Gerry Canavan

the smartest kid on earth

Don’t Ask, Don’t Tell, Don’t Appeal

with 8 comments

The 9th Circuit Court of Appeals has granted a stay against the Don’t Ask, Don’t Tell injunction after an earlier judge refused to do so. This is a case where the Obama administration’s betrayal of its base seems simply brazen: according to Clinton administration Solicitor General Walter Dellinger, backed up by Newsweek, the White House is in fact under no obligation to defend Don’t Ask, Don’t Tell if it doesn’t want to. Indeed, the Clinton administration refused to appeal a similar court decision that invalidated a law requiring the military to discharge HIV+ service members, and it was only just last month that a court ruled that California was not required to appeal the decision overturning Prop 8. Why then are they bothering with appeals at all, much less aggressively seeking to reinstate a policy they claim not to like? Obama’s rhetoric on this point is completely at odds with his administration’s actions, and unlike other issues there is no one on whom he can deflect the blame.

UPDATE: Ted Olson: ‘It Would Be Appropriate’ For Administration Not To Appeal DADT Injunction.

“It happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law,” said former George W. Bush administration solicitor general Ted Olson, who is leading the legal challenge of California’s ban on same-sex marriage. Gov. Arnold Schwarzenegger and the state attorney general have both declined to defend the law in court.

“I don’t know what is going through the [Obama] administration’s thought process on ‘don’t ask, don’t tell,’” Olson said. “It would be appropriate for them to say ‘the law has been deemed unconstitutional, we are not going to seek further review of that.’

8 Responses

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  1. 3 points: (1) the California court that did not require appeal of Perry v. Schwarzenegger is not a federal court; (2) Dellinger did not say that DOJ ought not appeal–he said that the DOJ ought to appeal, but could argue the administration’s position against the law; (3) the administration’s choice to appeal here (and not follow the Clinton HIV-law precedent) is likely a savvy strategic choice: in the end, it will leave less room for arguments that the DOJ was effectively legislating in lieu of Congress (even if the decision comes at the cost of alienating some people).

    td

    October 21, 2010 at 6:53 am

  2. Point 1 I’ll give you.

    Point 2, I was guess I was sloppy — but I consider a nominal appeal that asks the court not to overturn its original decision to be “not a real appeal.” The Obama administration is appealing *and* asking that DADT be reinstated, and my point is that it is under no obligation to do so.

    Point 3 I think we just disagree. I think the universe of “people who want DADT appealed but ONLY if it is done through the proper legislative channels regardless of how long it takes” is vanishingly small. People want results and don’t care how you get there; there is almost no one to whom “the DOJ was effectively legislating in lieu of Congress!” is a successful political appeal.

    I’m also not worried about a future Palin administration reinstating DADT on these grounds. Once DADT is gone it’s gone for good because it makes no sense as military policy and has a constituency in the population at large that gets smaller ever day. Obama should just pull the plug and end it.

    gerrycanavan

    October 21, 2010 at 9:17 am

    • I’m not saying that people generally want proper channels for DADT revocation, but that conservatives can potentially use the fact that proper channels weren’t used as ammunition against the current administration. The *Obama* DOJ legislating in lieu of Congress IS a compelling political concept, regardless of what the issue is. If anyone wanted to challenge the administration on the matter (leaving aside whether DADT should be revoked or not), failing to appeal gives them possible standing to do so.
      It is a simpleminded argument, but the executive is tasked with faithfully administering the laws. Failing to do so may be unconstitutional to some, and for some enemies of Obama, worth fighting over.

      td

      October 21, 2010 at 11:00 am

      • Failing to do so may be unconstitutional to some, and for some enemies of Obama, worth fighting over.

        Eh, I get that, but it’s not like they’re hurting for reasons to call him a Nazi. They’ll accuse him of misusing his office no matter what he does.

        gerrycanavan

        October 21, 2010 at 11:02 am

  3. “It happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law,” said former George W. Bush administration solicitor general Ted Olson, who is leading the legal challenge of California’s ban on same-sex marriage. Gov. Arnold Schwarzenegger and the state attorney general have both declined to defend the law in court.

    “I don’t know what is going through the [Obama] administration’s thought process on ‘don’t ask, don’t tell,’” Olson said. “It would be appropriate for them to say ‘the law has been deemed unconstitutional, we are not going to seek further review of that.’”

    Ted Olson: ‘It Would Be Appropriate’ For Administration Not To Appeal DADT Injunction

    gerrycanavan

    October 21, 2010 at 11:09 am

  4. […] friend Steve Benen has a response to those (like me) who think the DADT appeal is misguided. I’m not at all convinced, but there’s clearly […]

  5. […] I was on Twitter for most of the night last night and most of my observations about last night have already been made there. A few highlights from the night: * Who could have predicted: Democrats are already playing down the notion that they’ll get much done in a lame duck session. They’d rather punt to January particularly the big issues, like tax cuts. Don’t Ask, Don’t Tell? Don’t even bother. On taxes, the outline of a compromise is there, having been floated by Vice President Biden: the rates might stay in place for a larger number of wealthier Americans. The Estate Tax, which jumps up to 55% in January, will probably be restored at a lower rate. Capital gains taxes will also be higher, but not as high as they’re slated to be. Supporters of the START treaty are very worried. Gee, maybe Obama shouldn’t have appealed DADT after all. […]

  6. […] was very skeptical, but Obama got the Don’t Ask, Don’t Tell repeal done before the end of the […]


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