FLASH: Obama Admin. Seeks Stay of Ruling on Gays in Military

[Hissyspit]

Source: Reuters

Reuters: FLASH: Obama administration asks appeals court for emergency stay of decision permitting gays to serve openly in military

Obama admin. seeks stay of ruling on gays in military
Wed Oct 20, 2010 11:50am EDT

WASHINGTON (Reuters) - The Obama administration on Wednesday asked the U.S. Court of Appeals for the 9th Circuit for an emergency stay while it appeals a decision that lets gays and lesbians serve openly in the U.S. military.

Read more: http://us.mobile.reuters.com/article/topNews/idUSTRE69J3Y120101020?ca=rdt

[Newsjock]

1. Screw 'em

And screw their 11th-dimensional chess. This is about human dignity, not triangulation or politics.

[xultar]

2. What the fuckity fuck fuck? Shit is orderly why don't they accept DADT is over?

What are they doing saving face for the homophones?

I don't fucking get it

Someone explain this shit to me.

[Barack_America]

9. Because it's such a morale builder for a Democratic administration to fight against civil rights....

...ahead of the upcoming election!

Honestly, I can't explain it to you because it makes no sense to me. All I'm left with is snark and disgust.

[TheWraith]

26. Because the Department of Justice is required to defend federal law.

It's no more complicated than that. This is NOT a matter of the president's discretion--the entire point of the system is to insure that all laws receive equal defense no matter who's in the White House.

[Barack_America]

28. Um, not necessarily true.

http://truthonthemarket.com/2010/10/16/must-the-president-defend-dont-ask-dont-tell/

[TheWraith]

38. Yes, true.

A discussion on the DOJ's duty to defend:

http://www.acslaw.org/node/17311

An explanation of how the DOJ handles challenges of constitutionality, first by arguing out the case and then by applying that precedent to future cases. This is the case they're arguing out. Back in the 1990s they declined to challenge a ruling about the admissibility of confessions, because the relevant portion of the law was in clear conflict with the SCOTUS Miranda ruling.

http://www.d1040331.dotsterhost.com/applications/serendipity/index.php?/archives/220-Miranda-and-the-Justice-Departments-Duty-to-Defend-Federal-Statutes.html

An article explaining the limitations on the President's ability to decline to execute laws he deems unconstitutional, and the role of the Supreme Court as the final arbiter in that situation.

http://www.justice.gov/olc/nonexcut.htm

Short answer: the Department of Justice always has and always will defend federal law, because they are legally bound to operate in accordance with federal law, NOT with the opinions of whoever happens to sit in the White House. The contrary position, which is that of the unitary executive, amounts to the claim that the law is whatever the President says it is, which we just dealt with for 8 years under Bush.

[muriel_volestrangler]

44. I think your last link proves you wrong

If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute.

Now, that's executing the statute. But defending it in court is surely just as optional for him, and, arguably, more optional. But that says that federal law does not always have to be defended by the president.

[No Elephants]

46. STOP saying D of J is legally bound. That is simply untrue. A self-adopted tradition is NOT

a legal obligation. I could decide I should work 9 to 5 and do so for 200 years. It never becomes my legal obligation, unless some law says so. No law says so about the D of J.

D of J has declined to defend other laws as well.

"An article explaining the limitations on the President's ability to decline to execute laws he deems unconstitutional, and the role of the Supreme Court as the final arbiter in that situation."

Since Obama is not declining to execute DADT, what is your point in citing this article?

[muriel_volestrangler]

29. No, we do need more explanation than that

What says an unconstitutional law needs 'equal defense'? That law has been declared unconstitutional by the highest court to examine it. Why should a law that the courts consider wrong, and that Obama claims to consider wrong as well, need defending?

[TheWraith]

34. Unconstitutional laws don't have to be defended, but only AFTER precedent is established.

This is a precedent establishing case.

An example of the DOJ not defending a law was back in the 1990s, when a suit was filed over a federal law that said confessions were always admissible in court. That was in direct conflict with the SCOTUS ruling on Miranda vs. Arizona, and the DOJ took formal notice of that fact, allowing the law to be struck down.

