This is something I’ve been really interested in the last couple of weeks, and that is the obligation of the Justice Department to defend extant US Law in the court system. My opinion was that it was the obligation of every Justice Department to defend laws, even ones the current administration does not like, and that seems to be true, but this statement from Ted Olson suggests that after the initial defense, they are not obligated to appeal:
“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.’”
Anyone have any examples of a Justice Department initially defending a law and then refusing to appeal?
I’m still of the opinion that once the elections are over, DADT will be repealed with the Defense Authorization Act. The recent court rulings will provide enough cover for a few Senators to vote the other way.
Steve
In Heckler v. Edwards, 465 U.S. 870, the Secretary of HHS decided not to appeal a district court finding that a federal statute was unconstitutional, choosing instead to appeal only the scope of the remedy. This would be like if the Obama Administration didn’t appeal the finding that DADT is unconstitutional, but only appealed on the issue of whether the injunction’s scope was too broad.
I think they wouldn’t have to appeal at all if they honestly agreed with the judge that DADT is unconstitutional – although it’s not like such decisions happen every day. But I don’t believe the administration thinks DADT is unconstitutional. I think they believe it’s bad policy, but constitutional.
feebog
I don’t have any examples, but I think the smart thing to do is appeal this to the ninth circut. The ninth circut is themost liberal in the nation, and will almost certainly uphold the District ruling. By then the report on DADT will be in, and the administration can simply drop the appeal to the SCOTUS.
aimai
I don’t know why you would think that the government has an obligation to appeal. An appeal of a ruling is, definitionally, an extra thing and non obligatory. There’s always an end to litigation and where there isn’t, where one party keeps appealing and appealing, that’s eventually seen as an abuse of process. True, in a hierarchical system you can appeal up the ladder to a higher and higher court and its at the party’s discretion (and that of the courts) whether they take the case higher and higher. But obviously when you lose a case the appeal part is discretionary. Especially when you are told that the law is unconstitutional–that’s what the courts are for. In that case “Oh, OK” we’ll rewrite the law to make it constitutional is one proper response. As is “oh, guess you are right, we’ll go home and think about this for a while.” The current Obama admin argument is the worst of all possible worlds: the admin thinks the law is unconstitutional (or did before Obama got in) thinks its also a very bad law, is trying to repeal it, and has just been told by a lower court that the court also thinks its unconstitutional. Continuing to appeal makes absolutely zero sense *especially* if the Obama admin thinks it will get a favorable higher court ruling since that will make repealing the ban harder at the congressional level.
aimai
Oscar Leroy
No, it doesn’t. This blog is the only place where people say the administration has to defend DADT.
ChrisWWW
“The recent court rulings will provide enough cover for a few Senators to vote the other way.”
You’d have thought the overwhelming fucked-up-ed-ness of our health care system would have provided the same cover for the HCR vote, but it didn’t happen. Ditto for the scientific evidence on global warming and the carbon regulation bill.
Steve
@aimai:
Thing is, I haven’t seen any indication that Obama or his administration think DADT is unconstitutional. Has Obama or any senior administration official ever said so?
burnspbesq
Been there, done that. The last case I tried in the Tax Court before I left the IRS, we won because the Tax Court thought our interpretation of a highly complex provision of the partnership rules was more nearly correct than the taxpayer’s. There were a bunch of articles written attacking the Tax court opinion as bad for the real estate development community. DOJ confessed error in the Ninth Circuit, and the case was remanded to the Tax Court for reconsideration.
Pissed me off. Still pisses me off 12 years later.
Allan
Obama said in the SOTU that DADT would be gone this year. Now he’s saying it will happen on his watch, suggesting he thinks it may not be done by the end of December. But it still could be.
The appeal kicks it down the road a bit and allows time for the military report that’s supposed to come out in December, at which point if the Senate can take it up again, the R complaint that we haven’t waited for that report will be moot.
I don’t like it and I don’t care for it but I’m not second-guessing the decision to appeal. Plus, as others have said, the 9th Circuit is the place we should all want it to go next.
me
This kind of irritates me. If DADT were found unconstitutional while he was Solicitor General he would have been fired on the spot if he choose not to argue the case in front of the Supreme Court.
Allan
@Oscar Leroy:
I love it when people use words like “only” “none” and “all” in their declarative statements, because it only takes one example to prove you’re full of shit.
ChrisWWW
“The appeal kicks it down the road a bit and allows time for the military report that’s supposed to come out in December, at which point if the Senate can take it up again, the R complaint that we haven’t waited for that report will be moot.”
@Allan:
Have you been paying attention to national politics for the last 20 years? Republican complaints aren’t rooted in any sort of logic or consistent ideology. Once the report comes out, they will simply come up with another complaint, or criticize the report, or something else nonsensical. And guess what, the media wont call them on it. That’s how this game works.
Darius
@Oscar Leroy:
Actually, this HuffPo article makes the same point.
Steve
@burnspbesq: I think there is a difference between defending a Congressional statute and defending an agency interpretation. But your situation is actually wackier (and your frustration is understandable): the government won in the lower court, and then decided to give up without a fight on appeal!
homerhk
Isn’t this about the bigger issue of the independence of the DOJ, something which I recall being a hot topic during W’s terms? The DOJ doesn’t necessarily think the law is unconstitutional (and I think Obama has made comments to the effect that the law is constitutional) but that isn’t the same as thinking it’s a good thing. It would cause no end of trouble if a first instance court could effectively determine whether the US government should enforce or not enforce laws passed by US Congress no matter how bad those laws are. Just think what would happen if a first instance judge struck down the individual mandate as unconstitutional, or parts of the recovery act.
