White House's 'duty to defend DADT law' argument comes crashing down

[Bluebear]

Even the National Law Journal is now beating up on the Obama administration, and saying that the White House's talking point about having no choice but to defend DADT in court is utter bull. I hope someone sends all of these articles to Valerie Jarrett so she can see why everyone is eviscerating her for alleging, repeatedly, that DOJ simply must defend all laws. It's flat out untrue, as we've been saying for well over a year. Unfortunately, this article is behind a firewall, but the summary tells you all you need to know.

DUTY TO DEFEND?:
The Obama administration opposes "Don't Ask, Don't Tell," but it's still poised to defend the law all the way to the Supreme Court. Justice Department officials say they are duty-bound to defend an act of Congress. Yet history shows that this argument doesn't always apply. During the last six years, according to records maintained by the Senate, the Bush and Obama administrations told Congress 13 times that they were not defending a federal law in court.

And a reader sent me the article. Here's a small excerpt:

In 1992, back when Congress could occasionally agree on something, there was bipartisan anger over a beverage called Crazy Horse Malt Liquor because it insulted the memory of a Native American chief who happened to frown on alcohol.

Congress quickly passed a law barring federal approval of any beer label that displayed the words "Crazy Horse." The brewer promptly sued, and not surprisingly a federal judge found the law unconstitutional under the First Amendment.

When the question of whether to appeal the ruling in Hornell Brewing Co. v. Brady arose, then-Solicitor General Drew Days III decided it would be futile; the law was beyond rescue. "Congress seemed to accept the decision not to go forward," Days wrote later.

So much for the vaunted governmental "duty to defend" acts of Congress, which has been invoked often in recent weeks in connection with the "Don't Ask, Don't Tell" law barring gays from the military — a law that the Obama administration opposes but still is poised to defend. In cases much bigger than Crazy Horse — think Buckley v. Valeo and INS v. Chadha — SGs have been throwing provisions of federal laws under the bus for decades. And Senate records show that, 13 times in the past six years, during both the Bush and Obama administrations, the Justice Department has told Congress it is not defending an act of Congress.

http://gay.americablog.com/2010/10/white-houses-duty-to-defend-law.html

[Unvanguard]

1. The duty to defend is not absolute.

It does not follow either that (a) it does not exist or (b) it does not apply in this particular case.

[nofurylike]

9. well said, thank you, Unvanguard. nt

[EFerrari]

18. There is no constitutional duty to defend an unconstitutional, discriminatory law. n/t

[Unvanguard]

21. That doesn't really resolve the question.

"Unconstitutional according to whom?" is ultimately what counts. The DOJ generally defers to clear Supreme Court precedent, but otherwise presumes the constitutionality of laws and defends them as such. As the representative of the United States government, the theory is that the views of the Congress and the President who signed the bill are worthy of DOJ deference until judicial determinations decisively establish otherwise.

Complicating this picture is the fact that DOJ "refusals to defend" mean very different things with respect to different cases. What would be particularly troublesome procedurally about refusing to appeal LCR v. United States is that it would remove the constitutionality of DADT from decisive determination by the federal courts. That is distinct from, say, a decision at the appellate level to argue against the constitutionality of a law without seeking to block higher-court review of a decision.

There is a very strong--I think compelling--policy case for refusing to appeal the District Court ruling. While it would not in fact necessarily permanently end DADT, it would probably do so for all practical purposes for long enough to generate a Congressional consensus around repeal. This trumps the "duty to defend" argument for me, especially in the context of the absurdity of the filibuster blockage of legislative repeal. But there are perfectly legitimate and principled concerns about a DOJ refusal to appeal in this case that should not be dismissed as the political pandering of the Obama Administration.

[EFerrari]

37. I couldn't disagree more.

This law is patently, transparently and obviously discriminatory.

In choosing to appeal, Obama chose the worst of all possible courses. He's opened up the possibility of this going to our current corrupt Supreme Court AND he cannot deliver Congress. This may well turn out to be the worst decision of his presidency although, he still has two more years to top it.

[Unvanguard]

50. I agree that the law is "patently, transparently and obviously discriminatory."

That does not mean that binding federal court precedent controls it and determines it to be unconstitutional.

Indeed, DADT has repeatedly been found to be constitutional by other courts. I think those other courts are wrong. But my view is not the relevant one: the whole point of investing constitutionality determinations to the federal courts is so that other actors (like the executive branch) will not be able to simply nullify laws by declaring them unconstitutional.

This is not about how plainly discriminatory and bigoted (not to mention, astoundingly stupid and irrational) DADT is. If it were, if federal courts were in the business of consistently invalidating plainly discriminatory and bigoted legislation targeting gays and lesbians, not only would DADT have been invalidated long ago, but DOMA would be a distant memory, and same-sex marriage would be legal nationwide. Instead, we have a federal judiciary that has generally declined to afford sexual orientation discrimination any more than rational basis scrutiny, and, especially where judicial deference to the military comes into play, have been quite willing to find rational bases for anti-gay legislation. That is why it is doubtful that the Supreme Court will invalidate Prop. 8, and why it is unclear that there is federal court precedent establishing that there is "no reasonable basis" (within the terms of federal case law, not in terms of justice or even constitutionality in abstract) for defending DADT in court.

Obama, for reasons that probably have something to do with the principle but also with his desire to keep the military leadership on the side of repeal, has chosen to stand fast by this rule. I think he reached the wrong conclusion. Frankly I am tired of the failure of this administration to do anything "fierce advocate"-like to fight discrimination, given the manifest and horrific injustice of present federal law when it comes to the equal treatment of LGBT people, and strict legalism on this topic (especially when the Obama Administration, like other administrations, is not strictly legalistic about everything) is another manifestation of that failure. But to say that is not the same as to suggest, wrongly I think, that this reason of theirs is merely a matter of politically-convenient invention.

[The Philosopher]

45. You're right

that the President should presume the Constitutionality of legislation, but that does not mean the President can never believe a law unconstitutional nor challenge it. It's been recognized through numerous authorities that the President can challenge a law, inform Congress, then both the President and Congress present arguments to the Supreme Court who decides which party is right. So the question, “Unconstitutional according to whom?” is decided after the law is deemed unconstitutional.

The idea of refusing to appeal in order to help the efforts in Congress to end DADT is an interesting one. One theory I’ve always entertained about the reason for the excuses coming from the Executive Branch about DADT is that they don’t want to play into the “Judicial Activism” meme that Republicans use over and over again to demonize our Supreme Court candidates. If the Republicans are so afraid of it happening, seeing that it is happening and could permanently stay that way would give them an incentive to join the Democrats in voting to end DADT. That way they can say, “We made sure the courts didn’t create laws, we did our job.”

[Unvanguard]

51. The problem here is that the case is not at the Supreme Court level.

It is a single district court ruling. If they refuse to appeal, it will never reach the Supreme Court.

[The Philosopher]

59. Why

does it need to get the Supreme Court? If no party has a problem with the ruling, then that's that. If a party does have a beef with the ruling, then an appeal is made and decided if the judgment was correct or not, right? Then it goes further.

The idea that this Federal Judge's decision can be struck down by anyone heralds the belief that the argument against DADT is not strong enough to make. Which could be the case in this suit; but if the DOJ believes the plaintiff's arguments aren't strong, and if the President (and DOJ) believes DADT is unconstitutional and wants it removed, then the DOJ needs to take on the job of challenging the law with the strongest argument that can be made. Instead, the idea is that they will appeal the ruling but mention how they believe the law is unconstitutional. To me, this seems like they're admitting that the Plaintiff's arguments were strong, are strong to go and be heard by the Supreme Court and win. And, considering that, there shouldn't be a worry the ruling being challenged at a later date and DADT reinstated.

Especially since DADT's number is up in Congress. What will it matter if the ruling is challenged in January when the law was repealed in December?

[sabrina 1]

105. Assuming that there is a good point to be made for having

the law rescinded by Congress, or the SC and that the best way accomplish that is to defend DADT as they are doing, there are still very legitimate options for the President, as CIC, to halt the dismissals as the case winds its way through the legal system.

Eg, the CIC has the authority to issue an Executive Order to suspend a law, IF he believes that that law harms the military especially in a 'time of national emergency'.

President Obama HAS stated that he considers DADT to be harmful to the military as 'it deprives the military of good soldiers while we are at war'. Military Law allows him then, based on his opinion, to take steps to protect the military from the harmful effects of the law. The second condition, 'when the country is in a state of emergency', has also been met. Obama extended the 'State of Emergency' signed by Bush when before it expired.

Should he exercise his power to suspend DADT, it would remain suspended for at least two years. And as you and many others have pointed out, by that time it would be difficult for Congress not to repeal it as it would have effectively become policy by then.

Doing this would not prevent the DOJ from going ahead and defending the law. But it would ensure that no more Gay Soldiers are dismissed while everyone waits AND make the final outcome of repeal, far more likely.

As a matter of fact, Gates recently announced that dismissals would be now be restricted to just six civilian authorities all appointees of an administration that opposes the law. This is a partial suspension of the law, done by someone with far less authority than the President. In fact, Obama should have issued that order himself. I'm wondering if Gates even has the authority to basically suspend the law.

I believe that the main reason why Obama has been advised NOT to issue an EO is their irrational fear of the right. They are afraid that if HE does it, the right will jump all over him, claiming he is 'ruining the military' because he's not fit to be CIC and he 'never served' etc. etc. So, they let Gates make that announcement to diminish any of that criticism.

I also think that if that is the case, it is a very stupid reason since the polls show that a majority of Americans support Gays serving in the military.

The president has public support behind him, he has the authority to stop the dismissals and a court ruling proclaiming the law to be unconstitutional. There is absolutely no reason for him not to do it.

[pgodbold]

49. I think it was just the fact he was upstaged by a bunch of gay republicans and he wanted credit. nt

[EFerrari]

53. Great graphic.

:rofl:

[joeybee12]

67. It does not follow that...

it DOESN'T apply in this case.

Sorry, but you've really said nothing.

[FreeState]

2. Word on Twitter is there is an emergency meeting tomarrow on DADT at the Whitehoise

RT @edatpost: White House confirms a big #DADT meeting on Tues w/ senior officials & gay rights groups to talk about Congress. efforts to repeal the ban

[Bluebear]

3. Fine time.

Of course, it must be about the polls. Certainly ethics and doing what's right play no role in this big meeting.

[FreeState]

4. Certainly - cause Im sure they always meet about policy with a week to go

before a major election... but Im sure its just moving the pawn on the chess board :)

Thanks for posting the article, would have missed it otherwise.

[Radical Activist]

5. Cynical much?

Obama has said repeatedly that he favors repealing DADT and that it will happen this year. No poll has ever changed that. Neither did your spin and speculation about Obama backing down.

[nofurylike]

7. well said, thank you, Radical Activist. nt

[Bluebear]

10. Oh, is he chiming in?

That's nice.

[Capn Sunshine]

79. It was a chime of truth

Obama has always maintained his opposition to DADT, and nothing anyone speculates here in the internets changes what IS in the real world.

[Bluebear]

95. Obama has done nothing to end it. Talk is cheap.

[fascisthunter]

107. we could care less what he says... we want action

until then, he's enabling the staus quo becauuse he is in a position of power to do something.

[Bluebear]

116. thank you for that! nt

[EFerrari]

17. Obama has said a lot of things repeatedly. Let's see what he does. n/t

[Bluebear]

19. Thank you for that post, EFerrari!

:rofl:

:)

[Name removed]

24. Deleted message

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

[Radical Activist]

41. It's easy to see

just how bigoted he is.

Record number of openly gay officials serving in Obama administration
http://www.latimes.com/news/nationworld/politics/wire/sns-ap-us-obama-gay-appointees,0,7984307.story

[Touchdown]

46. Window dressing.

It's easy to see he doesn't like us much.

Donnie McClurkin
Doesn't believe in Gay Marriage
Rick Warren
Defending DOMA in court with an incest defense
The insulting and bigoted DADT (Just how icky are those homos?) survey... that they even gave to spouses!
Cock blocking The House when it looked like they passed a repeal so his nasty little survey can be finished, and so they can't out flank him for credit.
Issuing a mealy mouthed, equivocating statement when Prop 8 was struck down.
One of his closest advisors saying "Lifestyle Choice" in public without any sense of irony or remorse... and then issuing a non-apology for it.
Filing for a stay when DADT was struck down.
Appealing the DADT ruling.

Wow. You're right! It is easy to see how bigoted he is.

[Touchdown]

60. THank you for posting that information!!! ... Me!

:P

[Radical Activist]

68. That's a pretty big insult to over 150 LGBT Americans

who are making a difference for the better. I find it sad that your hatred for Obama is so overwhelming that you're eager to belittle the contribution they're making. The hyperbolic way you spin Obama's actions are not convincing.

[Touchdown]

77. They're not making any difference in policy regarding glbt issues.

No matter how you cynically use them for your gotcha arguments.

[Touchdown]

91. And... As a veteran who had to hide being gay in the Army..

And knows what the current gay & lesbian soldiers and sailors have to endure, I could give a shit less how insulted any of those pampered political appointees feel by my rage. I have little respect for Washington insiders who were hired to give the admin gay cred.

You act like I don't have a right to my anger. If so, you know what you can do with that opinion as well.

[Zhade]

114. Don't you fucking speak for them. You don't have that right.

NT!

[dionysus]

73. shall i fetch you a tissue?

:eyes:

[Touchdown]

99. Don't you have porn to look at?

:eyes:

The adults are talking. Go play on the Interstate.

[tavalon]

26. Proof is in the pudding, as my Grandma used to say

And the DOJ appealing DADT is an awfully convoluted way of getting rid of it.

[Toots]

33. I heard him say it must be done the right way which is by Congress

You think the Senate is going to do anything Obama wants?

[Iggo]

39. Do you really think it'll be repealed this year?

I'm not asking you if Obama said so. I'm asking if you think it'll happen in the next 65 days.

[Radical Activist]

40. Yes.

It could happen any of several ways. All events point toward that outcome.

[Iggo]

42. All events? Including the shrinking majorities in both houses?

[Radical Activist]

43. Including the lame duck session,

the progress of court cases, and the Republican Senators who said they voted No last time for procedural reasons who won't have that excuse next time. We only need one or two.

[Iggo]

44. Ah okay.

I don't think it'll get done, but at least now I don't think you're crazy...lol.

[Touchdown]

47. Are you willing to put money on that?

:shrug:

[Radical Activist]

66. I'd rather work for change than bet against it.

It's very sad that you would offer to bet against our goals being achieved.

[Touchdown]

78. So that's a No.

Gotcha.

[NorthCarolina]

52. Did he actually say repeal will happen "This Year"? I don't recall his saying that.

I do recall him stating in a much more ambiguous way that it would end "on my watch", but apparently I missed where he actually pinned it down to ending "this year" (2010).

[Jamastiene]

63. He said he would work on it this year and it was the right thing to do.

http://www.youtube.com/watch?v=_1z3_TlYfbQ

[Radical Activist]

65. He has and so has Gibbs.

Odd how that fact never makes it into Bluebear's posts.

[Radical Activist]

75. And they just said it again.

At a meeting with Gibbs, Obama and leaders from LGBT groups.

http://www.politico.com/blogs/joshgerstein/1010/Obama_drops_in_on_dont_ask_strategy_meeting.html

At his briefing Tuesday, White House Press Secretary Robert Gibbs said the White House was focused on pushing a repeal measure through during the lame-duck session of Congress, though he didn't rule out some executive action if that failes.

"Our efforts in the short term will be focused on the durable repeal of a law that the President thinks is unjust, and that’s where our focus will be," Gibbs said.

[cliffordu]

8. So now it's the motive instead of the actual change in the law??

That stinks as bad as the "Anderson Cooper isn't gay enough cause he doesn't talk about it all the time" tirade of a couple of months ago.

I don't give a fuck if the ghost of christmas future changes the law, I just want it changed.

But then, I ain't no big time activist, either.

[nofurylike]

11. thank you for that information, FreeState! nt

[sandnsea]

6. Because gay service members' lives

and malt liquor is exactly the same thing.

:eyes:

They've been quite clear. The lives of service members who serve openly could be seriously jeopardized if Congress doesn't repeal DADT and the Supreme Court rules against gay service.

This MUST go to the Supreme Court OR be repealed by Congress. That's the only way to end it, one way or the other. Legal "experts" who say otherwise are really just playing politics with the issue and ultimately, peoples' lives.

[FreeState]

12. DADT: Five "Durable" Myths

http://www.pamshouseblend.com/diary/17772/dadt-five-durable-myths

Myth No. 1: Since DADT is a law enacted by Congress, the president has no choice but to enforce it.

Myth No. 2: The president hasn't suspended the discharges because he wants "durable" repeal, and the only way to achieve that is for Congress to pass the pending defense authorization bill.

Myth No. 3: The Department of Justice was required to appeal the judgment in the Log Cabin Republicans litigation.

Myth No. 4: DOJ is just appealing so that they can get a higher court to invalidate DADT and set a wider precedent.

Myth No. 5: DOJ's appeal doesn't matter, because a future administration could appeal later.

[Bluebear]

13. THANK YOU for that information, FreeState!

:)

[sandnsea]

16. Playing Politics with people's lives

It's short-sighted, dangerous and mostly foolish.

[Touchdown]

25. Hmm. Strange.

;)

[Sweet Charming Dem]

29. Irony at it's finest.

[nofurylike]

14. well said, sandnsea! thank you for posting that. nt

[Bluebear]

15. Thank you for kicking this information up so many times!

:)

[nofurylike]

20. you're welcome. nt

[Touchdown]

58. Thank YOU for posting that kicking information post, Bluebear!

:P

[Bluebear]

61. No, thank YOU for kicking it, Touchdown! nt

[Touchdown]

62. ...

:rofl:

[Bluebear]

94. Oh, thank you for ROFLing! nt

:silly:

[jaxx]

23. I don't know why people refuse to believe this.

DADT is a federal law. It's not a policy that can be changed at whim.

[Creideiki]

32. Federal courts don't rule on "whim"

I'm not sure why you think they do.

It's not like Circuit Courts and Courts of Appeal are children's sandboxes and only adults are at the Supreme Court.

When the Circuit Court in Mississippi enjoined the Feds from enacting the moratorium on off-shore drilling, it had the same effect. It's not like the judge then had to go, "I'm not old enough to decide constitutionality. Daddy Scalia, could you look at this please?"

This is the same thing.

[sandnsea]

38. There you go, precisely

What happens in one court can be completely opposite to another court. A court can tell the Feds they're completely wrong, tell the President he's completely wrong, NO SIR, you cannot enact a moratorium. Just like a circuit court in Mississippi could say, NO SIR, you cannot enact a moratorium regarding DADT.

As it pertained to the moratorium, it was a temporary problem.

As it pertains to DADT, it is a problem that affects PEOPLE. It is not responsible to not take this all the way to the Supreme Court. That is how we do it in this country.

I'M not sure why supposedly smart people on this board are pretending that is not the way our system works.

Why the HELL do you think they want to take the California marriage case to the Supreme Court???

[Creideiki]

115. The moratorium was "temporary"?

Really?

Is that why the Administration went back to the drawing board to re-justify a brand new moratorium?

Goddess, how I've missed you! Please post more! It's very enlightening!

[EFerrari]

54. I don't know why people post straw man arguments.

They doo't change the facts.

[tavalon]

27. Is that when the magical protection shield gets invoked?

While I am completely for getting rid of DADT, I have considered and worried about the military solving their out gay problem with or without DADT.

[Creideiki]

34. If you mean violence and discrimination

We could also be worried about the military solving its violence and discrimination problems for race (Fayette-Nam, anyone?) or women.

All of these exist, but while blacks, Latinos, and women get protection from the military hierarchy, going in to your commander and saying, "I'm being harassed, threatened, or beaten for being gay leads to the victim getting kicked out instead of the perpetrator.

[tavalon]

35. I totally agree with your point of view

I'm so against DADT but I worry for my gay brethren. Sometimes the military behaves in a less appropriate manner than we would want from our trained killers. Blacks, Latinos and women sometimes get protection, sometimes not and that's a fact. But it's a fact that is completely aside from the civil rights issue.

[Autumn]

72. So a gay military person will just have to accept that.

just like blacks, latinos and women they just might have to get used to the fact that sometimes they just might not get protection. Gee kind of like real life.

[tavalon]

74. Again, I'm agreeing with ending DADT. Completely

I'm just stating a worry I have. In the civilian world, there are hate crime laws that (somewhat) keep the bigoted thugs at bay. The military protects those whom it chooses to protect. I'm sorry I placed these in the same conversation. I'm feeling a motherly protection towards a group that has gotten the shit kicked out of it since the dawn of time. I guess I'm saying that as we end this discriminatory law, we need to be aware that the military might retaliate. It doesn't mean the law shouldn't be gotten rid of, just that we need to be vigilant for unintended consequences and be quick to hold the military accountable.

[Touchdown]

55. Uh' As a former gay service member, I need a favor from you.

Please stop helping us!

[sandnsea]

70. Why didn't you sue in 1994? n/t

[Touchdown]

76. What makes you think I didn't ?

Because I was poor, in college, and looking for hot guys. :eyes:

[sandnsea]

80. DADT wasn't overturned?

Seems to me if you'd sued, it would have been. But you know, I guess looking for hot guys was more important. :shrug:

Do you not want the Log Cabin Republicans' help either?

Oh, and what about Ted Olson?

Who else's help do you not want?

Do you even know the details of the arguments being put forward in these cases? Maybe they haven't crafted every sentence totally up to your satisfaction?

Do you only want marriage in California - or do you want the appeals process to create equal marriage rights across the country?

Do you not see that there has to be an APPEALS PROCESS for there to be a Supreme Court ruling?

The complaining is just stupid. John McCain is the problem in Congress. He's running for the Senate this year. Where are the attack ads against him??

And the Log Cabin Republicans have to get the job done. Embarrassing.

[Touchdown]

85. I want the help of all of those

I don't want yours. You, browbeating us, lecturing us on something you known little about, and doing nothing else but talking smack on a message board are not helping.

You, sandandsea, are who we do not need help from. Is that clear enough for you, Madam?

[diane in sf]

22. My theory is they're making noises to appease social conservatives and then they'll

drop the bullshit cause of defending the undefensible shortly after November 2nd.

[Sweet Charming Dem]

30. 75% of Americans support repealing DADT

I'd say the 25% that don't support it would never vote Dem, but I don't know about that given some of the posts I've read around here.

[NorthCarolina]

56. 76% supported single payer or a public option too.

Not so sure how much weight, if any, that level of public support for an issue carries anymore.

[EFerrari]

57. And that may be the take away, right there. n/t

[MrScorpio]

28. Wow, I feel really sad all of the sudden

Bummer, man.

[JuniperLea]

69. This changes everything...

Bummer, dude.

[Starry Messenger]

31. k & r

[BzaDem]

36. As usual, straw man. I'm still waiting for an example in which an appeals court already upheld

the law in question. No one has been able to provide such an example. They keep providing examples in which precedent is either hard to apply or cuts against the law, rather than on-point precedent upholding the very law at issue by a higher court.

[Touchdown]

64. As usual, another DADT thread and...

BzaDem has to take his giant dump in it.

[BzaDem]

81. Sorry you are inconvenienced by the truth. n/t

[Touchdown]

86. Never inconvenienced by the truth.

Bullshit from the White House apologists on the other hand...

[BzaDem]

87. It's interesting how you've responded to my posts in multiple threads, but never offered even one

scintilla of evidence that any sentence in my posts about this issue is wrong.

Pretty telling.

[Touchdown]

88. Wait? You provide facts?

Where?

[BzaDem]

89. Let's look at post 82 in this thread for example.

"The appeals court ruling in 2009 upholding DADT obviously takes precedence over the district court ruling in 2010."

Fact

"There has never been any example that I am aware of where the DOJ didn't appeal a ruling throwing out a law that was ALREADY UPHELD by a higher court."

Fact, in terms of what I'm aware of. You are welcome to post an example where the DOJ didn't appeal a ruling striking down a law that was already upheld by an appeals court.

"As usual, all the examples in the thread are where the higher court precedent indicated the law was unconstitutional, not when the higher court precedent made clear the law was constitutional (however much we dislike the precedent)."

Also fact.

[Touchdown]

90. Legal arguments are conjecture, not facts.

Too bad for you.

[BzaDem]

92. None of those three facts were a legal argument at all.

Do you know of any case in which the DOJ didn't appeal when an appeals court already upheld the law?

[Touchdown]

96. I'm done engaging.

This is why I don't buy any of it, and why I don't feel the need to argue legal mumbo jumbo with you or anyone.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9396208

[BzaDem]

98. That's fine, though you again prove my point that criticisms of Obama on this issue are fact-free.

You haven't done much engaging. You did try to change the subject to the policy of DADT with your link (as if we don't fully agree on the fact that it is a bad law), but you haven't even attempted to refute any of the facts I mentioned. That is telling.

Cheney also said that he didn't have to worry about legal mumbo jumbo and could ignore the rule of law, since to him, the ends justified the means. Torture is fine, since it helps keep America safe. Warrantless wiretapping? Perfectly fine. The 4th amendment doesn't apply in the war on terror. Locking up American Citizens indefenitely, without due process? Ends justify the means.

Ducking the legal issue is not addressing the legal issue. During the warrantless wiretapping showdown, when Cheney was outraged at his OLC for declaring his national surveillance program as illegal, Cheney started going into all the reasons why it was essential for national security. What did the OLC do? They said that the more you explain why this is necessary, the more sad I am that it is illegal. But it being necessary, good policy, and essential has NOTHING to do with the legal question. NOTHING.

[Touchdown]

100. I have done more and endured more than you can ever know.

Rhetorical cheap shots like "That is telling" only expose you as somebody only interested in winning, not doing the right thing.

I'm not interested in whatever logical fallacies, procedural justifications or rhetorical circumlocutions you can use to defend this. You have nothing positive or even inclusive to offer, only excuses for the White House and lectures on how I should be appreciative. You are not worth my time.

My EDIT on yours. Funny you mention Dick Cheney. As much as it pains me to admit it, that old monster was much more pro gay than Obama has been so far.

[BzaDem]

101. Feel free not to answer. But my question (for others too) is: do you accept the idea that something

can be morally essential, absolutely essential for any sane people, yet still be simultaneously outside the law?

Or should what is legal always be defined a what some person wants to do?

I'm not talking about DADT in this specific question. I'm talking about ANYTHING.

[Touchdown]

102. You are attempting a gotcha setup. It won't work.

This thread is about DADT, so don't pretend that your question is about generalities.

And if I answer either, neither you or anyone else has been able to prove the necessity of the Admin's actions, so your question is moot until you do.

Regarding why I don't talk about legalities... I am not a lawyer, do not know law, and did not study constitutional law, so I am not qualified to argue one side or the other. I suspect that 90% of the rest of DU's "Constitutional Law Experts" that have come out of the woodwork in the last 10 days have even less education about it than I do.

I also know that you did not enter this thread because you want to provide facts or want DADT ended the "proper way" whatever that means, and you know it too. You entered into it because somebody is dissing Obama, and you cannot emotionally endure that. All of your other talk about "facts", and "It's telling" are nothing but red herrings to what you really want to do. Shut us up.

[BzaDem]

103. I have "dissed" Obama multiple times about his stay request

and have said that it was not needed, hypocritical, and violates Obama's own words.

And if I wanted to shut you or anyone else up, I would put you on ignore.

The ONLY reason I entered this thread was to respond to an OP that completely ducked the question at hand while simultaneously pretending to answer it.

It is interesting to watch though you try to come up with crazier and crazier motives of people who you can't bear to actually discuss facts with.

[Touchdown]

104. Goodbye!

:hi:

[Bluebear]

109. Thank you for saying goodbye! nt

[Touchdown]

97. I'm done engaging.

This is why I don't buy any of it, and why I don't feel the need to argue legal mumbo jumbo with you or anyone.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9396208

[Whisp]

48. you know, BlueBear, maybe you have been right all along...

I think I'll go hide for a while, this is just too depressing.

[Tesha]

71. With the exception of "the DU Few", most of us have been pretty certain...

...that there was no "duty to defend" any higher than the first court.

Tesha

[BzaDem]

82. Just because most are pretty certain of something that's wrong doesn't mean it isn't still wrong.

The appeals court ruling in 2009 upholding DADT obviously takes precedence over the district court ruling in 2010. There has never been any example that I am aware of where the DOJ didn't appeal a ruling throwing out a law that was ALREADY UPHELD by a higher court.

As usual, all the examples in the thread are where the higher court precedent indicated the law was unconstitutional, not when the higher court precedent made clear the law was constitutional (however much we dislike the precedent).

[TriMera]

84. You just hold on to that. n/t

[struggle4progress]

83. More wedge-driving from Aravosis, wedge-driver extraordinaire

[Kurovski]

93. K&R

It seems we all have to bang at this administration's door non-stop. For everything.

[treestar]

106. Why hang onto this issue so ferociously?

What difference does it make, so long as it gets ended? What is wrong with a higher court striking it down, affirming this ruling?

Normally the DOJ defends laws, going out and finding exotic examples just to trash the system seems rather sick to me.

[Hell Hath No Fury]

108. Why hang on?

Because this was O's best shot at killing DADT outright. Congress will NOT rescind DADT. The Supremes cannot be counted on to overturn it -- Scalia flat out said that the Constitution does not rule out descrimination.

O was handed a gift with the recent court rulings and he has chosen to say "no" to the gift to protect vulnerable Dems in the midterms. And every LGBT person and their supporters should know that.

And if it was YOUR life that was being played with in such a way, you might "hang on" to this issue as well.

[Touchdown]

110. Why?

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9396208

[Kurovski]

111. The message continues apace:

"If you are LGBT, you are a piece of shit, a political pawn."

It's well past time to end that.

[VMI Dem]

112. Unless the administration loses this appeal, DADT will be here to stay.

For the next several years at least.

[Zhade]

113. Any person looking at this honestly knew it was untrue.

Why? BECAUSE THIS ADMINISTRATION DECLINED TO DEFEND OTHER LAWS IN COURT.

He's bigoted with regards to GLBTers. That's just a fact. His stance on our equal rights is bigoted. There can be no denying this.