Just days after the Obama Adminstration announced that it would appeal a historic victory in favor of same-sex marriage in Massachusetts, the Administration is now appealing an equally historic victory over the Don’t Ask, Don’t Tell policy. U.S. District Judge Virginia Phillips refused demands by the Obama Administration that she rescind the national injunction against the policy. Now it has announced that, while it has had to suspend further discharges of gay personnel, it will appeal the decision to be able to resume such discharges.
Let us be clear on this point. The Administration is not required to appeal this decision. This is a discretionary decision. Moreover, the Administration did not have to oppose the injunction. It could have taken an appeal and allowed the injunction to stand. Once again, it is taking actions that appear in direct conflict with the President’s insistence that he opposes DADT. If DADT is discriminatory, why would the President be fighting to hard to resume discharges and preserve the policy? Would the Administration fight to preserve a racial or gender discriminatory policy? If the President believes that the Constitution does not protect against discrimination against gays, he should state so clearly. If he is opposed to the law, he also has wide discretion on when to enforce such laws. Only recently did the Defense Department impose a rule limiting, for example, the use of third-party snitches.
Any duty to defend the law was satisfied at the trial level, though it has been argued that the Justice Department should at least ask for a review of such a decision. I will note that when I had the Elizabeth Morgan law struck down before the D.C. Circuit, the Administration at that time decided not only not to seek review from the Supreme Court, it did not even ask for reconsideration before the D.C. Circuit or an en banc review. While members wanted to defend the law, the Administration invoked its discretion not to ask for review. (It had prevailed in the trial court so this was the first ruling striking down the law). In that case, the court had handed down a rare finding of a bill of attainder — something that many in Congress probably wanted reviewed due to its obvious importance in later challenges of federal laws.
More importantly, even if he feels a need to appeal as a general policy as part of his duty as the head of the Executive Branch, why oppose the injunction in the interim? Finally, the Administration argued in the Witt case that courts should not allow gay military personnel to show that they are not individually threats to good order and discipline. The Administration insisted that the courts should accept the military’s word that all openly gay and lesbian personnel are threats. It did not have to adopt such a position and could have assisted in a major advance (ultimately ordered by the Ninth Circuit over its objections) that required individual proof of these claims. Thus, if it really opposed DADT, why not adopt a moderate position that allowed a citizen to present evidence in her own defense that she was not a threat to good order and discipline. What the judge found in that case was that, once able to look at her as an individual, it was DADT that was the threat to good order and discipline in her unit.
The Obama Administration’s efforts to preserve DADT and to reverse gains on same-sex marriage occurs at the same time wen it has successfully sought a review by the Supreme Court of a lower court ruling against former Attorney General John Ashcroft. The Administration is arguing that Ashcroft had absolute immunity to use the material witness law to round up Muslim men and hold them without any intention of actually using them as witnesses. Now to keep you up to date, Obama has previously (1) barred investigations in torture and war crimes by the Bush Administration; (2) refused to prosecute people who tortured detainees; (3) refused to discipline attorneys responsible for the program; (4) refused to prosecute high level officials who ordered torture; (5) successfully sought to dismiss lawsuits seeking review of cases for torture victims; and now (6) seeks to bar any civil liability for officials in ordering abuses (including arbitrary detention and abusive confinement). I discussed this issue this week on Countdown. I must confess not just disappoint but disgust with this line of cases, as I did on the program.
What is fascinating is that the Democrats appear likely to lose significant seats this election and possibly control of the House. The Administration made a cynical calculation in these cases to oppose fundamental principles in favor of transient politics. The result is that they could not be more unpopular. If the President had simply tried to fight for principle, he would be in no worse a position in the polls but would have stood for something. For civil libertarians, President Obama now ranks with one of the worst presidents in our history and virtually indistinguishable in these cases from his predecessor. For all of those Democrats in Congress begging for support, I will simply add that only a handful of these members publicly denounced the President for these actions and policies. Even with these appeals, there has been virtual silence from Democratic leaders or members.
Source: Yahoo
Jonathan Turley
AY But you also told us you were considering voting for McCain until he picked Palin.
Did I ever tell anyone I voted for Nader….Ralph that is….
The Raven,
The power to adjudicate cases arising under the Constitution is found in Art. III, sec. 2 as modified by the 11th Amendment.
I just want to know where Judge Phillips acquired the authority to permanently enjoin the U.S. Armed Forces and to invalidate an Act of Congress.
Has anyone ever read the Massachusetts Constitution of 1780?
“Art. XX. The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”
Does any statute exist in which the District Court can permanently enjoin another branch of government?
(I agree with repealing DADT, but I don’t agree with letting a District Court Judge permanently suspend laws.)
I don’t understand Obama at all — it seems that he wants us to lose our rights. I wrote him a check, voted for him, and campaigned for him and now I feel abandoned without my rights.
http://blogs.ajc.com/cynthia-tucker/2010/10/15/obama-tried-too-hard-to-work-with-republicans/ Obama tried to hard to work with the republicans, and now he is doing the same hing with the generals.
“In response, McCain declared himself “disappointed” in the testimony. ‘At this moment of immense hardship for our armed services, we should not be seeking to overturn the ‘don’t ask, don’t tell’ policy,’ he said bluntly, before describing it as ‘imperfect but effective.'”
Effective at what exactly, John? Bolstering homophobia? Keeping citizens willing to serve in this dubious “war” for Bush’s oil profits from doing so out of fear of oppression at a time when recruitment numbers are at a low? Covering your sorry ass with the “We Hate Anything We Don’t Understand” tea baggers? Effective at what exactly, John?
I am not defending Obama either, Elaine. I was only responding to Tony’s assertion that there was no difference.
http://tpmmuckraker.talkingpointsmemo.com/2010/10/the_texas_democratic_party_expanded.php?ref=fpa DOJ is looking into voter suppression efforts in Houston. Bill White’s largest vote would come out of Harris County. It is happening in Chicago too. Mike S has been talking about this.
I’m not defending Obama–just posting the following excerpt from a WAPO article to show John McCain’s position reversal on the DADT issue.
From The Washington Post (2/3/2010)
McCain appears to shift on ‘don’t ask, don’t tell’
By Michael D. Shear
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/02/AR2010020202588.html
Excerpt:
Three years ago, Sen. John McCain (R-Ariz.) was pretty clear about his stand on the military’s “don’t ask, don’t tell” policy.
A former war hero, McCain said he would support ending the ban once the military’s top brass told him that they agreed with the change.
“The day that the leadership of the military comes to me and says, ‘Senator, we ought to change the policy,’ then I think we ought to consider seriously changing it,” McCain said in October 2006 to an audience of Iowa State University students.
That day arrived Tuesday, with Defense Secretary Robert M. Gates and Joint Chiefs Chairman Mike Mullen testifying to senators after President Obama’s announcement that he would seek a congressional repeal of the 15-year-old policy
Mullen called repealing the policy, which bans openly gay men and lesbians from serving, “the right thing to do” and said he was personally troubled by effectively forcing service members to “lie about who they are in order to defend their fellow citizens.”
Gates told the Armed Services Committee, “I fully support the president’s decision.”
In response, McCain declared himself “disappointed” in the testimony. “At this moment of immense hardship for our armed services, we should not be seeking to overturn the ‘don’t ask, don’t tell’ policy,” he said bluntly, before describing it as “imperfect but effective.”
http://abcnews.go.com/Politics/mccain-absolutely-filibuster/story?id=11903367
mccain filibuster dadt I don’t know about that Tony. McCain picked Palin and opened the door for O’Donnell. Angle, Brewer, etc. There are more differences than you care to explore. Using your logic I guess you would tell us that Obama and Huckabee are the same if Huckabee instead of Palin is the republican nominee. Are you working with one of the voter suppression groups that have popped up?
This is a croc…but they have to pander to the voters that they hope will vote for them…swing voters….while counting on the base to stay loyal….Did I ever say that I voted for Nader? Guess, he just had a knack of pissing people off by telling it the way he saw it…
When we wake up will we still be in Kansas…….Auntie Em….Auntie Em….there was this witch……and then these flying monkeys…and then that….and then …I guess, I learned that all of the power lies within…oh thank you Auntie Em…..
Forgot to subscribe…
Obama lied to us, and keeps lying to us. This guy is a complete con. This is what we get when we continually elect liars, and continually take the lesser of two evils.
And the administration wonders why there is a voter apathy,You or should I say that I feel there are two different people in charge.
This has the stink of political maneuvering … I suppose it matters to politicians who gets credit for ending DADT but as far as I’m concerned, they all waited too long … “He who hesitates is lost.”
I unfortunately believe that the decision to allow openly gay citizens to join the military at this juncture is politically motivated. It pains me to say that. The Pentagon and the President said that they wanted to have a deliberate process to make a recommendation on DADT which was to come in December; bad press on their appeal came a few weeks before the elections.
My guess is that they haven’t really changed any policies related to DADT once you’re in the military. If one engages in “homosexual behavior” can they still be discharged if they enlisted and told the recruiter that they were gay?
Follow the money. Who gains when soldiers can be blackmailed? Maybe there are problems with the military that we don’t even know of — kickbacks on contracts for instance and maintaining a law where soldiers can be threatened with loss of their employment, pension and benefits is helpful to them.
It is strange that we elected Obama on the basis that he had been a constitutional law professor but under Obama the government advocates imprisoning people on the basis of who they are — gay, pro se, Moslem etc. without having to prove that a crime was committed and the person intentionally committed it. With our third world access to justice, how long before the government expands its incarceration programs? My pro se appeal of DOJ imprisonment of me without a criminal charge for the stated reason of controlling the outcome of my 3rd party lawsuit was dismissed by the D of Columbia Court of Appeals –they ruled that Prisoner Tracking System records don’t require a criminal justice purpose in order to be exempt from the Privacy Act and that DOJ exempted the records within systems of records from the Privacy Act simply by publishing them in the Federal Register.
Dirty, ugly politics as usual. I supprted Obama. I.m disappointed in his lack of guts. I had hoped for better, but he sold out for a perceived benefit that will not come. Another disgusting example of a lack of moral compass.