Obama Administration Loses Effort To Block Injunction of Don’t Ask Don’t Tell — Announces Appeal To Reverse Victory Over DADT

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

86 thoughts on “Obama Administration Loses Effort To Block Injunction of Don’t Ask Don’t Tell — Announces Appeal To Reverse Victory Over DADT”

  1. Swarthmore mom

    4: Out Of 10 Likely Voters Who Once Backed Obama But Are Less Supportive Or No Longer Support Obama. (Bloomberg, 10/12/10)

    With your help we can move it to 5 out of 10

    Just curious, what flavor was that Kool-Aid.

  2. FFLEO This has turned into quite a republican operation on this blog. It sounds like “red state or “free republic”. I will probably vote for Obama over y’all’s Palin and Huckabee. Some of you voted for Obama but you are really republicans. I think you supported the professor in the “Citizens versus United” decision. I am not responsible for Obama or any other politician nor am I complicit. I wish Mike S was here to set you folks straight.

  3. @Bdaman: Big numbers don’t mean anything out of context.

    Even at 26.2T debt, the US Government can borrow money at about 2%.
    The payment on such a debt would be about $.52T (520B). The current M2 money supply (money in circulation) is about $8.7T.
    (see here: http://www.federalreserve.gov/releases/H6/Current/)

    If the government prints $520B to pay its interest on the debt, that will cause 6% inflation. That is a pretty manageable debt.

    Also, the majority of that debt was caused by a Republican initiated “War on Terror” (continued by Obama), and the majority of the deficit is what the public seems to want: Military might, Social Security and Medicare. 6% inflation isn’t great but it isn’t too much to pay.

    In addition to that, inflation is primarily a tax on the cash assets of the rich. It can cause price hardship on the lowest wage earners, but we can alleviate that with a boost in the minimum wage (or higher demands from workers). In the long term, inflation reduces the purchasing value of cash, and for most middle class earners, their net worth is tied up in hard assets; like a house, cars, equipment and furniture. Most are also in debt: Credit card debt, mortgage and loan debt.

    Inflation is a double-whammy on the rich, because within a year or two it means the middle class has to work fewer hours and devote a smaller percentage of their pay to service their debts, AND it reduces the purchasing power of cash assets held by the rich. Not income. Assets. Part of those assets are … debt owed by the middle class; the lenders tend to be the rich.

    Essentially these are the same thing; inflation reduces the purchasing power of both cash and debt (when it gets repayed and becomes cash). Both Republicans and Democrats embrace national debt and deficit spending because it works great politically if they get to direct the flow of money. It is really only a problem for us (progressives) when the rich get fed up and want to reduce the debt by cutting services instead of printing money, what they are opposed to *really* is printing money and causing inflation that reduces the purchasing value of the debt they own and their cash assets.

  4. B. DaMaster Dick is short for Richard.

    I’ll get on my knees if you get on your elbows 😉

  5. It’s just all about Dick. Big Dick’s, little Dick’s, it’s just how its packaged. Just ask Bdaman, he like dick, but he say dadt.

  6. Professor Turley:

    Isn’t it true that any Executive Branch agency, e.g. The Department of Defense, has the discretion via policy, not to enforce a law (e.g., DADT law)?

    Over a long career in GOVT, I saw Interior do this all the time. The Ninth Circuit upheld this “discretion” in once instance:

    829 F.2nd 933 (9th Cir. 1987).

  7. Here’s another list Bob.


    $26.2 Trillion: Projected Federal Debt In 2020 Due To Obama’s Binge Spending. (OMB, 7/23/10)

    $13.6 Trillion: Current National Debt. (U.S. Treasury Department, Accessed 10/19/10)

    $8.5 Trillion: Cumulative Deficits Caused By President Obama’s Proposed Budget, FY2011-2020. (OMB, 7/23/10)

    $3.9 Trillion: Total Cost Of The Democrats’ Tax Hike To Taxpayers. (Joint Committee On Taxation, 8/6/10)

    $3.0 Trillion: Amount Added To The National Debt Since Obama Took Office. (U.S. Treasury Department, Accessed 10/19/10)

    $2.5 Trillion: True Cost Of ObamaCare Once Fully Implemented. (Sen. Max Baucus, Floor Remarks, 12/2/09)

    $1.42 Trillion: Federal Budget Deficit For FY2009 – Highest In U.S. History. (Congressional Budget Office, 10/7/10)

    $1.29 Trillion: Federal Budget Deficit For FY2010 – Second Highest In U.S. History. (Congressional Budget Office, 10/7/10)

    $868.4 Billion: American Debt Held By China. (U.S. Treasury Department, Accessed 10/19/10)

    $831 Billion: Net Interest Payment On Our National Debt In 2020 Due To Obama’s Budget. (OMB, 7/23/10)

    $814 Billion: Price Tag Of Obama’s Failed Stimulus. (Bloomberg, 8/20/10)

    $575 Billion: Amount Of Medicare Cuts In ObamaCare. (CMS Chief Actuary Richard S. Foster, Memo, 4/22/10)

