Sometimes you just need to understand what in the heck is going on. The Obama administration says it wants to end Don't Ask, Don't Tell, and yet yesterday it began the process of appealing a federal district court ruling that it's unconstitutional. One reading of this is that the Obama administration lacks the courage of its convictions -- that it keeps saying it will end the ban on out gays in the military but won't do anything about it.
Last night Walter Dellinger, former solicitor general under President Clinton, provided another take on why President Obama would appeal a ruling that you'd expect him to like. It's about the big picture, Dellinger said:
I think the government really has no choice but to appeal the case because we don't want a system where a single federal judge can invalidate an act of Congress and the president simply say, well, that's it, we're not going to seek to appeal that.
Imagine, Rachel, three years down the road if someone is challenging the health care, individual mandate, or the minimum coverage requirements, and there's a Republican president in the White House and they find one federal district judge who holds that it's unconstitutional. I don't think the Supreme Court would agree with that, not close.
But suppose one district judge held it unconstitutional. You don't want a situation where the government can say, well, we're just not going to appeal.
Dellinger says the White House should appeal the ruling and at the same time tell the court that it believes Don't Ask, Don't Tell is unconstitutional. That way, he argues, President Obama can actually appeal the ruling in the interest of ending the policy. In the meantime, the military has stopped pursuing investigations and discharges under Don't Ask, Don't Tell. The recruiting stations we talked to yesterday said they'd received no guidance on whether openly gay people could join the military now. But at least the active-duty troops facing the end of their careers can breathe a little easier. For now.
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An interesting take, and one I certainly hadn't thought of. I want DADT to end, but would prefer that it do so in a way that doesn't create a bad precedent.
I would have to agree with you on this Mike. This all has left a bad taste in my mouth with this admin.
Why couldn't they have been open and "transparent" and let us know this months ago? Or did I miss that townhall meeting?
I respect Mr Dellinger's legal expertise. I simply disagree with his conclusion. Presidents and their Attoneys General have declined to appeal rulings in the past, and they will do so in the future. It is the equivalent of a vest-pocket veto. Were Mr Obama to decline to appeal the DADT (or DOMA) ruling, it would have no effect whatsoever on a future president's decisions or options.
One thing is certain, however: by appealing this decision to the Ninth Circuit, Mr Obama is putting this ruling in jeopardy of being overturned. If it is upheld, will he appeal it again to the USSC? If it is overturned... will he appeal that?
The governor and attorney general of California declined to appeal the Prop 8 ruling on the grounds that the law was found to be unconstitutional - and they swore an oath to uphold the Constitution. Mr Obama swore the same oath. DADT was found to be unconstitutional. The system is not broken; in fact, the legal system is working exactly as it is designed to.
IF Mr Obama believed DADT and DOMA to be unconstitutional violations of the equal rights of LGBT citizens, there is no legal, moral or other reason for him to appeal these rulings.
And that leads me to conclude that Mr Obama does not believe LGBT citizens are entitled to equal justice under law. Actions do, in the end, speak louder than words. His actions are morally indefensible. His betrayal of LGBT Americans is unprecedented. And as far as this gay man is concerned, Mr Obama's second term has now evaporated along with my hope for the change he so eloquently, but falsely, promised us.
Except that I can easily visualize a future Republican administration shopping around for a district judge to declare some progressive law unconstitutional and then not appealing. Except I doubt they'd need a precedent to do any such thing. But I suspect the administration is playing a fairly long policy game and whether or not they are being too clever for their own good remains to be seen. Personally I'd like them to take the opportunity this ruling provides but my preferences as a disgruntled private citizen may not indicate the best path to take.
I understand, and even agree, with Dellinger's comments. And it makes sense to proceed in this fashion if --- and only if!--- you believe that this action now, performed by a Democrat in the White House, will result in a similar action a few years down the road by a Republican in the White House. And unfortunately, the GOP has demonstrated that they will not follow suit if discarding precedent will advance their agenda. Under these conditions, I'd have to say that precedents be damned, and this administration should stop behaving as though their restraint today will result in restraint after they're out of office.
