of course, their insistence that he "can't act alone" is, note, shameless parroting of Obama Nostra talking points - - at least in the case of an executive order freezing discharges which is UNQUESTIONABLY within the President's authority TO ACT ALONE under authority Congress gave the Presidency in 1983 in federal law 10 USC 12305 which overrides ANY OTHER LAW in times of national emergency which we are technically in now.

To the entire "it's just about Congress" smokescreen, Americablog responds:

"Has Jared come up with a legislative, lobbying, grassroots and media strategy to get ENDA passed, and DADT and DOMA repealed? Where is it? Has he been holding strategy meetings with the groups, the grassroots, the Netroots, activists, the gay press, key big-gays-in-town and around the country? Where's the target list of members we need to pressure? Where are the TV and radio and Internet ads? Where are the public events? And what's the strategy for using the President in all of this, since, we all actually know for a fact that the President is hugely important in terms of the legislative process on the Hill? The White House is holding strategy meetings with immigration activists and fundraisers to plan out a strategy for passing immigration reform next year - when are they going to hold those kind of meetings with gay advocates, funders and activists?"

It's one thing to be betrayed by a straight President, skilled at relentlessly smile fucking us while trading our rights like cards in his political game. If Bill Clinton was not "the first black President" then Obama is certainly the first black Bill Clinton. But where do we go when our only three out representatives in Congress have betrayed us?

Out of the blogs and into the streets!

Don Sherfick Don Sherfick | December 7, 2009 6:41 PM

Alex, I think you oversimply the situation. My understanding is that the judge in this case, although a federal appeals court judge, has made the ruling not in his usual capacity as such, but as in essence the employer of the lesbian employee. Barry is reflecting the idea that, since the Constitution says no money can be paid out of the federal treasury except as authorized pursuant to congressional enactment, he's between a rock and a hard place, and is asking the Justice Department for an opinion. The 9th circuit judge, again not in any kind of appellate capacity, is arguably claiming that he's somehow immune from review of his employment decision because he is a member of the judicial branch. This isn't simply a matter of a lofty federal appeals judge trumping a lowly Justice lawyer.

There are many who think that when judges, simply because they are judges, decide to order legislatures to fund them to a certain level, or otherwise do things that arguably go against constitutional separation of powers principles, they are out of bounds legally.

Much as I think the employee, like all employees with same-sex partners, ought to be treated on an equal footing with their married heterosexual counterparts, the case needs to be decided in the normal course of the judicial process. From what I read, this is not that process.

This one is a sticky wicket because of the personal involvement of the federal judge. He really should not be ordering anything to happen in this case and should be sending it to another jurist to handle.
He has two roles in this case as both employer and as jurist and he should not take the latter on because he hold the former.