DADT: Executive Descretion To Decline To Defend Federal Law Against Constitutional Challenge.

[sabrina 1]

The argument that the DOJ must defend Federal Law under any circumstances appears to be more opinion than fact. The facts show that the DOJ HAS in fact used its discretion in several cases.

Clinton, eg, declined to defend a court ruling that it was unconstitutional to dismiss from the Military members who had HIV. The rationale being that if a law has been challenged on its constitutionality, as the recent ruling on DADT has done, the President must decide whether he upholds his to defend and protect the Constitution or defend a law that violates the Constitution:


Clinton admin. refused to defend in court law kicking HIV+ out of military

"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." - White House Counsel Jack Quinn, 1996, in transcript quoted in full below.

You can find the transcript in full at the link above.

In the link below is an explanation of when the Executive Branch can decide not to appeal a court ruling and why there is a general 'belief' that this cannot be done:

Executive Descretion To Decline To Defend Federal Law Against Constitutional Challenge.

The general expectation that DOJ will defend federal laws from constitutional challenge is accepted and uncontroversial. There are good reasons for this practice. Once Congress passes a bill, and the president signs that bill into law, it normally makes sense—as a matter of comity, respect, and civility—for the elected branches of government to speak with one voice in defense of its constitutionality.

However, it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception. There are well-recognized, standard exceptions that give the executive branch discretion in deciding whether or not to defend a law in some circumstances, and they would apply in deciding whether to appeal a court ruling finding that “don’t ask, don’t tell” is unconstitutional. The most authoritative and most frequently cited work of legal scholarship on the duty to defend federal law is Defending Congress, 79 N.C. L. Rev. 1073 (2001), an article written by former Solicitor General Seth Waxman.

Exceptions to the Usual Duty to Defend

Part 2

Under the second exception, the constitutionality of “don’t ask, don’t tell” has been seriously undermined by the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, the Supreme Court held that the Constitution protects the liberty of all persons, straight and gay, to enter into private, intimate relationships without interference by the government, unless there is sufficient justification for government regulation. Lawrence was the basis for Judge Phillips’s ruling in Log Cabin Republicans.

She held that, after Lawrence, the government could no longer rest on unsupported congressional and military opinion alone. Before the government could impose sweeping restrictions on personal intimacy and autonomy, it had to offer evidence that “don’t ask, don’t tell” significantly furthered the government’s interest in military readiness, and that the policy was necessary to further that interest. However, in Log Cabin Republicans the government was unable to produce any evidence beyond the opinions offered in support of the law back in 1993. In contrast, the plaintiffs’ evidence established that “don’t ask, don’t tell” was actually causing the military significant harm today.

The usual reasons for DOJ’s customary practice of defending federal law against constitutional challenge fall away when an intervening decision of the Supreme Court, issued after the law was passed, calls the law’s constitutionality into serious question. In this situation, DOJ has discretion to make a constitutional judgment, and it can do so within the traditional structure of how these decisions to defend, or not to defend, are typically made. Now that the government has had full opportunity in Log Cabin Republicans to introduce evidence in justification of “don’t ask, don’t tell”—and has had none to offer beyond the law’s legislative history—DOJ is in a position to make a discretionary constitutional judgment that continued appeal is unwarranted.

So simply put, there has already been a Supreme Court Ruling that seriously undermines the Constitutionality of DADT. So which should the President protect? The Constitution or a law passed by Congress that has now been challenged in 'Log Cabin Republicans' on a firm basis (a Supreme Court Ruling) and which the Government failed to defend, as unConstitutional? I think the decision is clear, especially for a Constitutional Lawyer:

While the president has a constitutional obligation to “take care that the laws be faithfully executed” (Art. II, Sec. 3), he also takes an oath to “preserve, protect and defend the Constitution of the United States” (Art. II, Sec. 1). Both the president and Congress have an independent duty to ensure their actions conform to the Constitution.

One more link backing up the fact that the DOJ HAS declined to defend Federal Laws when warranted. This is from the Yale Law Blog of which I am not a member so I can only link to the first page.

