Editore"s Note
Tilting at Windmills

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October 12, 2010

FEDERAL JUDGE ORDERS PENTAGON TO STOP ENFORCING DADT.... About a month ago, U.S. District Judge Virginia A. Phillips found that the military's "Don't Ask, Don't Tell" policy is unconstitutional, violating due process and the First Amendment. Phillips added that the policy has a "direct and deleterious effect" on the armed services, "impeding military readiness and unit cohesion."

At that point, the judge called for the plaintiffs to submit a proposed injunction limiting the law. Today, Phillips ordered the military to "immediately ... suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the 'Don't Ask, Don't Tell'" policy.

A federal judge has ordered the Defense Department to halt all enforcement worldwide of the "don't ask, don't tell" policy regarding gays in the military. [...]

The Justice Department had urged Phillips, who sits in Riverside, Calif., to limit any relief in the case to the Log Cabin group or to the named plaintiffs, but the judge rebuffed that request. Her order applies to all U.S. military operations across the globe.

Phillips added that the existing DADT policy "infringes the fundamental rights of United States servicemembers and prospective servicemembers," a truth that seems so painfully obvious, it still amazes me to hear conservatives argue otherwise.

The Justice Department will have 60 days to appeal to the left-leaning 9th Circuit, which seems likely. White House Press Secretary Robert Gibbs didn't comment on the legal strategy, but reiterated that President Obama "will continue to work as hard as he can to change the law that he believes is fundamentally unfair."

While we wait for the legal wrangling to continue, these court victories continue to be heartening developments. The DADT policy, while considered a compromise move when crafted nearly 20 years ago, is an embarrassment today. The notion that the United States military, in the 21st century and in the midst of two wars, would kick out able-bodied, well-trained, patriotic volunteers, based solely on their reluctance to lie about who they are, is indefensible.

Ideally, as glad as I am to hear of court orders like this one, I'd be even more satisfied if they were rendered moot by congressional approval of scrapping the DADT policy altogether. But last month, Senate Republican voted unanimously to prevent a debate on a defense spending bill that would have cleared the way for DADT repeal.

While the court avenue is going well, the Senate may yet take up the same spending bill, with the DADT provision, in the lame-duck session.

Steve Benen 3:55 PM Permalink | Trackbacks | Comments (29)

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Comments

It sure is easy to blame Republicans, but all the Obama administration would have to do is not challenge the court decision, and suddenly DADT would no longer be the law. Sounds pretty simple, so why is it "likely" that the Obama administration will challenge the decision?

Posted by: argo0 on October 12, 2010 at 4:03 PM | PERMALINK

Is no one in today's elected political leadership as couragous as Ike? It took a court to end a policy that rests under the domain of Commander-in-Chief? Now, this is a major failure by our current president to shoulder up and make the change he had the authority to make!

I support President Obama on most policy issues, but this is onewith which he could have shown great statesmanship, by taking action. But alas, in an environment of chaos promoted by the minority party in government, I guess he felt as though he couldn't act.

When will Pres. Obama learn that for Republicans, compromise is out of the question, and therefore he should just take actions he has the authority to take so we can begin to move away from the fear and loathing these same Republicans have given us up to 2008, and now beyond! -Kevo

Posted by: kevo on October 12, 2010 at 4:15 PM | PERMALINK

The President "will continue to work as hard as he can to change the law that he believes is fundamentally unfair." ?

The President is the Commander in Chief. All he has to do is order it gone. And it's high time that we exert some civilian control over the military again.

Posted by: Churchyard on October 12, 2010 at 4:21 PM | PERMALINK

I know what the wingnut reaction will be:

OMG! Activist judge! Activist judge! IMPEACH! Investigate her! Congressional hearings! Attack! Attack!

No reflection on whether Judge Phillips has a point. She has just made herself the ENEMY by failing to go along with the program.

Posted by: Bokonon on October 12, 2010 at 4:24 PM | PERMALINK

argo0: ["...all the Obama administration would have to do is not challenge the court decision, and suddenly DADT would no longer be the law. Sounds pretty simple, so why is it "likely" that the Obama administration will challenge the decision?"]