AMD
In the Dickerson case (the one that reaffirmed Miranda and overturned the federal statute re voluntary confessions), Clinton’s DOJ not only refused to brief the issue, but refused to argue in favor of the federal statute. The Supreme Court asked law professor (now judge) Paul Cassell to argue on behalf of its constitutionality.
WereBear
I admit I’m a bit puzzled by the way the DOJ has acted, especially lately. I thought Holder was going to kick some serious ass, and instead we get puzzlers like the DADT appeal.
If this is meant to cut it down once and for all, and sow the ground with salt, okay. But is that what it is?
david mizner
A lot of people cite this as a precedent, for obvious reasons:
http://www.washingtonpost.com/wp-dyn/content/article/2010/10/13/AR2010101307092.html
That’s a funny formulation: “generally required?” You’re either required to or not, yes?
In any case, Clinton’s non-appeal seemed to hinge on his belief that the law was unconstitutional. I don’t believe that Obama has said he believes DODT is unconstitutional. Wrong, yes, but unconstitutional, I don’t think so.
david mizner
A lot of people cite this as a precedent, for obvious reasons:
http://www.washingtonpost.com/wp-dyn/content/article/2010/10/13/AR2010101307092.html
That’s a funny formulation: “generally required?” You’re either required to or not, yes?
In any case, Clinton’s non-appeal seemed to hinge on his belief that the law was unconstitutional. I don’t believe that Obama has said he believes DODT is unconstitutional. Wrong, yes, but unconstitutional, I don’t think so.
Steve
@AMD: That’s a tricky example, though. Congress had passed that statute in 1968, in the wake of Miranda, and the DOJ had never followed it, under either party.
Steve
@david mizner: You can be generally required to drive on the right side of the road, generally required to wear pants in the office, etc. It just means there are rare exceptions.
Martin
Well, Prop 8 in California, at the state level. Jerry Brown refused to appeal the ruling. Arnold refused to even ask Brown to appeal the ruling.
But I think the question here is whether Obama is morally or legally compelled to appeal. We have a pretty strong theme running through this blog that Democrats are much more likely to hold to moral convictions than Republicans are, and there are a LOT of people upset that Obama isn’t holding to the spirit rather than letter of executive authority on a number of things. And here, it appears that Obama is holding to the spirit rather than the letter of authority, and still people complain.
I think the better question is whether Holder is appealing everything (which would suggest this is policy under Obama/Holder) or whether they’re appealing things selectively. From what I can see, they appeal everything, but I don’t follow that stuff that closely.
WereBear
@david mizner: Thanks, that was kinda my thinking, but I have no pro qualifications.
Suzan
In Heckler v Edwards, the feds admitted the statute in question was unconstitutional at the trial court level too. The decision not to defend was based on two US Supreme Court decisions that came down after the statute in question was passed. (Califano v Westcott and Califano v Goldfarb) While those two decisions did not address the same statute as in Heckler v Edwards, they did address other statutes that discriminated based on gender.
While I’m not saying it has never been done, Heckler v Edwards is not comparable. IMHO
(Sorry for the complete geek out.)
The best argument in favor of Obama’s actions here is what if a GOP prez failed to defend Health Care Reform or some other law we consider important. Just as there are nuts on the US Supreme Court, as we’ve been reminded this week, there are nuts at the federal trial court level.
gbear
@burnspbesq:
Maybe a saturday morning phone call is in order?
MikeJ
@Suzan: Haven’t there also been other cases in which DADT was found to be constitutional? While I disagree with those findings, the idea of trying a case in front of every federal judge until you get a ruling you like doesn’t seem like a good way to proceed.
Tsulagi
There you go. If anything has been proven, it’s the swift nature of the Dem Senate to push through legislation in the face of opposition. No one could predict otherwise.
Can also predict after midterms, if the result is there will be more Rs taking up office space come January, current ones will be in such a good mood bipartisan spirit will swell. They’ll just give the Ds something to put under the Xmas tree for a part of their base constituency. Wouldn’t think of asking for anything in return. Yep, Rs will be serene with Peace on Earth, Good Will toward Men (the gays ones also too) and all that being their guiding light.
celticdragonchick
@aimai:
Hey, who cares.
The GLBT community is just a bunch of DFH’s who don’t ubderstand eleventy dimensional chess dontchaknow.
I got my marching orders loud and clear:
STFU and open the goddamnd checkbook or they will send Rick Santorum and Jim DeMint on over to have a little “chat” with me.
HyperIon
The NYT has Walter Dellinger weigh in today:
http://www.nytimes.com/2010/10/21/opinion/21dellinger.html?hp
FlipYrWhig
I really do get the sense it’s primarily an institutional and/or separation of powers thing here, a belief that how you handle contentious social issues within the legal system is by pushing everything up the ladder until there is a definitive conclusion. It’s a view of the right way to make policy and adjudicate disputes, a process point more than it is an ideological one. In a weird way it reminds me of the ACLU commitment to free speech even for offensive speech like the Klan: this DoJ appears to be committed as a core principle to resolving issues in the most straightforward way possible, even when it’s laborious, tedious, and ideologically daft. They have an opinion about how justice should work as a system and they’re sticking to it. It chimes with the HCR struggle and the emphasis on the long, slow, tedious but institutionally significant role of both houses of Congress. So I think Team Obama shares a structural vision about How Policy Works, and that’s trumping their commitment (or, if you’re cynical, their lack of commitment) to combating discrimination.