Executive Discretion to defend Federal Laws

There is a list of nine different times when the Executive Branch declined to defend a Federal Law against a court ruling.

I have been told that all this evidence has been debunked. I have been unable to find it myself, but if anyone wishes to post links to anything that contradicts this evidence in comments, I would be interested to see it. Because given the evidence that I have seen, I cannot understand the decision to appeal the judge's ruling considering the President himself has stated that he believes DADT is wrong and wants to see it repealed.

Presidential Oath of Office

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

What to defend? The Constitution or a discriminatory law already ruled to be UnConstitutional? Seems like an easy decision to me.

[sabrina 1]

1. Still waiting for the claimed rebuttals of the rebuttal

that the DOJ does not have to defend this law. I have asked several times but so far no one has provided anything that supports the claim that the President must defend a Federal Law, that he has no discretion when it comes to defending the ruling on DADT.

[EFerrari]

2. K&R

Thanks, sabrina.

[sabrina 1]

4. You're welcome.

I don't think there is any doubt that the DOJ could have refused to appeal the ruling.

[ThomCat]

3. The people who still insist that Obama MUST defend DADT

simply WANT him to defend DADT. That says a lot.

[Akoto]

6. What if they WANT him to defend it ...

... because the current approach to "killing" the legislation actually leaves room for it to simply be reborn later on? Congress getting rid of it will do the job for good.

I am not gay, I admit, but I think such a scenario would leave quite a bit of insecurity in the back of my head. More so, in fact, considering the current surge in crazy right wing politicians. If they're going to do it, I'd rather they put a stake through DADT's heart and make sure it stays dead well after the Obama presidency.

I hesitate to post my thoughts on this because, at the moment, the dialogue seems to be especially cutting. Hopefully, I'm not too misguided, but I'm of an open mind to learning.

[ThomCat]

9. "Rights delayed are rights denied."

It is always and Only the people who already have rights who think it is okay to do stuff like this, taking the long slow route that might someday, eventually get rights through the most ideal possible route.

The people who don't have those rights always want to take the route that will get those rights RIGHT NOW, and then follow up with the additional method that will shore up those rights into something fundamental that cannot be taken away.

If Obama had signed an executive order suspending DADT implementation a year ago, or if he refused to appeal this ruling now so that DADT ended right now, nothing says that he could not keep pushing congress to pass a law to also make sure that DADT could never be re-implemented. Nothing says that two different routes can't BOTH be implemented. Nothing says that only one thing can ever be done.

Waiting for an ideal situation that will never happen is just a way of denying rights.

Yet, repeatedly the LGBTQI community has been lectured, harassed, insulted, and belittled by straight people, straight commentators, and straight posters here at DU who insist that they know More than LGBTQI people about how we could get our own rights. Those acrimonious lectures telling the LGBTQI community to stop getting on the nerves of straight people, to wait for Obama to eventually get around to the ideal solution that might never happen, are a real problem. Especially because those straight people honestly seem to think they are our allies, and yet also seem to believe they have some unquestioned moral authority and/or some intellectual superiority to tell us what's best for us.

We can't dare to call out any of this as homophobia though. Oh no! That would be against the rules! We are required to take that homophobia on the chin, because it's meant well.

Bigotry is acceptable as long as it's meant well. Bigotry is acceptable as long as it isn't blatant. As long as we are "allowed" to "eventually" get some privileges that sort of look like rights, or get some rights, or as long as people say that they eventually want us to get rights but actually work against those rights, that's all okay.

So subtle and civil forms of bigotry are all okay. That's the lesson here. That is what is enforced here. :(

[sabrina 1]

14. Excellent post. I just outlined below how Obama

could stand up for the Civil Rights of Gays, while keeping the fight going on in Congress. No one should have to wait until Congress finally gets around to this. That could take years.

You are right that those who already have rights find it easy to ask others to be patient while waiting for theirs. I am not Gay, but it seriously disturbs me to see how clearly DADT is an unconstitutional law and that we now have a Democratic majority and the WH and they have failed to correct that injustice.

I also find the defense of the myriad of excuses coming from the WH on this board, to be thoroughly disgusting. Not one of their excuses so far makes any sense, UNLESS you do not want DADT overturned. Sometimes I think we do better when we are in the minority.

If Bush was doing this, there would not be single DUer who would even try to defend. Hypocrisy at its worse because this affects the very foundation of democracy. And we have people more concerned about their party loyalty than about those rights we claim to care so much about.

[sabrina 1]

11. Well, if that was his only option, I would agree. It would be better

to have Congress rescind the law. This is what the President says he wants. But is that likely? Congress just rejected doing so with Republicans in lock-step against it. In a lame duck Congress what will have changed? And if Dems lose seats in Nov. there is even less chance of it passing next year.

Meanwhile, many Gay Troops will be dismissed.

Otoh, Obama could issue an Executive Order against its implementation while exercising his right to direct the DOJ not to appeal the judge's decision.

That would not change anything regarding Congress' role. What it would do is give Gay Troops two years to serve legally without being dismissed.

And after two years it would be very difficult to change the policy which by then would be generally accepted. Not to mention all the new recruits whose only experience would be that Gays serve in the U.S. military like anyone else.

Meantime the fight could go on in Congress. The public is overwhelmingly in favor of rescinding it already. Two years from now, Congress would have a hard time explaining why they would want to deprive the military of good soldiers who have served their country legally for two years without the military falling apart.

[Turborama]

13. "Gays serve in the U.S. military like anyone else" & everywhere else

Thanks a lot Sabrina for yet another really informative OP with follow up replies which help those of us who are not well versed on this topic understand what's going on.

:hi:

[sabrina 1]

40. Hey, Turborama. You were missed! Great to see you.

Love your sigline, btw. I am going to volunteer to phone bank for him next week!

Go Grayson!! Lol! Love that man!

[Chan790]

44. Those people would be just incorrect.

This death is actually a more-firmly-footed death to DADT than Congressional repeal as repeal by Congress (absent a judicial decision on this precise question of law) actually reaffirms the authority of Congress to make and repeal discriminatory laws on military membership; this one could repeal and the next one could re-implement...there is no prohibition on "reconsideration of question" in the legislative body. It happens constantly.

On the other hand, on the judicial side, there is both a prohibition on Congressional re-affirmation of judicially-struck laws (they'd have to pass a law that conforms to both Log-Cabin and Lawrence in order for it to not be immediately challenged to SCOTUS as a previously considered question of law and an extension of this ruling.) and, encapsulated in Stare Decisis, a prohibition on reconsideration of identical questions of federal law. Only a SCOTUS decision would be a firmer-death for DADT...and you can't reliably count on this SCOTUS to rule that way.

No, the only way this DOJ decision makes sense is if this administration is once again playing lip-service and has no real desire for repeal, considering it a political liability and seeking cover from backlash when it isn't repealed..."we didn't kill DADT repeal...John McCain filibustered it."

[TriMera]

49. +1. n/t

[TriMera]

5. Thank you. k&r. n/t

[sabrina 1]

16. Just thought I'd let you know, the evening crew

HAS arrived, but not with any rebuttal to the rebuttal of the claim that the president cannot refuse to appeal this decision. They are simply, silently unrec'ing the thread! :rotf:

I was pretty certain they could not refute the evidence presented here. And their unrecs prove where they really are coming from, while pretending to care! Anyhow, I beieve you were right. :-)

[TriMera]

18. Yes, I've been paying a lot of attention...

There are patterns, you see.B-)

[sabrina 1]

41. Lol, I am beginning to see what you mean!

[Turborama]

22. I forgot to rec after I posted earlier. Just made it go up to 13.

It's sometimes handy to add a marker like that.

Thanks for reminding me. :thumbsup:

[TriMera]

7. Kick n/t

[suffragette]

8. K&R

Thanks sabrina!

[sabrina 1]

12. Hi suffragette,

nice to see you :hi:

[suffragette]

24. Nice to see you as well

Posted something yesterday I found after much digging that you might find interesting;

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9354576&mesg_id=9358675

[sabrina 1]

27. Excellent post, suffragette. We seem to often be on the same

wavelength :-) Airc, this happened before when you had already posted an OP on a topic I posted on a day or so later.

I did not see this when you posted it, but you too have shown that the DOJ can decide not to appeal a case. So I think that argument is totally debunked at this point.

It's too late to rec I see, but I will kick it as the information is important.

Thanks for directing me to your post.

[suffragette]

37. We are in the same zone often

And yes, I would agree that argument is debunked.

I think the case I found also debunks the argument about needing to appeal to reconcile differing court opinions since the DC Circuit court explicitly noted there were differing opinions on the Abramoff connected case, but the court would address that through a court process and the DOJ did not file an appeal even though differing court opinions were clearly present.

[democracy1st]

10. K & R

[Unvanguard]

15. Lawrence v. Texas does not unambiguously bar DADT.

The constitutional defense of it is undoubtedly much weaker post-Lawrence than it was pre-Lawrence (and post-Bowers), but the narrow scope of the ruling of Lawrence--invalidating criminal punishments of private sexual conduct--is not obviously a bar to anti-gay discrimination broadly. The Ninth Circuit panel that ruled on Witt v. Dep't of the Air Force ruled for a broad interpretation of Lawrence, to which Judge Phillips adhered, and I think they have the better argument, but there is nothing automatic about DADT being contravened by Lawrence v. Texas. It is not the kind of clear-cut legal precedent that deprives the DOJ of any reasonable legal defense.

While the DOJ is not bound to defend every federal law, it is only in very narrow, exceptional cases that it declines to do so, and for good reason. See, e.g., Walter Dellinger and Nan Hunter on this topic. (Both actually argue that the DOJ should appeal and decline to defend, which seems to me to be reasonable: it would keep the issue in the courts, rather than being subject to executive discretion, without actually trying to justify the unjustifiable.)

[sabrina 1]

20. I don't think that is what is being said.

DADT is obviously a different law. The claim has been that under no circumstances can the DOJ NOT defend a Federal law. Clearly that is a false statement and that is all I am trying to say. And Lawrence V Texas is not the only example of the DOJ declining to defend a law.

In the case of DADT there has now been a ruling that it is unconstitutional. Any president faced with such a ruling must make a decision. Either someone must prove that the ruling is wrong, and prove that it IS Constitutional to single out and discriminate against some American citizens, if they can.

Do you think it is possible to win an appeal based on what the DOJ has so far put forward?

[Unvanguard]

29. I agree that the DOJ has some limited, narrow discretion about its defense of federal law.

To be clear, the DOJ was not involved in Lawrence v. Texas: it was a lawsuit brought against Texas, not the United States, so they had nothing to do with it.

Yes, I think the DOJ could win an appeal, because the courts have typically been unsympathetic to gay rights claims (something that has begun to change, but there is a long way to go), and because they have a long tradition of deferring to the military.

[Starry Messenger]

17. k & r

[BzaDem]

19. The problem is that the First circuit has already held DADT constitutional last year, after looking

at Lawrence and applying its rational basis test.

I know of not a single case where an administration has refused to defend a law (or appeal) when higher court precedent has upheld the exact law at issue. That certainly was not the case in the HIV case, the national parks case, etc.

Under case law, DADT is Constitutional. I hope that case law changes (and soon), and I expect it will (though not as soon as I would like). But that doesn't mean that the case law doesn't exist.

[sabrina 1]

21. And now there is a ruling that it is NOT Constitutional. Which ruling

do you agree with? And which ruling does this WH agree with?

Is it Constitutional to discriminate against American citizens for any reason? And if so, what are those reasons?

First, in order to correct discriminatory laws, those fighting to do so must believe an injustice is being done. The problem people are having is that this President has had several golden opportunities to end these discriminatory laws, and has chosen instead not to do so.

Sometimes it takes bold action to end years of discrimination. How would you react if Bush was taking the position that is being taken by this administration right now?

[BzaDem]

23. I agree with the district court ruling, but that has nothing to do with it. Appeals courts trump

district courts. That's how it works in our system of government.

"Is it Constitutional to discriminate against American citizens for any reason? And if so, what are those reasons?"

Under current case law, lots of discrimination is perfectly Constitutional. Very little discrimination is allowed based upon race, some discrimination is allowed based upon gender, and many discriminatory laws are allowed based on other criteria. (That is an oversimplification, but it is approximately correct.)

I disagree with that obviously, but that is what current case law says.

"How would you react if Bush was taking the position that is being taken by this administration right now?"

How would you react if Bush decided not to appeal a ruling throwing out Social Security? Because he agreed with some far out district court ruling, despite consistent higher court case law upholding Social Security? Because THAT is what would result if administrations followed your proposal.

[sabrina 1]

25. I would expect Bush not to appeal a ruling to throw out

Social Security. Which is why I am not a Republican.

I do NOT expect a Democratic President not to fight to end discrimination.

I would expect BUSH to appeal this ruling. I did NOT expect President Obama to do so.

Rights are not gained ever without a fight. But in this case, not much fighting is required.

The public overwhelmingly supports Gays in the military.

Now the president has a ruling that DADT is unconstitutional. If he really supported rescinding it, he would take advantage of that ruling, which puts him in the position of honoring his oath of office or upholding a law that a majority of the people disagree with and that a court has now ruled to be unconstitutional.

Refusing to defend the law, issueing an Executive Order, giving the military two years to allow Gays to serve legally, would be the best strategy to end this discrimatory law. Meantime Congress can still be asked to rescind it. A decision that will be far easier for them to make after the military has become accustomed to the policy.

Obama has now decided to leave the rights of Gay Troops in the hands of a Congress that has already rejected them and is likely to be worse if Republicans gain seats.

How long should people wait to be considered equal especially when it could be done right now?

[BzaDem]

26. Why shouldn't Obama just dissolve Congress and enact his legislative program by fiat?

Because of something called the rule of law. Faithfully executing laws is not an option. It is a requirement, spelled out DIRECTLY in the Constitution. Using your logic, you could never complain about illegal actions under Bush, since to you, the law is easily dispensed with. To you, all that matters is the ends. The means (and the legality of the means) don't matter at all.

You might be surprised. You said you expect Bush would not appeal a ruling throwing out SS. Well in a similar situation, he vigorously appealed. When McCain-Feingold passed, Bush said in his very signing statement that he thought much of the law was unconstitutional. But guess what? His DOJ vigorously defended it all the way to the Supreme Court. So vigorously that they actually unexpectedly won a 5-4 decision upholding basically the entire law (in 2003), which had tremendous positive impact until it was overturned by Citizens United in 2010. This is DESPITE Bush's actual belief that the law was unconstitutional.

I hope DADT is repealed soon. But I am also glad that your anti-rule-of-law, pro-tyrannical-executive view regarding not defending laws whenever you feel like it is not held in either Republican or Democratic administrations.

[sabrina 1]

28. You still miss the point.

A court has ruled that DADT is unconstitutional. The President has said he believes it is unconstitutional. When a president believes that something is unconstitutional, AND he has a court ruling supporting him, he is bound to act on that in favor of the Constitution.

If Bush did something right, and he did btw, more than once, I would applaud him for that particular act. And if Obama were to try to disband Congress, I would be calling for his impeachment. I am at least consistent about the issues and do not change my mind based on which party is making the decisions.

Some of the same DUers who are attempting to excuse the position being taken by this WH on DADT, would be screaming if Bush were doing the exact same thing. That is what I said. That is what I meant. I am talking about hypocrisy.

You are getting frustrated and resorting to personal attacks. That doesn't help your argument.

The reason we vote for Democrats is because we expect them to uphold the principles we believe in. And when they do not, we are not freepers who support them no matter what they do. Sorry, I don't take loyalty oaths to any party or politician. If they are doing something against the interests of the American people, I will not ignore it just because it's my party.

[BzaDem]

30. Appeals courts trump lower courts. You are arguing otherwise, and you are wrong.

You are wrong as a purely factual matter.

Obama has a lower court ruling that says DADT is unconstitutional, and an appeals court ruling last year that said DADT was constitutional. The latter trumps the former, because the latter is an appeals court and the former is a lower level court.

There is literally nothing else to it.

"Some of the same DUers who are attempting to excuse the position being taken by this WH on DADT, would be screaming if Bush were doing the exact same thing."

Not me. I would be criticizing Bush if he did NOT appeal. This has nothing to do with DADT -- it has everything to do with the rule of law, and I would be criticizing any President that throws the rule of law in the trash (and do so when I believe that is what they are doing). The idea that people are just doing this to defend Obama is ridiculous. I have repeatedly criticized Obama for asking for a stay, which they certainly didn't have to do. This goes FAR beyond Obama. This goes to a fundamental question: are we a nation of laws or men?

[sabrina 1]

35. And I have pointed out to you that

regardless of rulings from other courts, the President STILL has the option to issue an Executive Order and to direct his DOJ to allow the ruling to stand. Read the OP and the link to the explantion as to why YOU are wrong.

As to your question 'Are we a nation of laws or men'? Are you serious? This President has stated that we are not. He has told us that we will not be looking into War Crimes committed in violation of both Domestic Laws and International Law. He has told us to 'look forward' when it comes to war crimes.

However, there is nothing that would violate the rule of law in using his authority, which has been established by a report put out by Military Law experts, to issue an Executive Order halting the dismissals of Gay Troops while Congress and the courts work this out. Nothing at all!

[BzaDem]

36. If he directed his DOJ to not appeal the ruling, he would be violating the Constitutional command

to faithfully execute the laws (laws which have been upheld as Constitutional by an appeals court, trumping district court rulings to the contrary).

Your arguments about War Crimes is a non-sequitur -- assuming you are completely correct that War Crimes have been committed, you argument is that some trashing of the rule of law can (and/or should) be balanced by more trashing of the rule of law, so long as you like the ends. As if there is some sort of "rule-of-law bank account," where certain violations of the law/Constitution can be "paid back" or "justified" by other violations of the law/Constitution in other cases. This is wrong as a general matter, in all cases.

[sabrina 1]

43. I think I explained in another post why the President would not

be violating the Constitutional command to faithfully execute the laws. I pointed out that as CIC of the military, he has the power, given certain circumstances, to suspend some laws when he believes, as CIC, that those laws are harming the military. He has already said that he believes DADT is harming the military.

Anyhow, the post with a link is below in response to another comment by you. The bottom line is, he does have discretion as far as defending a law or not.

As for my 'rule of law' statement, I think it's clear that crimes were committed. An investigation at least into the many allegations made by eg, people who were tortured, would have restored faith that we are still a law-abiding country. But we were told to basically ignore the crimes because for some reason that would benefit the country, more than insisting on the rule of law. So, many people do not believe that there is equal justice for all. Some people ARE above the law after all.

[BzaDem]

46. That is absolutely not true. Obama cannot violate a single law just because he is CIC.

That theory was proposed by Cheney (that the President can do whatever he wants, and violate whatever laws he wants, in furtherance of CIC objectives). He tried to justify torture, suspending wiretapping laws, allowing military invasions on US soil, etc, all with the "CIC makes me above the law" theory. The Supreme Court overwhelmingly rejected that theory multiple times. It is as dead as a doornail and has always been.

The only thing the President can do is act consistently with the laws on the books. Stop loss is a law on the books. So if he invokes stop loss, that is acting consistently with the law, not "suspending some laws." That only works so long as the law allows him to invoke stop loss. Once we no longer require reserves to be called to active duty, he can no longer use stop loss and he can't "suspend some laws" then either.

[sabrina 1]

48. That is what I am saying:

That only works so long as the law allows him to invoke stop loss.

[riderinthestorm]

47. Obama didn't have to ask for the stay on the injunction

but he did, as you've pointed out. That does seem to indicate Obama's true position on the issue as that appears to indicate an extraordinary level of "attention-to-detail" in following the law (cough).

What sticks in everyone's craw however, is that level of pursuit juxtaposed with real instances of his laissez faire in regards to other extremely serious violations of laws that he appears to be letting go without prosecution.

OF course, this goes beyond the initial outrage at the DOJ filing an appeal altogether. It just adds insult to injury. DUers who believe we are Obama-haters because we are pissed off about this are being deliberately tone deaf imho (not saying you are specifically, just saying). The filing of the stay is the bridge too far for many, many people. From "it's just a 2 minute prayer!" to that despicable bullshit in the DOMA filing, and now this?

Obama MAY have a legal leg to stand on (I'm not a lawyer so I can't call it for you over sabrina), but is it possible for you to admit that the appearance of bad faith on the part of this president is damn destructive?

[sabrina 1]

52. I believe he does have a 'legal leg to stand on' to defend

DADT. But he also has a way to use his discretion and authority as CIC not to defend it. Clinton did it eg. If you click the link in the OP, Clinton's rationale for not defending the Dorgan Amendment when it was struck down in court, just as DADT has been, was that it was unconstitutional. That it violated the equal rights clause.

As CIC the president has powers to make decisions regarding the military. I have posted a link to a study by Military Law experts who explain in detail how the president can 'suspend a law' during a time of National Emergency, IF he believes that law 'hurts the military'. Since Obama has already stated that he believes DADT 'hurts the military', because he said 'it deprives the military of good soldiers during a time when they are most needed'.

Everything is in place for him to issue an Executive Order. Public support for one thing, so not political risk. But mostly he would be on firm legal ground according Military Law to stop 'harming the military' while we are in a 'state of emergency'. He extended the 'state of emergency' last year.

So, I believe the commenter you are responding to is incorrect when he says it is not possible. In fact the WH themselves are careful NOT to say that specifically.

[sabrina 1]

32. Oh yes, and you didn't answer my question.

'How long should people have to wait for equal rights especially when they could be achieved right now'?

[BzaDem]

33. Your question has a flawed premise.

You say that they could be achieved right now. But they actually can't be achieved right now, legally. (At least, not until Congress acts or the Supreme Court throws out DADT.) The Constitution says that the President must faithfully execute the laws, and the appeals court ruling upholding DADT trumps the lower court ruling throwing out DADT.

If you rephrased your question to remove the flawed premise, I would be happy to answer it.

[sabrina 1]

38. Okay, if the president had it within his power to

delay dismissals of Gay Troops from the military while the courts and Congress work on rescinding the law, should he use that power or wait until Congress rescinds it?

Because he does have it within his power to halt dismissals. He is CIC of the military and as such has special powers to make decisions which he believes will support the goals of the military especially in 'times of national emergency'.

One of them is to issue an Executive Order halting dismissals. There are several reasons why he can do this. First, as CIC, he has stated himself that DADT is hurting the military, contrary to what the law itself contends. He stated that the military is hurt by the 'loss of good soldiers' especially now when they are really needed.

Since that is his opinion as Commander in Chief, he has the authority to act on it.

Obama Can Halt Gay Discharges With Executive Order, Study Says

There are three legal bases to the president’s authority, the report says. First, Congress has already granted to the Commander in Chief the statutory authority to halt military separations under 10 U.S.C. § 12305, a law which Congress titled, “Authority of President to suspend certain laws relating to promotion, retirement, and separation” Under the law “the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States” during a “period of national emergency.” The statute specifically defines a “national emergency” as a time when “members of a reserve component are serving involuntarily on active duty.”

The second and third bases of presidential authority are contained within the “don’t ask, don’t tell” legislation itself. The law grants to the Defense Department authority to determine the process by which discharges will be carried out, saying they will proceed “under regulations prescribed by the Secretary of Defense… in accordance with procedures set forth in such regulation." Finally, the law calls for the discharge of service members “if” a finding of homosexuality is made, but it does not require that such a finding ever be made. According to the study, these provisions mean that the Pentagon, not Congress, has the “authority to devise and implement the procedures under which those findings may be made.”

Diane H. Mazur, Professor of Law at the University of Florida College of Law and another study co-author, said the presidential authority to stop firing gay troops, known as “stop-loss,” is different from the highly unpopular stop-loss policy that the Army recently announced it would phase out. “That use of stop-loss forcibly extends service by those who wish to leave the military,” she said, “whereas suspending discharges for homosexuality would do the opposite: allow ongoing service by those who wish to remain in uniform.” The study says the provisions of the stop-loss law, which are granted by Congress, are “sensible because they give the President authority to suspend laws relating to separation when a national emergency has strained personnel requirements.”

So rephrasing my question, and considering that authority and the President's own stated opinion on DADT, is there any reason why Gay Troops or anyone affected by DADT, should have to wait for the resolution of DADT through Congress which could take years, and/or the courts to have their rights granted when he can stop the violation of those rights immediately?

[BzaDem]

42. He might very well be able to issue a stop loss order.

My guess is that if the DOJ believes that applies to discharges under DADT, he will start issuing such orders if DADT isn't repealed by the lame duck session. And assuming stop-loss power does apply to discharges under DADT, I hope he does so (even though it would only last until reserve troops are no longer involuntarily called up).

However, that has nothing to do with the fact that he still has to appeal the decision.

[sabrina 1]

50. I don't agree that he has to appeal the decision.

Clinton did not and as far as the courts, as suffragette pointed out, he can let them work out their own issues. Someone else with standing could appeal. Maybe one of those teabaggers on behalf of the troops.

But even the president and his spokespersons have refrained from saying he must appeal. They use words that basically say he is doing his duty, which is true most of the time. As the facts show, there are have been several occasions when presidents have decided not to appeal.

If you click the link on Clinton's decision, you will see how he explained his reasoning for not appealing the HIV ruling.

[BzaDem]

53. Clinton DID appeal the HIV ruling. They agreed with the lower court ruling in their appeal, and told

the court that they should keep the lower court ruling, but they still formally appealed.

So your example proves my point. They need to appeal. They can argue in the appeal whatever they want, but they have to formally appeal.

"Someone else with standing could appeal."

You can't just swoop into a case you had no part of and all of a sudden appeal. If the DOJ was the original and sole defendant, they are the only one with standing to appeal. Once they appeal, the Could ask someone else to defend the law, but until they appeal, no one would have standing.

[Touchdown]

31. B.. But, it's not ummm Pragmatical. That's it!

Pragmageticasm is FACTS!

Wipes his eyes dry at the TV during the umpteenth SOTU viewing thinking of bathing suits.

[ruggerson]

34. Thanks sabrina - recommended

n/t

[sabrina 1]

39. Thank you. I have to make an edit of the OP but it's too late

to do it there. I hate that we have so little time to edit an OP. I have made so many mistakes I didn't notice in so many OPs until it was too late! :grr:

In the second paragraph it reads:

Clinton, eg, declined to DEFEND a court ruling that it was unconstitutional to dismiss from the Military members who had HIV.

It SHOULD read:

Clinton, eg, declined to APPEAL a court ruling that it was unconstitutional to dismiss from the Military members who had HIV.

[bvar22]

45. Thanks, sabrina 1.

K&R

Equal Rights & Equal Protections for ALL....NO exceptions!
Its NOT a GLBT issue.
It is an American Civil Rights Issue.

"Wait till later" is NOT a valid argument.


"If we don't fight hard enough for the things we stand for,
at some point we have to recognize that we don't really stand for them."
--- Paul Wellstone

[sabrina 1]

51. ""Wait till later" is NOT a valid argument."

Exactly, especially when you don't have to. I agree, it isn't just a GLBT issue, it is a Civil Rights issue. All this parsing of words as to what discrimination is etc. is simply a cover for bigotry.