I still don't get it. We have the legislative, executive, and judicial, the three branches of government that are supposed to keep each other in check. So, if Congress makes unconstitutional laws, it's up to the Judicial branch of government to toss it out. That's what happened. So why is the Executive Office filing an appeal? What's wrong with just keeping quiet about it till Congress gets rid of DADT?
I for one have No Faith in the judicial branch- when the SCOTUS is 'the end of the line'.
Who knows what that band of fools will do next- best to follow chain of command in this case- I'm just worried that this is some sort of pothole that could undermine the current members of the Armed Forces.
Would this REALLY be the first time an administration had failed to appeal a ruling they agree with even though it's against their case?
Is the Obama administration naive enough to think that if there is a Republican president in office in a few years that he WON'T let statutory policies he hates die with lesser federal rulings? Republicans don't play by the same rules that Democrats do. Playing by the "rules" now does not mean Republicans will play by the "rules" later.
Justin, we have to do this the right way the first time - means we have to apply all regulations and rules. Will a Republican Admin do the same? Probably not, but as a lesbian, I am actually feeling good that this is being done honorably with respect to the US Constitution. Since the problem is now visibly in the hands of Congress, they have the chance to back our constitutional rights as they profess to do through these elections and toss this policy or for those who are dragging their heals and opposing everything that comes from the current Admin., lets us see by votes and actions, exactly who we put into Congress to represent us (not always are the core values of the person we voted into office the same as they were when they made all their comments to us about American Rights, Freedom, Justice...) Please pay just as close attention and find out for yourself how your congressional rep votes on this issue...thats the real person who is either representing you or representing a special interest group. Make it known to your family and friends so that word gets out how your congressional rep represented you on this issue. If he or she sided with special interest, then you have the chance in next election to find someone true to their word. If you research your rep's voting history on similar issues, should give you a pretty accurate idea to allow your vote in Nov. to do what's best for all of us.
Think about it seriously - it will take Congress to remove this policy for good. The President can make it go away temporarily - we need it gone for ever.
Okay. I'm on a dose and a half of DayQuil right now, so please bear with my incoherence if it rears its ugly head...
This is something I'd been thinking of for quite awhile now; ever since Rachel informed me months ago that President Obama could, if he wanted to, with the stroke of his pen, issue an executive order halting all discharges under DADT.
But...
What if Bush were still in office, and he had, with the stroke of his pen, issued an executive order halting all abortions? (Okay, maybe not something that drastic...)
Although I am a progressive democrat, and it seems that, for the most part, our President is too, I do not want to see our Executive Branch become an entity that can simply do away with legislation they don't like.
Sorry for all of the commas. They're DayQuil commas. Or something.
I want this law gone as well but I do agree with you. Although I may not be privy to all of the finer points of the legals involved, Obama and his team are smart enough to see the bigger picture and proceed with caution concerning precedence on this issue
It's all nothing more than posturing for voters on the other side of the equation. It has nothing to do with right or wrong anymore. It's all about not losing any voters for future elections. And that's the point with each and every politician nowadays. Who cares about right or wrong for the general public, what's constitutional or unconstitutional, as long as they get re-elected. What a sorry, shameful state of affairs for our country.
Understanding what DOJ is doing isn't just a matter of looking ahead to what it would be like if the tables are turned. We can look back: Remember when Bush politicized DOJ, and was excoriated by liberals for doing so?
It *is* the executive branch's responsibility to defend this country's laws, and it's a lawyer's (i.e., DOJ's) responsibility to do so diligently. On the other hand, as Dellinger notes, they should be prepared to base their appeal on their own legal assessment of the case, which can amount to acknowledging the validity of the trial judge's ruling, even as they mount whatever counterarguments they can come up with.
I sooo want it repealed. I was very confused (and a little disappointed) by the WH's reaction but said that the President must have an good reason for what he's doing and I had a feeling it was along these lines. Thank you for clarifying it by having this guest on your show. Now I too can explain it in a logical way to people that I hear bashing him.
I just wish THEY were more proactive about explaining their motives for some things. Maybe there are good reasons for that, too though. I do trust his judgement it's just hard to defend it to others sometimes (which I REALLY want to be able to do!) when I don't understand it.
The other reason is to appeal is put up a week case so that you lose repeatedly and the law gets killed good and dead. Kinda like stepping on a cockroach 3 or 4 times.
I don't accept this explanation, either. If this were an issue of racial discrimination, there would be no obligatory defense of such a law. Unfortunately, this is patterned after other gay-related legislation over which the president and his administration have remained passive. Is this how a self-proclaimed "FIERCE ADVOCATE" for gay rights in the most powerful position in our country is inclined to operate? Phooey.
This interview was the first time I was disappointed with an Interview by Rachel Maddow. I wish she had pushed back on the notion that it had to be appealed, citing examples from our history such as this: http://gay.americablog.com/2010/10/breaking-clinton-admin-refused-to.html
As someone suggested in a blog comment yesterday, Pres. Obama could use the pressure of not yet filing an appeal to urge Senate to do the job. http://maddowblog.msnbc.msn.com/_news/2010/10/14/5291677--obama-appealing-dadt-ruling-discharges-on-hold-for-now?threadId=1104207&commentId=18447870#c18447870 Also see his second comment there - best ideas I've heard on this so far!
Lastly, the example of health care reform in the interview doesn't work. It's my understanding that If someone petitions the SCOTUS to overturn a court decision they must show that harm was caused by the decision. No one will be harmed by allowing DADT repeal to stand. Many people would be harmed by repealing healthcare reform.
Walter Dellinger is the guy in the interview and the guy in Washington Post article (which is quoted in the link to AmericaBlog). He was saying the same thing in the interview as he did in the Washington Post. So, it would be kind of strange to counter argue with his own argument that is the same only worded differently.
What they did in 1996 was they appealed but they didn't defend. This way it gets up to the Supreme Court. He is suggesting Obama do the same thing the Clinton Administration did in 1996.
They were right not to cite the exact court case. It would've taken away from the one at hand.
This Advocate piece links to a pdf explaining Executive Discretion to not appeal the case: http://www.advocate.com/News/Daily_News/2010/10/15/How_Obama_Got_it_Wrong/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+AdvocatecomDailyNews+%28Advocate.com+Daily+News%29
Okay. Assuming they must appeal, they still don't have to ask for a stay!
Pres. Obama has authority, as CiC, to halt discharges regardless of this decision http://www.palmcenter.org/press/dadt/releases/New+Study+Says+Obama+Can+Halt+Gay+Discharges+With+Executive+Order
Sorry, it just smells too much like cowardice on the part of the WH -- a depressingly persistent trait -- for that "explanation" to hold water.
But that's just nonsense. The whole point of judicial review is to give federal judges the power to invalidate specific statutes on constitutional grounds. And the executive ought simply to support or reject specific policies on the merits of those policies. If the Administration agrees that the policy is unconstitutional, why waste the money and manpower fighting a court ruling that says so? Does Mr. Dellinger seriously imagine, for one second, that a Republican administration would mount a prolonged legal challenge to a verdict that favored their own policy proposals? To ask the question is to answer it. Just a bit of research would likely turn up plenty of parallels, unless we imagine that every federal court ruling that is unfavorable to standing law must be passed on to the Supreme Court, on the entirely stupid principle of defending law just because it's been duly enacted.
OK, I get it. it doesn't make me feel great about it, but I get it.
underneath all of this, i do think and believe that Obama admin wants to overturn DADT.
I do not think there is a hidden motive here.
thank you for continuing to help clarify what is going on , Rachel.
I watched the interview and I think Rachel did not ask Walter Dellinger a key question that Pres. Obama brought up at the MTV Townhall. Pres. Obama said that he could not just sign away the law because Congress took away his ability to do that when they passed the Don't Ask Don't Tell law. I thought Rachel would've asked her guest to explain this so that viewers could understand why the President couldn't act like an imperial king and revokes things he didn't like. Where in the law that was passed was the right of the President to revoke the law restricted? If the army was desegrated by the President's signature, why can't Pres. Obama do this for the Don't Ask law. I think this was a miss on Rachel's part.
I think you inadvertently answered your own question when you noted that DADT is a law. Racial segregation in the military was not established by law but by military policy. As commander-in-chief of the military, the President has the ultimate authority over policies established by the military. But DADT was established by a law. A president may veto a law, but after a law goes into effect either with a President's signature or over a veto, the President doesn't have the option of nullifying that law. The reason the President can't "act like an imperial king" is because that isn't among the Presidency's enumerated or implied powers. A federal law can be repealed by Congress or it can be found unconstitutional by the federal court system, but it cannot be undone at the whim of a President. That's a plain and simple fact which Rachel didn't need to ask about because it's not the sort of thing people with a working knowledge of the Constitution would have needed to ask.
You also ask where in the DADT law was the President's right to allow gays to serve openly restricted, but it is the law itself which took away the President's power over this aspect of military policy. Before DADT, the issue of gays in the military was covered only by military policy, same as with racial segregation. But DADT codified that policy into law (in an allegedly compromise form) and as a law cannot be nullified by the President. This is all high-school civics-level stuff, really. Sorry but there it is.
One of the claims for appealing is that it is a "sudden and drastic change in policy" whatever. Gays have been serving in the military forever and always will. The only change will be that they don't have to be investigated and kicked out! Now the investigators will have more time to investigate the true concerns in the military...The ones where they are actually commiting crimes...like domestic violence and other true crimes. Maybe they could even invest that time into why so many service people are commiting suicide...
One of the claims for appealing is that it is a "sudden and drastic change in policy" whatever. Gays have been serving in the military forever and always will. The only change will be that they don't have to be investigated and kicked out! Now the investigators will have more time to investigate the true concerns in the military...The ones where they are actually commiting crimes...like domestic violence and other true crimes. Maybe they could even invest that time into why so many service people are commiting suicide...
He knows some people may withhold votes because of his reluctance or inability to end DADT, so I can't believe he's not delaying it for legal reasons. We do not want executive orders to be used carelessly, so I guess we must trust him. I'm weary from defending him about this.
So, if this is going to be kicked all the way up to the Supreme Court, does that mean the only way a law can be declared unconstitutional and be removed is either through a Supreme Court ruling or being struck down through the House and Senate?
Drew, in the absence of an executive appeal, the effect of the decision would be to strike down the law. Federal appeals courts, which stand between this (Federal District) court and the Supreme Court, are legally mandated to accept all appealed cases and render verdict. Should an appeals court hear the case and side with the original ruling, the government will have the further option of appealing. If that were to happen, the Supreme Court could decide not to hear the case. There are, then, at least three paths to the abolition of the law without the Supreme Court rendering a verdict: (1) not appealing this decision; (2) appealing this decision and losing, and not appealing; (3) appealing this decision and losing and appealing but not having the case accepted by the Supreme Court.
See http://en.wikipedia.org/wiki/United_States_federal_courts#Levels_of_U.S._federal_courts
I have a question too please. What I'm wondering is, if the Justice Dept appeal is found by the district court to carry some valid concern with a complete and abrupt ban before the review is considered, could the district court still disagree with the need for a stay on the injunction of DADT investigations and discharges? It seems like the preparation and transition for the repeal of DADT is independent of an injunction on the enforcement. Or can those two things not be considered separately from Phillips ruling?
(Clifford Stanley, undersecretary of defense: warns that "a poorly implemented transition will not only cause short-term disruption to military operations, but would also jeopardize the long-term success of the transition.")
Even if there is legitimate argument for waiting for the review before repeal, keep the injunction on discharges. It would seem more disruptive now to keep the military bouncing back and force on policy enforcement in its compliance to law.
Internal memo from US Air Force: http://www.sldn.org/news/archives/breaking-internal-memo-from-u.s.-air-force-judge-advocate-general-to-jag-of/ I've read this several times now. I may have to archive a copy. =)
I take it the force of your question is whether the district judge could rescind the broad injunction and replace it with an injunction limited to investigations and discharges brought by DADT. The answer is "yes," that is within her purview, but the broad language of her ruling makes such an action highly unlikely. She basically found that DADT was facially unconstitutional and had the effect of undermining military preparedness. That decision essentially compelled her to issue the injunction in the first place. That she would suddenly be moved by the government's claim that getting rid of it would have the same effect seems unlikely.
That said, the trouble with the injunction is that it puts current servicemenbers in a sort of legal limbo, while the actual fate of the policy remains in play throughout the appeals process, since if the decision is reversed on appeal, all those homosexual servicemembers who have revealed their sexual orientation would be subject to investigation and discharge, absent a congressionally or executively imposed moratorium. Is this cruel and stupid? Yes. Does it threaten military preparedness? Obviously--DADT as a looming threat is arguably as bad as it is as a policy in good standing. Does that mean the ruling will stand? Sadly, no.
It occurs to me that an injunction on investigations and discharges brought over actions that occur over the appeals process could be imposed by an appellate court that rejected the district court's ruling, but I can't say that this scenario strikes me as terribly likely, since it would obviously present a case of trying to force the cat back into the bag, as it were; I don't see a clear path between (1) holding DADT constitutional, and (2) enjoining the military from executing its main tenets. (But this is just sort of off the cuff.)
ty Blinn, it was the separation during the appeals process i was wondering about
Put simply, Obama considers this policy and its eventual rollback business as usual, rather than an egregeous stain on our Democracy that continues to ruin lives every single day.
Now that he's decided to fight our legal equality every step of the way, I intend to hold him personally accountable for every word the DoJ utters or prints in defense of this indefensible policy.
adamblast - exactly right.
Obama has morphed from a (self-styled) "fierce advocate" to an actual fierce opponent of LGBT equality. From DADT to DOMA to Prop 8. We expect this level of opposition from the conservative side; Obama's betrayal of us is unfathomable, and the outrage is white-hot.
We all must hold him - and every politician of every stripe - accountable and answerable when they say one thing and then do another. There is a FB group called Earn My Vote, which you may be interested in checking out.
I wonder if this decision is more about retribution. If a person is kicked out of military and then it is found that it was unconstitutional can they sue the government?
If the ruling is not challenged now, confirmed under the current DOJ, and taken all the way to the Supreme Court, can it be challenged later under a Bush/Gonzales-like DOJ who would strike down the lower court's decision and reinstate the policy? Seems like DADTDP needs to be dead, not just somewhat ill and resuscitated later. It has to be appealed, and the ruling confirmed to strike down the law permanently. Changing the law with the current Senate is iffy (and possibly even more so with the 2011 session). Public appeal through the Judicial branch offers 1) leverage and 2) a second path to changing the law.
This is the most errant piece of legalistic nonsense I've heard in a long time. By this "logic," there is somehow a linkage of obligation between what this Administration does and what the Administration that succeeds it will do.
So if President Obama and Attorney General Holder appeal a permanent injunction against a law they believe to be unconstitutional anyway, the succeeding Administration, somehow will in similar situations also be compelled to appeal even rulings that it agrees with that strike down laws it is opposed to -- even if that succeeding Administration is diametrically opposed to every position held by the present one.
But if the Obama Administration fails to use its power of appeal -- even when it agrees that the law in question is unconstitutional -- somehow THAT will set a precedent for "allowing" Federal judges to legislate, & obligate even an opposing successor Administration to roll over & play dead by declining to appeal.
This idiocy defies logic. For one thing, who makes rules that say to each Administration, "You must follow the precedent of what the last Administration did in this situation"? Doesn't every President have a certain degree of free will when faced with a decision he must either accept or decline? What rule says that he must decide as the last President decided, especially if turns out that he's Republican and his predecessor was a Democrat?
For another thing, does Dellinger really believe that the Republicans are incapable of making their own decisions without guidance from the Democrats? Is he really stupid enough to think that a possible Republican successor is incapable of thinking up on his own (or with his advisors) a tactic like declining to appeal the striking down of some law? Or that such a President would feel honor-bound to refrain from such a tactic because his Democratic predecessor did so?
Most importantly, does he expect us all to believe this cock-and-bull scenario? There IS no linkage of obligation that President Obama -- or any other President -- can create by his actions that will bind or limit his successor's actions. As long as he is able to act legally, it's anyone's guess now what such a hypothetical President would do in the future.
Bingo, Nick.
The pretzel logic that is being employed to explain or justify Obama's positions and actions is rather extraordinary.
The reality, however, is simple and inescapable: Obama has been progressively alienating the Progressive part of his base almost since Day 1 of his presidency. His unfathomable betrayal of his gay consituency is stunning. Obama won his first term in office with 53% of the vote. A second term, at this point, is a mathematical - and moral - impossibility.