Imagine it’s 2013 and a federal judge somewhere declares the Patient Protection and Affordable Care Act unconstitutional. Imagine further that a group of Senators ask President Palin not to appeal the ruling. If she instructed Attorney General Christine O’Donnell not to appeal the ruling, would that be OK?
If it isn’t, then it’s not OK for the Obama administration to skip the appeal of the recent ruling against DADT.
Cermet
No, you are totally and completely wrong with your example – replace the subject with civil rights and then make the equivalency. Equality between races, religions, ethic as well as sexual orientation or gender is a right whether a judge rules in favor or against. Gays have rights and this ruling merely corrects a terrible wrong – how can Obama appeal such a ruling? It is and would be immoral.
kommrade reproductive vigor
You spring visions of President Palin and Witchfinder General O’Donnell on us before 7 am?
Damn you to hell. Forever.
p.s. The DOJ has 60 days to decide what its going to do. I bet NO ONE is paying attention to this on day 60.
p.p.s. No idea. Is there a Con. Law expert in the house?
p.p.p.s. What #1 says also to. Man it’s too early for this which may explain the higgediness of your T.E. and my response.
valdivia
@kommrade reproductive vigor:
Yep. I just wanted to rewind to yesterday (which was a sucky day) after reading that.
Craig Pennington
I do like the added boogey-witch of AG O’Donnell to the “shut up regarding the things that you care about and clap louder or ZOMG! President Palin!” meme. Maybe you could add AAG Paladino as head of the DOJ Civil Right Division also, too. Boo! Happy Halloween.
Alwhite
Yes, as a matter of fact that would be completely within President Palin’s authority and consistent with the actions of many previous administrations when confronted with a ruling that got them where they wanted to go. Would I like it, no probably not but if 2000-2008 taught me anything it taught me that Republican administrations don’t give a shit what I like.
Rosalita
cripes, what a visual before adequate intake of coffee….
LGRooney
Evidence: Obama has shown as president that he is a rather arch-Constitutionalist by forcing the separation of powers, e.g., in health care, he essentially forced Congress to argue and draft the legislation while using the bully pulpit sparingly. This is a source of the dismay among the public with him since the role of president seems to have drifted far away from simply the executor of the law over the past century or more.
That being said, my guess is that they will appeal because that is what the law is and he wants to force Congress to act to legislate the change but it will wait until after the first week of November. If he does act otherwise just before the elections, it will be a major departure and huge political wave.
Expect that he will delay until after the elections, i.e., “We are studying the ruling and looking at potential responses.” And, yes, the courts have their role to play in the separation of powers but not until it reaches the Supreme Court and a decision is made is it determined politically to be established law. The appeals courts are a step in the process.
marcopolo
@Cermet: Your counter example might hold some weight if it had been Congress that had passed the Jim Crow and segregationist laws in the first place but in reality it was laws (and often just customary actions not even written into law) at the state and local levels that federal court rulings and civil rights legislation addressed so the DoJ did not have to be involved. When it is federal legislation that is being overturned by the courts, the DoJ must stick its nose in as a defender of said laws no matter how repugnant they are. What the DoJ can do, however, is decide how forcefully they want to appeal the courts decision in overturning the federal law. As with the earlier California case in regards to the Defense of Marriage Act, I think you will find the DoJ only provides a cursory appeal of this court decision.
And, like the other commenters, I want to say thanks for such an unpleasant image of the executive branch so early in the morning.
Earl
Cheebus, don’t spring so many fricken nightmares on me this late in the day…
Chyron HR
Interesting analogy, but bad argument. Remember that you’re talking to people who wanted to join forces with the “noble independents” in the Tea Party to prevent HCR from passing in the first place (hence the sobriquet “firebagger”).
It’s more likely that they’ll be lining up to vote for Palin in 2012 specifically hoping that she’ll abolish Obamacare by fiat.
Ben
And how could any action on the part of the current administration affect the actions of a future administration in this regard either way?
