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Zer Netmouse
July 21st, 2012
11:01 am


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Why does Congress make laws that expire?

(23 comments | Leave a comment)

[User Picture]
Date:July 21st, 2012 06:50 pm (UTC)
Interestingly enough, the lack of an expiry date was part of the legal reasoning striking down DOMA Sec. 3 in the First Circuit's decision in May!
Finally, it has been suggested by the Legal Group's brief that, faced with a prospective change in state marriage laws, Congress was entitled to "freeze" the situation and reflect. But the statute was not framed as a temporary time-out; and it has no expiration date, such as one that Congress included in the Voting Rights Act. See Nw. Austin, 129 S. Ct. at 2510 (describing original expiration date and later extensions); City of Boerne, 521 U.S. at 533. The House Report's own arguments--moral, prudential and fiscal--make clear that DOMA was not framed as a temporary measure.
[User Picture]
Date:July 23rd, 2012 04:23 am (UTC)
Is that legal reasoning or cultural reasoning? Or is there some law requiring certain types of laws to be temporary that is not cited here?

The statement you quote seems only to suggest that the precedent of The Voting Act has been accepted as the cultural norm, and therefore doing something different is somehow unacceptable.
[User Picture]
Date:July 23rd, 2012 06:49 pm (UTC)
Legal reasoning.

The "Legal Group" mentioned there is the Congressional group defending the law (since the DoJ has said that DOMA Sec. 3 is in their opinion unconstitutional, they will no longer defend it). Part of their defense is asserting a "rational basis" for the law so as to meet that standard of judicial review. Part of that assertion is a claim that Congress passed DOMA in order to allow more time for lawmakers to consider the potential issues raised by a change in state marriage laws.

The judges point out, quite correctly, that if the intent of Congress had indeed been to allow such a delay (rather than to block marriage equality for an indefinite period) the law would have had an expiration date. Since it didn't, that can't be part of a "rational basis" for DOMA. The Voting Rights Act was cited as a demonstration that Congress has passed expiring laws before as temporary measures in areas where the situation is changing.
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