How to Really End ‘Don’t Ask, Don’t Tell’

[elleng]

A FEDERAL appeals court on Wednesday granted the Obama administration’s emergency request for a stay against a lower court order lifting the military’s “don’t ask, don’t tell” policy barring openly gay service members.

The decision will strike some people as odd, since popular belief holds that the president, who has said he opposes the law, can make the policy go away by simply letting the lower court order stand. In fact, the administration is required to comply with the law and defend it in court, regardless of Mr. Obama’s personal views.

Fortunately, there is another, seemingly contradictory step the White House could take that would not only make its position clear, but deal a significant blow to the law’s prospects: while continuing to appeal the ruling, the administration could inform the courts that it believes “don’t ask, don’t tell” is unconstitutional.

http://www.nytimes.com/2010/10/21/opinion/21dellinger.html?_r=1&hp

[JustFiveMoreMinutes]

1. Was hoping you were going to say "Dont Ask, Dont Care" n/t

[ThomCat]

2. It would be nice if the "fierce advocate" would tell his DoJ

to argue that DADT is unconstitutional. But he hasn't so far. So what are the odds that he will now?

I don't see it happening. I bet we'll see more nonsense about how he's required to defend the law, but now those defenses will say that he's required to "defend the law affirmatively." :eyes:

We have already seen that there are always so-called reason why he can't really stand up for our rights, and there is always no shortage of people willing to defend him for it.

[The Philosopher]

3. Ugh

I like how the article starts off telling you that the DOJ has to always defend the law in court and then writes why that isn't true.

First he tells you the President has to have the DOJ defend DADT in court. Then he says the DOJ can make arguments against the law, as it defends it. Yeah, that part made me giggle too. Then he goes on to write about how there is president for a President challenging law in court (in rare instances, he adds, never mind the many times the Supreme Court has commented that the President has this right, and to just what extent). All the while he's telling you the law won't disappear. Which is a great idea until you realize that's not true, especially when he explains that, upon not repealing, the court "would very likely allow lawyers for Congress or outside groups to appear and argue on its behalf. " Meaning, if a Federal court declared something unconstitutional and NO ONE OBJECTED, then the law is unconstitutional and thus not enforced. But if someone objected, that just means the court has to hear the arguments for keeping the law or not keeping it. And that brings us to the only real argument that can be made in this case, that the Supreme Court would agree with the President is a "tough argument to make." Now, I can see that as a reasonable point. But instead of discussing that, the President keeps feeding us a line we know to be misleading.

But, why not ask 1994 Dellinger what he thinks?

"If,...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. " (http://www.justice.gov/olc/nonexcut.htm)

Notice he wrote "probable" there? It's right after he talks about the President using his "judgment." There's no qualification of either, other than, if the President thinks the law is unconstitutional and he believes that there is a chance the court would agree with him, then he has the right to challenge a law.

In another post it was pointed out that the defenders of the passed HCR that, because it didn't include a public option and whatnot, you shouldn't let perfection be the enemy of the possible; but somehow in this instance that's not an applicable idea. We're told over and over again what the President can't do, when those arguments are found to be untrue. And when we don't buy into it, we're given a fear tactic. "A Republican President might appeal the Judge's ruling and reinstate DADT! And there will be no Congress to stop him!" Yeah, that's called a fear tactic. It's used because there is no rational argument to defend the DOJ's stance of, not only of not appealing the ruling, but challenge the law itself. As supporters of President Obama, we have to synch up his statements about being a "fierce advocate" and his actions. And, right now, that's very hard to do. Because his actions scream the opposite of "fierce advocate." And this causes many to begin to degrade the very people the President claimed to be advocating. We're told his hands are tied, or that we should fear what a Republican can do, or that we don't matter and our needs are putting in danger other important stuff, like HCR or the economy or the war. But that's just divisive. And at a time when many are complaining about who isn't voting for the Democratic Party, when we're being assaulted by disagreeable political groups like the Tea Party, when every Democratic nominee and incumbent needs support--these divisive actions aren't needed. They only hurt us. It's time to stop making excuses, to stop pretending, and unite in solidarity and stand for what the Democratic Party is, at its core, all about: equality. And to do what President Obama asked us to do two years ago--make him do his job.

[no limit]

4. THE ADMINISTRATION DOES NOT HAVE TO APPEAL THIS!!!!!!

Jesus, this is so fucking frustrating. The amount of deliberate misinformation on this site in regards to this issue makes it seem like this is the freerepublic and not the DU that I have come to love.

Obama is not under any legal obligation to appeal this.

If he didn't appeal this the issue would be done, DADT would be over.

Those are the 2 simple facts of the matter. Anything else is total bullshit.

[Bluenorthwest]

5. The administration is NOT required to defend the law in court.

If it were, they would have impeached Clinton for not defending the law of the land, because he did not follow this 'requirement' and they were sure out to catch him breaking a law.
A false premise like this just is not helpful.