Anyone who thinks any district judge should be permitted to strike down a law without any review

[BzaDem]

when higher court precedent upheld the very law in question, does not take the rule of law seriously.

It doesn't matter that we all think the higher court precedent is wrong. It doesn't matter that we all think that DADT is unconstitutional. Higher courts have upheld DADT. That is the only relevant question, no matter how much we dislike it. A district court judge should not be permitted to go against higher court precedent without any review by the higher courts. If a district court judge were allowed to do so, ALL progressive legislation would be at risk in the future.

An appeal gives higher courts the opportunity review and reverse past precedent. But until they do, their ruling is binding. That's how the rule of law works.

The entire argument that Obama should appealed comes down to "the ends justify the means." In other words, when Bush ignores the law to achieve a conservative cause, everyone correctly criticizes him. But if Obama were to ignore the law to achieve a progressive cause, well that would be just fine, because the result would be something we want (as opposed to something we hate).

That is despicable.

[fasttense]

1. The Rule of Law?

Hmm, seems to me we have NO Rule of Law in the US, more like the Rule of Money. The richest people in the US never fall under that rule of law. The bushes for 8 years were able to ignore the law and never got prosecuted for war crimes, torture, bribery, and treason.

Banks are able to develop vast ponzi schemes or other cons, make billions off of unsuspecting marks and get rewarded by the government with bailouts and guarantees. Even the highest court in the land, the Supremes, are compromised by their personal politics (and I believe by bribery). They even ignore well established law to push their political agenda, like selecting our president for us and making corporations into people.

So really, do we have any rule of law? Or is it the whim of a few very rich and powerful people that rule this land?

So, it really doesn't matter if the Obama administration appeals it or not. The final decision lies with the very rich. Their whim is what will determine the outcome.

[pintobean]

2. Excellent post.

My daughter and I were discussing DADT last night. I predicted that it will be repealed long before it winds its way through the courts.

[Warren Stupidity]

3. nonsense. The decision to appeal or not appeal is entirely appropriate

and routine. For example:

"NEW YORK – The government will not ask the Supreme Court to review a decision that struck down Patriot Act provisions that allow the government to impose unconstitutional gag orders on recipients of national security letters (NSLs). NSLs issued by the FBI require recipients to turn over sensitive information about their clients and subscribers. A lower court ruled in 2007 that the gag order provisions were unconstitutional, and the U.S. Court of Appeals for the Second Circuit upheld that ruling in 2008. The government's time for petitioning the Supreme Court for review has now expired. "

"Asks Supreme Court to Keep Canadian Rendition Victim Maher Arar from His Day in Court
NEW YORK – Late yesterday, the Obama Department of Justice chose to weigh in for the first time on the Center for Constitutional Rights (CCR) case on behalf of Canadian citizen Maher Arar against US officials for their role in sending him to Syria to be tortured and detained for a year.

Lower courts concluded that Mr. Arar's suit raised too many sensitive foreign policy and secrecy issues to allow his case to proceed. If the Court of Appeals decision is allowed to stand, say rights groups, the federal officials involved will remain free of any civil accountability for what they did to an innocent man.

The Obama Administration has opposed Mr. Arar's petition for certiorari, arguing that his case was properly dismissed, and that the Supreme Court should not consider it. The Obama administration could have settled the case, recognizing the wrongs done to Mr. Arar—as Canada itself has done. Yet it chose to come to the defense of Bush administration officials, arguing that even if they conspired to send Maher Arar to torture, they should not be held accountable by the judiciary."

The justice department makes POLITICAL decisions about what to appeal and what to not appeal.

[BzaDem]

7. That's because there was no higher court (in this case Supreme Court) precedent upholding the law.

In the case of DADT, there is actual, direct, higher court precedent that upheld the very law (DADT) at issue.

So this case is really the exact opposite.

[northzax]

118. you know those were both circuit court decisions, right?

not one judge. which is the point of the OP?

find me a time when this administration has decided not to appeal a finding by a federal judge, not a panel, a lone judge. and...go.

[MadHound]

4. Really? So what happened here?

<http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=389&topic_id=9324728>

Sorry, but you can't have it both ways, nor can the Obama administration. Or the Clinton administration.

Face it, administration after administration have refused to appeal certain court cases for whatever reason. It doesn't shatter the "Rule of Law" or anything else. It simply means that the president is using the court system to push through his own agenda.

Which is apparently what Obama is doing here, pushing his own agenda. He is using the court system to do his dirty work in fighting the overturn of DADT and in codifying the AG's material witness travesty. It isn't about the rule of law, if it were about the rule of law in the fashion that you advocate for, then the administration simply wouldn't have the choice but to appeal. But they do have that choice, which suggests that our leaders have been given the option to choose.

Sadly, tragically, they're refusing to use it. And thousands of people will suffer for their lack of wisdom.

[BzaDem]

6. That is the opposite case. There was no higher court precedent ALREADY upholding the law.

In fact, a reading of case law would indicate that precedent strongly counseled against the constitutionality of the national parks law.

Here, not only does precedent indicate that DADT is constitutional, but there is actually circuit court precedent directly HOLDING DADT constitutional. Just last year.

I think the precedent is wrong, and that DADT is unconstitutional, but that doesn't mean the precedent doesn't exist or isn't directly on point.

[MadHound]

9. Wha. . .?!

Sorry, but you are simply cherry picking. If the president has the ability to choose which case is appealed and which isn't, then it is apparent that he is simply letting the court do his dirty work.

You are simply, blindly, supporting this administration's actions, no matter what they are, and in the process tying yourself up in legal and ethical knots in order to justify the unjustifiable. The president is letting stand one law, the parks law, that is, as you say, lacking in constitutionality, while appealing others, DADT and the Ashcroft, whose constitutionality are equally suspect. Oh, and on DADT, the federal district court found it to be unconstitutional.

You're just spinning and spinning, willing to sacrifice anybody and anything in your quest to have unquestioning support for Obama.

[Prism]

10. If a thousand monkeys sat at a thousand search engines . . .

Actually, I'm pretty sure that's what we're watching. They're struggling to find any rationale or excuse to justify a defense of the administration they were decided upon from the word go, gay people be damned.

Rule of law. My god. After what is going on with the Fourth Amendment? Everyone's super hyper conscious about the constitution?

Whatever. It's hilarious.

[BzaDem]

13. The funny thing is your post EXACTLY describes you and others, who spin and spin and spin

to try to argue for not appealing when higher court precedent already upheld the law (rule of law be damned). You may as well just say "ends justify means when I like the result" over and over.

These types of posts are indeed hilarious. Your post is a perfect example of projection.

