Dan Savage: "The Clinton Administration Refused To Appeal The Court's Decision"

[Hissyspit]

http://slog.thestranger.com/slog/archives/2010/10/14/the-obama-administrations-unappealing-political-cowardice

The Obama Administration's Unappealing Political Cowardice

posted by DAN SAVAGE on THU, OCT 14, 2010 at 11:01 AM

In 1996, a federal judge ruled that a law barring HIV-positive men and women from serving in the armed forces was unconstitutional. And the Clinton White House—no model of courage on gay issues (see: DOMA, DADT)—refused to appeal the court's decision. Here's what Jack Quinn, White House Counsel in 1996, had to say at the time about the Clinton administration's refusal to defend the law in court:

"Based on this advice from the Department of Defense and Joint Chiefs of Staff, and after consulting with the Department of Justice about the legal effect of that advice, the President concluded that the Dornan Amendment is unconstitutional. It arbitrarily discriminates and violates all notions of equal protection. Again, at the direction of the President, the Attorney General and the Department of Justice will decline to defend this provision in court. If the Congress chooses to defend this treatment of men and women in the military, it may do so. But this administration will not."

The Obama administration claims that it has no choice but to defend DOMA and DADT in court—despite the president's having stated that he views both laws as unjust and unconstitutional. Take it away, John:

This is exactly what we have been arguing for a year and a half, and what the Obama administration and its apologists have been denying: The President has the power to not appeal a case if he so chooses. We were told that simply wasn't an option, we were told that even if it were an option it certainly wouldn't apply to a case involving gays being kicked out of the military, and we were told that all hell would break loose if it ever happened, and now we find out that it didn't only happen, it happened on a case dealing with kicking gays (let's face it, back then HIV+ was code for "gay") out of the military, and all hell didn't break loose, a later Republican president didn't retaliate, and locusts didn't descend from on high.

MORE

[GodlessBiker]

1. What a great OP. Thank you!

[Hell Hath No Fury]

2. Yup, Plain as day.

He and the AG are under no legal obligation to appeal a ruling. The appeals process is a legal remedy for challenging an outcome you disagree with.

[Hell Hath No Fury]

3. This is reallyl important information --

that many here need to see.

[Hell Hath No Fury]

4. I am just going to keep bumping this puppy up --

for more views.

[Hell Hath No Fury]

5. O must be feeling the Hot Seat --

he just Twittered about his issue. He could make it stop RIGHT NOW if he had the courage.

[Hell Hath No Fury]

6. Work it, girl work, the ramp!

Kick!

[The Philosopher]

7. You're obviously wrong

since it doesn't show Obama in the right. The DOJ HAS to appeal. They just have to!

:sarcasm:

[ProSense]

8. Clinton signed DADT and DOMA into law, but at least he apologized

I love when people who lambaste and ridicule the administration for something use Clinton to define a profile in courage.

CLINTON DEFENDS ANTI-GAY ADS, WILL NOT PULL THEM

President Obama ended the 22-Year Discriminatory Travel Ban

[Hell Hath No Fury]

10. Uh, that's not the point of the post and you know it.

O and folks like yourself cannot hide any longer behind the ol' "He HAS to appeal it!" crap anymore.

Just face it for once and be honest. There are no legitimate excuses let. :shrug:

[ProSense]

12. You know what I see

This very thing.

[Name removed]

15. Deleted message

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

[ProSense]

16. Yeah,

I'll take that as a non-response.

[treestar]

48. He doesn't HAVE to appeal it, but appealing it does not mean

the crap assigned to that or the meaning so many here make of it.

But for people who want to be offended, there is no way to help them understand something legalistic.

[Hissyspit]

18. It's not a pro-Clinton blog entry.

It's about precedent.

[Name removed]

20. Deleted message

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

[ProSense]

30. "It's about precedent."

Not only were the circumstances completely different, Clinton is the one who signed the bill into law, and he attached a signing statement to it

Over half of President Clinton’s constitutionally related signing statements were in the realm of foreign policy. In the 1996 National Defense Authorization Act, which followed his prior veto of a provision requiring discharge of HIV positive service members, the same provisio resurfaced. This time Clinton declared in the signing statement that the provision was unconstitutional and instructed his Attorney General not to defend the law if it were challenged.

However, President Clinton’s advisors made it clear that, if the law were not struck down, the President would have no choice but to enforce it. At a White House briefing on February 9, 1996,47 White House Counsel Jack Quinn explained that “in circumstances where you don't have the benefit of such a prior judicial holding, it's appropriate and necessary to enforce it. . .”

Assistant Attorney General Walter Dellinger added:

When the president's obligation to execute laws enacted by Congress is in tension with his responsibility to act in accordance to the Constitution, questions arise that really go to the very heart of the system, and the president can decline to comply
with the law, in our view, only where there is a judgment that the Supreme Court has resolved the issue.

Id. Congress subsequently repealed the provision before any court challenge was mounted.48

PDF

[foxfeet]

35. Did you even bother to read the OP?

Right there in the first paragraph:

And the Clinton White House—no model of courage on gay issues (see: DOMA, DADT)—refused to appeal the court's decision.

What part of that did you not understand?

[ProSense]

37. I read it, did you?

Because evidently a lot of people missed that the claim is flat out false.

[Hell Hath No Fury]

9. Hmmmmm...

I wonder where all those who have been insisting O is Constitutionally required to appeal this ruling are?? :shrug:

[Puregonzo1188]

11. Oh my. K&R.

[Hell Hath No Fury]

19. Oh my indeed.

What's the next excuse they are going to come up with, you think?? :D

[VMI Dem]

13. Rec. Thanks.

[DURHAM D]

14. Oh dear - what to do, what to do...

[Hell Hath No Fury]

17. Keep this fucker kicked.

I want the words "He HAS to appeal it!" eaten. With relish.

[Starry Messenger]

21. k & r

[GodlessBiker]

22. K&R

[donco6]

23. But - he HAS to appeal! He's a *constitutional scholar*.

I bet Clinton wasn't. See . . . there's your difference.

Oh, and :sarcasm:

[Hell Hath No Fury]

24. He HAS to!!!

WTF is wrong with you???? You are clearly not a legal scholor who knows the law and and the Consitution and stuff!!001!

SO STOP SAYING THAT! :D

[donco6]

27. And sexual PREFERENCE is A-OK!

God, WTF has happened to this place?

[Hell Hath No Fury]

32. Dude, don't you know it.

Sometmes I just shake my head going, "WTF??!?!?"

[Hell Hath No Fury]

25. Kicking for some cold. Hard. Truth.

:applause:

[xchrom]

26. Recommend

[bvar22]

28. This will cause a few heads to explode.

K&R

[donco6]

29. They're busy scrambling for some dismissive defense as we type.

Count on it.

[Hell Hath No Fury]

44. It's already appeared.

Clinton was an asshole to gays is the official response. :crazy:

[donco6]

51. Yeah, saw that! WEAK. n/t

[bvar22]

53. WEAK...transparent,

and pathetic.

[QC]

31. Bill Clinton must have had a magic wand!

:silly:

[Hell Hath No Fury]

34. Apparently so. Just ask Monica.

Sorry, couldn't resist! :D

[Unvanguard]

33. What court decision? The blog post he links to refers to no court decision.

What the Clinton Administration absolutely did not do was use a single district court opinion to change the policy. To the contrary, they said they would enforce it until a final court ruling invalidated it. If you read the news article that John Aravosis links to, Clinton's Solicitor General says effectively that. This is a poor parallel to the DADT case presently at issue.

There are other relevant differences. This was a declaration Clinton made immediately after the statute was passed. It was not a declaration made down the line by another President, with another Congress, after early court challenges had already failed. Immediately refusing to defend a law passed by Congress against your objection is one thing; refusing to defend a seventeen-year-old law that has already survived court challenges is another.

I think Obama should end DADT "by hook or by crook"; it is past time to do away with it, and the filibuster is probably a greater threat to democracy than executive action to evade it. I would have welcomed a decision on his part not to appeal (probably impossible now given the DOJ's emergency motion to stay), and I think his failure to do so is indicative of his general lack of firm commitment to advancing this issue, at least if he fails to end DADT some other way. But it's important to remember that Obama doing so would be an exceptional move. It's not a minimal baseline, below which anyone is an enemy.

[Hell Hath No Fury]

38. This information is important because so many --

have INSISTED that he is Constitutionally required to appeal every court ruling. And that is just BS. Would it be an exceptional move? Yes. But I think it is the best shot he has. Congress will NOT repeal it. The Supremes are sketchy at best right now. If he were to stop any appeal and soldiers came out and served openly even for a short time, the chances of getting that genie back in the bottle in future would be zero.

[BzaDem]

47. No one claims they are constitutionally required to appeal EVERY ruling.

The claim is that they are constitutionally required to appeal rulings for which there is a PLAUSIBLE defense under CURRENT precedent (not precedent we WISH existed). More generally, the claim is that the President cannot selectively enforce laws based on a subjective standard, since Congress decides which laws to enact or not enact. Any interpretation of the Constitution that would allow a President Palin to unilaterally stop Medicare checks (by not appealing an adverse ruling challenging the Constitutionality of Medicare) must surely be wrong.

