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Mr. NADLER. Madam Chair, I just walked in in the middle of this amendment, but it's very similar to an amendment we took up last night, and it's equally wrongheaded.
Aside from the fact that it's almost irrelevant, this amendment, as I read it, says that none of the funds may be used to defend challenges to the Affordable Care Act by the Justice Department. Aside from the fact that none of the funds are going to be used because the argument has already been heard by the Supreme Court--it's past tense; the Court is going to decide one way or another--this seems to me a little late. All the arguments in Court have already been heard, and therefore, they're not going to spend anymore money doing that. The Court will decide it's constitutional or it's not constitutional. The argument already occurred. The money has already been spent. So I don't see the point of this.
But putting that aside, what this says in effect is Congress passed a law.
Any law that Congress passes has a presumption of constitutionality. And this says that the Justice Department shall not defend the Constitution or a law duly passed by Congress because a subsequent Congress doesn't agree. Well, if a subsequent Congress doesn't agree with what the previous Congress does, we should repeal the law, and then there would be nothing to defend. But if you don't have the votes to repeal the laws, and on the merits I would oppose repealing the law, obviously, but if you don't have the votes to repeal the law, don't say that the Justice Department shouldn't defend the constitutionality of a law passed by Congress if that law is challenged in court.
Now, in Marbury v. Madison, the Court said it is distinctly the job of the judiciary to decide what the law is. It's our job in Congress to decide to pass the law. It's the executive's duty to faithfully execute the law. And it's the judiciary's duty to say what the law is and whether it's constitutional because they have to defend the Constitution, and if we pass a law, they have to decide whether it meets the Constitution or not.
It's the executive's duty to execute the law, and part of executing the law is defending the Constitution as the executive sees it. So it is up to the Justice Department to argue in court to defend the constitutionality of a law if it thinks it is constitutional, and to oppose the constitutionality of a law if it thinks it's unconstitutional.
Now here you're saying that the Justice Department shouldn't argue and we shouldn't give it funds to argue to defend the constitutionality of the law. We are going to have another amendment in a little while by Mr. Huelskamp that says the Justice Department may not use any funds to oppose the constitutionality of a different law, the Defense of Marriage Act passed, what, 15 years ago.
It is up to the Justice Department and the executive to decide in their opinion what is their duty in terms of their duty to faithfully execute the law. That's their constitutional mandate. And if it's their duty to argue for the constitutionality of a law, they must. To argue against it, they must do that, too.
We can, and in fact the House has in the DOMA case--I didn't support this, I don't agree with it, but we were within our rights to hire outside counsel to argue against the Justice Department on the constitutionality of that law, and we have the right to do that.
But to attempt to use the power of the purse to deny the executive branch its ability to do its job, which is to defend the Constitution as it sees it by arguing for or against the constitutionality of a bill in court, is simply wrong. It's a violation of the separation of powers, and it's an abrogation of their responsibility.
It also hurts the function of the court to decide unconstitutionality because the court is owed and needs the opinion of the executive, and for that matter the opinion of Congress, if it differs.
So this amendment, regardless of the merits of the bill, which I supported and voted for, which I think is a good bill, regardless of the merits of DOMA, which I opposed and which I think is unconstitutional, the argument in both cases is the same. We shouldn't be telling and certainly not using the power of the purse to say that the Justice Department may not argue for this position because we don't agree with it or for that position because we don't agree with it. If we don't agree with it, change the law. That's our job. And the Justice Department should argue its opinion of constitutionality, and the court must decide in the end. In the end, that's our system, and we shouldn't tamper with it.
I yield back the balance of my time.
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