DADT Conflict Explained: Why Obama Lawyers Fight for a DADT Policy Obama Opposes

[flpoljunkie]

DADT Conflict Explained: Why Obama Administration Lawyers Fight For A DADT Policy Obama Opposes

MARK SHERMAN
10/21/10 06:57 AM

WASHINGTON — President Barack Obama opposes the Pentagon's "don't ask, don't tell" policy on gays in the military, so why are Obama administration lawyers in court fighting to save it?

The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them.

This practice cuts across party lines. And it has caused serious heartburn for more than one attorney general.

Obama's supporters have similarly criticized the administration for its legal efforts on behalf of "don't ask, don't tell," the law that bars gays from serving openly in the military, even after U.S. District Judge Virginia Phillips in Riverside, Calif., ordered the military to immediately suspend and discontinue any investigation or other proceeding to dismiss gay service members under the law.

Indeed, Justice lawyers delayed their response to Phillips because the White House weighed in on the matter, according to a government official with knowledge of the situation. A couple of White House lawyers did not want to seek a court order that would temporarily suspend the judge's ruling, this person said, speaking on condition of anonymity to discuss the administration's internal deliberations. Failing to challenge the ruling would have had the effect of ending the policy.

Obama says he supports repeal of "don't ask, don't tell" but only after careful review and an act of Congress.

http://www.huffingtonpost.com/2010/10/21/dadt-conflict-explained-w_n_771035.html?view=print

[Exilednight]

1. Obama's reasoning on this is pure bullshit ...................

The DoJ does not have to defend this law, and in fact Justice Roberts laid the groundwork and provided case law under which the DoJ would not have to defend such a law.

As a general matter, the Department has traditionally adhered to a policy of defending the constitutionality of federal enactments whenever "reasonable" arguments can be made in support of such statutes — i.e., whenever the constitutionality of the law is not fairly precluded by clear constitutional language or governing Supreme Court case law. This practice has been predicated on the notion that because the political branches — the Congress that voted for the law and the President who signed it — have already concluded that the statute was constitutional, it would be inappropriate for DOJ lawyers to take it upon themselves to reject the constitutional judgment shared by the President and the legislature.

There are, however, historical exceptions to this general practice. Almost all of the exceptions fall into one of three categories. The first category is cases in which intervening Supreme Court decisions have rendered the defense of the statute untenable. This category isn't really an "exception" to the "rule" as much as it is an illustration of how the rule operates in practice: The newly governing Supreme Court decision eliminates any reasonable argument that might have been made in the statute's defense, other than asking the Court to overrule its governing precedent (a tactic that the SG very rarely employs, but that is not unheard of, as in the second flag-burning case (Eichman), and in Agostini v. Felton). The second category involves statutes that in DOJ's view infringe the constitutional powers of the President himself (e.g., Chadha; Bowsher v. Synar). The third, and smallest, category involves statutes that the President has publicly condemned as unconstitutional. The most famous such case was probably U.S. v. Lovett, in 1946. More recently, after the first President Bush vetoed the "must-carry" provisions of a cable television bill on constitutional grounds and Congress overrode the veto, the Bush (41) Administration declined to defend the constitutionality of the must-carry provisions. (The Clinton Administration reversed this decision and subsequently prevailed in its defense of the law in the Supreme Court in the Turner Broadcasting litigation.)


Read more: http://www.queerty.com/actually-mr-president-the-doj-does-choose-not-to-defend-discriminatory-laws-20090819/#ixzz12za0g4XT

[Azathoth]

5. Obama, to my knowledge, has never condemned DADT as unconstitutional

That's pretty much the whole point of this thing. The White House and DOJ have rather explicitly stated that they believe the law is immoral and harmful, but not necessarily unconstitutional.

[Exilednight]

25. If Obama believes this to be a constitutional law, then I supported the wrong ..............

candidate throughout the primary process and the general election.

[Azathoth]

30. Yes, how dare he allow his legal training to override his political ideology n/t

[Exilednight]

38. being non-discriminatory is not a political ideology. n/t

[flpoljunkie]

6. Obama obviously thinks it best for country to let Congress repeal DADT after the review is completed

I hope he's making the right decision here by being so deliberate. He has promised to repeal DADT by the end of his term. I hope he means his first term.

[Unvanguard]

10. Yes, because Roberts' contempt for the rule of law in the context of undermining affirmative action

deserves to be widely emulated. :eyes:

You should read Nan Hunter's blog post that Queerty links to (as well as the original Marty Lederman Balkinization post.) E.g., from Nan Hunter:

"In short, while it is not impossible for DoJ to refuse to defend DoMA, it would be an extraordinary act for them to do so. I continue to believe that defending the statute while simultaneously contributing real muscle to a repeal effort is an understandable course for the administration to follow, even though my own belief is that DoMA fails even a Romer v. Evans rational basis test."

The same applies to defending DADT--that, in addition to the political reason that Obama seeks to cooperate with the Pentagon to end it, rather than forcing it upon them and thus bringing about tension with the military.

The DOJ should not have appealed. The case for not doing so outweighs the ordinary (and important) norms at stake in impartially defending federal law. But suggesting that there are no procedural reasons to defend, or that Obama's reasoning is "pure bullshit", is quite wrong.

[Pab Sungenis]

2. Look at the rest of the "fierce advocate's" record

and you'll probably find that his "opposition" to Don't Ask Don't Tell is only to keep gay voters in line. The man does not like gay people until and unless it's election time.

He doesn't realize how dangerous continuing to annoy one of the more loyal parts of the Democratic coalition really is, though.

[mkultra]

39. ok, lets look

Reversed an inexcusable US position by signing the UN Declaration on Sexual Orientation and Gender Identity

Endorsed the Baldwin-Lieberman bill, The Domestic Partnership Benefits and Obligations Act of 2009, to provide full partnership benefits to federal employees

Signed the Ryan White HIV/AIDS Treatment Extension Act

Lifted the HIV Entry Ban effective January 2010

Awarded the Presidential Medal of Freedom to Harvey Milk and Billie Jean King

Appointed the first transgender DNC member in history

Issued diplomatic passports, and provided other benefits, to the partners of same-sex foreign service employees

Conceived a National Resource Center for Lesbian, Gay, Bisexual and Transgender Elders -- the nation's first ever -- funded by a three-year HHS grant to SAGE

Testified in favor of ENDA, the first time any official of any administration has testified in the Senate on ENDA

Signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which expanded existing United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability -- the first positive federal LGBT legislation in the nation's history

Hired and appointed a record number of qualified LGBT Americans, including more than 10 Senate-confirmed appointments

Sworn in Ambassador David Huebner

Named open transgender appointees (the first President ever to do so)

Banned job discrimination based on gender identity throughout the Federal government (the nation's largest employer)

Dispatched the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to call on the Senate to repeal Don't Ask / Don't Tell, in the meantime dialing back on discharges

Launched a website to gather public comment on first-ever federal LGBT housing discrimination study

Appointed long-time equality champion Chai Feldblum one of the four Commissioners of the Equal Employment Opportunity Commission

Eliminated the discriminatory Census Bureau policy that kept gay relationships from being counted, encouraging couples who consider themselves married to file that way, even if their state of residence does not yet permit legal marriage

Produced U.S. Census Bureau PSAs featuring gay, lesbian, and transgender spokespersons.

Instructed HHS to require any hospital receiving Medicare or Medicaid funds (virtually all hospitals) to allow LGBT visitation rights.





ALL actual items of accomplishment. Which ones do you want to do without? The outrage doesn't match the facts.

[xchrom]

3. meh. nt

[vaberella]

4. Don't waste time giving a logical explanation.

Most people on DU do not care. Many on here think Obama can veto it---as one poster told me.

[GodlessBiker]

7. I agree. When it is pointed out that Bush refused to defend certain laws, we are...

still told that this president must do so.

[Azathoth]

9. I also recall that more than a few people demanded Bush's impeachment

for that kind of stuff.

[GodlessBiker]

11. Clinton did it, too (he was impeached for other reasons, of course). So what?

He had the authority to appeal or not to appeal. He made his decision.

DADT now belongs to this President. If he gets the lame duck congress or, shortly thereafter, the new more conservative congress to repeal it, I'm sure all will be forgiven. If not, and appellate courts reverse the decision in this case, well, we'll see where his support goes after that.

[Azathoth]

12. So what? You're demanding Obama do the very thing Progressives were demanding Bush be impeached for

Hypocrisy much?

The only times in recent memory when Presidents (with the possible exception of Dubya) have refused to uphold and defend the law was when they believed said law was manifestly unconstitutional and no reasonable arguments could be made in its favor.

[Exilednight]

26. Show me a post where someone demanded Bush's impeachment over such a thing ................

You can't because it never happened. There were many things that people demanded Bush be impeached for, but not defending a law that was overturned by a court is not one of them.

[Azathoth]

31. Using the DOJ as a political tool was one of the many charges

that Progressives threw at Dubya when demanding his impeachment. That's precisely what many of them are now demanding that Obama do.

This is starting to remind me of the right-wingers who attack defense attorneys for doing their jobs even when their clients may very well be guilty.

[Exilednight]

37. This is not the same thing, and you know it. This is a case of the president ................

telling Holder that this is unconstitutional and not to defend an unconstitutional law - which, by the way, is well within the president's powers and has supporting case history to prove it.

[Bluenorthwest]

8. "Tradition" is not a logical explanation. Sorry. He's full of it.

These are the McClurkinite actions of a man who opposes equality, which he does. The DOJ does not have to appeal, there is no law. I am sick to death of being told that 'tradition' and 'culture' demand discrimination and intolerance. That is a tradition that needs to end, like many evil traditions in the past.
Too many Donnies and Rickies and Vals and Kirbyjons. Context is everything. Traditions are nothing. To imply that people 'don't care' is disgusting, just disgusting, and I say to you Donnie McClurkin, who calls gay people vampires, Michelle says is her favorite singer of 'gospel'. A hate preacher is her favorite, a man who says 'we are at war with gays'. Her favorite. So they hired him and let him slander gay people at Obama events. Deal with that. It is who and what they are. Not that you care. You don't care for reason at all.

[treestar]

22. I agree. We've been trying to explain this for days.

The legal crap is too much for some people. That's why they should stay away from it. They just can't handle it.

Heck if they went to a lawyer who told them they couldn't do a thing because the law does not allow it, or in the time frame they wanted it, I can see them stamping out of his office in outrage and blaming him as a "lousy lawyer." These people are as bad as teabaggers.

Not only can't you reason with them, they don't want any reasoning. Just looking for chances to be victims.

[Exilednight]

27. You're right, the legal crap is too much for some people, Include yourself in that statement ......

See post #1 for the reason why.

[alc]

13. If you could set future DoJ requirements today

1. Defend all laws equally
2. Defend laws you agree with

For case 1 you have to do your best and fight for the law in every way you can as far as you can. For case 2, don't even bother showing up to court - you don't like the law so let opponents win.

Which do you pick if this is a decision that binds future administrations? Remember that republicans could be in control after 2016 or 2012. And health care suits will probably still be going on as different parts don't take effect for up to 8 years. And some parts of the bill can go away by themself, but other parts will take the entire thing down.

Of course it's not as simple as one of these 2 options and is decided on a case-by-case basis. But the way a president acts on controversial laws will be cited as precedent by future administrations. And no controversial legislation is likely to hold up through the other party's next presidency if it becomes standard to not defend laws you don't like.

I think Obama's failure with DADT is legislative, not judicial.

[Prism]

14. Why it seems like only yesterday we were told DOJ and White House were separated by God

When the administration defended DOMA, and so many here explained that the White House has no say or input whatsoever on what the DOJ chooses to do.

Ah, nostalgia, how you do sting.

[wmbrew0206]

15. Here is a more likely explaination

It is pretty clear that the DoD has pretty much agreed to give up DADT, but made Obama agree to give the Pentagon time to prepare for the change. Obama made the deal and is now trying to ensure the Pentagon gets the time it needs.

It is also pretty clear that Obama wants to be the person that is credited in history as striking down DADT. It will be part of his legacy and something he will say came by his hand.

It also give the Pentagon time to figure out how the change will be handled. If you have never served in the military, trust me when I say they have a manual for almost everything. DADT ending will require a lot of changes and a lot of rules being rewritten and a lot of training to educate the force about the changes. I know most other NATO forces allow openly gay members to serve, but the US has not. So the military is going to have to prepare for a cultural change to their organization. Any consultant will tell you a organization change is one of the hardest things to accomplish, so giving the Pentagon time to prepare is not unreasonable.

[TheKentuckian]

16. Yeah it is. Peoples are being destroyed and there is great inequality. We are a democracy

such cannot endure with tiered classes of citizens.

The military serves the citizens and Constitution, not vice versa.

Much greater harm to our way of life and our patriotic and self sacrificing fellow citizens is being done than mild upheavel of some rule book.

There has been plenty of time, what is going on is a stall until the power is gone and the rancid abomination can hang on a while longer and both sides can continue to work the issue for political purposes while the evil goes on until it cannot be borne any longer.

Time my ass.

[wmbrew0206]

18. Bullshit. Obama could have ended DADT as soon as he became POTUS.

It seems most people who want DADT ended don't care about the effects it has one the organizations that the changes will affect.

The question is do you want DADT ended in an orderly way that best allows openly gay people to serve or do you just want the policy ended now and don't really care how it is implemented?

You can't have both. Choose one.

I don't think anyone here doubts President Obama's commitment to ending DADT. The fact that he agrees that the Pentagon needs time to be able to implement the changes necessary to end DADT shows that it is not as easy as a court order ending the policy.

[donco6]

20. Maybe an example of the kinds of changes that would have to take place would help?

Do you have any?

[wmbrew0206]

23. Sure. There are thousands but here are a couple examples:

1. Barracks - what is the new policy? Currently the military does not allow members of the opposite sex to share barracks rooms. How will openly gay serve members barrack rooms be handled? I know this one seems easy, but what happens if two openly gay serve members are assigned to the same barracks room? Could that be considered grounds for discrimination since technically they are being segregated from straight members. Could opposite sex members say they are being discriminated against if openly gay service members are allowed to live together in the barracks (no relationship between the two implied here) and straight serve members are not? That is an issue that needs to be figured out and then passed down to every single unit and the proper training provided to all members.

2. Sexual Harassment - Are there an sexual harassment changes need to the general orders with gay service members serving openly? An example here: some homophobe claims an openly gay service member was oogling him in the shower and has done it repeatedly and goes to his command and files a complaint. How is the command suppose to handle that? Do changes need to be made to make sure that trumped charges aren't allowed to get openly gay service members in trouble.

3. Enforcement - There are a lot of orders that are not always enforced. Public displays of affection is an example of one. No PDA is suppose to happen in uniform but it happens all the time. If openly gay couples started having PDA in uniform, than a homophobe officer or CO could charge them with the violation of an order and be correct in doing so. The reason it would be wrong is that it is selective enforcement. The military has to prepare the force to be prepare for this type of thing.

4. Benefits to partners. Does the DOMA restrict same sex partners from receiving the same benefits as a husband or wife? Can the military recognize a civil union and use that as the requirement for giving benefits? Is the military prepared for legal challenges one way or the other?

These are just some of the ones that jump out off the top of my head. For every change ending DADT will cause those changes will have to be reflected in any order, publication, or training manual. It will take a while to figure out what all the changes are and then have the orders/manuals re-written. Then the changes needs that have to happen need to be taught to the leadership and then communicated to the troops has to happen.

[TheKentuckian]

28. I don't give a squirty shit about your supposed effects. Bullshit on your bullshit, tell the

thousands that have been thrown out and hounded like criminals bullshit.

[wmbrew0206]

29. I've provided several examples of issues that have to be handled before DADT could

be ended without having adverse affects on gay serve members or military readiness.

If you can figure out a way to overcome them all, please make sure you share it with all of us and the DoD.

[TheKentuckian]

35. There has been more than plenty of time to study the rest of the free world and implement effective

policies to deal with any adjustment in P&P.

You listed nothing of consequence that supersedes equality in a democratic society.

There is no excuse to ruin even a solitary additional life and high time to welcome those back to active service that are still willing to lay it on the line for our country despite being shit on by it in one of the most despicable ways imaginable.

We are not busting the envelope open here or inventing the wheel. We have dozens of examples to follow, including our closest allies that we serve side by side with in missions past and present.

The excuses are beyond putrid and patently unAmerican. They reject our fundamental ideals and everything our nation is supposed to stand for.

Remove the requirement of marriage for dependents, delete the homophobic language from the military code, and rock the fuck on. That's what you do. Allow these men and women to serve and give them the same benefits and responsibilities of being a US Serviceperson and cease and desist with the lame mickey mouse bullshit nonsense to maintain the status quo for another fucking second.

Chaplins and shit. Jesus in Heaven! What the fuck ever.

[Hell Hath No Fury]

17. Spin, baby, spin.

:puke:

[KossackRealityCheck]

19. Very good op ed in the NY Times today

I was kind of confused by the issue because both sides seem to make sense.

This editorial says that the DOJ has to defend all laws UNLESS in their judgment the law is unconstitutional.

Can't find it right now, maybe someone else can link?

[elleng]

21. This one?

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=103x565804

Yes, both sides do seem to make sense Keeps us lawyers busy! Works, for those of us who don't mind being 'confused' by the facts!

[KossackRealityCheck]

34. That was it

It explained the issue very clearly -- thanks!

[elleng]

36. Yes it did. He was on Rachel show recently, and explained well.

[bvar22]

24. I support immediate Equal Rights & Equal Protection for EVERYBODY.

I also oppose TORTURE,
and some of the twisted logic I have read at DU attempting to justify the administrations position qualifies as TORTURE.

It is NOT a GLBT issue.
It IS an American Civil Rights Issue.

[democracy1st]

32. +1

[burning rain]

33. Saying *Wait for Congress to act* is as much as saying *Don't act*.

And everyone with a bit of savvy knows it. I can already hear the sobbing: We reeeeaaally, reeeaaally tried, but we couldn't get 60 votes in the Senate! :cry: :cry: :cry: :cry: :cry: :cry: