DADT ruling: ".... the Justice Department is preparing to appeal ..."

[Hell Hath No Fury]

Well lookie here -- they are going to appeal. From a presser today with Gibbs:

"The White House said Wednesday that recent court decisions have demonstrated to Congress that the “Don't ask, don’t tell” law will soon end — it’s just a matter of how. 

White House press secretary Robert Gibbs acknowledged the Justice Department is preparing to appeal a court’s decision against the law preventing gays from serving openly in the military, but said President Obama is still committed to ending the policy. 

“This is a policy that is going to end,” Gibbs said. “It's not whether it's going to end. It's about the process.” 


Gibbs said the pressure is on the Senate to change the law, but the president is still working with the Pentagon, which should conclude its review on ending the policy in December, to change the law if Congress won’t. 

http://thehill.com/homenews/administration/124073-white-house-time-is-ticking-on-dont-ask-dont-tell


Color me surprised.

[EC]

1. I'm guessing that they need to play this out to get it to

the highest court and settled once and for all...if enough descents are written by the lower courts it should make it harder for the Supreme Court to overturn...

[ruggerson]

6. that doesn't make sense

if they don't appeal, the law is dead.

And the ruling applies worldwide.

[TheWraith]

9. It's because they're legally bound to defend federal law. nt

[ruggerson]

12. not if the law has been found unconstitutional n/t

[JustinL]

13. bound by what law?

What law was broken in the following instances?

In fact, George W. Bush (ACLU et al., v. Norman Y. Mineta - "The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems."), Bill Clinton (Dickerson v. United States - "Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda.... Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court's Miranda cases."), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha - "Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.") all joined in lawsuits opposing federal laws that they didn't like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.

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

[TheWraith]

16. All cases where the law contradicted PRIOR PRECEDENT.

This is a precedent setting case.

[JustinL]

29. you didn't answer the question of what law REQUIRES the DOJ to appeal

Judge Phillips' ruling that DADT is unconstitutional was firmly grounded in Supreme Court precedent, including Lawrence v. Texas.

[treestar]

19. You are mistaken

The law is still alive in the different circuits and can come up in each one of them with different results in each circuit. If the SCOTUS has not decided an issue, it's still open.

[TheWraith]

21. Bingo. This is why we should want ALL of these sorts of cases appealed to the SCOTUS.

Moreover, a SCOTUS decision--like a repeal through Congress--guarantees that the policy is truly dead and can't be revived by the next Republican administration.

[Unvanguard]

23. That's not true. It's a nationwide injunction. Its scope is not limited to the Ninth Circuit.

If it is not appealed, DADT is dead. The only recourse is to pass another statute doing the same thing, allowing for the litigation process to begin again, but that won't happen.

[ruggerson]

25. Correct. Actually it's a worldwide injunction.

in that it is applicable to US Servicemembers anywhere on the planet.

[ruggerson]

24. No you are mistaken - read the ruling

Her ruling is applicable worldwide too ALL servicemembers.

[Unvanguard]

10. The Supreme Court delights in overturning Ninth Circuit opinions.

I'd rather not give them a chance.

I hope Gibbs is right, and the Obama Administration is going to end this in the next few months whatever happens in Congress. But if he is not, there is no guarantee that this litigation will end DADT in a timely fashion, or that it will end DADT at all. We could easily be waiting for many more years.

[TheWraith]

17. Not really. Only a microscopic fraction of 9th Circuit decisions get overturned.

And contrary to myth, it's not the most overturned circuit of the COA. That would be the 4th.

[Unvanguard]

22. Only a microscopic fraction of them ever get past the cert. stage.

But, if the case is not mooted by then, a Ninth Circuit decision upholding a universal injunction against the enforcement of DADT is pretty sure to get to the Supreme Court.

You're right about the affirmation/reversal levels, though. Having just checked SCOTUSblog's stat packs, the Ninth did worst in the 2008 term (probably what I am remembering), but much better in the 2009 term, and the numbers are too small to make too much of the percentages anyway.

Nonetheless, it remains true that a Supreme Court decision upholding this ruling is very far from a sure thing.

[Unvanguard]

2. The most important part of this article:

"Gibbs said the pressure is on the Senate to change the law, but the president is still working with the Pentagon, which should conclude its review on ending the policy in December, to change the law if Congress won’t.

“The best way to end it is for the Senate to follow the lead of the House of Representatives,” Gibbs said. “But absent that, the president has set up a process to end this policy.”"

If this is for real, I'll take it. If the Obama Administration is willing to get rid of the policy without Congress, the case for not appealing Judge Phillip's ruling is weaker; they can appeal to buy themselves a little time and soothe the Pentagon's insecurities, and then end it after the review, whatever Congress does, anyway.

The main cost is another two months or so of DADT--certainly not trivial, but perhaps worth it if it means Pentagon cooperation in getting rid of the policy and replacing it with a non-discrimination rule.

Edit: Though depending on the means they use, it may be less permanent than Judge Phillips' permanent injunction.

[Hell Hath No Fury]

4. Sorry, but I don't trust them an inch on this issue.

They have -- and will continue to -- kick this can down the road as far and as long as they are able. Those are just a lot of perty words to keep us believing.

[Unvanguard]

7. It's the first statement from them about a non-Congressional option.

I think that is significant. When the administration is just using "perty words"--which it does incessantly on this issue--they are generally absent in specifics. This is specific.

I guess we will have to wait and see.

[kevinbgoode]

3. Fierce advocacy at work!

And how is the White House going to accomplish this? With 59-60 votes, the Democrats can't seem to set any policy. . .and this President is always more concerned about placating conservatives than anyone else in this country.

[LonePirate]

14. Agreed. I wish Obama would spend some time trying to please the progressive left

He has spent far too much time pandering to the right while forgetting all about the people who actually voted for him. This pending appeal is but another piece of evidence for his lack of concern and support for issues important to the LGBT community.

[treestar]

20. Do you ever wish Congress has more progressive leftists in it?

All of a sudden an all powerful executive seems attractive.

[shawn703]

5. Is this the straw that breaks the camel's back?

It's getting close for me. This won't affect my mid-term vote if they appeal, but I will place blame where it belongs in a 2012 primary. I want a president that will take a stand for what's right.

[Hell Hath No Fury]

8. I mentioned on another thread --

that after the recent gay taunting suicides that this has become a ZERO tolerance issue for me. I will not vote for a candidate who is not 100% pro-gay rights. Take that how ever you like.

[treestar]

18. Unless there was a bill on his desk, passed by both houses,

repealing DADT and he vetoed it, then your assertion makes no sense.

You would need the SCOTUS appointments from Democrats. That would be essential as the issue will eventually get there.

[PFunk]

11. If they appeal this then they have all but lost the gay vote

And since that also includes both money and 'boots on the ground' support that's not good. It could also ring a sour note in many progressives/liberals as well. Which will make it that much harder for the dems not only in nov, but in 2012 as well.

Talking about shooting yourself in the foot.

[BzaDem]

26. Yeah. The Republians (ALL of which voted against the legislative repeal) are a MUCH better option.

Talk about shooting yourself in the foot.

[kevinbgoode]

27. Right. . .or shooting ourselves in the head with the Democrats.

The behavior of this Administration toward my community is reprehensible. There are other parties in this country besides the crazy-ass Republicans.

Like the vast majority of Americans who would like to see an alternative to both these parties, I'm beginning to see a need for alternatives myself. I have no idea who the people elected to Congress represent at all, but it sure as hell isn't the ones who campaigned and supported them.

[BzaDem]

30. "There are other parties in this country besides the crazy-ass Republicans."

Nope. Not true. There is no party other than the main 2 that might ever actually govern the country in any capacity.

[MadHound]

15. Well gee, if the Obama DOJ wouldn't appeal,

DADT would end. Instead, they feel the desperate political need to take credit for ending DADT, so they're going to try and knock this out so they can, maybe, come along later and end DADT themselves.

This is going to backfire in their faces. By the time an appeal works through, we'll have a new, more conservative Congress and repealing DADT will be off the table. And don't even think they'll repeal DADT during this upcoming lame duck session, they won't. The 'Pugs are going to know that all they have to do is stall for five weeks and then they will have the top hand.

This is simply playing politics with the civil rights of American citizens. Obama and this administration should be ashamed.

[Jamastiene]

28. OMFG, FFS!

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