DADT Conflict Explained: Why Obama Administration Lawyers Fight For A DADT Policy Obama Opposes

[iandhr]

Source: Huffington Post

WASHINGTON — President Barack Obama opposes the Pentagon's "don't ask, don't tell" policy on gays in the military, so why are Obama administration lawyers in court fighting to save it?

The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them.

This practice cuts across party lines. And it has caused serious heartburn for more than one attorney general.

The tradition flows directly from the president's constitutional duty to take care that the laws are faithfully executed, says Paul Clement, who served four years in President George W. Bush's administration as solicitor general, the executive branch's top lawyer at the Supreme Court.

Otherwise, Clement says, the nation would be subjected to "the spectacle of the executive branch defending only laws it likes, with Congress intervening to defend others."

That is why solicitors general not only serve the president who nominated them but also have a special duty to Congress, "most notably, the vigorous defense of the statutes of this country against constitutional attack," Justice Elena Kagan testified to Congress in 2009 after Obama nominated her to be solicitor general. She joined the Supreme Court a year later.

Read more: http://www.huffingtonpost.com/2010/10/21/dadt-conflict-explained-w_n_771035.html

[MineralMan]

1. Tell your Senator to repeal DADT.

Tell your Senate candidate to support repeal of DADT. That's their job. Change the law. Make the court decisions moot. Take this out of the hands of the courts and put it in the hands of the legislature. They passed DADT. They must end it. No other solution has the same permanence and finality.

I know that many are saying that there's no way that district court decision could be overturned. They're wrong. District court decisions are very, very often overturned. What good would that do? Make Congress repeal DADT and take it out of the court's hands altogether. That's the way to end DADT.

Both of my state's Senators, and my congressional representative voted for the repeal of DADT. They will continue to do so. They know my feelings. So, now I write to others. I want a permanent solution, not a half-assed one that can be reversed. So does President Obama. He knows the difference.

Disclaimer: I oppose DADT absolutely. I have opposed it since before it was passed. We need the law to be repealed. We need a Constitutional Amendment that forbids discrimination based on sexual orientation. We need permanent solutions. Nothing else will do.

[Ineeda]

4. Absolutely.

In the rush to bash Obama, people are not listening to the facts. As I've said before, this needs to be done right. This administration should not do what the prior one did - basically say, 'I'm going to ignore this law because I, personally, don't like it.' Maybe your post will help them realize that the president is, indeed, a fierce advocate after all. Thank you.

[MineralMan]

5. You're welcome. Some here disagree with my point of view,

and that's their right. But, I will continue to push for permanent solutions to this and other problems affecting GLBTQI individuals and all other minorities who do not have full equal rights. Permanent solutions, not bandaids.

The trouble with bandaids is that they never stick very long...even the expensive ones. When they fall off, they cease to protect. Short-term bandaid solutions can sometimes be worse than pushing for and waiting for permanent solutions. Once the bandaid is on and the wound can't be seen temporarily, the permanent solutions are of less interest to those who must act on them.

[DeSwiss]

27. Oh yeah?

Then why'd they let http://www.huffingtonpost.com/2010/10/21/doj-accused-of-hypocrisy-_n_771722.html">this court rejection stand?

:shrug: - I call BS!

[nofurylike]

31. i second the "absolutely"! thank you for clarifying, MineralMan. nt

[Barack_America]

2. Tradition!

[LawnLover]

6. It's not about tradition

It's about setting a precedent, or avoiding setting one. From a legal standpoint it makes perfect sense, even if it doesn't from a public relations standpoint.

[zipplewrath]

3. Undermining their own argument

"Indeed, Justice lawyers delayed their response to Phillips because the White House weighed in on the matter, according to a government official with knowledge of the situation. A couple of White House lawyers did not want to seek a court order that would temporarily suspend the judge's ruling, this person said, speaking on condition of anonymity to discuss the administration's internal deliberations. Failing to challenge the ruling would have had the effect of ending the policy.

Obama says he supports repeal of "don't ask, don't tell" but only after careful review and an act of Congress."

They can defend the law in court, without asking for the suspension of the judge's ruling. Yes, it would have the effect of ending the policy, but that is going to happen one way or another, sooner or later. They are undermining individual human rights for some abstract idea about defending an unconstitutional law. This isn't moot court, and they're not in some frat here. The most permanent action that could happen here is for the courts to declare it unconstitutional. They can take this to the appeals court and still allow people relief from an unconstitutional law.

[lefairhill06]

8. DADT

The problem with any court's decision is that ultimately it is likely to be appealed to the Supreme Court. Do you have unconditional confidence that a Roberts-dominated Court will agree with you that DADT is "unconstitutional?" (terrible law, and worse policy, but unconstitutional is another bridge -- if Congress repeals its own law -- keeping in mind that gays serving in the military at any level of openness has only been in existence for 17+years -- there is no need for this, possibly, bridge-too-far).

[zipplewrath]

14. There is only one body that can appeal it to the supreme court

That would be the loser. If that is the government, Obama will be in a position to either not appeal it, or to over turn it before it ever gets to the USSC. If they win, they still will be in a position to have it repealed. They (supposedly) are in the drivers seat here and can pursue BOTH a strategy of repeal, AND a strategy of having the courts sustain it as unconstitutional. In the mean time, the courts have done for them, what they have claimed an inability to do themselves, suspended investigations an explusions until this all gets sorted out. And they went and opposed that.

[The Philosopher]

17. What arguments

are there for keeping DADT? The legislation itself is contradictory. We've seen Gays and Lesbians serve in the military. And now there's precedent (and many argue that there has been already). In the 21st Century, how can anyone have a reasonable, defensible argument against Gays and Lesbians serving in the military? The idea that the DOJ can't make a strong, very strong argument against DADT is ludicrous.

[ThomCat]

28. +1

[DirkGently]

7. The truth's in the details here. The DADT petitioners say the WH is not just defending, but biting

and scratching. We may never know.

[bemildred]

9. There is also a long tradition of laws passed by Congress and signed by the President

being declared unconstitutional and thrown out. So what? The fact is the Executive branch is under no legal or moral compulsion to lift a finger in protest.

[EFerrari]

10. I love the way today the AP is gospel after being excoriated all week.

[bemildred]

12. Yeah.

I love the way these decisions get rationalized with obvious bullshit that contradicts the obvious bullshit they trotted out last time when they decided the other way.

[BzaDem]

25. It's not so much the source, as it is the obvious veracity of what they are saying.

I tend to not take John Boehner too seriously, though if he said that the Earth goes around the Sun, I wouldn't disbelieve him.

[ThomCat]

29. Attacking the source is an obvious logical fallacy

used by anyone who can't be bothered to address the actual information that has been presented.

They don't want to admit that Obama could be doing something to actually fight DADT, and he hasn't been doing it. So they attack any source that says so.

[BzaDem]

24. Not when a higher court declared the exact same law CONSTITUTIONAL.

I don't like it, but that doesn't mean it didn't happen.

[GeorgeGist]

11. Ironic indeed ...

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.




According to Title 28, Chapter I, Part 453 of the United States Code, each Supreme Court Justice takes the following oath:
"I, , do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as under the Constitution and laws of the United States. So help me God."

[caseymoz]

13. Spurious.

I could see where this argument applies in criminal prosecutions, but the president cannot be obligated to continue a civil case against a judicial stay that directly challenges the constitutionality of a law, anymore than you can make the argument that the President must sign a bill Congress has passed. He has no obligation to apply a law in which the judiciary has stayed, and provisionally, voided. Nor does his justice department have an obligation to argue against the ruling. That's not faithfully carrying out the laws. That's favoring the re-instituting of a law.

No, this is just obstructionist. People are well within their rights to be angry about this, and arguments like this, that it's the way it has to be, just make my blood boil.

I'm not someone who argues for extended executive rights, either. This is one he definitely has.

[Iowa]

19. Well said. You nailed it.

[The Philosopher]

15. Is that all they're going by now?

Tradition? Even though time and time again Supreme Court Judges, legal experts, Presidents, Congress, and even the DOJ itself has expressed the Executive Branch's right to challenge the constitutionality of law (directly or by not defending)? They warn of a "...spectacle of the executive branch defending only laws it likes, with Congress intervening to defend others" yet it's already happened AND THE WORLD DID NOT IMPLODE. For God's sakes, it's the President's right, it's been done several times. What keeps the anarchy that these fear mongers warn us of is that anyone, from Congress to your next door neighbor, can challenge the President back. That's exactly what the Court is for. It's in the Constitution. "We're going to ignore one of the essential roles of two Branches of Government, simply because no one has done it before." Really? You're going to say that? In public?

:eyes:

[Bluenorthwest]

16. Tradition, just like they say about their religion

They are not required they are just following tradition. Too bad they don't follow our treaties as well.

[western mass]

18. oh, please

nobody's buying that laughable argument.

[Solly Mack]

20. lol

"...president's constitutional duty to take care that the laws are faithfully executed, says Paul Clement, who served four years in President George W. Bush's administration as solicitor general"


lololololololololololololololololol

[DeSwiss]

21. Bullshit. n/t

[queerart]

22. If This Was Bush's Whitehouse Fighting DADT......

Everyone would be on the band wagon bashing him.....


Not that most really care what happens to Queers down deep...... But it would be a hammer to use against Bush.......


Most Times a cigar, is a cigar...... and wearing justifying 3D chess, rose colored glasses, while hopping on one foot on a Wednesday during a full moon is not going to magically transform a steaming pile of shit into truffles for the GLBTQI community to eat.....

[Laughing Mirror]

23. Only the gullible seem to be buying these obvious lies

From this hack, Mark Sherman, whose job must be to relay them.

[DeSwiss]

26. DoJ Accused Of Hypocrisy For Appealing DADT While Letting Park Proselytizing Ruling Stand

DoJ Accused Of Hypocrisy For Appealing DADT While Letting Park Proselytizing Ruling Stand

Sam Stein | Huffington Post | Updated: 10-21-10 02:28 PM

Less than a week before the Obama administration's Department of Justice appealed a judge's ruling that the military's Don't Ask Don't Tell policy is unconstitutional, it elected to let stand a court ruling allowing religious groups to proselytize in federal parks.

In a little-noticed decision last Thursday, the DoJ let stand a U.S. Court of Appeals ruling that small groups wishing to gather and demonstrate at national parks no longer have to obtain a permit from the National Park Service. The Department's decision to let that ruling stand while challenging, days later, U.S. District Judge Virginia Phillips' decision to overturn DADT on constitutional grounds are not topically related. But it did spur another round of criticism that the administration is either insensitive or hypocritical when it comes to gay rights.

"In the very same week, the administration says that it absolutely must appeal a federal court's decision on 'Don't Ask, Don't Tell' while it orders the Justice Department not to appeal a federal court's ruling in favor of the conservative Alliance Defense Fund. This contradiction is simply incomprehensible and insulting," said Alexander Nicholson, Executive Director of Servicemembers United.

http://www.huffingtonpost.com/2010/10/21/doj-accused-of-hypocrisy-_n_771722.html">MORE

- This administration's so-called rationale for why they acted as they did won't wash. As I said up-thread BULLSHIT!

[nofurylike]

32. i think you missed a vital part of that article, and pertinent law:

i hope you'll read the rest. it makes a big difference.



-snip-

As a DoJ official points out: "one key difference is that the park service is a regulation (not a statute) as opposed to DADT," which was an act of Congress. " A regulation is an executive branch creation, as such, the president is able to modify or rescind ."

-snip-

This is not a distinction without a difference. On Wednesday, the Associated Press quoted a number of prominent legal figures, including former solicitor generals (though not Olson), who affirmed that the Department of Justice has to execute acts of Congress or risk open legal quarreling between the executive and legislative branches. There are exemptions. But they are rare.

Speaking to the Huffington Post on condition of anonymity, a top legal scholar stressed that the DoJ is acting consistently with respect to DADT and the park service laws. The same informal guidelines that guide department policy with respect to congressional law don't necessarily hold true with respect to administration regulations or orders.

"My hunch would be that the clue is the idea of a regulation," said the scholar. "DADT is a law passed by the Congress of the United States. And the park service was an administration regulation, which has been promulgated by administrative procedures. My hunch would be, that that differentiation is significant."

***


peace

[nofurylike]

30. K&R thank you for posting this, iandhr. important! nt