This kind of thinking is exactly why Democrats suck. They think that if they follow some made up rules (“spirit of the law”) that Republicans will too. Then Republicans merely follow a narrow interpretation of the text of the law to do what they want, and Democrats get all butthurt about it.
If you don’t like the rules as written, work to change them. Don’t try to get people to follow your rules by setting a good example that they can ignore.
Nick
Glenn Greenwald agrees…clearly a bigot.
Suck It Up!
@Nick:
Does he really? he’ll get a pass of course while Holder and Obama are called bigots and accused of enforcing Jim Crow on gays.
electricgrendel
I think Obama is pretty much required to appeal this. Overturning DADT via the courts is pretty much last resort. Congress should have moved on this long ago, but of course The Greatest Deliberative Body EVAR is filled with craven hacks, so legislation itself is almost impossible these days. But if DADT is going to be overturned by the courts, then the process needs to be done correctly. The government has a vested interested in seeing this through, and it’s only proper to appeal something that so drastically affects the structure of the military.
And I say this as an openly gay man. So- whatevs.
Napoleon
One big problem with your thought experiment is that the Republicans have been playing games with what they do and do not appeal since at least when I was in law school during the Reagan years when they were making a concerted effort to deny people SS benefits by appealing everything and then when they would loose on a lower level refusing to appeal it up so that no adverse binding decision would exist to tie their hands on their BS appeals. A quick Google shows this as being in the general subject area of what I am talking about:
http://onlinelibrary.wiley.com/doi/10.1111/j.1541-1338.1985.tb00353.x/abstract
Guster
Is it legal? If it’s legal, it’s okay.
That’s how the system _works_.
Democrats seems to have a tough time understand that there is a rulebook, and it’s called ‘the legal system.’ Republicans don’t seem to have a hard time with this concept.
john b
@Napoleon:
were those cases of people challenging established federal law and the Reagan DoJ deciding not to challenge it? i didn’t read your link, but it seems more like those were challenges to specific executions of welfare and SS law.
Odie Hugh Manatee
@electricgrendel:
Barney Frank was on Olbermann last night and he said to let congress hash the law out on this and not the courts. He advises Obama to wait until they return since it’s well within the 60 day appeal deadline.
Napoleon
@john b:
Basically Reagan’s Administration, in their hostility to the entire Social Security program, would deny benefits left and right and force people to fight through the legal system to get a court order to force them to pay the benefits. It was an unprecedented effort to gum up the system so that people did not get their benefits. One problem though was if they would keep appealing their BS denials of benefits all the way up the chain that would almost certainly result in a a bunch of adverse court of appeals decisions or worse yet an adverse SC decision, which would make it impossible for them to use the same BS justifications without risking court sanction. So they would only appeal up to the DC level then drop it only to raise the same BS issues as justification for denying benefits for the very next claimant. It was a completely bad faith use of the legal system to screw the most unfortunate of the unfortunate.
And recall Roberts and Alito were Reagan Admin attorneys.
Odie Hugh Manatee
@Guster:
Are you practicing your comedy act here? That was a pretty good joke!
Republicans as law-abiding? About made me choke.
El Cid
“Is it okay” — would being not okay somehow stop Preznit Palin from doing that? Would the Supremes get involved? Would Congress impeach? My guess is no to either of those things.
Suck It Up!
@Guster:
heh?
Napoleon
@Napoleon:
PS,
My overall general point is that if the point of this post is that “hey how can we expect the Rep to play fair in the future if we do not” my counter point is that my entire adult life Republican Administrations have been gaming the legal system for political advantage.
El Cid
@Odie Hugh Manatee: Republicans are very clear that there is a rulebook called the legal system and that it applies, but it applies to Democrats. When it’s suggest that it apply to them, it’s the unfair politicization of the law.
El Cid
@Napoleon: I think the point of the post was mainly that if the imaginary Palin scenario was sauce for the goose, than Obama’s AG’s lack of appeal on DADT would be sauce for the gander.
It’s the hypothetical future justifying the present question, and not the present conditioning the future, is how it seems to me to be written.
brantl
Except that DADT is clearly unconstitutional, as seen by a federal judge, and it can be left like that. If the other side doesn’t appeal it, it becomes a binding legal decision, this is how our legal system works, and has worked, all the time that we’ve had it.
Obama only has to tell the armed forces to discontinue enforcing it, at that point. They don’t need to appeal shit.
Jim
Beyond the California Central District, it doesn’t become a binding decision at all. This isn’t even an appeals court case yet.
El Tiburon
@Cermet:
Here Here!
There comes a time when a leader must lead. This is that time when Obama must lead. I respect and appreciate the autonomy the DOJ is supposed to have, but Obama needs to send Holder a little note telling him to shuffle or otherwise lose the appeal paperwork.
This is about the most fundamental of basic, civil rights. Equality for all and whatnot.
Jim
Also your phrasing is begging the question.
The only problem with Obama appealing is if you think higher courts will find it constitutional. So if the Ninth Circuit hears it and somehow said it was fine, I could just write “Except that DADT is clearly constitutional, as seen by a federal judge.” You’d be fine with that appeal to authority, right?
Guster
@Odie Hugh Manatee: Hah!
Yeah, that kinda came out ass-backwards.
What I mean is, they’re rules-lawyers. If then can legally get away with something, they do. (Leaving aside the many, many, times that they get away with things they legally can’t.) That’s why we have a 60-vote threshold for legislation in the Senate, why Obama can’t get appointees approved, why the party that runs on ‘the government is broken’ gets away with breaking the government all the time and proving themselves correct. The rules didn’t change; the Dems could’ve filibustered everything by default. But we didn’t, because that wouldn’t be ‘OK’. When they play to the very limit of the law, without stepping over, we weep and gnash, but all we’re saying is, ‘Don’t be so _mean_! We’re not that mean to you. Please, please don’t hit us again.’
When mm asks, ‘Is that OK?’ what does he mean? Is it _nice_? No, it’s not nice. Who cares? We don’t elect people to be nice. Is it _legal_? If it’s legal, and you want it done, do it. If it’s not, don’t.
It’s pretty simple.
Marc
There is actual value in upholding the rule of law. Do you really want to accept a Republican vision of how things are supposed to work: the President as King, enforce only the laws that you like? You change the culture by making these ideas unacceptable. And you do that, as the ACLU does, by defending them all of the time.
The folks pushing for this remind me, far too much, of wingnuts who don’t care about due process for those accused of crimes (if the cops say they did it, they’re guilty.)
Nick
@Suck It Up!: Yeah, he said yesterday that it was fair to criticize the administration for not signing an EO, but not fair to criticize them for appealing.
At least he’s consistent, gotta respect that.
danimal
It’s totally ok to let the ruling stand. Other than providing a reason to avoid GOP control of the Executive, this thought experiment is an example of the normal types of decisions that presidents have. The president has the discretion to pick his or her battles. President Palin would not spend hours wanking about whether her decision passes the Schoolhouse Rock test.
While perhaps not a profile in courage, the Obama administration is well within its purview to make the political decision to let the judges ruling stand.
Veritas78
The Obama administration just appealed a ruling that the Defense of Marriage Act was unconstitutional. They had sixty days (well after the election) but they were in such a hurry that they appealed immediately.
Guess I can finally toss Mitch Stewart’s appeals for Organizing for America in the spam pile instead of donating.
I don’t get why they need to spit in my eye.
Corner Stone
Elections have consequences. Isn’t that what is constantly being preached here at BJ?
jayackroyd
Sure. How else?
Tancrudo
Does anybody here seriously believe that the right-wing majority on the Supreme Court hasn’t already made up their minds about this?
Joe Beese
I know that the Democrats are hoping that “Sarah Palin! Ooga booga!” will replace the need for them to actually accomplish anything.
But this is not in the least a difficult question. Yes, she has the right not to appeal. And given how stupid she is, I would think that you’d be glad she isn’t trying to substitute her legal analysis for that of your hypothetical judge.
August J. Pollak
Imagine if the current non-hypothetical administration actually did good things and kept people voting for them so ridiculous straw men hypothetical right-wing administrations never came to be thus making these pointless analogies even more irrelevant.
Chrisd
@Guster:
Well said, but I think you are wasting your time. The point of the exercise and these threads in general is to rationalize Obama’s decision to appeal the courts’ DADT ruling (and DOMA, for that matter) as either a legal necessity, part of a grand strategy, or an inviolable commitment on the part of our constitutional-law president to the Federalist Papers. Whatever works.
If Obama had taken the advice of leading Democratic congressman to direct the DOJ to not appeal, he would be lauded here as the fierce advocate for gay rights he’d promised he’d be.
beergoggles
Sorry you fail at logic.
If the healthcare law were ruled unconstitutional, a president Palin could not appeal it regardless of whether Obama appealed DADT or DOMA.
If congress wanted to cover their asses, they could have named themselves as having standing to appeal any judicial decision within the law they passed.
Did they do it with DADT, DOMA or the healthcare law? No they didn’t.
And I’ve slept on this and I still detest Obama for appealing DOMA.. almost as much as I loathe Clinton. While I may continue to vote for Dems, I will not be voting for Obama again and my political donations will henceforth go to the trevor project.
On a side note, the anti-gay, teabagger, ex-marine challenger to Barney Frank was on tv today and he totally pings my gaydar.
water balloon
The problem with your post is that Palin wouldn’t appeal. There would be nothing illegal in her not appealing. Republicans play to win. Democrats need to start doing the same.
Tractarian
C’mon guys! Don’t you remember Obama’s oath of office?
West of the Cascades
@Jim: She issued a world-wide injunction — it applies to the US Military everywhere in the world. If there’s no appeal, that injunction remains in place as long as DADT remains in place.
And in mistermix’s counter example, yes, that is ok — a president can direct the US Attorney General on policy matters in terms of what cases to pursue or not. That’s why elections matter, so we don’t have President Grifter and AG Witchy-Poo making decisions like that.
Corner Stone
I thought about your question a little more, mistermix. And I’ve decided you are trolling us. Nicely done.
LarsThorwald
This is late and will fall on deaf ears accordingly, but I am an attorney with the Department of Justice, and mistermix is correct.
The Department has had a long tradition (with the exception of the Dark Ages from 2000 to 2007) of defending the laws of the United States, and appealing those cases where a law is challenged if there is a legal basis for doing so, and regardless of the political policies of the Administration.
It has not been a perfectly kept record of doing so, but it should be the norm. I agree with mistermix, because otherwise the laws are seeped of vitality and the division of constitutional political powers is corrupted.
beergoggles
@LarsThorwald: Shorter version: Only silly Dems tie themselves up with the spirit of the law while Republicans follow the letter of the law.
Do you really think we’re blind and stupid? We keep getting hit with ‘traditional’ crap each time we ask for rights. Traditional Marriage is a word I am so frigging sick of hearing, and the DOJs ‘traditional’ defense of all laws carries about the same legal weight as unsubstantiated appeals to tradition.
TooManyJens
@LarsThorwald: There are a couple of things about this whole process that I don’t understand, and I’m hoping you can help me out.
This ruling was made in a district court. It seems to me that there could conceivably be an opposite ruling in another district court; if so, then what happens?
To what extent do you think the DOJ is obligated to defend a law? You are indicating that the initial defense isn’t enough, and that they are obligated to appeal. If they lose at the appellate court, are they obligated to appeal to the SCOTUS? If not, what’s the difference between that and appealing this decision? If so, it seems that there’s no room for discretion about how much defense a given law warrants. Part of the problem could be that I don’t know exactly what constitutes “a legal basis for appeal”.
Pender
Oh for fuck’s sake. Why should liberals take a knife to a gun fight? Conservatives use every tool at their disposal to ensure the policy results that they want. Liberals should do the same.
Here’s another analogy.
“Imagine it’s 2013 and the Supreme Court orders all Democrats to be rounded up and put in death camps. Imagine further that a group of Senators ask President Palin to enforce the ruling. If she instructed Attorney General Christine O’Donnell to enforce the ruling, would that be OK?”
“If it isn’t, then it wasn’t OK for the Johnson administration to enforce Brown v. Board.”
I mean, come on. These analogies only work if the two sets of fact patterns are in the same moral universe.
beergoggles
@Tractarian: “except I won’t enforce the laws I don’t like”
Oh yeah, Obama must really like himself some torture. After all, he doesn’t want to investigate or enforce those laws, instead he wants to look forward.
And he must really like assassinating moslem americans..
Cuz, you know, he won’t enforce laws he doesn’t like according to your theory.
NR
Let me answer your question with a question, mistermix: If Obama just has to uphold the law, all the time, regardless of his personal opinion, then where are the torture prosecutions?
Suck It Up!
@El Tiburon:
Have either of you noticed what the right considers civil rights?
Citizen Alan
My prediction: Obama’s DOJ does appeal and deliberately does so before the elections to maximize the fuck-you to all those uppity faggots. He loses at the 9th Circuit and appeals to the Supreme Court, which reverses and holds that only Congress can stop Obama from discriminating against those uppity faggots. Then, Obama spends the rest of his time in office wringing his hands over the fact that those mean old Republicans in Congress won’t pass a law to stop him from discriminating against those uppity faggots, and when he leaves office, DADT is still in place, along with every other piece of anti-gay discriminatory legislation that Obama is powerless to affect. And to the very last, his followers here will praise him for following the rule of law, except when it comes to prosecuting torture, which is totally different because SHUT UP!
Citizen Alan
Oh, and to answer your hypothetical:
I can easily imagine that scenario or something similar coming to pass. Regardless of what would “be OK,” what I would expect to happen would be for President Palin to instruct her DOJ to actually argue against the constitutionality of the Act. Because Republicans play to win while Democrats cower in the corner for fear that David Broder will be mean to them.
fraught
Depends on what the definition of “OK” is. There’s a political element that figures into this hypothetical which is unknowable. I say: Fuck Palin now and fuck her in 2013. If it happens the way you say it could then we’ll deal with it then and raise all kinds of political hell. Why imagine that she’d use any Obama precedents in getting rid of his health care legislation. She wouldn’t defend it if her life depended on it and she’d not defend it simply to make a political point even as DADT would still be making it’s way through the legal labyrinth because Obama didn’t let the injunction stand. Did we learn nothing from Mr. Cheney (The man without a heartbeat) and his 8 year long seminar in using the power you have no matter how you got it?
Tsulagi
The linked article says only 21 senators, 20D and 1I, have asked the Obama admin not to appeal. That’s not a solid 60 votes therefore they must appeal. There’s nothing else they can do.
ruemara
@beergoggles:
Sorry you are allergic to a factual response. You know, maybe someday, we can have a party that’s full of evil bastards who’ll ignore law, precedent etc, but in favor of things progressives like. This could happen, but it isn’t now.
@NR:
Because the torture wasn’t illegal. Period. They bent the laws, sealed the breaks with duct tape, but, the legality can be hazily constructed. They also conscripted key opposition figures with just enough information that they could no more prosecute Cheney et al, without turning themselves in. “Torture” is illegal, “Enhanced Interrogation” is legal. Or was.
Chrisd
@Citizen Alan:
Close, but the repeal must be filed after the election in order to avoid alienating whatever queer Democratic votes they can get at this point.
Obama’s abiding respect for the law will be mentioned, but you forgot to add how the gays richly deserve their fate because they didn’t support our president enough.
And then sometime before the 2012 election all this nasty rhetoric must give way to new promises for new votes.
LarryB
@danimal: This.
Attorney General and soon-to-be-Governer Jerry Brown just played that card in California over a challenge to some hellish anti-gay marriage proposition. AGs represent their clients like any attorney. It’s up to the client whether and how far to pursue a case. In this case, neither Moonbeam nor the Governator was interested, so they passed. If you don’t like it, vote for someone else.
beergoggles
@ruemara: Still waiting on those ‘facts’.
So far all we’ve heard is, it’s traditional for the DOJ to appeal, Obama should set a precedent for republicans to ignore, Obama follows the spirit of the law when it comes to dealing with gays, etc.
So.. yeah, do you o-bots have any facts based on reality and the law?
Oh yeah, did making that pretzel shape hurt when you just failed to justify the lack of torture prosecution?
Corner Stone
@ruemara:
Wow. That had to hurt.
Joe Beese
@Corner Stone:
Did it “hurt” Winston Smith to see O’Brien holding up five fingers instead of four? On the contrary, it was a blessed relief from pain.
What would be painful for ruemara would be to acknowledge that Obama is a repeated violator of the Nuremberg Laws – not just by failing to prosecute known acts of torture but also by being directly responsible for the murder of hundreds of Pakistani men, women, and children. So they seek the relief of their fantasy that Obama is helpless due to his worshipful adherence of the law. A fantasy out of which no number of executions of American citizens without trial will ever be able to pull them.
Socrates
I agree that this is why Democrats keep losing.
It doesn’t matter if we think Palin would be right or wrong to not appeal.
The fact is, she would not.
Are we going to fight or are we just going to keep taking their punches?
Barb (formerly gex)
If it is procedurally acceptable for the DOJ to not appeal this ruling, as I have read in several places, then why not?
Do you honestly believe that if Obama appeals this it will be enough to force a President Palin to appeal a finding that HCR is unconstitutional?
I understand restoring the rule of law, and applaud it. If all we are doing is disarming unilaterally, I oppose strongly.
There is no amount of playing nice and following the spirit of the rules of our democracy when the other side plays to win and will twist and/or break those rules. We should at least maximize our options within the rules.
Common Sense
@Tancrudo:
http://en.wikipedia.org/wiki/Romer_v._Evans
http://en.wikipedia.org/wiki/Lawrence_v._Texas
Barb (formerly gex)
@Common Sense: Both of those are pre-Roberts. Look at some of the rulings around the video transmission of Prop 8. You are much more confident than I that those previous findings would hold sway.
Citizen Alan
@Common Sense:
Both those cases were 5-4 opinions with Kennedy in the majority. A Supreme Court review of DADT raises three issues.
1. Given the controversy of her excluding military recruiters from Harvard over DADT, it is quite possible that Kagan will recuse herself. With a 4-4 opinion, the holding of the lower court will be affirmed.
2. Assuming Kagan votes, the issue will be decided by Kennedy. While Kennedy is certainly friendlier to gays than the rest of the conservatives, he generally gives wide deference to the military’s need for “unit cohesion.” See Goldman v. Weinberger (holding that the Air Force could bar an Orthodox Jew from wearing a yarmulke with his uniform). Unless the Court is going to overturn Goldman, it’s quite possible that there are more than 5 votes for affirming DADT as constitutional.
3. Even in the unlikely event of a win for the Log Cabin Republicans over the Obama DOJ, it’s still … a win for the Log Cabin Republicans over the Obama DOJ! How anyone but the most fervid Obot could spin that as a positive thing Obama and the DOJ instead of an embarrassment is beyond me.
NR
@ruemara: Um, no. The torture was illegal. Even if you grant the legality of “enhanced interrogation techniques,” there was plenty done that went way beyond that. And yet, Obama chose not to prosecute the torturers. He chose not to enforce the law. So clearly, Obama believes that he does not have to enforce the law in all instances; he believes that he can pick and choose when he wants to do so.
So the question becomes, why has Obama chosen to enforce the law in this instance, when he chose not to enforce it when it came to Americans committing torture? And the answer is that obviously Obama believes it is more important to keep gay people from serving openly in the military than it is to have a military that doesn’t torture people.
scarshapedstar
I didn’t even realize that the executive branch was obligated to defend every action of the legislature.
What if the President opposes a bill and Congress passes it over his veto, and it is then declared unconstitutional by the judiciary? Is he supposed to appeal the ruling?