Congress, Constitutional Law, Courts, Politics, Society

Federal Judge Imposes Nationwide Injunction of Don’t Ask Don’t Tell

While the Obama Administration has announced an appeal in Massachusetts to reverse the victory with regard to same sex marriage, U.S. District Judge Virginia Phillips in Riverside, California has upped the ante by imposing a nationwide injunction on the policy of Don’t Ask Don’t Tell– a move also opposed by the Obama Administration. The Administration is now likely to move to reverse this victory in California — further angering those “lethargic” liberals that the Administration has been pushing to work for the Democrats.


Phillips’ injunction for the first time would halt the obnoxious policy created by President Bill Clinton. The Obama Administration previously asked the judge not to enjoin the policy, which is viewed by civil libertarians as unconstitutional and unAmerican.

This case was brought by the Log Cabin Republicans, a gay rights group.

The injunction extends beyond the immediate parties in the case and could be challenged as excessive (as argued by the Obama Administration before the trial court). However, it is not unprecedented. Indeed, if the policy is unconstitutional, the court has good reason to enjoin it. Otherwise, it would require dozens of insular rulings to practically shut it down across the country. Generally, when a law is unconstitutional, it is struck down. In this case, the court did not want the military to continue to implement the policy on its own authority.

If true to its earlier filings in the case, the Obama Administration is likely to appeal the injunction and seek an appellate ruling to set it aside. That will only alienate civil libertarians and gay rights advocates further before the election. President Obama has proven to be a perfect nightmare on civil liberties. While often using rhetoric to denounce things like torture and DADT, President Obama has adopted many of the same policies as the Bush Administration and worked in court to extinguish dozens of civil liberties cases.

Indeed, while many have expressed surprise that Bush is re-gaining popularity in the polls, it should be little surprise since many of Obama’s policies have vindicated Bush. From privacy cases to off-shore drilling to assassination lists, Obama has affirmed the positions of Bush over objections from civil libertarians, liberals, and other groups.

Now, weeks before the November elections, the Administration is opposing a core constituency in seeking to preserve a policy of discrimination against gay and lesbian citizens. The Administration previously (and successfully) sought to extinguish dozens of privacy lawsuits as well as actions seeking review of torture and assassination policies. Now, on both coasts, it is seeking to limit or reverse victories in favor of same-sex couples and gay military personnel. That is likely to convert that “lethargy” to anger for many liberals who have complained of the betrayal of core values by President Obama.

Source: WSJ

96 thoughts on “Federal Judge Imposes Nationwide Injunction of Don’t Ask Don’t Tell”

  1. I say #5 although I’ll caveat that it may not be bribes proper but coercion on the part of the (mostly) GOP lunatic fringe in the Senate or a combination thereof.

    Good post, Daniel.

  2. and/or 4) thinks he can better defend it in 2010 or 2012 if it is a legislative decision, rather than a judicial one.

  3. Daniel R. Baker,

    I’d say it’s some combination of: the President 1) doesn’t think Don’t Ask, Don’t Tell is unconstitutional; but thinks it is bad policy; 2) thinks it’s a good policy in the abstract to defend the Constitutionality of all laws once passed that can be reasonably defended; and 3) thinks he can get it repealed himself and wants the legislative victory.

  4. Daniel R. Baker,

    I’m going to go with #2 and add that they are comfortable doing so because of #1

  5. SwM,

    Fisher is a good man but he is unexciting … I hope democrats and independents pull through for him. The southern bigots, and make no mistake that is exactly what they are, will vote for their “code word” boy

  6. I’d like to see some “differential diagnosis” about why the Obama administration is pursuing these appeals, assuming, as Professor Turley and the other legal scholars here have said, that it has discretion whether to do so. Which of these explanations is most likely?

    1. Obama, and/or one or more of his top officials, is a closet homophobe who is pursuing these appeals out of sheer anti-gay animus.

    2. The administration imagines that it is winning, or at least conserving, votes by pursuing these appeals, if not by winning over conservatives, then by keeping some of the centrists who voted for Obama in 2008 in the fold.

    3. The administration imagines that it doesn’t have discretion whether to appeal, even though it actually does.

    4. The court rulings being appealed contain some dangerous precedent or misapplication of the law, which scare even those who would be happy with the result itself.

    5. The administration is corrupt and is taking bribes from anti-gay activists.

    6. Something else I haven’t thought of.

    Thoughts?

  7. Thanks S M. I find the article and the comments to the article you link to very interesting. Like some there, I’d like the controversy to be settled with finality.

    And thanks to everyone else. I am busy right now (the sun is shining, it’s only 70 deg. and I have lots of weeds to pull) and will look into all your links later.

    I think discrimination should have no place in government employment, of course, but want to understand what will work best to achieve that goal. Thanks again.

  8. I see law through the potential of computer systems and I spent time studying The Privacy Act.

    In order to enforce Don’t Ask Don’t Tell the military has to keep records of who told and who asked. These records are a system of records. The military is an agency and is subject to The Privacy Act regulations and reporting requirements. Has anyone requested the military’s reports on Don’t Ask Don’t Tell records?

    http://www.federalregister.gov/articles/2010/10/05/2010-24844/privacy-act-of-1974-system-of-records is a link to a disclosure about military records that don’t involve sexual orientation.

    I haven’t looked that long but I can’t see a similar military Federal Register publications about records involving sexual orientation or Don’t Ask Don’t Tell. How can the military have such a policy if it doesn’t have records within a system of records.

    Did you know?:
    http://www.law.cornell.edu/uscode/5/usc_sec_05_00000552—a000-.html
    (e) Agency Requirements.— Each agency that maintains a system of rec ords shall—
    (1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President;… (h)(i) criminal penalties … (2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000.

  11. Buckeye,

    The DOJ has discretion on whether to appeal judicial rulings or not just like they have prosecutorial discretion. They have two purposes. They are the government’s attorney (although both Gonzales and Holder both act[ed] like they’re the President’s personal counsel) and part of the enforcement mechanism.

    From the DOJ website:

    “THE MANDATE OF THE DEPARTMENT OF JUSTICE

    The Department of Justice (DOJ) derives its mandate primarily from the Administrative Code of 1987 (Executive Order No. 292). It carries out this mandate through the Department Proper and the Department’s attached agencies under the direct control and supervision of the Secretary of Justice.

    Under EO 292, the DOJ is the government’s principal law agency. As such, the DOJ serves as the government’s prosecution arm and administers the government’s criminal justice system by investigating crimes, prosecuting offenders and overseeing the correctional system. The DOJ, through its attached offices, is also the government’s legal counsel and representative in litigations and proceedings requiring the services of a lawyer; implements the Philippines’ laws on the admission and stay of aliens within its territory; provides free legal services to indigent Filipinos; and settles land disputes between and among small landowners and indigenous cultural minorities.”

    Just like a citizen client can tell an attorney to drop a matter and live with a ruling, so can the DOJ either sua sponte or at the order of the Executive branch.

    I hope that answers your question.

  14. @Buckeye – The administration is obligated to defend, not to appeal. The judge found it unconstitutional… the ruling was put in to place. The administration has the option of accepting it and standing by the courts decision. The president could also just simply issue a directive as the commander in chief changing the policy, he has that power since it is the military we are talking about. Instead going the rout of appealing it he not only further tramples on people rights in a manner which has now been found to be unconstitutional, if his goal is to in fact have it ended, he risks achieving that goal. Plus, I have read that appealing it would likely be about a 5 year process before a higher court (Supreme?) would decide. There is always a chance that the Supreme Court could rule that DADT is perfectly constitutional over turning the lower courts decision. Meanwhile, a thousand or more gay service members may be discharged. There is also the likely scenario that the legislature will not ever get it repealed… a Republican takeover and stupid politics standing in the way of doing what is correct.

    Of course the most plausible explanation to why he is appealing has to do with winning elections. He could be calculating that no matter what people who care about gay rights as a primary issue will vote for him no matter what, counting on the likely result that they would in now way ever vote for say, a Palin despite thier unhappiness with Obama. So who is he really alienating? But by challenging it, he helpls his future causes (i.e. blaming it on Republicans if it doesnt get repealed in House/Senate, etc)… to hell with civil liberties for openly gay people that want to serve in the military (or get married) – we have elections to win!

  15. Buckeye,

    I did a quick search on the internet, but don’t know where the actual law is found. The DOJ claims the standard is that if there is a reasonable argument to be made, they have to make it. I do know that if they decide not to appeal, they have to notify Congress. If anyone has the free time to find the underlying law, I want to read it.

  17. Byron

    Yes I found how to include an avatar. Now if I could find out how to use an emoticon, I’d be all set. 🙂

  18. Tony C.

    With all due respect, I’ll wait for the lawyers here to answer my question(s).

    I don’t like to think an administration can make arbitrary decisions about which laws they will defend, though that may true for all I know. We had enough of arbitrary decisions in the last administration.

    It seems to me correct for an administration to defend the laws made by congress, even if they don’t agree, and the courts to decide if a law is constitutional, even if the appeals must reach the highest court to be finally decided.

    Of course that leaves us with Citizens United type decisions, but that’s the way things work here – I think.

    If President Obama can make an executive order to end DADT, he should just do it. Howvere, it took 8 years for President Truman’s executive order on segretation to be effected, and there was no congressional law to be overturned.

    http://www.trumanlibrary.org/whistlestop/study_collections/desegregation/large/index.php?action=chronology

  20. Oh yeah, our “lethargic” non-leading Preznut to the rescue.

    I have to wonder if Karl Rove isn’t secretly coaching Obama in the same Bush administration style tactics, — using reverse psychology – because it’s NOT that Obama hates liberals, it’s that they hate him. It’s NOT that Obama sits around, compromising his leadership away, (what little there is of any real leadership Obama has ever had to offer), it’s that those lazy liberals, who that got off their asses and got Obama electe in first place.

    AND NOW, guess what, the Deep Water Drilling ban ended early too, right before November. A gift, I’m sure, to those ungrateful, professional, lethargic liberals. BTW, when are liberals no longer “Democrats”.

    It’s just looks to me as if Obama is hoping, baiting, bitch slapping his way to a Republican lead congress. Obama could be so much more “lethargic” that way.

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