[Name removed]

17. Deleted message

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

[Name removed]

19. Deleted message

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

[msanthrope]

23. Can you explain how Cook v. Gates goes away if this circuit-split isn't pursued?

Not for anything, but can you explain your theory of how a district court in the 9th overrides an appellate court in the 1st?

I mean, I hate to discuss actual cases and facts, but in the middle of your rant about how Obama can just 'not appeal,' can you explain how Cook v. Gates goes away?

[Statistical]

37. You are mistaken Cook v. Gates never upheld DADT as Constitutional.

In Cooks v. Gates the court dismissed the case on the basis of no proper claim. The court rules narrowly. The court could have laid out reasons why DADT is Constitutional (and as such it would be a powerful precedent). Instead the court found fault w/ the suit as brought by the plantiffs without going so far as to DADT is Constitutional.

While the end result is the same (DADT wasn't overturned) it is very different than a precedent saying "Yes DADT is Constitutional and these are the reasons". This is more like "There are legal issues with the claim you make in your suit".

DADT wasn't upheld in Cooks therefore it isn't a precedent of anything.

[BzaDem]

42. Bullshit. The court dismissed the claim after applying rational basis review

and finding it passed, after applying Lawrence v. Texas to the question in the case.

Read the opinion.

[msanthrope]

43. Holy Crap--did you not read the decision? You know, the one from the 1st Circuit?

Yes. Cook upheld the consitutionality of DADT. It did change the scrutiny level, however...

[Name removed]

36. Deleted message

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

[BzaDem]

12. Now you're just spinning. You can't find a single example of a law where an administration

did not appeal when appellate court precedent actually upheld the same law.

[Name removed]

15. Deleted message

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

[MadHound]

38. Umm, I linked to one upthread,

An appellate court upheld the law that allows Christians to proselytize in public parks, the Obama administration refused to appeal.

Any other stupidity you wish to trot out?

[BzaDem]

40. Once again, you fail to point to the precedent upholding said law (as there is with DADT). n/t

[MadHound]

51. No, I'm not,

Here, read the precedents involving Boardley v US Dept of Interior.
<http://caselaw.findlaw.com/us-dc-circuit/1534174.html>

You simply don't want to admit that this administration really doesn't want full civil rights for everybody, and is using this conservative court to advance that policy.

[BzaDem]

56. Please point out the precedent that actually upheld the law in question.

It should be in the form of

__________ vs. ____________

It should have a line that says the statute in question is Constitutional. A quote of this line would be helpful.

I'm waiting.

[MadHound]

64. Wow, you are a lazy learner

You want everything handed to you without any effort on your part. Don't you understand that digging for something actually enhances your education. The information is in there, go find it.

[BzaDem]

69. The problem is that the information is NOT there, because it doesn't exist. The case you quoted

downthread did not rule the portion of the statute at issue constitutional.

[MadHound]

74. Damn, where's a facepalm graphic when I need it.

I give up, you are another who is so blinded by loyalty to this administration that you're willing to twist and spin everything to serve your purpose, even if it is black and white.

[BzaDem]

75. At least I don't make statements without being able to back them up, and then immediately change the

subject when called out on it.

[MadHound]

78. No? Really?

:rofl:

[msanthrope]

21. No--you are the one who is cherry-picking--

Look, not a single person on thie board has been able to explain just how you refuse to appeal the DADT decision in the 9th district court, AND how that overcomes or overrules the appellate court ruling in the 1st---

What are you going to do with Cook v. Gates? That found DADT constitutional. Last year. And that was an well-respected appellate court, not some district court in the 9th.

Now you have a circuit split. Now you can ride the case, and SCOTUS cannot do what it did last year--decline to hear Cook v. Gates.

[MadHound]

41. Or you let the case stand,

And DADT is gone. But I guess you would rather the "law of the land" be upheld than people's civil rights.

I suppose that back during the fifties and sixties you were also this adamant about following the "law of the land" when it came to African American civil rights as well.

[msanthrope]

47. Really--explain to me how Cook v. Gates goes away???

[Name removed]

52. Deleted message

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

[msanthrope]

60. Why would it go away? Doe won on appeal. Did you even read it? n/t

In fact, that's part of the precedent you would cite in declining to appeal Boardley....

Thanks for making my point.....

[MadHound]

65. I don't know how you read the law, but you are reading it wrong

But then again, that's to be expected.

[msanthrope]

73. I'm sorry, was her conviction not overturned?

"For the foregoing reasons, the judgment of the district court and Nomad's conviction is reversed. In light of government counsel's steadfast insistence at oral argument that the constitutionality of the regulation was a question of law which could not be supplemented by additional factfinding at the trial court level, we order that the charges against Nomad be dismissed.

It is so ordered."

http://ftp.resource.org/courts.gov/c/F2/968/968.F2d.86.91-3111.html

Wouldn't this support the administration's decision to not appeal Boardley?

[MadHound]

87. Umm, no

But hey, if you want to go ahead and think that, go for it. Nothing is going to stop your blind support of this administration's horrible civil rights record anyway, so it is pointless to argue with you on this.

[msanthrope]

96. "the judgment of the district court and Nomad's conviction is reversed."

http://ftp.resource.org/courts.gov/c/F2/968/968.F2d.86.91-3111.html

What am I missing?

[BzaDem]

49. That's a pretty dumb analogy. The problem in the fifties and sixties was the violation of

the law of the land when it came to African American civil rights. The problem wasn't that people were "upholding" the rule of law -- the South was doing no such thing.

[MadHound]

53. The law of the land, written in the law books of states across the South

Was institutionalized segregation. Or have you never heard of Jim Crow laws.

Geez, your lack of historical knowledge is incredible.

[BzaDem]

55. And that law violated the federal Constitution, according to Supreme Court precedent. nt

[MadHound]

61. Actually, no, many of them did not,

Many of them had been taken all the way to the Supreme Court in the late 19th century and found Constitutional. Or have you not heard of Plessy v. Ferguson?

[msanthrope]

70. Plessy was found to be wrong then, and wrong now. "Wrong the day it was decided."

So, in fact, it is incorrect to state that Plessy was ever 'right.' It was always wrong, and it took us a while to realize it.

Bowers went the same way...

There are cases that are merely overturned. Plessy was not one of them..it was repudiated.

[MadHound]

80. Really? It was the "law of the land" for decades

Some repudiation there, took them a long while to repudiate it. Is that what it will take to get rid of DADT, more decades of bad law? Is that what you want?

[BzaDem]

71. Brown vs. Board of Ed overruled Plessy, and it was taken to the Supreme Court.

Which is EXACTLY the process that is used to overturn Supreme Court precedent.

Thank you for proving my point.

[Name removed]

81. Deleted message

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

[BzaDem]

89. So according to you, Plessy wasn't overruled by Brown in the Supreme Court?

:rofl:

You are correct that someone in this conversation is delusional.

[msanthrope]

97. Apaprently not....Jeebus. n/t

[MineralMan]

120. I think that most definitely is a personal attack, and does nothing

to address the question at hand. Argue the issue, please. Don't attack other DUers on a personal level, please.

[grahamhgreen]

27. +1

[treestar]

107. No, you simply do not have patience with the court system

That may be satisfying emotionally, but not for long.

You're talking about legal and ethical issues as if you know what they are or care about them at all.

Your reaction to this case shows you have no intention of understanding the court system, since that would mean you have to calm down and give up this silly outrage.

[msanthrope]

16. funny how certain people on this board just refuse to look at Cook v. Gates, right?

Because that little fact is inconvenient....

[treestar]

106. Blatant hysteria

Disagree with his way of doing it, but quit saying he does not want to do it.

[BzaDem]

141. Exactly. Anyone who says this shows Obama is "pushing his own agenda" or is homophobic

loses all credibility.

[seabeyond]

5. obama is doing what we demand of him, not doing what bush did that outraged us

it isnt to our advantage but he is holding to integrity. adn we chew him out.

i didnt know much about this until yesterday and i started listening. it is pretty clear adn consistent with people saying obama doing what he is doing is exactly what bush did not do. what we were so angry with bush for doing.

there is gates and top general saying law doesnt work. report coming out in dec 1. mccain filibustering saying dems rushed it in past. which they probably did, but cause they wanted it dissolved.

it does not seem to me that obama is being anti gay.

it is like the mosque. he stated the facts and is hammered cause it did not meet popular opinion.

i thought we were suppose to respect this type of politicians.

i thought this is what we wanted.

[golddigger]

8. The rule of law? What a freakin joke.

[donco6]

11. You can bang that drum all you want.

But we all know what's really going on.

[uponit7771]

14. FUCK FACTS!!!!! /saracsm

[Catherina]

18. The rule of law? Seriously?

Good God. No wonder things are so fucked up.

[BzaDem]

20. Yup. Seriously. n/t

[Kurt_and_Hunter]

22. To me the question isn't review

The question is why seek to stay the lower court ruling?

Arguing for a stay requires arguing that some actual harm to the appealing party comes from the decision being stayed.

That is my objection.

Appeal if you must but not seeking a stay.

[BzaDem]

24. I actually agree with that, and I was hoping the 9th circuit would deny the stay request.

Obama has stated that DADT actually harms national security, so it seems farfetched to claim that suspending it would cause irreparable harm.

[msanthrope]

29. I think it's a combination of usual practice, and, the very real fear that

should you have members of the military begin to 'tell', you could have a very real backlash.

Why? Because you have no military regs that protect gay members from discrimination.

That's one facet of 'orderly' repeal--when you take away DADT, you are also going to have to rewire some parts of the UCMJ that outlaw things like sodomy, etc..

You also need to put in regulations that specifically protect gay servicemembers....and there's nothing like that, right now.

[BzaDem]

30. The point was that while it was necessary to appeal, it wasnt necessary to have a stay.

While the appeal is going on, the military should and does advise people not to come out in the meantime, in case DADT is upheld again. (They did this even during the stay.)

The stay would have meant that they had to stop discharging people in the meantime. That would have been a good thing thing.

[msanthrope]

31. I agree--but aren't discharges on 'hold 'due to "Witt?"

In fact, as the US government made clear in its Objection to Injunctive Relief that it was currently following the "Witt" standard with regards to the discharge process...(p. 2)

http://www2.advocate.com/pdfs/injunction.pdf

This new standard pretty much gums up the works.

[BzaDem]

33. I don't think discharges were on hold due to Witt. I think Witt just said that people could

challenge a discharge in court, with a more favorable standard than before. I could be wrong though.

[msanthrope]

99. When I say 'hold', I mean, subject to the standard in Witt...

This slows them, allows for more process, and hopefully, enough time for repeal.

[msanthrope]

25. It's usual practice---

In 99 percent of litigation, any litigation, you ask for a stay pending appeal.

Criminal cases, too.

Plus, as I noted above, the military currently has no laws or regulations that protect gay servicemembers from discrimination, and 'sodomy' is still technically a crime....

[Statistical]

34. Utter BS.

While it is done as a matter of procedure it isn't required. This is a somewhat unique situation as some claim Obama is only pushing this to END DADT (I think that is garbage) but that is the claim of the apologists. To then request a stay makes a bad situation worse.

There is no need for a stay. The stay wasn't done to protect gays from themselves.
The Obama administration has made the claim that the injunction (preventing gays from openly serving) causes serious and irreversible harm to national security. One can't request a stay in good faith without indicating that DADT is both Constitutional and also necessary.

While there are no laws that protect servicemen from being gay there are also no laws in many states that protect anyone from being gay.
Assault regardless of reason is a crime under UCMJ.
Insubordination regardless of reason is a crime under UCMJ.
Failure to follow regardless of reason orders is a crime under UCMJ.

While the sadomy reg is in the UCMJ and it does need to be changed it is hardly so pressing as to require a stay. Many straight servicemen break that regulation routinely and without consequence. The military could modify sodomy reg separate from any DADT challenge.

There was absolutely no legitimate reason to request a stay. To claim it is to "protect the gays" from themselves is beyond the pale.

The apologists are disgusting.
If Obama forced gays into camps some on DU would claim:
a) he had no choice
b) it is for their own protection

[msanthrope]

50. There are no laws, currently, in the military that protect gay servicemembers,

That is a fact.

"There was absolutely no legitimate reason to request a stay. To claim it is to "protect the gays" from themselves is beyond the pale."

That is not what I wrote, and you know that. Which is why you didn't quote me--you just made crap up.

Are there laws and regulations that protect gay servicepeople? Can you name one?

[Statistical]

54. While it is a fact it is a bogus one. There are no laws that protect left handed soldiers ...

there are no laws that protect tall soldiers ...
there are no laws that protect red headed soldiers ...
there are no laws that protect fat soldiers ...
there are no laws that protect XXXX soldiers ...

However there are laws that make ANY ASSAULT a crime under UCMJ.
There are laws that make ANY INSUBORDINATION a crime under UCMJ.
There are laws the make ANY CRIMINAL CONSPIRACY a crime under UCMJ.
There are laws that make ANY HARASSMENT a crime under UCMJ.
There are laws that MAKE ANY FAILURE TO FOLLOW A LAWFUL ORDER a crime under UCMJ.

It is likely that even AFTER DADT is ended there will never be laws that specifically protect gay servicemen.

So this claim that Obama must issue a stay until some laws can be written is bogus.

If a soldier attack a straight service member = IT IS A CRIME.
If a soldier attack a gay service member = IT IS A CRIME.

If a soldier refuses to follow lawful order of a straight superior = IT IS A CRIME.
If a soldier refuses to follow lawful order of a gay superior = IT IS A CRIME.

Starting to see the picture.

[msanthrope]

63. If a military chaplain tells his congregation that all gays, even gays who serve,

are going to hell, is it a crime? Against regs?

If a superior officer makes disparaging remarks regarding gays, can you name the the military regulation that punishes the officer, and protects the servicemember from discrimination?

Do you think military culture changes overnight?

Or do you think it might be a good idea to have a few military regulations that might spell out what the repeal of DADT means?

[Statistical]

76. If a military chaplain said all left handers are possessed by the devil

and are going to hell is it a crime? Against regs?

Not specifically but there are numerous ways to prohibit that. A superior officer could prohibit that activity.

If a superior officer makes disparaging remarks regarding gays can you name the military regulation that punishes the officer?

Very easy.

All "superior officers" have a superior officer OVER THEM. All except one and his name is Obama. Obama (or more likely one of the joint chief of states) issues a standing general order prohibiting those actions. Would it require courage on Obama part. Of course. It would require standing on principles no matter how politically unpopular.

So what happens if someone violates a general order .... well lets see.

Uniform Code of Military Justice - Article 92
Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.”

So what is a general order and who can issue one ...

(1) Violation of or failure to obey a lawful general order or regulation.
(a) General orders or regulations are those orders or regulations generally applicable to an armed force which are properly published by the President or the Secretary of Defense, of Transportation, or of a military department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by:
(i) an officer having general court-martial jurisdiction;
(ii) a general or flag officer in command; or
(iii) a commander superior to (i) or (ii).

When I was in Iraq we were subject to numerous general orders that took effect the second we touched iraqi sand and stayed in effect until we left. There was no need to pass new regulations. Doing so would be cumbersome and difficult. Many people forget the military isn't a democracy. If a superior officer issues a lawful order then you follow it or you are commiting a crime. Period.

This could have been done by Obama (or a supporting general) the day that DADT was found Unconstitutional.
The administration could have issued a series of blanket general orders specificly prohibiting various activities.
Every single officer in the military would be required to uphold them. Some wouldn't and that is what court martials are for. Some homophobe colonel getting a court martial, dishonorable discharge and losing lifetime pension would make the necessary point.

The idea that the stay was to protect the gays is disgusting. It is blantantly untrue. The stay is to protect the administration in an election years. Gays = not good for votes. Please don't insult anyones intelligence with your false claims.

[msanthrope]

95. Okay--So you agree with me--there is no order that protects gays?

And further, you seem to agree with me that some new order/reg/law might be a good thing, right? Because let's not fool ourselves, just because DADT is over, does not mean gays in the service are going to be accepted without question. You need some administrative change.

So you propose a general order? Right? Like the kind you had in combat operations?

But a general order doesn't cover housing, benefits, dependents, etc....right?

And general orders seldom happen overnight, do they? Especially ones involve lots of issues, lots of people, right?

That takes a little time. Right now, this stay is measured in months.

On edit--it took the services nearly six years to desgregate, once Truman ordered it. That is NOT a good thing, but it does suggest that it will take time.

[Statistical]

113. A general order can be issued in minutes.

You seem to suggest that since it won't be perfect for gay soldiers (benefits for partners, housing, etc) they should be simply prohibited from even being themselves at all under any limited fashion until IF/WHEN Congess and/or SCOTUS allows it.

That is the "best" solution? For who? Certainly not the soldiers serving.

A general order can be as complex or as simple as needed. No reason a JAG officer team couldn't draft a general order that at a minimum prohibited harassment of gay soldiers. That could be done in a matter of days. It has been over a week and he Obama administration didn't do anything to protect gay soldiers instead they request a stay instead.

The say has NOTHING to do with protection gay soldiers.

[TheKentuckian]

26. Playing the lame ass "rule of law" card makes one a hypocrite. The rule of law is regularly ignored

and shat upon. This President has declared he can order the murder of American citizens without so much as an indictment, much less a trial and conviction.
He has maintained Bush's unconstitutional private Army of the Executive. He has allowed heinous crimes to go without any challenge for political expedience. He has allowed the wealthy to pillage and burn our nation for their own profit without consequence, covered for destruction of our habitat for the benefit of a criminal and destructive industry, he has cut deals for the benefit of the insurance cartel and Pharma con-artists and some insist on rolling out a laughable Dudley DooRight defense, pretending the President is some paragon of justice and stalwart of our legal system.

Our honorable and pure Galahad is no overmind of justice but a craven pol that falls back on the law when it serves him while utterly tossing it out when he thinks it serves him, power, or the wealthy.

[BzaDem]

28. You finally admit it. To you, the rule of law is dispensable when you favor the result. n/t

[TheKentuckian]

82. No, "the rule of law" is inoperative when applied randomly or when the wealthy and connected are

exempt. It is also inoperative when it is okay to end around for political purposes or when it is "too hard" but solidifies and must be adhered to, to the point of a suicide pact when the establishment wants to maintain an unconstitutional law to maintain a wedge issue.

It is you who stands for inconsistent application of justice. I'm not commited to any "rule of law" that is used as a weapon against the masses and the disenfranchised and quickly forgotten when it is to demand remedy from the rich and powerful.

I'm not the hypocrite that thinks torture can be ignored, criminal extraction of wealth and property can get a pass, but a legal tradition with zero force of code must be dutifully maintained to the detriment of real human beings that put life and limb on the line for our nation.

You support murdering American citizens without benefit of even a fucking indictment and maintianing an army without congressional oversight and review but want to die on this hill? There is no law here but you can tolerate the very basis of our law and source of authority of our government being violated and ignored? Please! Take that tired and twisted "logic" and space it.

What justice?

[BzaDem]

93. Why in the world do you think I support all of Obama's positions on civil liberties? n/t

[TheKentuckian]

98. Because you are rolling with the Dudley Doo-right defense when its clearly bullshit

You don't get to use the straight arrow argument for people that play fast and loose at their convenience.

You can't shit on the very basis of our law and turn around and use the law as an excuse for continuing and fighting for a law that violates those essential values.

The law has failed. Justice for some, sometimes, when its easy and blatant disregard when it is advantageous politically is not workable or supportable.

This double standard shit erodes faith in the system and respect for the codes.

Using this defense means you support the destruction of our civil liberties or you'd be attacking in that area with similar vigor as you mount this contextually sadsack defense.

Quick to call hypocritical stances but slow to admit to one, is what I see.

I think I've been clear that I can respect this stance only when it comes with an even hand and value placed on the law, regardless of who it is applied to.

[BzaDem]

102. "You can't shit on the very basis of our law." I am not shitting on the very basis of our law.

I oppose certain aspects of Obama's anti-terrorism policy, and I believe that the DADT case must be at least formally appealed (though no stay is required).

I'm not "admitting" a hypocritical stance because I don't see myself as being hypocritical. Both positions are consistent with the law.

Obama may very well be a hypocrite, but that has nothing to do with whether or not Presidents (in general) should appeal district court rulings throwing out a law when there is higher court case law upholding the very same law. All Presidents should appeal rulings in such a case (not just Obama).

[seabeyond]

46. which is what we were disgusted with about bush and what we wanted stopped...

except when we dont?

[TheKentuckian]

92. We aren't stopping a damn thing. The assault on civil liberties rolls on, criminals admit their

and brag on their actions without any reprisals. Corporate entities continue to pillage, rob, and even murder without accountability.

You are at least as accepting of hypocrisy as I. I'd swallow this if adherence to the law was uniform but it sure as hell isn't and is not heading in that direction. Instead, the law is being used as a defense for snakebiting while criminals go free and are rewarded with wealth, fame, and godlike deference.

You bring me a real straight arrow instead of a bunch that plays one when it serves some need and I'll back you but Obama is almost as bad on civil liberties as Bush (and worse in areas) and only slightly more willing to prosecute corporate criminals.

This tact is fucking bullshit and you know it. You wanna be law and order then it better be consistent or you may as well be passing gas.

[seabeyond]

94. You are at least as accepting of hypocrisy as I.

no, i am not. you have a post of justifying. i could never do that. IF i chose to do it, i would at the least, call it what it is. make no pretense or clain for better. have no expectation of more

that is not where i am.

[TheKentuckian]

101. You swallow violations of the Constitution and western civilization

but bother to argue the law as an excuse.

If the law isn't a reason then it isn't an excuse.

Great wrong is accepted on both side, sometimes the law can be ignored and used as an excuse for more wrongdoing. I fail to see the consistency that let's you escape hypocrisy.

What is right, the spirit of the law trumps the letter. I can rest easy with that. If I am a hypocrite then I revel in it because my worldview is consistent regardless of personality.

[seabeyond]

103. no, i am not swallowing violation of constitution and western civilization.

the thing, .... i havent said shit yet. between telling me what i cant say, and telling what i havent said, it is worthless in me participating in any conversation with you. and that is almost all i have said in this whole conversation.

[Bluenorthwest]

32. So you are stowing the 'Pragmatist' arguments?

You do understand that 'the ends justify the means' is a definition of Pragmatism, and that many here claim Obama is a Pragmatist, with great regularity. Here, you seem to be saying that Pragmatism is at times not the best thing.
Plus is it hilarious to speak of 'rule of law' when it was declared pointless to seek justice in cases of torture and war crimes because it was more important to 'turn the page and look forward' whatever the fuck that means. Rule of law. Against gay people and pot smokers only, in the tradition of the American right wing religionists.
Selective enforcement is not the rule of law. That ship sailed away, the crew looking forward, only forward....

[BzaDem]

35. In this case, the means are not consistent with the rule of law.

That is a far cry from legislative compromises required to pass laws, which is entirely consistent with the rule of law.

"Selective enforcement is not the rule of law. That ship sailed away, the crew looking forward, only forward"

Let me get this straight. You are saying that because the law is being violated in certain cases, we should simply throw out the law as a system and act outside of the law whenever we feel like it?

[Bluenorthwest]

39. I am saying what I said.

I'm not playing word games with you on this. Unlike you, I write clearly, and I have no need to reply to your rephrasing of what I just wrote. You should just respond to what I said without a rewrite. But you can't so you say it in your own words, and argue with those. Insipid.

[BzaDem]

45. I will happily and unapologetically point out when your words imply something ridiculous.

Sorry that makes you feel uncomfortable.

[seabeyond]

48. it btohers me, a great deal, he didnt go after those too. but, it seems

his course is not to walk that path, and not go after past. but to set example. not my way. i have issue with it, but i do respect the redrawing of the line to what is acceptable.

[TheKentuckian]

62. Fine and dandy but don't play the "rule of law" card when it only applies randomly.

I can't even abide the set an example argument since the example is ratcheting up the powers of the unitary executive, overriding the judicial system, maintaining an illegal military force, and letting corporate criminals get away with murder and beyond.

Obama applies the law only when it suits him, including events on his watch.

This defense is patently dishonest and is a wipe and dangle technique not a consistent world view. Justice is fucking busted in this country.

[seabeyond]

68. well...

per your statements, i think it is clear, at the least, discussion is fucking busted.....

[Name removed]

44. Deleted message

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

[LoZoccolo]

57. K&R

:kick:

[Name removed]

58. Deleted message

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

[BzaDem]

59. Actually, people like you are the DEFINITION of the problem. Your logic would equally apply to Bush.

According to your logic, everything Bush did was fine, because violating the law and the rule of law is really not a big deal.

[meow mix]

66. huh, bush violated the rule of law everyday but you were fine with that.

if the rule of law applied to bush he'd be sitting in a prison along with chenney, rumsfield and condi.

[BzaDem]

77. But according to your logic, what Bush did was fine, since silly things like "the rule of law" don't

matter to you.

[Rebubula]

67. Awesome Job, sir

The OP points out lawful and logical reasons and you revert to the Godwin Nazi crap.


Simply wonderful job...


Sometimes, I wonder if there are any adults on this board.

[MadHound]

72. What's simply, deliciously ironical about anybody bleating about the Rule of Law over and over

Is that under the Rule of Law, the president did not, in any way, shape or form, have to appeal this ruling.

Under the Rule of Law he was perfectly within his rights to call off the attack dogs at the DOJ. He could have dismantled DADT immediately.

Instead, he is going to appeal this case as far as he has to in order to find a conservative court that will uphold DADT and do his dirty work for him.

Rule of Law my ass.

[BzaDem]

79. Interesting. You post specific BS upthread. Then, when called out, you revert to general BS. n/t

[MadHound]

83. Interesting, you don't have a cogent, cognizant, thoughtful reply to anything I post n/t

[Johonny]

84. administrations traditionally defend laws in court even if they personally don't like them

they just do. Reagan did it, Clinton did it, Nixon did it... It just how the non-GWB government works. It is neither new or surprising for Obama's administration to act this way. What is surprising is the apparent lack of interest in return the civil functions of government to a non-partisan function that it worked before Bush here at the DU. Really this appeal tells me nothing about the Obama administration other than his government works like the American government has traditionally always worked and should work.

[Statistical]

86. Not every law. CLinton didn't defend a law prohibiting HIV+ soldiers.

Obama DOJ has just in this term has chosen to not defend a half dozen laws.
They are only required to defend a law when they believe "a reasonable and credible" defend can be made.

Period. The idea that every administration defends 100% of laws is false, stupid, and bogus.
No administration has defended every single law from every single legal challenge. Not a single one.
It is called fierce advocacy not blind and stupid advocacy.

The reasoning is simple.

Standing up for the gays in an election year will cost votes.
They gays are worth less than winning elections. Period.

Anyone pretending it is for some higher purpose/reason is either mistaken or trying to mislead others.

[BzaDem]

88. You are saying no reasonable or credible defense could be made, even after the First Circuit upheld

the constitutionality of the law at issue just one year ago? (And yes, that's exactly what they did, despite your post to the contrary upthread).

[Statistical]

90. No. No reasonable and credible defense can be made.

No officer of the court is required to trample the Constitutional rights of their fellow citizens. No law, no reg, no oath requires that.


There is no reasonable and credible defense of the Unconstitutional abomination called DADT.

Do you believe that DADT can be defended in a reasonable and credible manner?

[BzaDem]

91. According to current case law, it is completely constitutional without question. That doesn't mean I

agree with current case law. I don't. I think they should have gone much further in Lawrence and Romer, and I think that appeals courts should have ruled it unconstitutional even under Lawrence as it was written.

But just because I do not agree with the current state of case law does NOT mean that the current state of case law is somehow not the current state of case law. Case law is binding on district courts. Based on current case law, not only is there a credible claim, there is an obvious claim. In fact, it was ALREADY DECIDED.

[laughingliberal]

110. ...

<snip>At the time that DADT was passed, it was constitutional because there was no Supreme Court precedent establishing that homosexual relationships are protected under the implied privacy rights of the Bill of Rights. Then, 10 years later, the Supreme Court ruling in Lawrence v. Texas overturned an anti-sodomy statute on the grounds that it violated the privacy rights of gay couples. Since then, laws that impinge upon the sexual-privacy rights of gay couples are presumed unconstitutional if they have no rational state interest to justify them. “Since Lawrence v. Texas, you can no longer discriminate against gays without reason,” says Mazur. “The constitutionality of ‘Don’t Ask Don’t Tell’ has changed since Congress enacted it.” Given that top military leaders have said that DADT is harmful to the military, Obama could have simply announced that, absent the state interest to justify DADT, it is now unconstitutional and will no longer be enforced. <snip>

<snip> Some experts wonder why the administration even chose to defend the law in the first place. Turley maintains that they didn’t have to: “The president has a duty to separate his administration from an unconstitutional statute. If a statute required racial discrimination, would the president seriously be arguing that he and his administration would have to defend the statute all the way to the Supreme Court?” Many liberals feel betrayed by a president who they see as having chosen to enforce and defend a discriminatory law. <snip>

http://www.newsweek.com/2010/10/19/is-obama-s-excuse-for-not-repealing-don-t-ask-don-t-tell-legitimate.html?from=rss

[BzaDem]

111. See post 109. n/t

[laughingliberal]

117. I don't do resource burn. Link? nt

[Spazito]

85. Well said! n/t

Recommended.

[Pisces]

100. Emotions can not rule the day if we want to be a nation of laws.

I think Obama is taking the long view and will eliminate DADT with no recourse to the repukes. Everything Obama does must be held to a higher standard. If the worst case scenario were to happen and
a crazy repuke were to take office, imagine how many repeals they would like do with a lower court.

[bvar22]

104. Rule of LAW?....I'm ALL for it.

When do the War Crimes investigations and prosecutions begin?
We are bound by several treaties to investigate and prosecute possible War Crimes.
Looking the other way is NOT an option under the Rule of Law.
Aggressive War, "Preemptive" War, Torture...all kinds of good Rule of LAW stuff there.

Let the Rule of LAW begin!

[treestar]

105. Rec'd

We either have the rule of law or we don't. It is not always easy and emotionally satisfying.

[laughingliberal]

108. Everyone's entitled to an opinion. I tend to agree with Jonalthan Turley's.

<snip>...once the Log Cabin Republicans suit was filed, Obama could order that DADT not be enforced pending the suit result. But what especially makes some DADT opponents’ blood boil is that the administration is fighting so hard for DADT in court. The Obama administration has consistently argued that it must vigorously defend laws that it opposes as part of its obligation to “faithfully execute” the president’s duties. But not all experts agree with that interpretation. “Why not just let the injunction stand?” Corn demands. “You don’t enforce laws overturned by the highest court in land, so why not accept the lower court ruling?” Many scholars say that there is no requirement for Obama to appeal. “The president has complete authority not to appeal the decision in these cases,” says Turley, who in 1989 successfully argued in federal appeals court for overturning a law and saw the George H.W. Bush administration choose not to ask the Supreme Court to hear an appeal of that decision. “The appeal is completely discretionary. Whatever duty the president has to defend the existing statute was satisfied before the trial court.”

Some experts wonder why the administration even chose to defend the law in the first place. Turley maintains that they didn’t have to: “The president has a duty to separate his administration from an unconstitutional statute. If a statute required racial discrimination, would the president seriously be arguing that he and his administration would have to defend the statute all the way to the Supreme Court?” Many liberals feel betrayed by a president who they see as having chosen to enforce and defend a discriminatory law. <snip>

http://www.newsweek.com/2010/10/19/is-obama-s-excuse-for-not-repealing-don-t-ask-don-t-tell-legitimate.html?from=rss

fixed link

[BzaDem]

109. While I respect Jonathan Turley, that view is held by many proponents of the unitary executive.

In particular, this sentence comes to mind:

"The president has a duty to separate his administration from an unconstitutional statute."

Of course, that is just begging the question. The question is: who decides whether a statute is unconstitutional? And how can that decision be made?

Unitary executive theorists argue that the President alone can decide based on his or her view of the Constitution. That means that the President can refuse to defend ANY law on the books AT ALL, as long as the President thinks that the law is unconstitutional. If President Palin thinks Medicare, SS, Food Stamps, and Federal Unemployment Insurance are unconstitutional, she could unilaterally refuse to defend them all.

To me, that is a dangerous amount of power to entrust onto the executive. Turley's position has not been litigated in any court, but I expect that if this power is asserted by a future President, the Supreme Court will eventually decide whether this almost unlimited view of executive power is true.

(To be clear: I'm not saying Turley is a proponent of a unitary executive. He simply shares a view held by many that are proponents of a unitary executive.)

The more reasonable answer is: the DOJ can refuse to defend a statute if it is unconstitutional under current precedent. This does not give a gigantic amount of power to the President -- the President is constrained to follow the law in an objective way. Unfortunately, in this case, DADT is constitutional under existing precedent (an appeals court just upheld DADT last year). This doesn't mean current precedent can't be changed (and I believe it should change, since I think DADT is unconstitutional), but to change appeals court precedent you have to appeal to allow the appeals court to decide.

[laughingliberal]

112. From the same article:

At the time that DADT was passed, it was constitutional because there was no Supreme Court precedent establishing that homosexual relationships are protected under the implied privacy rights of the Bill of Rights. Then, 10 years later, the Supreme Court ruling in Lawrence v. Texas overturned an anti-sodomy statute on the grounds that it violated the privacy rights of gay couples. Since then, laws that impinge upon the sexual-privacy rights of gay couples are presumed unconstitutional if they have no rational state interest to justify them. “Since Lawrence v. Texas, you can no longer discriminate against gays without reason,” says Mazur. “The constitutionality of ‘Don’t Ask Don’t Tell’ has changed since Congress enacted it.” Given that top military leaders have said that DADT is harmful to the military, Obama could have simply announced that, absent the state interest to justify DADT, it is now unconstitutional and will no longer be enforced.

http://www.newsweek.com/2010/10/19/is-obama-s-excuse-for-not-repealing-don-t-ask-don-t-tell-legitimate.html?from=rss

There is a basis for the President to assert the law is unconstitutional beyond the 'president alone deciding.'

[BzaDem]

114. The problem is that the First Circuit applied Lawrence to DADT and still found it Constitutional.

This happened last year.

[laughingliberal]

116. I'm hanging my hat on Turley's assessment of it rather than yours. We are, obviously, not going to

agree. I have chosen to come down on the side of the President needing to defend equal rights rather than defending laws that deny equal rights. He is well within the parameters of his authority to have declined to defend DADT and it looks as if he prefers to defend it.

Even if he believes defending it was, somehow, required of him, there was no reason for a hysterical run to request an 'emergency' stay of Phillips' injunction which served to reinforce the notion of the supporters of DADT of some immediate and irreparable harm to the military if openly gay soldiers are serving.

[BzaDem]

119. I agree with you about the stay.

It is quite contradictory for Obama to say "DADT harms national security" when his DOJ is saying that it will cause irreparable harm. I don't think the ninth circuit made the right decision about the say either -- they should have denied it. (They probably had a lower standard in mind for rulings that strike down federal laws, but still.)

But as for whether to appeal, I cannot accept Turley's view that the President alone can decide, despite higher court precedent to the contrary. This is far from the only view of Turley's I don't accept -- he believes Citizens United was correctly decided, after all.

[Statistical]

115. Not true.

Numerous times administrations have chosen to not defend Unconstitutional laws despite there being no bound precedent.

Clinton choosing not to defend the HIV + ban for example was based on internal assessment that the bill was Unconstitutional not only any binding previous precedent.

"The more reasonable answer is: the DOJ can refuse to defend a statute if it is unconstitutional under current precedent."
While a President can CHOSE that dividing line there is nothing the requires that. As such the President decision to request a stay in this case was a choice. A deliberate and intentionally choice by the administration. It is bogus to say the President was REQUIRED.

[BzaDem]

121. If there is no objective dividing line, the President can refuse to defend (and de facto repeal)

any challenged law.

That is not consistent with the rule of law in this country. While it has not come up, I believe if it does come up, the Supreme Court will eventually decide that my view (and the view of Clinton's solicitor general of the HIV case, etc etc) is correct: The President cannot decide based on his own views -- he has to look at current precedent to decide. The president unilaterally deciding which laws to defend is not consistent with the Constitution's command to faithfully execute the laws.

The reason it has not come up is because administrations by and large do look at current precedent. Your HIV example actually proves my point -- they DID appeal the ban, but argued in the appeal that it was unconstitutional. This is completely legitimate -- the court can then ask Congress or another party with standing to defend the law if they need a defense, while the government argues for it to be stricken. I hope they do this when they actually file the appeal for DADT.

So I really would like to see an example from you of a President who decided not to defend/appeal just based on his own opinion and not based on precedent. You say this has happened "Numerous times," so surely you have a few examples (or at least one)? The HIV case obviously isn't an example, since they did officially appeal. The national parks case floating around also isn't an example, because there was no precedent upholding the law like there is in DADT (and other precedent counseled against it).

[Statistical]

122. They did not appeal the HIV+ ban all the way to Supreme Court.

The Clinton DOJ chose (based on no direct precedent precedent) to NOT PURSUE THE ISSUE FURTHER because their conclusion was that it was Unconstitutional and they agreed with the circuit court judge.

Interestingly you also dismiss the national parks case. Once again without any guiding precedent the DOJ made a determination not to appeal/defend the law.

"So I really would like to see an example from you of a President who decided not to defend/appeal just based on his own opinion and not based on precedent. "

You just repeated two. The national parks issue (which COULD have been appealed/defended) and the HIV+ ban (which COULD have been appealed/defended further). In neither of those two cases was their guiding precedent. In both case the DOJ chose not to further defend the law it determined was indeed Unconstitutional.

There is no absolute requirement that all laws no matter how Unconstitutional must be blindly defended. Only in your mind does such a burden exist.

[BzaDem]

123. They looked at case law. Not their own opinion.

You admit that there was no precedent directly on point upholding both laws. This means they have to do a more complicated job of looking at somewhat-related precedent, and come up with a decision based upon that precedent.

With the DADT case, there is direct, on-point precedent that the law is valid. Whether or not we like that precedent, it exists. This means that under current case law, DADT is constitutional, not unconstitutional. It is not ambiguous, and it is not a close call. We both disagree with current case law, but under this case law it is constitutional. Under ANY standard based on case law, no matter WHERE the dividing line is, the ruling must be appealed. There is no such thing as a dividing line such that DADT falls on the "not appeal" side. It doesn't exist.

So I will once again ask: do you have a single example where the President decided not to appeal based on something other than case law?

[Statistical]

127. asked and answered.

So I will once again ask: do you have a single example where the President decided not to appeal based on something other than case law?

There was no binding precedent in either the HIV or National park cases.

Judge Phillips laid out specific items on exactly how and why DADT violates Constitutional law. There is nothing that requires the Obama DOJ to reject that. They accepted the arguments of lower judges in both HIV and National Parks cases.

Hate to break it to you but Judge Phillips decision IS CASE LAW. They can (but are not required to) accept it. The Obama DOJ has chosen not to and just to add insult to injury also requested a hysterical "emergency" to stay the injunction.

[BzaDem]

129. Judge Phillips decision is contrary to HIGHER COURT case law.

You keep saying there is no precedent in the HIV or National park cases. But that IS MY POINT ENTIRELY. There was NO direct precedent in those cases.

In the DADT case, there was direct appeals court precedent UPHOLDING the law.

If you keep citing the HIV case and the National park cases, you are being intellectually dishonest. You know there was no direct precedent there, because you have admitted it multiple times. So why do you keep comparing them to the DADT case, in which there direct appeals court precedent upholding the very law in question?

[Statistical]

134. I cited them because it was what you asked. Did you forget your own questions ...

A refresher...

"So I really would like to see an example from you of a President who decided not to defend/appeal just based on his own opinion and not based on precedent. "

[BzaDem]

139. In those cases, they looked at case law. It wasn't direct and on-point, so their job was harder.

But they still looked at case law (not their own opinion), and used their best judgment about what case law implied.

So you still have yet to produce an example where they used their own opinion (contrary to case law) to decide not to appeal.

But this question seems difficult for you. So I will make the question very black and white, with no room for ambiguity.

Do you have an example where the DOJ refused to appeal a law being struck down, when appeals court precedent exists UPHOLDING the very law in dispute? You either do or you don't. NONE of the cases discussed so far have had appeals court precedent UPHOLDING them (except DADT), and you have admitted as such multiple times.

[EFerrari]

124. The president is under no obligation to defend a discriminatory law.

That's simply ridiculous and this is one of the worst reasoned OPs I've ever seen here. Unrec.

[BzaDem]

125. Yes, actually, he is under an obligation if the law was ALREADY UPHELD.

Though I do have to say that I must be on the right track if you find this OP one of the worst you have ever seen. Thank you for the unintentional compliment.

[Statistical]

130. No he doesn't. That is your claim.

Provide a cite indicating the President is required absolutely to uphold a law no matter how unjust or Unconstitutional.

What is the punishment if he doesn't? Please provide a cite for that also.

[BzaDem]

133. Provide a cite indicating it is illegal for the President to assassinate an American citizen.

Oh, what's that? You don't have a cite? Because it hasn't been adjudicated yet? Ah.

You keep acting as if DADT is unconstitutional. It isn't. Under current case law, it is unambiguously constitutional. I personally believe it is unconstitutional, but that has no bearing on what case law says.

Obama ABSOLUTELY has a duty to defend Constitutional laws. My cite is the "take care" clause, which says that the President must take care that the laws are faithfully executed. Not some subset of the laws.

What is the punishment? It hasn't come up yet, since the justice department DEFENDS laws that have direct precedent on point. (You have YET to describe an example where the DOJ did not defend a law upheld by a higher court, no matter how much you claim you have provided any examples.)

Likewise, there is no punishment for assassinating an American citizen abroad, since there has been no case decided yet. Do you think that makes assassinating an American citizen abroad perfectly legal? Your "lack of punishment" argument is a crock.

[Statistical]

137. So the President is required to do something because you SAY he is and not based on any citation.

(except when he doesn't as this and every previous administration has).

Well that cleared it up.

[BzaDem]

140. No administration has, and I cited the Constitution.

Under your logic, it is completely legal to assassinate American citizens, or to do anything else not unambiguously foreclosed by Supreme Court interpretation of the law/Constitution. Glad you cleared that up.

[Statistical]

142. Um there are statutes against murder you are aware of that right? n/t

[BzaDem]

143. Sure there are. Just like the Constitution says the President shall faithfully execute the laws.

Of course, the Supreme Court has not yet held that agency assassinations of American citizens on foreign soil fits the definition of murder.

Just like the Supreme Court has not yet held that not defending laws based solely on your Constitutional beliefs violates the "take care that the laws be faithfully executed" clause.

[Statistical]

145. Nobody is claiming Obama should do it solely based on his personal belief.

He has a decision from the court laying out reasons exactly WHY. If the DOJ analysis is that the conclusion of the judge is accurate they could decline to appeal/defend the issue further.

Now if someone thinks his actions overstep the bounds of his office they can sue on Constitutional ground, if the Supreme court wants to it can here it and the worst possible thing is the Supreme Court orders the DOJ to appeal/defend the issue.

The idea that Obama must defend some unjust law simply because someone else MIGHT POSSIBLY MAYBE consider that action Unconstitutional and file suit and then MIGHT win and he would be compelled to act is stupid. By that logic Obama should never have run for office because someone might (and did) feel it was Unconstitutional for him to even be President. However those suits lost and it is likely any suit against the DOJ would also fail.

[BzaDem]

146. In our system of government, appeals court rulings control over lower court rulings. n/t

[EFerrari]

135. And yet those aren't the grounds cited by the administration

in their motion for an emergency stay.

Try reading what you're defending.

[BzaDem]

138. I'm not defending the stay. I'm opposed to the stay. I'm simply defending the need to appeal. n/t

[moondust]

144. Apparently the Department of Justice is.

Acting independently in defense of laws passed by Congress. Or so goes one of the arguments floating about.

[BlueCheese]

126. Is the administration...

... required to file an emergency motion asking for a stay of the lower court's ruling?

Is failing to do that spitting on the rule of law?

Would it also despicable, in your words, to have allowed the ruling to stand while an appeal was prepared?

Do you agree or disagree that allowing gays to join the military while the courts hash this out would have "enormous consequences"?

[BzaDem]

128. No, the administration was not required to ask for a stay, and I think the admin was wrong to ask.

Obama has said on record that DADT harms national security. I don't see how no stay could cause "irreparable harm" -- it would seem to me that the harm is caused by the law (not by the injunction), using Obama's own words.

This post is not an abstract defense of Obama's actions in this case. It is simply pointing out why the decision has to be at least formally appealed.

[BlueCheese]

131. Okay...

But a lot of the anger today is because of the stay, not the pending appeal. People are angry because the administration is doing quite a bit more than the bare minimum in defending DADT.

[Statistical]

132. "why the decision has to be at least formally appealed."

What defense does an intentionally weak (sabotaging your own case) "formal appeal do" that simply not appealing doesn't.

There is nothing the REQUIRES the DOJ to appeal any decision. Period.

Even if it did don't you think it is somewhat dubious to REQUIRE the DOJ to appeal it and then have the DOJ simply provide a worthless defense?

I mean how is the public protected, how are abuses prevented if the same DOJ which must appeal can then simply fail to defend it to the level necessary to acomplish anything.

There is no distinction.

A weak worthless appeal doesn't further justice anymore than no appeal.

It is your false claim that all laws must be appealed. One not backed up by any cite. Cite the law, cite the Constitution, cite federal regulation that requires the President to appeal all decisions.

[BzaDem]

136. It allows the court to decide the issue, and ask Congress if it wants to defend.

This actually happens in the Supreme Court -- occasionally, the Supreme Court needs to appoint a lawyer to defend a statute. (They usually use former law clerks for this.)

[Better Believe It]

147. District judges strike down clearly unconstitutional laws all the time.

This isn't unusual at all.

[BzaDem]

148. What rarely, if ever, happens, is that the government refuses to appeal the ruling when an appeals

court already ruled the law Constitutional (just last year in fact).

Just because we don't agree with the appeals court doesn't mean the case law doesn't exist.