In Defense of the Obama Administration\u27s Non-Defense of DOMA

The Constitution charges the President with the duty to “take Care that the Laws be faithfully executed . . . .” Moreover, the President takes an oath to “preserve, protect and defend the Constitution of the United States.” Although “[g]enerally, these duties are compatible . . ., when the Executive faces a law that he believes is unconstitutional, he must decide whether the law should be executed as written and defended if attacked, or whether the duty of faithfulness to the Constitution requires its repudiation.” This decision belongs to the President alone as the head of a co-equal branch of the federal government. The doctrine of separation of powers dictates, inter alia, that the President enforces the laws that Congress passes. But, a constitutional problem arises “[w]hen the President’s obligation to act in accord with the Constitution appears to be in tension with his duty to execute laws enacted by Congress . . . .” When advising the President, the Department of Justice (DOJ) has maintained since at least 1860 that “the Constitution provides the President with the authority to refuse to enforce unconstitutional provisions.” However, reasonable minds disagree as to the appropriate standard that should be used by the President and the DOJ when deciding whether or not to enforce a statute. Moreover, substantially less has come out of the DOJ regarding the President’s decision not to defend legislation. The purposes of this paper are: (1) to summarize the case law, Office of Legal Counsel (OLC) opinions, and scholarship pertaining to the doctrines of non-enforcement and non-defense; (2) to propose workable standards for both non-enforcement and non-defense that can be used by future Presidents and the DOJ; and, (3) to apply these standards to President Obama’s recent decision to continue to enforce, but to not defend, Section 3 of The Defense of Marriage Act (DOMA) in order to show why the decision was proper. Part I explores the distinction between executive non-enforcement and executive non-defense. Part I.A discusses the case law (I.A.1), OLC opinions (I.A.2), and scholarship (I.A.3) addressing non-enforcement, while Part I.B explores the case law (I.B.1), OLC opinions (I.B.2), and scholarship (I.B.3) regarding non-defense. Part II briefly surveys the history of DOMA and the recent decision by the Obama administration not to defend Section 3 of DOMA. Finally, Part III proposes standards to be used by future administrations faced with whether to enforce and defend a statute, and the section ends by applying the standards to conclude that the Obama administration’s decision to continue to enforce, but not to defend, Section 3 of DOMA was proper

In Defense of the Obama Administration\u27s Non-Defense of DOMA

The Constitution charges the President with the duty to “take Care that the Laws be faithfully executed . . . .” Moreover, the President takes an oath to “preserve, protect and defend the Constitution of the United States.” Although “[g]enerally, these duties are compatible . . ., when the Executive faces a law that he believes is unconstitutional, he must decide whether the law should be executed as written and defended if attacked, or whether the duty of faithfulness to the Constitution requires its repudiation.” This decision belongs to the President alone as the head of a co-equal branch of the federal government. The doctrine of separation of powers dictates, inter alia, that the President enforces the laws that Congress passes. But, a constitutional problem arises “[w]hen the President’s obligation to act in accord with the Constitution appears to be in tension with his duty to execute laws enacted by Congress . . . .” When advising the President, the Department of Justice (DOJ) has maintained since at least 1860 that “the Constitution provides the President with the authority to refuse to enforce unconstitutional provisions.” However, reasonable minds disagree as to the appropriate standard that should be used by the President and the DOJ when deciding whether or not to enforce a statute. Moreover, substantially less has come out of the DOJ regarding the President’s decision not to defend legislation. The purposes of this paper are: (1) to summarize the case law, Office of Legal Counsel (OLC) opinions, and scholarship pertaining to the doctrines of non-enforcement and non-defense; (2) to propose workable standards for both non-enforcement and non-defense that can be used by future Presidents and the DOJ; and, (3) to apply these standards to President Obama’s recent decision to continue to enforce, but to not defend, Section 3 of The Defense of Marriage Act (DOMA) in order to show why the decision was proper. Part I explores the distinction between executive non-enforcement and executive non-defense. Part I.A discusses the case law (I.A.1), OLC opinions (I.A.2), and scholarship (I.A.3) addressing non-enforcement, while Part I.B explores the case law (I.B.1), OLC opinions (I.B.2), and scholarship (I.B.3) regarding non-defense. Part II briefly surveys the history of DOMA and the recent decision by the Obama administration not to defend Section 3 of DOMA. Finally, Part III proposes standards to be used by future administrations faced with whether to enforce and defend a statute, and the section ends by applying the standards to conclude that the Obama administration’s decision to continue to enforce, but not to defend, Section 3 of DOMA was proper

Classical and Quantum Fluctuation Theorems for Heat Exchange

The statistics of heat exchange between two classical or quantum finite systems initially prepared at different temperatures are shown to obey a fluctuation theorem.Comment: 4 pages, 1 included figure, to appear in Phys Rev Let

Race and Gender on the Bench: How Best to Achieve Diversity in Judicial Selection

How can states increase diversity on the bench? This article begins by presuming that increasing racial and gender diversity is a worthy goal—among other positive results, a diverse bench increases the judicial system’s perceived legitimacy by increasing a diverse citizenry’s confidence that judges will treat them fairly and impartially. Next we examine the unique judicial selection systems of South Carolina and Virginia—where the entire process is controlled exclusively by the state legislature—and reach the counterintuitive conclusion that these systems actually increase judicial diversity very effectively when compared with the systems of other states. Finally, we propose four specific reforms to improve the already effective systems in South Carolina and Virginia: (1) preclude sitting legislators from membership, at least in the majority, on any merit selection commission; (2) raise the cap in South Carolina on the number of qualified applicants submitted to the General Assembly from the current three to at least ten, or in Virginia place a reasonable limit on the number of names submitted to the legislative delegation from which they may select; (3) require any merit selection commission, including the Judicial Merit Selection Committee in South Carolina, to give “substantial weight” to ethics decisions rendered by a tribunal within the judicial department; and (4) include the state’s Bar association in the selection process

Race and Gender on the Bench: How Best to Achieve Diversity in Judicial Selection

How can states increase diversity on the bench? This article begins by presuming that increasing racial and gender diversity is a worthy goal—among other positive results, a diverse bench increases the judicial system’s perceived legitimacy by increasing a diverse citizenry’s confidence that judges will treat them fairly and impartially. Next we examine the unique judicial selection systems of South Carolina and Virginia—where the entire process is controlled exclusively by the state legislature—and reach the counterintuitive conclusion that these systems actually increase judicial diversity very effectively when compared with the systems of other states. Finally, we propose four specific reforms to improve the already effective systems in South Carolina and Virginia: (1) preclude sitting legislators from membership, at least in the majority, on any merit selection commission; (2) raise the cap in South Carolina on the number of qualified applicants submitted to the General Assembly from the current three to at least ten, or in Virginia place a reasonable limit on the number of names submitted to the legislative delegation from which they may select; (3) require any merit selection commission, including the Judicial Merit Selection Committee in South Carolina, to give “substantial weight” to ethics decisions rendered by a tribunal within the judicial department; and (4) include the state’s Bar association in the selection process

Where\u27s the Outrage? Outrageous Conduct in Analyzing the Tort of Intentional Infliction of Emotional Distress in the Wake of Snyder v. Phelps

This Article analyzes the highly publicized case of Snyder v. Phelps to illustrate the current status of the tort of Outrage and asks whether courts should continue to recognize this tort or whether, in the name of refinement, the courts have eviscerated the protections and necessity of the tort

Assessing the umbrella value of a range-wide conservation network for Jaguars (Panthera onca)