The job of the executive branch, and particularly the Department of Justice, is to **enforce the law**, not to pick and choose what laws they agree with like the Bush administration and Alberto Gonzales did.

=====

Churchyard: ["The President is the Commander in Chief. All he has to do is order it gone."]

Wrong. The only ways to undo a law passed by Congress is either another law passed by Congress, or judicial review by the courts. Once again, the executive branch is responsible for enforcing the law, not picking and choosing what laws they agree with like the Bush administration did.

Posted by: Shade Tail on October 12, 2010 at 4:36 PM | PERMALINK

Shade Tree -- yes he is charged with enforcing the law, and as you note, judicial review is one way to relieve that obligation. Well, don't look now, but that's the whole point -- a court has declared the law unconstitutional. Obama is under no obligation to challenge the decision. End of story.

Posted by: argo0 on October 12, 2010 at 5:00 PM | PERMALINK

["yes he is charged with enforcing the law, and as you note, judicial review is one way to relieve that obligation. Well, don't look now, but that's the whole point -- a court has declared the law unconstitutional. Obama is under no obligation to challenge the decision. End of story."]

That would only be the end of the story if you weren't dead wrong. The DoJ is obligated to enforce the law. Full stop. They can't let a law slide just because they don't like it. That includes defending government action against the courts' review. Only when the SCotUS declares the policy unconstitutional does the process actually end.

Whether we like it or not, the rule of law is important. And from 2001 through 2008 we saw first hand what happens when the Executive allows the rule of law to slip for political reasons. From that experience, *I* have learned that the rule of law can't be allowed to slip, whereas, apparently, *you* have learned to emulate Bush and Gonzales. To say the least, you took away the wrong lesson.

Posted by: Shade Tail on October 12, 2010 at 5:10 PM | PERMALINK

Obama and DOJ are required to enforce the law, but not necessarily to defend it. Letting the judge's order stand is not selective enforcement.

Posted by: rrk1 on October 12, 2010 at 5:12 PM | PERMALINK

It sure is easy to blame Republicans, but all the Obama administration would have to do is not challenge the court decision, and suddenly DADT would no longer be the law.

As I understand it, DADT is an overlay on, not a replacement for, continuing military policy excluding gays and lesbians from service. If DADT goes away this way, without a new law explicitly forbidding the military from discriminating on the basis of sexual orientation, do we go back to homosexuality as grounds for discharge regardless of whether or not any asking or telling was done? Someone who knows more than I do (and than argo does), please weigh in.

Once again, the executive branch is responsible for enforcing the law, not picking and choosing what laws they agree with like the Bush administration did.

No argument that Bush and Gonzo abused this to the nth degree, but exercising discretion on which laws to defend is not really a GOP-only activity in the executive branch (federal or state). In the most visible current example, a state-level executive branch, California, is declining to defend Prop. 8.

Having said that, I do not think that Obama can afford to challenge this ruling--people's patience is at an end. Congress repealing DADT was always the most solid and permanent solution, but it's clear that that's not going to happen anytime soon. I'm coming around to the idea that an executive order paired with continuing efforts to repeal DADT in Congress (and new legislation, if I'm correct in the idea that repeal has to be accompanied by this) is the way to go. There has been some theorizing that an executive order would remove the urgency of Congress acting. In the current climate, with the GOP caucus completely intractable and public opinion amassing rapidly against DADT, I don't think that's necessarily true.

Posted by: shortstop on October 12, 2010 at 5:12 PM | PERMALINK

Shade Tree --

Would you please cite to a basis for your assertion that the President must challenge a court decision that rules a law unconstitutional all the way to the Supreme Court? Because everything I'm reading suggests that it is discretionary, including Benen's column you're commenting on, as well as the fact that Senators Kirsten Gillibrand and Mark Udall are asking DOJ not to appeal.

Posted by: argo0 on October 12, 2010 at 5:19 PM | PERMALINK

Shade Tail, thanks for the info. I was unaware that DADT was *law.* I was under the assumption that it was a negotiated policy decision.

If it's law, then it is not a discretionary order in POTUS' office.

But challenging (or choosing not to challenge) the ruling in question, to the best of my knowledge, is a valid discretionary choice by the executive branch.

Posted by: Churchyard on October 12, 2010 at 5:32 PM | PERMALINK

The job of the executive branch, and particularly the Department of Justice, is to **enforce the law**, not to pick and choose what laws they agree with like the Bush administration and Alberto Gonzales did. -Shade Tail

That is pure non-sense, they are within their authority to challenge any ruling, but they are not bound to do so. This is a political move, not some mandatory procedure they can't control.

Obama could have done this on day one with an executive order, but he keeps punting while pretending that his hands are tied. He needs to let it go already and let all US citizens enjoy the same exact rights, quit shaming gay people because it's politically inconvenient.

Posted by: ScottW714 on October 12, 2010 at 5:40 PM | PERMALINK

One last point, how can they kick someone out without actually asking them ? Unconfirmed rumors, witnessing the act, how does one find out another sexual preference without asking ?

MILITARY: "Joe you gone because your gay"

JOE: "But I didn't tell and you never asked ?"

MILITARY: "It's called don't ask, don't tell, but what we really mean is if we think your gay, we'll ask, if you lie, your out, if you tell the truth you out. We should have called it "Once We Find Out Your Gay, You're Gone" but OWFOYGYG sounded too bigoty, so called something people would feel good about."

JOE: "But it's says right in the name, don't ask, yet you're asking me."

MILITARY: Bu-Bye

Posted by: ScottW714 on October 12, 2010 at 5:53 PM | PERMALINK

Yes, DADT is the law, but Obama has several ways around it. There are stop-loss rules to retain people with critical skills (say, expert linguists); he could declare an emergency and suspend enforcement. It simply isn't true that his hands are tied; quite the contrary.

Posted by: Joe Buck on October 12, 2010 at 6:10 PM | PERMALINK
The DoJ is obligated to enforce the law. Full stop. They can't let a law slide just because they don't like it.

The executive branch has neither an unconditional legal nor moral obligation to appeal a decision finding that an act of Congress is not law because it is outside of Congress' Constitutional power (nor, even, to defend on the initial challenge an act of Congress challenged on such a ground), and, indeed, arguably has a moral obligation (though this is clearly not enforceable at law) not to do so insofar as the Executive Branch concurs with the conclusion that the putative law is invalid.

Only when the SCotUS declares the policy unconstitutional does the process actually end.

No, if a trial court finds the policy unconstitutional and that decision is not appealed, then the process ends.

If it is appealed, and the Court of Appeals upholds the trial court, and that decision is not appealed, then the process ends.

If it is appealed to the Supreme Court, and the Supreme Court declines to hear the appeal (which is different from upholding the decision on the merits, particularly in precedential terms) then the process ends.

There are lots of ways the process can end without a Supreme Court ruling.


Posted by: cmdicely on October 12, 2010 at 6:18 PM | PERMALINK
As I understand it, DADT is an overlay on, not a replacement for, continuing military policy excluding gays and lesbians from service. If DADT goes away this way, without a new law explicitly forbidding the military from discriminating on the basis of sexual orientation, do we go back to homosexuality as grounds for discharge regardless of whether or not any asking or telling was done?

That's not exactly the case.

The law excluding gays and lesbians from the military which preceded DADT was a replacement for a previous executive branch policy; that law was passed just after Bill Clinton was elected President -- and before he took office -- to prevent him from (as he had said he would during the campaign) using executive authority to lift the pre-existing executive-branch policy.

DADT was passed into law after Clinton was in office, and the executive branch regulations implementing DADT replaced those implementing the old total-exclusion policy. So the old policy no longer exists "underneath" DADT, there is just DADT and the regulations implementing it, which DoD is forbidden to enforce under the judge's order here.

Even were the old rules still in existence "underneath" DADT, its hard to see any rationale under which DADT would be a Constitutional violation while the total exclusion policy would not.

Posted by: cmdicely on October 12, 2010 at 6:29 PM | PERMALINK

From a purely legal perspective, how can a District Judge issue a world-wide injunction, in any context, let alone DADT?

Posted by: Mike Lamb on October 12, 2010 at 7:16 PM | PERMALINK
From a purely legal perspective, how can a District Judge issue a world-wide injunction, in any context, let alone DADT?

Assuming that the district court has jurisdiction to hear the case (both subject matter jurisdiction over the matter in dispute and personal jurisdiction over the parties), a US District Court (or, for that matter, a state trial courts, as well -- the distinction is in which cases they have jurisdiction over) can issue any order to the parties that is legally appropriate to the case. Injunctions don't generally have a geographic scope, they bind the parties that are enjoined.

What's the alternative: court orders that only bind the parties while the party is within the district served by the court? So you'd have to appeal to a higher court even when you won a decision case to have that decision effective against the other party if they went outside the trial courts jurisdiction? It's simply ludicrous.

Posted by: cmdicely on October 12, 2010 at 7:33 PM | PERMALINK

Typically, an injunction would only reach the jurisdictional limits of the Court (from a geographic perspective). For example, at the state court level, a trial court in Arizona, for example, couldn't enjoin a corporate entity's Ohio office from taking certain actions.

The difference I would suppose in this instance, is that we are talking federal law, which would be the same across district boundaries.

Posted by: Mike Lamb on October 12, 2010 at 7:44 PM | PERMALINK

Does no one else find it ironic that it took Log Cabin *Republicans* to push the issue, successfully, through the courts? Even as it, supposedly, forms one of the *Dem* platform planks?

Posted by: exlibra on October 12, 2010 at 8:07 PM | PERMALINK

I suspect that Obama will push in December after the Pentagon releases its study for the Senate to pass the Defense bill.

Obama knows that this may be the LAST time to repeal DADT. I am not so sure that the DOJ will appeal this in 60 days.

Posted by: Martiza on October 12, 2010 at 8:18 PM | PERMALINK

How long before this is being used by the Republican/Teabaggers in some political ad? 3...2...1...

Posted by: Doug on October 12, 2010 at 9:47 PM | PERMALINK

Martiza, @20:18.

They've filed the appeal already.

Posted by: exlibra on October 12, 2010 at 10:07 PM | PERMALINK

exlibra: They've filed the appeal already.

What's your source for this? I'm finding nothing on it.

Posted by: Jess on October 12, 2010 at 11:01 PM | PERMALINK

Never mind; I found it.

The administration thus pounds nails into the Democratic coffin weeks before the election. Some people are truly beyond help.

Posted by: Jess on October 12, 2010 at 11:04 PM | PERMALINK

Thanks cmdicely for all your comments-very educational.

Posted by: Kevin (not the famous one) on October 13, 2010 at 12:38 AM | PERMALINK

OMG! Activist judge! Activist judge! IMPEACH! Investigate her! Congressional hearings! Attack! Attack!

When I first read the report from CNN, the first poster made the "activist judge" comment. Phillips was a Clinton nominee and was approved by the Judiciary Committee-"ordered to be reported favorably" by "Mr. Hatch" and was "confirmed by the Senate by Voice Vote" as referenced from Thomas.loc.gov. Apparently a voice vote was enough and no recorded vote required. If the wingnuts want to use the "activist judge" defense, they have nobody to blame but themselves, since they held the majority and nobdy called for a recorded vote since the republican voice vote was overwhelming.

http://thomas.loc.gov/cgi-bin/ntquery/D?nomis:3:./temp/~nomiswYWMom::

If the above link does not work use this and type in "Phillips" under word/phrase, highlight "106th" under "select congress" and click search.

http://thomas.loc.gov/home/nomis.html

Posted by: flyonthewall on October 13, 2010 at 6:52 AM | PERMALINK

Nothing to add, save to say that it's good to see posts by cmdicely again, and by shortstop as always.

Posted by: Gregory on October 13, 2010 at 8:17 AM | PERMALINK

Hope they include DREAM in the bill again as well, if they take it up in lame-duck.

Posted by: Sook on October 13, 2010 at 11:50 AM | PERMALINK




 

 

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