[muriel_volestrangler]

41. Who says?

I know I may sound like an annoying child always asking 'why', but, so far, you've given us no reason to believe your interpretation has any basis in law - you've just reasserted your statement. What law says the DoJ must defend all laws, even if they have been ruled unconstitutional? In contrast, others have given examples of the DoJ not defending laws. It appears to be a matter of choice for the DoJ. So far, you're looking rather unconvincing.

[TheWraith]

42. Read my links in post number 38 if you are looking for references.

And I've given examples of the DOJ not defending laws too--pursuant to their "duty to defend" and the rulings of the Supreme Court.

[No Elephants]

50. The links in Reply 38 do not support your claims. Nothing will. You are wrong about the law and

the facts.

Reality is, D of J has no legal obligation. It simply adopted a tradition and has not always chosen to adhere to it, either. It's own website used to say as much before it was scrubbed this year.

[No Elephants]

51. here you go NYT editiorial. It's tradition, no more, no less--and not always followed.

"In the presidential campaign, President Obama declared that he would work to overturn the Defense of Marriage Act. Now, the administration appears to be defending it out of a sense of obligation to support a validly enacted Congressional law. There is a strong presumption that the Justice Department will defend federal laws, but it is not an inviolable rule.

If the administration does feel compelled to defend the act, it should do so in a less hurtful way. It could have crafted its legal arguments in general terms, as a simple description of where it believes the law now stands. There was no need to resort to specious arguments and inflammatory language to impugn same-sex marriage as an institution."

http://www.nytimes.com/2009/06/16/opinion/16tue1.html

[No Elephants]

31. Nope. No statute whatever contains any such "requirement." NONE.

It is merely a tradition--one the D of J itself chose to adopt and one the D of J can un-choose whenever it wishes. The D of J's own website used to say flat out that it was a self-adopted tradition (i.e., NOT a requirement). However, that seems to have been scrubbed from the site relatively recently. Nonetheless, it's so.

http://www.americablog.com/2009/06/obama-doj-lies-to-politico-in-defending.html


http://www.religiondispatches.org/dispatches/candacechellew-hodge/3558/law_prof%3A_obama_under_no_obligation_to_appeal_dadt/

http://talk.baltimoresun.com/showthread.php?p=6741207

[TheWraith]

37. The "duty to defend" is a legal principle that goes back hundreds of years.

The fact that a sub-minority of the legal community holds the viewpoint that the "duty to defend" doesn't exist does not change the principles involved.

[No Elephants]

43. Bullshit. It is a tradition. A traidition is NOT a "legal principle. And the

FACT that it is a self adopted raidition is a matter historical fact, not a minority view. It was on the D of J's own website.

You are pulling stuff out of your ear.

[xultar]

32. But first is it a law...I didn't think it was and second, it has been struck down.

[TheWraith]

35. It is indeed a law.

People often compare DADT to segregation in the military, which was ended by executive order. What's inaccurate about that comparison is that segregation of the military was NOT a law--it was in fact simply a military policy, and could be changed by direct order.

As for DADT being struck down, the purpose of the process by which cases like this are appealed is to insure that any invalidation of a law passed by Congress is fully tested through the court system, thus protecting against potential bad decisions by one court. It doesn't matter if it's a good law or a bad law, it's not up to the DOJ to make a moral decision on it. They're bound to argue it until there's no viable legal arguments left, or they reach the highest available court.

[No Elephants]

45. No gays--closeted or not- in tihe militiary is a policy that was never repealed and never became a

statute. Obama could abolish that policy. And Obama CAN also end DADT discharges. He has both Constitutional AND statutory authority to do so. Finally, nothing says he, CIC, is not free to end DADT. No law.

[wmbrew0206]

54. It is pretty clear that the DoD has pretty much agreed to give up DADT, but made Obama agree to give

the Pentagon time to prepare for the change. Obama made the deal and is now trying to ensure the Pentagon gets the time it needs.