Mark
@celticdragonchick: Really? The freakout over DADT is part of an effort by weird heteronormative republican gay white men (what was Andrew Sullivan’s book called again? ‘Virtually Normal.’) to make themselves into victims even though they often possess 120% of straight white male privilege. Gay white men aren’t particularly interested in serving in the military, and they generally aren’t hounded quite as aggressively when they’re there – women get discharged in far greater numbers than men.
This policy will get overturned before 50 million uninsured Americans can buy health insurance in 2014. If you want to talk about profound injustices against the American people, get in line behind that one.
Barb (formerly gex)
Well, an appeal does keep alive the long shot that the Roberts court could officially find that DADT is constitutional. So that’s exciting.
Maude
@feebog:
This is what I thought. It buys time to get the Defense spending bill passed.
Barb (formerly gex)
@gbear: That would be 8 years too early.
FlipYrWhig
@Barb (formerly gex): But if the legislative repeal happens that wouldn’t matter, would it? (Yes, I know, big if there.) An obsolete policy would be constitutional, but so what? Would Republicans and conservative Democrats team up to reinstitute DADT in the future? I don’t think so. They could try, but it wouldn’t work.
Allan
@ChrisWWW: I’m sorry, but since I was commenting here at BJ I assumed I could speak in shorthand and be understood.
I was merely making the point that “waiting for the report” is the excuse driving McCain’s filibustering, etc. right now, so the release of the report takes that argument off the table among rational people.
I never said the Republicans won’t flail about and find another excuse, or that they would be called on it.
Martin
@celticdragonchick: I’m sorry, but once again I have to say that shifting blame for legislative failures to Obama isn’t fair.
One of the traps that the minority party always sets, and always is fallen for, is shifting all legislative blame to the executive. If every legislative failure is the fault of the executive, because he didn’t phone call strongly enough, then what’s the fucking point of having a Congress at all? Responsibility and authority go hand-in-hand, and Congress has the authority here. Put the responsibility there. Put it on the Dems if you feel it belongs on the Dems, but put it in the Senate where it belongs.
I know it sucks. I know it hurts. But if we expect that this governmental system work properly, then we need to support it working properly.
Barb (formerly gex)
@FlipYrWhig: Agreed. But that depends on DADT being legislatively repealed. Hey, I said it was a long shot. I get that if the law ceases to exist, it ceases to exist.
Anonymous At Work
Speaking practically, the reason you want the Executive Branch, which is responsible for the execution of laws, is that that is its basic Constitutional purpose. Only in rare circumstances should the Executive Branch not pursue appeals.
For something near-and-dear to the people here, this seems like a travesty, but for these sorts of situation, imagine President Palin deciding whether to defend/appeal laws.
beergoggles
It’s just a case of Obama thinking if he follows tradition, that republicans will do the same. Just more of his wanting to reach across the aisle. Just more of his expectations that a republican majority after the midterms will be more willing to work with him.
In reality, it’s Obama practicing unilateral disarmament. In reality, it’s Obama betraying a core constituency. In reality, it’s Obama re-instating DADT after it’s been struck down – way to inherit Clinton’s mantle by renewing DADT (and DOMA).
Until there is a law that requires the DOJ to appeal every single district court loss, there is no basis for continued appeal unless the executive supports the statute as a matter of policy. And by appealing DADT (and DOMA), it’s apparent that Obama supports both laws as a matter of policy despite what he says to raise money.
Apprently, John Cole’s infected with the same bug.
celticdragonchick
@Mark:
As an ex service member, I don’t feel any need to justify my interest in getting rid of DADT.
The odds of overturning DADT in the Senate are remote, imo. It will happen in court, and the administration really doesn’t give a shit about their glbt servicemen and women that are harmed by its actions or what happens to glbt support, since we are dfh’s and are useful for a “Sista Soljah” moment when needed.
If you want to rail about health care, Darfur, sex slavery in Thailand, or whatever bee is your bonnet at this moment, find another thread or link to your own blog. I’m perfectly happy to comment about other issus in the appropriate forum.
Barb (formerly gex)
@Anonymous At Work: Ah yes. By doing this, Obama has effectively prevented a potential President Palin from behaving irresponsibly.
FlipYrWhig
@Anonymous At Work:
Remember too that this was always a huge and hairy deal in the Clinton era, when maintaining the “independence” of the DoJ was a matter of crucial importance to both the opposition party and the media.
My sense is that Obama is super strict about having the executive, legislative, and judicial branches all fulfill their roles independently of one another. Thus there’s A Way to get a law passed, and it involves letting legislators legislate. There’s A Way to get a policy resolved in court, and it involves running the gamut of appeals until there’s nothing more to dispute. It means that everything moves very slowly and fitfully, yes, and it’s painful to watch. But it makes sense. It just happens to be orthogonal to “liberal” vs. “conservative.”
J.A.F. Rusty Shackleford
Obama is Ginger Rogers. If Fred Astaire/Republican was President then they would be able to just let the ruling stand that DADT is unconstitutional. But Ginger Rogers has to do everything Fred Astaire did, but backwards and in heels. Obama has to cross every ‘t’ and dot every lower case ‘j’ to keep the opposition from fucking everything up.
Folks, we’re this close to seeing DADT relegated to the dustbin of history. Just a little longer and it will be done the right way and folks will be able to get on with their lives. We’ve got the vending machine rocking and a couple more shoves will tip it over.
Remember, patience is a virtue.
Chrisd
Obama’s penchant for deep process is exactly what you get when a con law professor becomes president. “Fierce advocate” and “urgency” are laughable in retrospect. It’s not how this guy operates. He’s got all the time in the world, and fidelity to the process aways trumps results.