    $569.2 Billion: Amount Of Taxes In ObamaCare. (Letter to Speaker Nancy Pelosi, 3/18/10)

    $10 Billion: The Cost Of The Teacher Union Bailout. (The Washington Post, 10/8/10)

    $54 Million: Amount Of Stimulus Funds Spent On A Napa Valley Wine Train. (ABC News’ “Good Morning America,” 2/2/10)

    41.8 Million: Number Of Americans Receiving Food Stamps. (Bloomberg, 10/5/10)

    40 Million: Number Of Businesses That Will Be Burdened By The Onerous IRS 1099 Requirement. (The Washington Post, 8/29/10)

    $18 Million: Cost Of The Stimulus Website Recovery.org. (ABC News’ “The Note“ Blog, 7/8/09)

    14.8 Million: Unemployed Americans. (Bureau of Labor Statistics, 10/8/10)

    9.5 Million: Americans Working Part-Time For Economic Reasons. (Bureau of Labor Statistics, 10/8/10)

    6.1 Million: Americans Unemployed For Longer Than 27 Weeks. (Bureau of Labor Statistics, 10/8/10)

    5.4 Million: Number Of Properties Receiving Foreclosure Filings Since Obama Took Office. (RealtyTrac, Accessed 10/19/10)

    3.8 Million: Increase In the Number Of People Who Were In Poverty In 2009 Over 2008. (NPR, 9/16/10)

    2.6 Million: Jobs Lost Since Stimulus Was Passed. (Bureau of Labor Statistics, 10/8/10)

    2.3 Million: Private Sector Jobs Lost Since Stimulus Was Passed. (Bureau of Labor Statistics, 10/8/10)

    1.2 Million: Americans That Have Given Up Looking For Work. (Bureau of Labor Statistics, 10/8/10)

    964,900: Number Of Jobs That Could Be Lost Per Year Under Cap And Trade. (Tax Foundation, 3/09)

    89,000: The Number Of Stimulus Checks Sent to Dead Or Incarcerated People. (The Wall Street Journal’s Washington Wire” Blog, 10/7/10)

    $43,000: Your Share Of The National Debt. (“The Daily History Of The Debt Results,” TreasuryDirect, Accessed 10/19/10; U.S. Census Bureau, http://www.census.gov, Accessed 10/19/10)

    23,000: The Number Of Jobs Obama Knew His Drilling Moratorium Could Kill. (The Wall Street Journal, 8/21/10)

    22,000: Number Of Seniors In MA, NH And ME That Will Lose Their Medicare Advantage Plans As A Result Of ObamaCare. (The Boston Globe, 9/28/10)

    $1,761: Cost To American Families Per Year As A Result Of Cap And Trade. (CBS News’ “Taking Liberties” Blog, 9/16/09)

    $1,540: The Amount Of The Tax Hike The Average Middle Class Family Will See As A Result Of The Dems’ Tax Hike. (Tax Foundation, 8/1/10)

    1099: The IRS Form Every Business Will Have To File After Doing $600 Worth Of Business With A Vendor. (CNNMoney.com, 5/5/10)

    100: Percent Of GDP That Our National Debt Will Rise To In 2012. (Office Of Management And Budget, 7/23/10)

    83: Number Of Fundraisers Obama Has Attended As Of 10/12/10. (CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10; CBS News, 8/16/10)

    80: Percent Of Small Businesses That Could Be Forced To Change Health Care Plans As A Result Of ObamaCare. (The Washington Post, 6/15/10)

    79: Percent Of Stimulus Funds For Wind, Solar And Geothermal Energy Projects That Went To Foreign Firms. (Investigating Reporting Workshop/ABC’s World News Tonight/Watchdog Institute, 2/8/10)

    68: Percent Of Americans Who Think The Stimulus Was A Waste. (The Hill’s “Briefing Room” Blog, 10/5/10)

    60: The Percent Of Young Voters Who Are “More Cynical About Politics” Now Than When Obama Was Elected. (The Huffington Post, 9/15/10)

    58: Percent Of Ohioans Who Say Obama’s Frequent Visits To The State Make No Difference In How They’ll Vote. (The Hill, 10/19/10)

    53: Rounds Of Golf Played By President Obama Since Taking Office. (CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10; CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10 )

    49: Visits To The White House By Andy Stern, Former President Of SEIU. (WhiteHouse.gov, Accessed 10/19/10)

    37: Number Of Town Halls Obama Has Done Since Taking Office. (CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10)

    33.3: Average Number Of Weeks It Takes An Unemployed Worker To Find A Job. (Bureau of Labor Statistics, 10/8/10)

    30: Number Of Waivers Granted To Businesses So That The White House Could Avoid Admitting ObamaCare Was Making People Lose Their Health Care Plans. (USA Today, 10/7/10)

    27: Percent Increase In Premiums By Some Insurers In Colorado As A Result Of ObamaCare. (The Denver Post, 9/20/10)

    25: DVDs Given To The UK’s Prime Minister Gordon Brown On His First Visit. (The Daily Mail (UK), 3/9/10)

    20: Straight Months That Food Stamp Participation Has Hit A Record. (Bloomberg, 10/5/10)