From what I understand, even Clinton's former solicitor general in this 1996 HIV case agrees that Obama needs to formally appeal the ruling here. He simply thinks that in the appeal, the government should write that it agrees with the lower court's decision, and allow a third party (such as Congress) to present the defense the third party thinks is plausible.

[Unvanguard]

55. Okay. We are on the same page then.

What Obama is and is not "Constitutionally" required to do, I have no idea--what does "faithfully execute" mean? I don't think anyone knows with much specificity--but there exists precedent for both not defending laws and for not appealing losses due to presidents having substantive objections to the law. Neither would bring about constitutional crisis. Both, however, are in my view somewhat dubious on "rule of law" grounds, and should be kept constrained to a narrow set of circumstances.

I think this case qualifies.

[joeybee12]

49. What utter bullshit...n/t

[BzaDem]

50. Do you ever have anything substantive to say on this issue? Or do you just utter "bullshit" without

any justification at every post?

[foxfeet]

36. K&R

[Name removed]

39. Deleted message

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

[SaveOurDemocracy]

40. K&R!

[AtomicKitten]

41. BClinton was a veritable prince to the LGBT community.

:eyes:

[Hell Hath No Fury]

42. He was pretty damned shitty.

And that's not the point.

The point is Obama and his AG are under no obligation to appeal this court ruling.

The point is Obama can use an Executive Order if he so choose.

The point is the excused are being revealed as just that - excuses.

[Bluenorthwest]

45. Good god.

The pretense of missing the point is really disrespectful to the issue at hand. In addition, we in the GLBT community do not need to be instructed on how to view the multi faceted and complex Clinton administration years. Many of us were there and could explain to you in excruciating detail the ins and outs and most of all, the high stakes of that time. The fact is, kid, that after the Great Silence of the Reagan years, Bill brought a flood of needed boons to a community in deep crisis. Much of what he did allowed us to live to fight this battle today. So you got a line of snark, but it's not a smart one.

[Bluebear]

43. But Obama is a Constitutional scholar and has great abs!

:cry:

[treestar]

46. But Clinton signed the very law at issue now!

What would be "brave" about letting that decision stay? Isn't it cowardly not to want higher courts to consider it?

At least call it "judicial" cowardice, not "political."

[DURHAM D]

52. Sure.

Clinton wrote it and then cast 500 votes also. And Senator Nunn, David Boren and Colin Powell were all against DADT. Sure, sure, sure.

And, no he did not spend a total of political capital trying to let us serve openly. No he didn't.

Who should I believe - you or my lying ears and eyes?

[DeSwiss]

54. K&R

"Every decent man is ashamed of the government he lives under." ~ H.L. Mencken

[JDPriestly]

56. We are, possibly, already living in a military dictatorship -- by acquiescence.

Obama appears to be in the complete control of our military leaders.

[Demeter]

57. But...but...but

this administration wants to eat its cake and have it too, without ever baking one. Virtual cake...

[donheld]

58. I love Dan

[QC]

59. BUT DAN SAVAGE LICKED A DOORKNOB!1!!!11!

:cry:

[Recursion]

60. DOJ has a responsibility to defend if a case exists, not to make a new one

I grant that if someone challenges a law and brings a suit, and the DOJ can construct an argument for its being Constitutional, that it's their job to defend that law in court. But that doesn't mean they are required to initiate an appeal if they lose.

[cate94]

61. How do you tell kids that it gets better?

When we are bullied by the people who claim to be our advocates? What else can you call it but bullying when we are treated as less than? When our Presidents' adviser slips, and calls it a "lifestyle choice" . When our President "thinks" it is not a choice to be gay even though the facts are nearly irrefutable it is NOT a choice. When he defend laws they do not need to defend -despite saying he thinks the laws are wrong.

I've been waiting forty years for it to get better but kids are still being bullied to death.
Gay people still can't be out in the military.
I still can't be married to the person I love.
My job is still not protected.
Fuck, I still can't even get insurance through my partner's work.

And the President still doesn't think I deserve to be treated equally in any number of ways. He makes it very clear that I am not equal based on what he actually does. (But he tells me he is my fierce advocate, when his hand is out...) Sorry for the rant but honestly, I've just about had it.

[swilton]

62. Clinton could not stand up to the MIC

same thing for Obama. The way they excuse their lack of military service is with big stick foreign policy. Thus, they listen to the MIC about all issues including its embedded homophobes.

Behind the scenes, in Clinton's case at least, the military saw through the cowardice - Clinton was not well liked by those in uniform.

[Better Believe It]

63. K & R