FlipYrWhig
@celticdragonchick:
It’d be one thing to say that they care more about some nebulous ideal of the proper functioning of American political institutions than they do about LGBT people’s present, actual harm. That’s probably even true!
But the whole point of “Sistah Souljah” is to get up there and very publicly finger-wag and shame your target, which Clinton did to her. I don’t think you can really say that Obama has done that to LGBT people. If it’s passive-aggressive, it’s not Sistah-Souljah-ing.
Barb (formerly gex)
I’ll accept any argument for the appropriateness of the DOJ’s actions except that it will put some sort of restraint on a President Palin. Anyone who specifically advances that point is simultaneously pointing out how horrible she is while pretending she’d behave responsibly in office.
Pfffffffft.
celticdragonchick
@Martin:
Well, that is how life and politics roll, isn’t it.
The executive set himself up when he promised to be a “fierce advocate”, and then did nothing at all to back up that claim. Nothing, nada, zip. We did get Rick Warren at the podium, vile comparisons in the DOMA brief and an utter lack of any connection at all to the glbt community or our issues.
Ah, yes, he went to a fundraiser dinner with the HRC and signed the Matthew Sheppard Act. Too bad he couldn’t spare a few minutes to call and lobby or cajole any senators before the farcical vote last month. “If every legislative failure is the fault of the executive, because he didn’t phone call strongly enough,” is an interesting bit, because it exposes just how little communication there has been from Obama on this issue. He takes absolutely no responsibility for anything regarding it, and shows no leadership in really ending it beyond saying it is up to the Senate. What’s the fucking point of having a
congressPresident at all? Again, he claimed to be a fierce advocate, and then gets angry when we call him on it. If he doesn’t like his erstwhile allies, he can get another fucking job where we won’t bother him.That train left the station some time ago.
celticdragonchick
@FlipYrWhig:
A valid point. I’m waiting for it to happen at some time, though.
JimF
There are a couple factors involved here.
1. Yes Pres. Obama is a con law professors and thus has a deep commitment to process.
2. Remember the whole goal of this is permanent repeal. If the Senate does not come through this is another forum where that is possible.
JasonF
The administration has been clear that it wants Congress to repeal DADT, and I wonder if the opposition to the court ruling on the topic has to do with President Obama’s perception of the proper roles of the three branches, and, more importantly, the public’s perception of the three branches. The thinking would go something like this:
Every time the judiciary does something that is unpopular among conservatives, conservative thought-leaders* whip the public into an anti-judiciary frenzy, shouting about “out-of-control activist judges.” If DADT is repealed judicially, conservatives will throw their usual “activist judges” fit, and the public will have less confidence in the judiciary. In addition, the decision to get rid of DADT will be seen as having been forced on the public by the judiciary. If we can get Congress to repeal DADT, there will be more acceptance of the legitimacy of the repeal, and we will avoid doing further damage to the public’s perception of the judiciary.
I don’t know if that is what President Obama is thinking, but it is consistent with the kinds of things he has said in the past about the role of the judiciary, so it wouldn’t surprise me if that sort of analysis is weighing into his decision.
Footnote: Jokes are left as an exercise to the reader.
celticdragonchick
From Ambinder on Oct 14There are no neat delineations in the universe of who is arguing for what, but there are several schools of thought about what Obama should do.
One group of advisers thinks that he needs to appeal the ruling because he can’t get rid of “Don’t Ask, Don’t Tell” without the Pentagon, and the Pentagon is liable to gum up the works if it thinks the administration wants to dispense with the previously agreed upon timetable, which includes the completion of a major Department of Defense study about integration. A corollary argument here is that the National Security Staff is acutely aware of how difficult the military and Pentagon civilians can make life for the president in many unrelated endeavors. This group believes that if Democrats are successful in the Illinois, Delaware, and West Virginia Senate races — not an impossible scenario by any means — that Senate could very well schedule a clean and clear vote in a rump session.
Other groups of advisers believe that Obama should appeal the ruling, but concurrently ask — or order — the Department of Defense to take interim steps to halt all current investigations and not to initiate any new ones until the legal proceedings have been completed, or until the Senate authorizes the change in law. Within the Department of Defense, some senior officials are thinking about ways this might work. Others oppose any change to the timetable.
And then there’s a group of advisers who appear to be as fed up with the maneuvering as Rachel Maddow is, and who want the president to make a public statement effectively saying, “Enough is enough. We’ve done this as orderly as we can. We can’t control everything. But the policy is dead, as of today.” Even under this scenario, gay soldiers wouldn’t have access to spousal benefits just yet — the DoD does need time to figure out how it would all work.
(Emphasis mine)
FlipYrWhig
@Chrisd: I think this is the best line of criticism to take against Obama. And I think he would admit that it was true.
FlipYrWhig
@celticdragonchick:
FWIW, this has been repeatedly debunked. If you’re writing in support of the idea that it’s not unheard of for one state to refuse to acknowledge a marriage performed in another state — which was IIRC the substance of that section of the brief — all of your examples are going to be about the age of consent and the degree of consanguinity. That’s not the same as saying that homosexuality “is like” pedophilia or incest. (I think the example of anti-miscegenation laws shows that there are claims to justice that are superior to claims about how there is precedent for states to define marriage differently from one another, which is why I would have issues writing a brief about the constitutionality of DOMA, but that’s a different discussion.)
FlipYrWhig
@celticdragonchick:
FWIW, this has been repeatedly debunked. If you’re writing in support of the idea that it’s not unheard of for one state to refuse to acknowledge a marriage performed in another state — which was IIRC the substance of that section of the brief — all of your examples are going to be about the age of consent and the degree of consanguinity. That’s not the same as saying that homosexuality “is like” pedo/philia or in/cest. (I think the example of anti-miscegenation laws shows that there are claims to justice that are superior to claims about how there is precedent for states to define marriage differently from one another, which is why I would have issues writing a brief about the constitutionality of DOMA, but that’s a different discussion.)
Mark
@celticdragonchick: you were complaining that your issue wasn’t being taken care of quickly enough. I was pointing out that no issue has been taken care of quickly enough.
So many gay men are Republicans (or would be Republicans the second Democrats cleared up their single issue) that I’m not interested in actively supporting their legislative business. If they can’t recognize that all progress on gay rights has come from Democrats in this country and they think the Republicans are better than Obama on gay issues, then they can lobby their own fucking party to pass legislation.
FlipYrWhig
@celticdragonchick:
I think the problem with that is that it would make the legislative repeal almost impossible, because it would undercut the thin pretext conservative Democrats want: they want to be able to say that they (1) voted for the defense bill — at A Time Of War! no less — rather than a “gays in the military” bill; (2) followed a policy carefully reviewed by military authorities, as opposed to ordering the military to change its standing policies. Without those sops, some of the Democrats who are currently on board with the defense-bill-that-includes-DADT-repeal will scurry, I fear.
burnspbesq
@gbear:
I try not to be awake at 7:30 on Saturday. ;-)
In all seriousness, what pisses me off was the process. The guy who wrote the regulation in question apparently told DOJ (in a meeting to which I was not invited) that my and the Tax Court’s interpretation of the regulation was technically correct but led to harsh results that they didn’t intend. Fine, the national office can make that call, but at least (1) invite me to the meeting or give me some other opportunity to weigh in, and (2) re-write the damn regulation so that it says what you want it to say.
John Cole
@FlipYrWhig: It’s been debunked in EVERY GOD DAMN THREAD celticdragonchick brings it up. Sometimes repeatedly. And yet, the very next time any gay rights issue is brought up, celticdragonchick will bring it up again, all outraged. She’s fucking impervious to facts on this issue.
Go through any thread on gay rights in the last two months here. She’ll bring it up, she’ll be shot down, and then two days later she’ll say the same damned thing in another thread.
Chrisd
@FlipYrWhig:
The thing is, I don’t even think it can be reliably read as criticism. You can find as many people who really like this guy precisely because of his approach as disapprove of him for it.
As for me, I fault him more for this than even the centrist drift of his politics. The presidency is not a legal classroom or a courtroom. The position is an executive one demanding leadership. I don’t think he is up to it.
beergoggles
@Mark:
WTF? citation needed.
And if you don’t support something that’s a fucking civil right issue or a case of blatant discrimination, we don’t really need your lameass support. Dickwad.
FlipYrWhig
@John Cole: Like you, I prefer when people argue about arguable stuff.
burnspbesq
The DADT case has implications that go beyond DADT.
The big threshold issue is the standard of review. If sexual orientation is a “suspect classification” (in Equal Protection terms) or a “fundamental right” (in Due Process terms) then the government has to show a “compelling state interest” in order for a law or regulation that infringes on the rights of members of that group to be valid. If it’s not, then all the government has to show is a “rational basis” for believing that the law or regulation will advance some legitimate public interest. I don’t recall offhand any appellate decision that squarely addresses this issue, and that’s an issue that, in my view, absolutely needs to get definitively resolved.
So, while on one level I wish the government would not appeal, there are other, and potentially bigger, fish to fry. If sexual orientation is a suspect classification, then a whole big bucket of Federal and state statutes go down in flames.
FlipYrWhig
@Chrisd: IANAL but I feel like he’s taking an almost 19th-century view of the presidency. Except for the war powers/terrorism stuff, which is an odd contradiction, and I can see why people get frustrated by that.
Joe Beese
Gaze with me… into The Future! …
The time is January 2011. The new crop of Republican Senators are being sworn in. And DADT remains unrepealed.
And John Cole posts on his blog to say “I really thought the larger Republican minority would give Obama the major legislative victory that he was catching so much shit from his constituents for not delivering.”
I’ll drop in to say Hi.
Parrotlover77
I’m of the opinion that stopping will give congress enough wiggle room to chicken out of enacting DADT repeal, leading to one of two bad outcomes. 1. SCOTUS rules against icky gays or 2. lack of SCOTUS ruling allows future highly conservative administration or congress an easier route to enofrcing DADT again. cant remember if it was jc or other who mentioned the possibilty of this being a new political football with every change of administration.
11 dimensional chess or not, this is tough love on a congress that prefers to be “do nothing” over being on the right side of history and civil rights.
also too justice dept could put on such a lousy case for each appeal that even SCOTUS would have a hard time ruling for them. but that’s only 8 dimensional chess at best.
plus im just an obot etc.
Mnemosyne
@celticdragonchick:
IT’S NOT A “POLICY.” IT’S A GODAMNED FUCKING LAW THAT PREVENTS GAY PEOPLE FROM SERVING IN THE MILITARY.
The only “policy” involved is the one that says you’re not supposed to actively investigate gay people (aka “don’t ask, don’t tell”). But the reason people can be investigated is that is is AGAINST THE LAW for gay people to serve in the military.
Jesus fucking Christ, why do we have to point this out every goddamned time this topic comes up?
If it’s good enough for you to circumvent a law by putting a new policy in place but not actually do anything about the underlying law, that’s fine, but at least be aware that changing the policy will do ABSOLUTELY NOTHING to change the underlying law that currently says it is ILLEGAL for gay people to serve in the military.
beergoggles
@burnspbesq: Pretty sure that Witt was decided based on ‘rational basis with teeth’ that 9C referred back to the trial court. That seems to be the current standard since Lawrence and Evans.
And standard of review is often blurred to accommodate anything that strikes a judge’s fancy to begin with.
Chrisd
@FlipYrWhig: Absolutely, and sometimes in my more generous moments I create scenarios in my head where this guy and his style would be exactly what the times called for, a new Era of Good Feelings, whatever.
Not in the middle of our present-day Weimar, on the edge of the cliff. Not now.
FlipYrWhig
@Joe Beese: The whole point of this episode has been to pin “DADT repeal” or “gays in the military” to a must-pass “defense bill.” I.e., the whole idea is that it’s _not_ a “major legislative victory,” it’s just the normal course of business. The number of Senators who would pass a stand-alone “DADT repeal” bill is… not too many, I believe. The number of Senators who will pass a “defense bill that includes DADT repeal under the terms set by the active-duty military, blessings and peace be upon their name” is, potentially, 60. Or that’s the idea, anyway.
TooManyJens
Are there any Republicans in the Senate who can be leaned on to support DADT repeal after the Pentagon review comes back on December 1 saying that the armed forces can deal with repeal in an orderly fashion? (Which is what’s going to happen.) The twin Presidents from Maine, perhaps? I mean, John McCain would if he stood by his word, but I’m not holding my breath on that one.
beergoggles
@Parrotlover77:
You do realize the language in the proposed legislative repeal included in the defense authorization bill would allow a future conservative administration to kick out gays as a matter of policy right?
Mnemosyne
@beergoggles:
Please link to that language. Thanks.
Nied
I could have sworn there is a law to that effect. Something about the President taking care to see that laws are faithfully executed. They passed it a while ago so I can see how someone might forget it.
In all seriousness, other than the immediate gratification of getting rid of DADT, everything about the idea of selectively defending laws just stinks, and it actually removes a pretty big check on the President’s power. People keep using the ACA as an example but what if some future Republican shops around for an appropriately wingnutty lower court judge to strike down say the Matthew Sheppard act, and then refused to appeal using Obama’s actions as precedent? I swear to god it seems like for some people the problem with Bush wasn’t that he was a power mad executive who would bend or break the law whenever it suited him, but that he wasn’t doing it for their side!
Adam Lang
The Senate will be held up by enough filibusters that literally nothing that will get fewer than 90 votes will pass in the lame duck session. Bets?
Mnemosyne
@Nied:
Yep. It makes it pretty frustrating to try and deal with people who seem to think the only problem with Bush was that he overreached his executive powers for evil, and if Obama would just overreach his powers the same way, all our problems would be solved.
I don’t want a dictator from the left, even if it means it will rain unicorns and ponies nonstop.
burnspbesq
@Adam Lang:
You don’t want me to take that bet. Our guy in DC who is on a first-name basis with the staffs of the tax-writing committees says there will be a tax bill.
TooManyJens
@Adam Lang: I think you’re mostly right, but won’t somebody feel the need to pass a defense authorization bill?
Socraticsilence
@david mizner:
Whoa this is off-topic but am I the only one who is a bit suprised that anyone would oppose the discharge (honorable) of HIV positive service members- or at the very least (and I assume this would be the case) restricting service areas outside the combat zone- it just seems commonsensical.
Mnemosyne
@TooManyJens:
My big worry is that the Democrats will blink and agree to drop the DADT repeal from the defense authorization bill just to get it passed. If that happens, then we’re definitely screwed.
TooManyJens
@Mnemosyne: Yeah, I don’t blame you for that. I really do wonder, though, whether a Dick Lugar or two might be enticed to come over after Dec. 1. Or will they end the lame duck session before then?
Socraticsilence
@Chrisd:
I would argue there’s some definite value in this method though- the problem is that other adminstrations don’t seem to do the same.
Adam Lang
@TooManyJens:
Sure. That’s why they’ll make sure there’s nothing controversial in it.
Remember, it’s the Dems who are always the ‘responsible’ ones.
burnspbesq
@beergoggles:
Had forgotten about Witt. Thanks for the reminder.
As a litigating strategy, I like the idea of arguing to the Court of Appeals that the remand in Witt demonstrates that the Witt process is unworkable, so just decide once and for all that sexual orientation discrimination gets strict scrutiny.
Mary
Aw….it’s cute when John is optimistic. Like a poor orphan who believes that if he just behaves like a good little boy, this year Santa will finally bring him a gift for Christmas.
Doubts, I haz them.
celticdragonchick
@John Cole:
Indeed! The debunker says I’m lieing and linking to Americablog or Box Turtle gives then teh butthurt! Amazing!
You need another working definition of “facts,” methinks
Possibly because I can point to relvant cited passages, and the “debunkers” cannot.
Maybe you think debunking and wishful thinking are the same thing…
To wit:
So yeah, you fucking genius…the DOMA brief conflated my marriag ewith screwing your cousin or a minor child.
Oh…but CenterBlue says arguing from analogy is not the same as a comparison!
Bullshit! An analogy makes a direct comparison, and we all know it. When you group things togther to make an argument, they are conflated as similar items. We call the wingnuts on it all the time at this blog.
More from PHB…
The only way you will debunk this, John and Co., is to prove the brief was never filed or the sections quoted were never in the document.
Good luck on that. I’m not holding my breath.
Clap louder.
Chrisd
@Socraticsilence:
I really don’t know. Would Lincoln be viewed any differently if he hadn’t suspended habeus corpus? Would the same people here defending Obama’s meticulous separation-of-powers approach be criticizing him if he had instead halted discharges on taking office and later just let the judge’s ruling stand?
beergoggles
@Mnemosyne: The full document.
The relevant section:
Basically it provides the executive with the discretion to implement any policy it deems suitable since it basically removes the law imposed by congress. It gives no direction as to what policy the executive may implement, and as such the executive may instruct the military to re-implement their own version of DADT.
evil twin
@JimF:
As conclusively demonstrated by his policy w/r/t indefinite detentions and assassinations…
Mnemosyne
@beergoggles:
That is a very strange reading of the legislation, to say the least, especially since it says right there that the policies are supposed to be set 60 days after the requirements in section (b) are met.
celticdragonchick
I have filed a lengthy reply to John which is waiting in moderation.
beergoggles
@Nied:
Appealing court decisions isn’t a faithful execution of law unless there is a law requiring the appeal of court decisions. So I’m still waiting for someone to show us that law.
Two things:
1. They can do that WITHOUT using Obama’s actions as precedent because they can do that, not because it’s been done before.
2. The government would need to lose at the trial court to appeal it, since the winning party doesn’t get to appeal it to a higher court. So I’m trying to wrap my mind around how the government would get a trial court to strike down the hate crimes law and not have the person affected by hate crimes not appeal it. Does your reality have a situation where it would be possible?
There’s some things like assassinating citizens or torture that are against the law and I wouldn’t support our side doing.
There are other things that are NOT against the law that I would like our side to do instead of unilaterally disarming themselves hoping some future Republican might do the same.
beergoggles
@Mnemosyne: Yes, and then those policies may be a re-implementation of the military’s version of DADT, or they may be amended at any point in the future by a conservative president to re-implement DADT or worse.
I’d like to hear how you can read it in a way that says the scenarios I suggested CANNOT happen.
beergoggles
@burnspbesq: And I wouldn’t count on Obama’s DOJ to stop at the court of appeals.
Mnemosyne
@beergoggles:
I’ll let one of our resident lawyers explain it for you, because I’m getting the feeling you don’t actually know how laws work.
Here’s a hint: if by law gay people are allowed to serve in the military, on what basis could a future conservative president ban them that would not be immediately struck down for being discriminatory since there would no longer be a law against them serving? You may as well say that a conservative president could ban women from the military at any time since apparently the president can do anything he wants any time he wants without having to worry about, you know, the Constitution or any of those silly “law” things.
FlipYrWhig
@beergoggles:
IANAL but to me it looks like it’s all set up so that the law must take into account the recommendations of the military’s review. That’s why the law was punting to the military, rather than dictating a policy to the military.
So, sure, the executive may instruct the military to ignore its own report and implement some other policy. Of course, if the military’s review concluded that DADT repeal would have terrible effects on the military and thus shouldn’t happen, wouldn’t you _want_ the executive to override that? I would. Although I don’t know if any Democratic president would have the guts to do it.
FlipYrWhig
@beergoggles:
I don’t follow. Is your point that a future president will be able to undo all the hard work on this? Is that ever not true?
Nied
Actually that’s precisely what it is. DADT is the law duly passed by congress and singed by the (then) president. There isn’t any settled precedent for qualifying Gays or Lesbians as a protected class under the constitution so there isn’t a precedent based argument for the DOJ to make in claiming DADT is unconstitutional. That’s actually the key difference between now and the case where Clinton declined to appeal, since there was in fact a decent amount of Supreme court case law supporting their claim they couldn’t defend it. Maybe we’ll get the same type of precedent once this winds it’s to the Supreme Court (and I hope we do) but we don’t have it now.
Indeed they can but we sure as hell don’t want to give them cover as they dismantle our constitutional system of law and checks and balances.
Someone convicted under the Matthew Sheppard act, appeals their conviction, the conviction get’s overturned by the previously mentioned wingnutty judge and then the govt declines to appeal that decision. Does your reality have a situation where someone who just got released from jail appeals so they can be thrown back in it?
Mnemosyne
@beergoggles:
You mean if somehow the military manages to delay the whole thing so long that President Palin wins in 2012 and she then gets the 60 days to set the policy?
Sure, it could happen. And the Mayans could be right and the whole world could end in 2012. There’s a whole lot of things that could maybe possibly happen in this world.
What we’re looking at is how likely it is that the DOD could delay so long that Obama leaves office and a conservative president takes over. You seem to think it’s extremely likely that they could drag it out for two or six years or even indefinitely while they wait for a conservative president to be elected to give them the policies they want. I think that’s extremely unlikely.
TimmyB
Torture is against U.S. law. So, if Obama feels compelled to uphold U.S. law, where are all the trials for torturers?
Fraud is against U.S. law. So, if Obama feels compelled to uphold U.S. law, where are all the trials for the fraudsters/banksters, especially now that it has become well know they commited fraud on U.S. courts to evict people from their homes?
But gays in the military? Oh, that’s right, only the rich or powerful get a pass when they violate U.S. laws.
beergoggles
@Mnemosyne: You seem to be purposefully omitting that any future president can set policy barring gays from serving in the military unless congress or the courts tell the they can’t. The DADT repeal language clearly does NOT tell the executive they cannot bar gays, just that DADT is now repealed, go set some policy based on study recommendations. The court language on the other hand does tell the executive that they fire gays for being gay.
In this particular case, Obama could set the policy following the recommendations on day 60 and then on day 61, just revise them all to whatever he wants to. There is no law requiring the government to not discriminate against gays in the military.
beergoggles
@Nied:
There’s lots of words but still no sign of that law requiring the DOJ to appeal. I mean, if it exists, you should be able to at least dig up a link to it right?
Moving goalposts. First it was precedent, now it’s cover. And since when have republicans needed cover?
Also, the government wouldn’t be the only party with standing to appeal such a decision on the hatecrimes act. You’ll have to find a scenario where the government is the only entity with standing to appeal.
beergoggles
@FlipYrWhig:
That is my point, yes. And it’s not the questionable veracity of it that the point leads to. It’s that we already have a court decision that accomplishes what’s necessary. As such, it doesn’t need to be appealed. Sure it can be re-instated and appealed by a future administration, but so can the legislative solution.
As such, the sure thing is being appealed for a unsure thing, and the end result of both would be the same under a future administration.
Nied
@beergoggles:
And your preferred scenario does nothing (Obama just declines to appeal) does nothing to stop that from happening either. This hypothetical future Republican president will have no supreme court case law to stop them from re-implementing DADT other than some lower court ruling that they can quickly disregard with an appeal.
Indeed and Truman or some later racist president could have easily re-segregated the military too since there had been no case law standing in their way at the time, but that never happened because generally once these kinds of rights are granted they aren’t taken away again. (Truman also had the advantage that military segregation was not written into statutory law like DADT making repeal much easier for him).
beergoggles
@Nied: And so you’ve come to the point I made at 102 beergoggles
burnspbesq
@beergoggles:
“Appealing court decisions isn’t a faithful execution of law unless there is a law requiring the appeal of court decisions. So I’m still waiting for someone to show us that law.”
Sorry, but that’s a nonsensical interpretation of the Constitutional description of the President’s duties.
Nied
@beergoggles:
Here you go, the specific section you want is article 2 section 3.
It’s both precedent and cover. We don’t want to be the one who sets precedent that the executive is a lawless tyrant that can ignore laws at will. That Republicans might do that doesn’t make it any less unconscionable. Frankly this whole “Republicans are the worst people EVAR, and we have to break all the laws before they do” talk smacks of some of the torture apologism you see from the right.
Someone else would have standing to appeal a Federal Felony conviction? Since when?
Mnemosyne
@beergoggles:
I’m “omitting” it because it’s not there. You are imagining it. The language in this legislation refers to this particular instance of setting the policy 60 days after the requirements are completed, not forever going forward for all time.
Yes, it does. That’s what the whole part at the bottom that says exactly what parts of the UMJC are made invalid by this law means: they are REMOVING the parts of the UMJC that currently state that it is illegal for gay people to serve in the military. Here, I’ll quote it for you:
Also, since you seem a little confused on this point: DADT is not, in fact, what prevents gay people from serving in the military. The UMCJ is what makes it illegal. DADT was the compromise position that says, Okay, it’s still illegal for gay people to serve in the military, but you can’t ask them whether or not they’re gay. “Repealing DADT” would only remove the tiny fig leaf that’s present right now and make it perfectly legal for the DOD to start wholesale investigations and dismissals of gay servicemembers.
Mnemosyne
@TimmyB:
You mean all of these trials?
AxelFoley
@Nied:
BIN-GO.
beergoggles
@Mnemosyne: I’m not confused about it. I know what the amendment does. And anyone reading it can plainly see that it does not prevent the executive from re-instating the same restrictions on gays at some point in the future.
Hence my argument that letting the court decision stand is no better or worse than getting legislative repeal; the only difference being we have the court decision now whereas we don’t and may not have legislative repeal for years.
beergoggles
@burnspbesq: In which case where are the trials for the previous presidents that have so blatantly flouted the constitution by not appealing every single trial court loss all the way to the supreme court?
Mnemosyne
@beergoggles:
I can see that trying to argue this with you is like trying to tell someone that there really aren’t backwards messages in Beatles records, so I’m going to give up now. You’re going to believe what you want to believe no matter what and the facts just don’t matter.
Angry Black Lady
@Mnemosyne: if i could buy you a drink for this comment, i would. like a dumbass, i just read jane hamsher’s post on “omg, i can’t believe they haven’t fired valerie jarett!!” and then more bs about just doing away with DADT via executive fiat.
she actually leads off her post by trying to paint obama as never having said that DADT is unconstitutional (despite jarrett saying that he did say it) and then essentially concedes in the very next sentence that she doesn’t know whether he said it or not. facts are of no moment to Jane the Hamster. she is becoming the rush limbaugh of the left. spouting bullshit without having any fucking clue what she’s talking about.
i swear, she is either incredibly stupid, or one opportunistic shitbag. (i think it’s the latter.)
i still want to know who the hell she is and why it is she thinks she knows so much about how government and the law works. a job as a hollywood producer gives her the street cred to lead all of her dumbass lemmings off a cliff?
i certainly don’t claim to know all the ins and outs of governmental procedure (and I went to fucking law school!), but it is NOT A HARD CONCEPT TO GRASP that the military regulates service member behavior, the military via the UCMJ says no gays in the military, and that an executive order repealing DADT is not the equivalent of lifting the ban on gays in the military.
people would flip the fuck out if a district court judge sitting in the most liberal circuit in the country could regulate military procedure as a matter of course. give me a fucking break! let the injunction stand? really?
moreover, isn’t doing what the fuck Obama wants by executive order the exact same behavior we were criticizing Bush for? I need a clean up on Aisle Hypocrisy!
i feel like i’m taking crazy pills, sometimes.
/end rant