As I have discussed before, I had sent two FOIA requests to the DOJ asking them for copies of any communications they have had with the Congress regarding the president's refusal to defend or enforce provisions of law. And in both of this instances, I have not had an answer. In the first instance, I requested information back in 2001 on any refusal to defend, as that was the state of the law at the time. I never heard back after the initial response telling me that they received my request. In 2002, the law changed as a result of the administration's narrow interpretation of the whistleblower protections in the Sarbanes-Oxley law. Senator Patrick Leahy (D. VT) added language to the Department of Justice Appropriations bill that required the administration to inform the Congress when ever it refused to defend or enforce the law. So I sent another letter asking for information on either of these, and I heard back from them that they needed to take more time. That was over a year ago, and I chalked it up once again that I would not hear a thing.
And then this week, the DOJ surprised me and sent an answer to my request, although I am not sure that it is what I was looking for. The letter, from Carmen Mallon, the Chief of Staff, is titled "Report on Enforcement of Laws: Policies Regarding the Constitutionality of Provisions and Non-Acquiescence." To my knowledge, there is nothing like it available online, although I will allow you, dear reader, to prove me wrong.
The letter is broken down into two parts, with several subsections. The first part outlines "policies regarding the Constitutionality of Provisions" and the second part outlines "Non-acquiescence Determinations." So here it is--"a description of policies not to enforce or defend federal provisions on the ground they are unconstitutional." Now I did not ask "for descriptions," I asked for actual refusals. So this could very well be a slippery legal trick in case someone ("Ahem--Congress??) decides to find actual non-enforcement (say, like the GAO, for instance). The DOJ can always say--we never told him that we were giving actual orders of non-enforcement--our letter clearly say we were describing the kind of policies that generate non-enforcement demands. My apologies. I am getting a bit off track.
1. The administration would not enforce any policy that makes it unlawful to broadcast any ad for any game of chance (lottery, gift enterprise, etc.). The administration argues that the Supreme Court ruled, in 1999, that this restriction (18 U.S.C. 1304) is unconstitutional, and there the "Solicitor General determined that...[it] could not be applied to truthful advertisements..."
2. The administration would not enforce any policy that makes it a crime for anyone to send out information, via computer or otherwise, information on how to obtain an abortion (18 U.S.C. 1462(c). The letter referred to a Clinton-era decision arguing that the policy was unconstitutional and would not be enforced.
Subsection B deals with decisions not to defend laws deemed unconstitutional.
1. P.L.. 102-393, section 633. This law sought to deny any distiller from using the name "Crazy Horse" on their liquor. A district court found the law unconstitutional, and the Solicitor General refused to appeal it.
2. 29 U.S.C. 2613 (a)(1)(D)--the administration refused defense of the "abrogation of Eleventh Amendment immunity" related to the sick leave provisions of the Family Leave act.
3. 11 U.S.C. 106(a)--this section dealt with the Bankruptcy code and its impact upon states and their agencies. In a Clinton-era decision, "at least five courts of appeals" found the section unconstitutional, and Clinton's SG refused to appeal to the Supreme Court.
4. 26 U.S.C. 4121--this section placed a tax on coal, and again, in a Clinton-era decision, a district court held the provision unconstitutional "as it applied to sales of coal to foreign customers," and the SG decided not to appeal.
Part II, which dealt with orders to disobey a court ruling--called "non-acquiescence determinations." The administration is only obligated to report non-acquiescence of appellate and Supreme Court decisions, and not of federal district court decisions because they "are not binding precedent."
The only action listed in the letter is a decision that arose from the "Coal Industry Retiree Health Benefit Act of 1992," where the 6th Circuit found the Commissioner of Social Security lacking the authority to make certain liability decisions. From there is a list of conflicting decisions to give proper guidance, and thus the order to simply "do nothing."
Nearly all of this deals with actions from the previous administration, and not one says anything of relevant to the numerous challenges made since President Bush took office in 2001. Nor does any address the conflict with the GAO findings of non-enforcement in appropriations bills in 2006.
See what you can make of it.