It is also pretty clear that Obama wants to be the person that is credited in history as striking down DADT. It will be part of his legacy and something he will say came by his hand.

It also give the Pentagon time to figure out how the change will be handled. If you have never served in the military, trust me when I say they have a manual for almost everything. DADT ending will require a lot of changes and a lot of rules being rewritten and a lot of training to educate the force about the changes. I know most other NATO forces allow openly gay members to serve, but the US has not. So the military is going to have to prepare for a cultural change to their organization. Any consultant will tell you a organization change is one of the hardest things to accomplish, so giving the Pentagon time to prepare is not unreasonable.

[HopeHoops]

3. Dang. One of my neighbors might be gay. I think I'll just have to have gay sex.

What the HELL is wrong with this country? Why can't we just accept people like they are? I have absolutely no concept, explanation, or defense regarding the Obama administration's position on this issue, but it is just plain wrong. Soldiers aren't going to "go gay" in the middle of battle just because someone next to them is "lookin' kinda gay". That's just stupid.

Does ANYONE have any idea why the Obama administration isn't just letting this one quietly slip into history like hanging black men for being seen with a white woman? It certainly needs to disappear the same way, but quicker. They're not helping themselves politically by going down this path, and that's certain. The anti-gay voters won't vote for a Democrat anyway, so where's the advantage to being anti-gay? Yes, I'm confused as to why they are doing this.

[Hawkeye-X]

4. They REALLY don't learn - just accept the decision and deal with it

Dammit. Someone please FIRE Holder now!

[leftynyc]

5. The only person that can

fire Holder is the same person telling him to do this - Pres Obama.

[Freddie Stubbs]

12. Do you really believe that the President is unaware of Mr. Holder's actions?

[displacedvermoter]

24. Isn't Barack the black guy

who is "reforming" education? Your picture thingy has the names swapped.

But as this might just be be satire, you know the "reforming" thing, I thought maybe it was supposed to be mislabeled! You know, they both shoot hoops, they both come from Chicago, they both seem to hate teachers, so maybe they are interchangeable.

[TheWraith]

27. It's not Holder's decision. He's bound by DOJ obligations.

The whole purpose of this system is to insure that the level of effort put into defending federal law, and which laws get defended, does not change from administration to administration. That's because administrations last for a few years, but precedent is immortal.

[No Elephants]

33. D of J has no such obligation. And there is no "system," either, just a

choice D of J makes. And it does not always defend, either. See the americablog link in Reply 31.

[TheWraith]

40. You mean the same Americablog that has had to apologize for falsifying facts?

Read post number 38 instead.

[No Elephants]

47. LOL. Cheap trick Probably every publication on earth has had to apologize many times.

Disprove what was said or no one is impressed.

I did read Reply 38. It does not support your claims. Try again.

[grahamhgreen]

6. One can only conclude they want the Dems to lose the midterms

Which is why we must get out thw vote, and vote progressive

[Bragi]

18. Or are cozying up to the homophobe vote

Maybe their polling shows that they've already lost the losable gay vote, so now they're hoping to at least appeal to the extremely tiny band of swing homophobes who might go Democrat?

Makes no sense to me either.

[and-justice-for-all]

7. Can we just get over this fucking homophobia....

its the 21st fucking century!

[Barack_America]

8. What's the point of this "political solution" they seek?

Anyone?

[harun]

67. It's so the Republican's can't say bad things about them...... oh wait, that sort of happens anyway.

[vi5]

10. Wow, I don't know what's going on...

This thread was able to get to 10 replies without any Obama apologists jumping in to tell us all how little we understand about how government works and how we are just a bunch of ingrates who can't appreciate how great he's been to us all.

Oh yeah and "PRESIDENT PALIN!!!!"

[Barack_America]

19. Few things are utterly indefensible.

A Democratic administration fighting AGAINST civil rights is one of them.

[vi5]

23. Oh, they've defended it....

They've defended him doing this in the past on here, it just usually happens sooner than 10 posts in. Usually they're on the lookout.