Umbrella species are employed as conservation short-cuts for the design of reserves or reserve networks. However, empirical data on the effectiveness of umbrellas is equivocal, which has prevented more widespread application of this conservation strategy. We perform a novel, large-scale evaluation of umbrella species by assessing the potential umbrella value of a jaguar (Panthera onca) conservation network (consisting of viable populations and corridors) that extends from Mexico to Argentina. Using species richness, habitat quality, and fragmentation indices of similar to 1500 co-occurring mammal species, we show that jaguar populations and corridors overlap a substantial amount and percentage of high-quality habitat for co-occurring mammals and that the jaguar network performs better than random networks in protecting high-quality, interior habitat. Significantly, the effectiveness of the jaguar network as an umbrella would not have been noticeable had we focused on species richness as our sole metric of umbrella utility. Substantial inter-order variability existed, indicating the need for complementary conservation strategies for certain groups of mammals. We offer several reasons for the positive result we document, including the large spatial scale of our analysis and our focus on multiple metrics of umbrella effectiveness. Taken together, our results demonstrate that a regional, single-species conservation strategy can serve as an effective umbrella for the larger community and should help conserve viable populations and connectivity for a suite of co-occurring mammals. Current and future range-wide planning exercises for other large predators may therefore have important umbrella benefits

TrkB signaling is required for behavioral sensitization and conditioned place preference induced by a single injection of cocaine

AbstractExogenous brain-derived neurotrophic factor (BDNF) can regulate behavioral sensitization and conditioned place preference (CPP) when animals are exposed to repeated cocaine administration. However, it is unclear whether BDNF signaling through the TrkB receptor can mediate these behavioral responses when animals are given a single cocaine exposure. Because TrkB knockout mice die as neonates, we engineered a transgenic mouse that expressed a dominant negative form of TrkB (dnTrkB) in a conditional and reversible manner. We assessed also activation of endogenous TrkB by quantifying levels of phosphorylated TrkB (p-TrkB) in the nucleus accumbens (NAc). We found that a single exposure to cocaine was sufficient to increase p-TrkB within the NAc 9–12h after administration. Expression of the dnTrkB transgene not only prevented the acute cocaine-induced increase in p-TrkB, but it also prevented behavioral sensitization and CPP following a single cocaine injection. These findings demonstrate that TrkB activation is required both for behavioral sensitization and CPP to a single cocaine exposure. The fact that enhanced TrkB activation is induced within 9h of a single injection of cocaine suggests that inhibition of TrkB signaling commencing hours after cocaine exposure may prevent at least the initial antecedents to the sensitizing and reinforcing effects of this psychostimulant

Iron Insufficiency Compromises Motor Neurons and Their Mitochondrial Function in Irp2-Null Mice

Genetic ablation of Iron Regulatory Protein 2 (Irp2, Ireb2), which post-transcriptionally regulates iron metabolism genes, causes a gait disorder in mice that progresses to hind-limb paralysis. Here we have demonstrated that misregulation of iron metabolism from loss of Irp2 causes lower motor neuronal degeneration with significant spinal cord axonopathy. Mitochondria in the lumbar spinal cord showed significantly decreased Complex I and II activities, and abnormal morphology. Lower motor neurons appeared to be the most adversely affected neurons, and we show that functional iron starvation due to misregulation of iron import and storage proteins, including transferrin receptor 1 and ferritin, may have a causal role in disease. We demonstrated that two therapeutic approaches were beneficial for motor neuron survival. First, we activated a homologous protein, IRP1, by oral Tempol treatment and found that axons were partially spared from degeneration. Secondly, we genetically decreased expression of the iron storage protein, ferritin, to diminish functional iron starvation. These data suggest that functional iron deficiency may constitute a previously unrecognized molecular basis for degeneration of motor neurons in mice

Navigating Physicians’ Ethical and Legal Duties to Patients Seeking Unproven Interventions Abroad

Medical tourism (MT), the practice of traveling to another country to access medical care that is paid for out of pocket, has received considerable attention in the Canadian news media.Media and industry information sources, which are commonly accessed by medical tourists, might inadequately inform Canadians about MT safety concerns. As a result, there is concern among Canadian physicians and health and safety professionals that prospective medical tourists might not be well placed to make informed decisions about their care. As gatekeepers in the health care system and the first source of interaction between the health care system and patients, family physicians are well positioned to inform Canadians about these safety risks