Obama admin. to appeal DADT ruling

[TampaYankee]

http://firstread.msnbc.msn.com/_news/2010/10/14/5291879-obama-admin-to-appeal-dadt-ruling

Obama admin. to appeal DADT ruling

From NBC's Pete Williams

The Justice Department has asked a federal court to put a hold on the judge's order this week that declared the military's "Don't ask, don't tell" policy unconstitutional.

"The Government intends to appeal the Court's decision. During the pendency of that appeal, the military should not be required to suddenly and immediately restructure a major personnel policy that has been in place for years, particularly during a time when the Nation is involved in combat operations overseas," said Clifford Stanley, Undersecretary of Defense for Personnel and Readiness in documents filed this afternoon in a California federal court. The magnitude of repealing the DADT law and policy is demonstrated by the Department's ongoing efforts to study the implications of repealing DADT."

What's more, Stanley says, "an injunction before the appeal in this case has run its course will place gay and lesbian servicemembers in a position of grave uncertainty. If the Court's decision were later reversed, the military would be faced with the question of whether to discharge any servicemembers who have revealed their sexual orientation in reliance on this Court's decision and injunction. Such an injunction therefore should not be entered before appellate review has been completed."

[BiBottomBoy]

Fuckers.

[manticore]

Note that there is nothing in the following DoD article that says who is

affected by DADT. Neither gay nor homosexual appears in the text.

Yes, anyone reading it already knows what DADT is about.

Even so... some people are still in the 'dare not speak its name' mode.

http://www.defense.gov//news/newsarticle.aspx?id=61279

Department Abides by ‘Don’t Ask, Don’t Tell’ Injunction

By Jim Garamone

American Forces Press Service

WASHINGTON, Oct. 14, 2010 – Pending an appeal, the military services have halted discharges under the “Don’t Ask, Don’t Tell” law, DOD officials said today.

Judge Virginia Phillips of the U.S. Central District of California ordered the halt to discharges and investigations. Phillips found the Don’t Ask, Don’t Tell statute unconstitutional in a Sept. 9 ruling. On Oct. 12, she issued an injunction ordering the Defense Department worldwide to halt discharges and investigations.

“Earlier today, the staff judge advocate generals from the military services, in consultation with the Office of the Secretary of Defense Office of General Counsel, sent to their service staff judge advocate counterparts in the field an e-mail informing them of the ruling by Judge Virginia Phillips of the Central District of California, issuing an injunction barring the enforcement or application of 10 United States Code 654, commonly known as the ‘Don't Ask, Don't Tell’ statute,” Pentagon spokesman Marine Col. Dave Lapan said in a written statement.

“The e-mail noted that the U.S. government is contemplating whether to appeal and to seek a stay of the injunction,” Lapan said.

“The Department of Defense will of course obey the law, and the e-mail noted that, in the meantime, the department will abide by the terms in the court’s ruling, effective as of the time and date of the ruling,” he said.

[TampaYankee]

It is only logical and right that Obama appeal this ruling.

Although it would be nice to have this over and done immediately and this ruling is one way to accomplish that, I have had this nag in the back of my mind that it is the duty of the Administration to keep the precedent of supporting the Law of the Land unless duly overturned by the SCOTUS. This dichotomy of feelings on my part finally crystalized when I watched Rachel and her guest Walter Dellinger, former Solicitor General under Clinton.

Dellinger said that Obama has no choice but to appeal and that it is the correct thing to do. He pointed out that it is terrible precedent to leave it to a Federal District Judge to strike down a Law of the Land, even DADT, without the Executive seeking to have the action validated or vacated by the SCOTUS. He gave the example of, under a conservative GOP President, some right wing judge strking down the Health Care law or some facet of it, or any other piece of legislation that offended the Judge's sense of Constitutionality. The DADT precedent would allow this to stand without that President seeking to uphold the law.

Dellinger suggests that Obama should appeal the ruling to the SCOTUS and also that he should take the position in filing the appeal that DADT is the duly enacted Law of the Land, that it is unconstitutonal, and that the SCOTUS should strike it down. This continues the precedent that the Executive DOJ support all duly enacted laws passed by Congress unless overturned by the country's highest court. It also throws the weight of the Executive Branch behind overturning the law on a constitutional basis.

Dellinger thinks there are more than enough votes on the SCOTUS to overturn DADT as a matter of law. I wish I were as confident althouth I think it will happen.

We cannot establish the precedent that permits lower level Judges on their own to overturn Congressionally enacted laws or Executive Ordersaand let the Executive wash his hands of it. There simply too much potential for political mischief to infect the judicial process.

[caeron]

I hate it, but I agree with you. Laws need to be defended or chaos reigns.

[BiBottomBoy]

Tampa,

How do you feel then about Gov. Arnold's refusal to send anyone to court to appeal that judge lifting the gay marriage ban in California?

Hos is that any different?

[TampaYankee]

Tampa,

How do you feel then about Gov. Arnold's refusal to send anyone to court to appeal that judge lifting the gay marriage ban in California?

Hos is that any different?

One striking difference is that Prop 8 is a constituional ammendment enacted by the electorate, not a law of the Legislature. Thus because it is based on a statewide popular vote, one might argue that this is not a clear cut example of one party using courts to overturn legislation passed ostensibly by the other party in majority.

A second difference is that legislatures employ staff attorneys to vet legislation for constitutional issues. There is little guarantee that referendum initiatives are so well vetted thus there is less presumption of verified consitutionality.

Does that vitiate the nub of establishing a precedent for lower courts overturning state law? Probably not.

There is the reason for establishing a process over policy. What seems a good example of expediency in one instance may set a precedent that permits a poor example in another instance. Of course, this boils down to whose ox is being gored. Rest assured that both sides ox gets gored at one time or another.

This is one problem with doing away with the filibuster. It sucks when you are in the majority. However, you can also count on being in the minority in the future. Pendulums swing both ways.

[BiBottomBoy]

I'm not sure I agree. The GOP doesn't play fair so why should we?

[TampaYankee]

I'm not sure I agree. The GOP doesn't play fair so why should we?

No reason if you don't mind some podunk Federal Judge in the panhandle of Texas declaring Health Care or even Medicare unconstituional under President Palin.

[BiBottomBoy]

Even texas isn't that stupid.