[displacedvermoter]

21. They must be on a conference call!

n/t

[Bragi]

11. That is truly awful, and unnecessary /nt

[Hosnon]

13. Right back at you President Obama.

... we don't have a "flip the bird" smilie?

[villager]

14. Gov't seeks stay of 'Don't ask, don't tell' ruling

Source: AP


WASHINGTON — The Obama administration has asked a federal appeals court to immediately suspend a judge's ruling that overturned the military's "don't ask, don't tell" policy on gays.

The administration says it wants the U.S. Court of Appeals for the 9th Circuit in San Francisco to take action on Wednesday while the federal government prepares its appeal of the ruling against "don't ask, don't tell."

President Barack Obama has said he supports getting rid of the "don't ask, don't tell" policy, but the Justice Department also typically defends acts of Congress in the courts


Read more: http://www.msnbc.msn.com/id/39760965

[hedgehog]

15. This occurred to me last night - the fastest way to get this case to the Sypreme Court is

for the Justice Department to appeal. Consider this scenario: the Obama administration ends DADT under court order today, and thousands of troops come out. Next week, Fred Phelps appeals the decision, and the Supreme Court re-instates DADT. Now what?

[Chipper Chat]

16. Fred Phelps gets burned at the stake.

Bwaaaaaaaahhhhhhhhhhhhhhhaaaaaaaaaaaa

[No Elephants]

36. Fred Phelps has no ability to appeal the federal district court decision on DADT.

Only Obama does. Phelps is not a party to the litigation. And Phelps has no ability to sue if troops come out, either. No standing. You're pulling totally baseless scenarios from thin air.

"This occurred to me last night - the fastest way to get this case to the Sypreme Court is for the Justice Department to appeal."

Not simply the fastest way - the ONLY way. And exactly why D of J should not appeal this to Roberts, Alito, Scalia, et al.

[hedgehog]

48. I just used Fred's name as a stand-in for whoever does have standing.

To be clear, what I am afraid of happening is that someone appeals the case to the Supreme Court after a number of active service personnel come out. The Supreme Court reinstates DADT, meaning that the Defense Department is required by law to discharge all those people.


Regardless of which way the Supreme Court eventually rules, a fast decision is the best for all involved.

[No Elephants]

52. WHO would have standing? Since you don't believe me, please google "standing in court."

[AtheistCrusader]

17. You know, I withheld judgment earlier, but this is just over the top. What the fuck, Obama.

What the fuck are you doing

[Ignis]

20. Fierce.

Oh yeah. Real fucking fierce.

:argh:

[bonnieS]

22. meanwhile

Dan Choi just reenlisted and they are enlisting openly gay recruits. What will happen to them?

[No Elephants]

39. Supposedly, all are being told DADT may be reinstated--and enforced. And, if so, openly gay

troops will be SOL--again.

By the way, they are also asking about orientation.

[Dont_Bogart_the_Pretzel]

25. Me thinks this will cost Obama a lot of votes in 2012... I just hope the other guy is worth it.

[defendandprotect]

30. Obama should be supporting this ruling .... equality for gays should be the push -- !!

[Jakes Progress]

49. If bush had done this, there would be no DU'ers defending him.

Have we simply become that much like the republicans that we can support anything as long as our guy is doing it? Sad.

[No Elephants]

53. IOKIODI. Not only defending, but pulling stuff out of their ears to defend. Shameful

[totodeinhere]

55. I'm wondering if Obama's political advisers are telling him he must appeal.

They might be afraid that if they do not appeal this ruling, the Tea Party types will use it against them and drum up more right wing votes.

[No Elephants]

59. Let's say they are. And?

[totodeinhere]

64. Well, I think the idea is to keep control of Congress.

If appealing will help with that goal, then so be it. Then if we can retain control of Congress, it will be easier to repeal DADT legislatively.

[Name removed]

56. Deleted message

Message removed by moderator. Click here to review the message board rules.

[muriel_volestrangler]

57. Frankly, I fully expect a Republican president with a Republican Congress would do just that

if they got that combination before people have got used to the new health care system, and there wouldn't be a damn thing we could do about it.

The problem is that the military are holding the country to ransom, demanding they ignore the will of the people (all recent polls show a clear majority in favour of gays and lesbians serving freely) just so they (meaning, I suspect, mainly the older, more conservative higher ranks) can continue their bigotry.

In doing so, they defy a federal court decision; they defy the preference of the president (well, the preference he claims in public, anyway), and they defy the apparent preference of the citizens. Who knows what the (again older, more conservative than the average citzen) Congress really think - I suspect the majority of Congress, including some Democrats, is still bigoted, since they would have actually done something about it otherwise (like repeal the damn thing, rather than wait for a Republican majority in Congress that will kill reform, but which they can use to shoulder the blame for failure studies).

It seems ridiculous to say "our hands are tied by tradition, we'll just have to do the unpopular thing and discriminate, although it is apparently unconstitutional to do it", when we can presume the 'conservative' party will, if ever given a chance, say "hang tradition, we're in charge, and if we want a law ended, we'll do it".

[No Elephants]

58. You've mentioned that before, but I don't know what he means.

Plaintiffs sue in a particular court to invalidate a law. A judge gets assigned--and not by the Prez or the D of J, but by the standard operating procedure of the court. Then, unless D of J has very good reasons for change of venue or recusal, it defends in that court with that judge. Nor does Dellinger's statement, whatever it may mean, explain why D of J has twice sought a stay.

"The Justice Department's orderly defenses of laws passed by Congress are constitutionally sound." Really? Why? Because Dellinger says so?

Nothing good will come from appealing this to Scalia.

"He also said that President Obama has done alot to move the repeal of DADT forward by making the military get on board, which is a big deal."

LOL. Geez, Louise, give us a break.

[ClarkUSA]

61. self-delete

[muriel_volestrangler]

60. Dellinger has also said the DoJ should argue that DADT is unconstitutional

"I would like, at the right time with the right military process being worked, to see the government actually switch its position," said Walter Dellinger, who served as acting solicitor general under President Bill Clinton. "The president, in his capacity as commander in chief, can make his own judgment that (don't ask) is not necessary. ... He doesn't have to give judicial deference to the political branches."
...
"I think it is certainly possible for the president to go beyond merely expressing policy disagreements ... and taking —- having the Department of Justice take the position that it is unconstitutional," Dellinger said during a conference call Monday organized by the National LGBT Bar Association and the American Constitution Society.
...
Dellinger's suggestion met with some skepticism from Georgia State University law professor Neil Kinkopf, who said he suspects that the Supreme Court might reject a case in which the Justice Department was nominally appealing but refusing to defend the law.

However, Dellinger pointed to some similar, if not entirely parallel cases, in which the solicitor general told the Supreme Court that a law was unconstitutional, but other lawyers inside or outside the government successfully defended it.

http://www.politico.com/blogs/joshgerstein/1010/Dellinger_urges_Obama_shift_on_dont_ask.html

Currently, the DoJ's appeal seems to rest on the repeal of DADT doing 'irreparable harm' to the military if it happens now. This seems to boil down to a request to ignore the constitution because the military is too bigoted to follow it.

[Name removed]

62. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Name removed]

63. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Rhiannon12866]

65. WTF?!

I went to a debate last night between my congressman and his teabagger challenger. My congressman is a Democrat and a good guy, but he's not particularly liberal, calls himself a centrist. His opponent is ex-military and appears to be running on that. When they were asked about DADT, ex-military hemmed and hawed and said it shouldn't have been made political. My congressman, I'm proud to say, didn't hesitate, said DADT needs to be repealed, that it's basic civil rights, just like when Harry Truman desegregated the military. I felt that this was his finest moment... :patriot:

[ClarkUSA]

66. Well, LGBT lawyer and award honoree Nan Hunter thinks the WH is doing the right thing.

Why not listen to someone whose allegiance to LGBT civil rights is undisputed AND whose legal expertise far exceeds anyone here?
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9311547&mesg_id=9311547

[NuttyFluffers]

68. well, that move was unnecessary...

disappointing! :hurts: