Tuesday, March 15, 2011

HCR 110: Austin, We Have a 10th Amendment Problem

HCR 110 by Rep. Paul Workman (R-Travis County) expresses the desire of the Texas Legislature for President Obama to defend the so-called "Defense of Marriage" (DOMA) act against court challenges. DOMA was passed in 1996 by the federal congress. It prohibits the federal government from recognizing same-sex marriage and allows individual states to not recognize same-sex marriages performed in other states.

(HCR stands for "House Concurrent Resolution". Concurrent resolutions must be passed by both the House and Senate and (in most cases) signed by the governor. They cannot create new laws but are used to express the will of the legislature and, in some situations, to allow the legislature to exercise its power. HCR 110 expresses the will of the legislature for the executive branch of the federal government to take a particular course of action. If passed it would have no binding power over the president.)

On February 23rd the Obama Administration issued a press release stating that it would not defend section 3 of DOMA in two pending suits challenging its validity: Pedersen v. OPM and Windsor v. United States. Section 3 of DOMA is the part that prohibits the federal government from recognizing same-sex marriages. Pedersen v. OPM was brought by a group of same-sex- spouses of current, retired and deceased federal employees, all of whom were legally married. It seeks to require the federal government (their spouse's employer) to provide them the same spousal benefits it provides the legal spouses of its straight employees. Winsor v. United States was brought by the widow of a New York woman who, although her marriage was recognized by New York, was subject to federal inheritance taxes upon the death of her wife that would not have been levied had her marriage been recognized by the Internal Revenue Service, a branch of the federal government. Both cases argued, in part, that the licensure of marriage is a right reserved to the States under the 10th amendment of the U.S. Constitution and so for the federal government to refuse to recognize a marriage recognized by a state is unconstitutional.

The Obama Administration has made no statement regarding its defense of section 2 of DOMA, which allows individual states to not recognize same-sex marriages from other states.

The irony of HCR 110 is that last session (2009) Rep. Workman co-authored HCR 50, which expressed the sentiment of the legislature that the 10th amendment prohibited the federal government from imposing "mandates" on the State of Texas (by mandates they mean things like air quality standards and the voting rights act). He also was the principle (and only) author of HCR 54 which claimed that the 10th amendment prohibited the federal government from from establishing the Department of Education, the Federal Highway Administration, the Department of Commerce, the Occupational Safety and Health Administration, the Department of Health and Human Services, and the Department of Labor.

It seems that Rep. Workman loves the 10th amendment, except when its used to allow queer people to be treated like everyone else. Thus is the circuitous logic of the bigot, believing that the constitution should only be used to protect people they like, never people they hate.

Workman also argues in HCR 110 that
"The constitutional role of the president of the United States is to execute the laws, not adjudicate them; it is well-established policy of the U.S. Department of Justice to defend a federal statute unless no reasonable argument can be made in its defense, but instead President Obama has unilaterally decided that DOMA is unconstitutional; the constitutionality of this law should be determined by the courts, not by the executive branch"
That little phrase "unless no reasonable argument can be made in its defense" is a whopping understatement. Rep. Workman didn't write this resolution. It was written by one of the many fine lawyers at the Texas Legislative Counsel. I suspect that that knowledgeable lawyer insisted that this little phrase be included as clear precedent exists for the Justice department to discontinue defense of unconstitutional laws (precedent I assume Rep. Workman is either unaware of, or chooses to ignore). According to the Justice department declined to defend unconstitutional laws 13 times during the period from 2004-10 alone (under both the Bush and Obama administrations' Justice Departments). Other specific examples of the Justice department declining to defend acts of congress include
  • Buckley v. Valeo - 1976 - The Ford administration declined to defend portions of a campaign finance law enacted in the wake of the Watergate scandal
  • INS v. Chadha - 1983 - the Regan administration declined to defend congressional power to block visas
  • Hornell Brewing Co. v. Brady - 1992 - the first Bush administration declined to defend a law prohibiting the use of the name "Crazy Horse" for any alcoholic beverage
Certainly presidential administrations must exercise their power to not defend acts of congress with the utmost care, but it is not an unprecedented move, nor is it outside of the purview of the department of justice to do so.

If you would like to point out the Honorable Representative Workman's hypocrisy to him, or educate him on the well-established precedent for the department of justice to discontinue defending an unconstitutional law you may do so by calling him at 512-463-0652 or by e-mail at

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