10 Comments

1. Chris Berez  •  Oct 20, 2010 @6:39 pm
   

   Brilliant post. Very well done.

2. Rliyen  •  Oct 21, 2010 @11:01 am
   

   Hear hear.

   Seconded.

3. zarathud  •  Oct 25, 2010 @9:42 am
   

   A bit late to the party, but I find delicious irony in Ken's following post that condemns selective enforcement by a local cop of the drug laws. If the executive branch is supposed to enforce the laws, partisanship enforcement is meretricious. Obama's defense of DADT is disappointing, but not unprincipled in context.

4. Patrick  •  Oct 25, 2010 @10:07 am
   

   Is that a fact zarathud? Let's say that Congress passes a law mandating separate military units on the basis of race:

   Do you believe that Obama's Justice Department would defend it in court?

   Assuming you do, do you believe that the defense would be principled?

   Is a President obliged to defend a law he believes to be unconstitutional? Is he a mere functionary, a scrivener for Congress? Is that true for Obama? I thought part of the reason we wanted to elect him is that he was a law professor, a constitutional scholar with great insight on such matters.

   So Obama must believe DADT is constitutional, but wrong nonetheless, correct? So he defends it.

   That's about the only straw you have to grasp, and if you do grasp for it, well, at least you're not as much of an unprincipled hack as Obama.

5. zarathud  •  Oct 25, 2010 @9:02 pm
   

   I'm not holding a straw, but a Log Cabin. Did I mention the irony in gay Republican activists forcing a Democratic president to defend DADT?

   The Justice Department has traditionally adhered to a policy of defending the constitutionality of federal statutes whenever "reasonable" arguments can be made in support of such laws. While the statute is odious, recent Supreme Court decisions haven't rendered the defense of DADT untenable. For this reason, Reagan’s first attorney general William French Smith defended a Congressional extension of the ratification period for the proposed Equal Rights Amendment despite the administration’s general opposition to the ERA.

   So the Justice Department will generally defend a law adopted by Congress and signed by a prior president, regardless of whether the president in office likes them. While Obama didn't sign DADT, a President Clinton adopted it in 1993 to modify a provision in the Military Code of Justice since 1950 (signed by President Truman). The Justice Department has competing duties not just to Obama, but also to Congress (See, for example, 28 U.S.C. § 530D).

   It was remarkable when Solicitor General John Roberts (now Chief Justice) not only declined to defend federal laws setting a preference for awarding broadcast licenses to entities with a certain level of minority ownership, but affirmatively argued that they were unconstitutional. President Bush hadn't specifically objected to the constitutionality of the provision at issue, the traditional test for an administration to refuse to defend a statute in rare cases (assuming the law doesn't infringe on the executive branch's constitutional powers).

   Obama has taken the principled, lawyer’s approach to governance that doesn’t deserve your hyperbole. While cute, it's factually mistaken. But I guess "slippery slope" would be two words.

6. Patrick  •  Oct 26, 2010 @6:07 am
   

   See, for example, 28 U.S.C. § 530D

   Yes, and? The attorney general has to report to Congress that he isn't going to defend a federal statute? And?

   Why are you lecturing me with a wall of text? I'm quite aware of the attorney general's run of the mill responsibilities, and you're quite aware that this isn't a run of the mill case where the AG is required to defend the dignity of a federal district court against tax evaders who argue that the presence of a fringed flag means the conviction was null and void, ipso facto, E. pluribus unum. And you know and I know that if Obama tells Holder to jump, the only response he'll get is "How high?"

   Obama has taken the principled, lawyer’s approach to governance that doesn’t deserve your hyperbole.

   How's this for hyperbole? Obama is a fucking hack who lied to gay and lesbian voters for advantage in the Democratic primaries, then stabbed them in the back to preserve the gains he'd made in formerly red states. This isn't about law. It's about politics.

   And you're a hack for defending him.

7. Chris H  •  Oct 28, 2010 @12:16 am
   

   Patrick, isn't the Obama Administration still committed to working with Congress to end DADT legislatively? Is it not a valid concern that with this ruling, if they ceased to pursue a legislative end to DADT that at some point in the hypothetical future a higher court could overrule the judge's decision to strike it down?

   I guess to me it seems like DADT is a leaky pipe in under your kitchen sink. It drives you crazy and you know it needs to be fixed. You call a plumber, but it'll be a while until he can get there. Your neighbor comes over and tells you he can fix it with duct tape and baling wire. That solution seems temporary, and if it gives out the problem could end up being much worse than the problem you have now….so I can understand wanting to refuse that solution and attempt a more permanent fix for the situation.

8. Patrick  •  Oct 28, 2010 @3:34 am
   

   Actually Chris H, if the government, which is the only party, doesn't appeal it becomes a final judgment. It can't be overturned. If the President says he's obeying the order, where does that leave aggrieved servicemembers who want the current set-up to continue?

   A legislative solution will be orders of magnitude more difficult come January. I think Axelrod has told him it's not a priority because he's not going to have a Ted Kennedy coming at him in 2012.

9. Chris H  •  Oct 28, 2010 @7:51 am
   

   Can a private entity not bring a suit challenging the allowance of gays in the military and could the mechanism allowing that–the decision of a lower court judge–not be overturned as a precedent? Could a future non-Obama administration have its own DOJ challenge the decision at some future time?

   When I saw that DADT had been struck down by a single judge's ruling, my first thoughts were "that's too flimsy to stand up for all of history". I have zero doubt that the decision could and would be challenged in the not-too-distant future, and that the possible overturning of that decision would create a monstrous mess. I will say this, though: if it is a future administration that challenges it, winning such a challenge could be like throwing a flag on the final play of a football game after the fans have charged onto the field and both goalposts have been torn down…

10. Patrick  •  Oct 28, 2010 @8:07 am
    

    The private entity wouldn't have standing, and one District Court judge can't overrule another. An appellate court could overrule a District Court judge, but it wouldn't have jurisdiction over a non-existent appeal.

    So the short answer is No. I'm not being snarky. It's just that courts won't hear arguments from parties that don't have a legally recognized interest in a case, and can't revisit cases that aren't before them.

    Let's say you sue me for hitting you with my car. A judgment is entered in your favor. Then Ken, a friend who has no real interest in the case but thinks it isn't fair, sues to overturn the judgment. The court hearing it will say (by dismissing for lack of standing), "Who the hell are you?" and (by refusing to revisit a final judgment), "Where were you when we were trying the case?"

    The federal government is the only party with standing, and the Secretary of Defense speaks for the federal government on this. The Secretary and his lawyer, the Attorney General, both serve at the pleasure of Barack Obama. So the decision as to whether to appeal comes down to one man, and one man only.

    It's true that Obama doesn't follow the mass of federal litigation. He has no idea what some delegate AAG is doing to prosecute a tax evader in Oshkosh Wisconsin. But he certainly is following this case. The decision to appeal was, entirely, a political decision.