    17.1: Percent Of Americans Either Unemployed Or Working Part-Time For Economic Reasons. (Bureau of Labor Statistics, 10/8/10)

    14: Straight Months With Unemployment Above 9.5%. (Bureau Of Labor Statistics, 10/8/10)

    9: Number Of Vacations Taken By President Obama. (CBS News, 8/19/10)

    4: Out Of 10 Likely Voters Who Once Backed Obama But Are Less Supportive Or No Longer Support Obama. (Bloomberg, 10/12/10)

    2: Place In The Line Of Succession That Joe Biden Believes He Is In (Hint: He’s #1). (CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10)

    2: Visits To The White House By Actor George Clooney. (E! Online, 10/12/10)

    1: Number Of White House Investigations. (CBS News, 10/6/10)

    1: Teacher Union Bailout To Motivate Teacher Unions For Midterm Elections. (The Washington Post, 10/8/10)

    0: Other People Obama Will Have Left To Blame For His Failures In 2012. (The American People, 11/6/12)

    Read more: http://www.gop.com/index.php/briefing/comments/obama_by_the_numbers#ixzz12vnYknLF

  8. @Kay: I don’t know what you are talking about, “5005.” In any case, what Obama can do is **pardon** people for crimes, you would have to ask Buddha or Bob what the legal effects of a pardon are (besides nullifying any punishment for the crime.)

    I believe the President’s power is limited to Federal Crimes; so me saying “anybody for anything” is likely inaccurate. But he does have the power in regard to a federal law like DADT.

    Gerald Ford pardoned Nixon for any crimes Nixon **might** have committed. Ron Paul believed the President had the Constitutional authority to issue a blanket pardon to all imprisoned non-violent drug offenders whose only crime was posession, use or sale of a controlled substance.

    I don’t know if a contempt charge in a federal court is a federal crime or not; if it is Obama can pardon it.

  9. FFLEO

    “Timing is everything.” – W. Shakespeare

    Mr. Obama knew if he was to pass national health care legislation, while fighting two wars and a near depression, it would have to be in the first two years.

    Within the next two years we will see if Mr. Obama is content to be a one term president willing to buck Congress to restore the rule of law, or if he is one of the worst ever having allowed himself to by rolled by Defense, Big Business, and Congress all within one term.

    He will either be running for 2012 or will be the most veto prone President ever.

  10. @The Raven: What Obama DOES have the Constitutional authority to do, unilaterally, is pardon all DADT targets. He can pardon any citizen for anything, if a DADT investigation determines a soldier should be discharged, Obama can nullify that decisions.

    As Commander in Chief, Obama can exercise the power of the budget as well. He can defund DADT investigations and put them at lower priority than gym locker thefts and the investigation of missing office supplies. Thus investigating a DADT charge when there are unsolved gym locker crimes is a direct violation of an order by the CiC that can result in a court martial. Unless constrained by specific law, Obama chooses how military resources, including investigators, are to be utilized.

    As Commander in Chief, Obama has invoked “retention of forces” in wartime as an excuse to delay the prosecution of DADT offenders while they are in combat; the same rationale can be employed when they are stateside — We are at “war” and aren’t discharging anybody without severe cause.

    There are several Constitutional means by which a President can nullify the DADT law.

  11. If any of you Obama supporters continue to vote for him in 2 years–after what he has done–then you are clearly complicit in his misdeeds.

  12. “he may or may not have the ability to sign an order reversing Congressional law. That is debatable.”

    Then, I guess, all things are to be considered “debatable”.

    You provided an example of President Truman changing “policy” by Executive Order. Policy is not derived from an Act of Congress. To confuse the two serves no purpose. The President has the discretionary power to change policy.

    Even if we are to accept a view that the twenty-fifth section only applied to courts created by the individual states, and not to encompass all the courts which reside in the states, it would still indicate that (a) Article III did not imply or grant judicial review to SCOTUS; or (b) the twenty-fifth section was redundant (which would make the view taken by Marshall and Story ridiculous). There is no indication that anyone found the twenty-fith section to be redundant.

    My position is that the twenty-fifth section granted SCOTUS appellate jurisdiction to interpret the validity of any law created by the state or federal legislature. It was a power granted by the Legislature, and both Marshall and Story recognized that it could be removed.

  13. he may or may not have the ability to sign an order reversing Congressional law. That is debatable. He has the right to suspend the firings – that is completely within his purview. He does not have to shrug his shoulders and actively defend the right of the military to out and fire gay people.

    Also, the 25th section of the Judiciary Act pertained the the Federal Court’s ability to review STATE COURT decisions. The DADT decision was entirely a federal matter. The district court was federal jurisdiction. The repeal of the 25th section of the Judiciary Act would mean that states could make their own decisions willy nilly without federal review – which means for instance, states could individually bring some newly named version of slavery back if state legislatures and state courts thought it was ok.

  14. If DADT goes against Obama all the way up to the Supreme Court, he will merely claim that that was what he had wanted all along, the duplicitous man. BTW, Professor Turley, I hope you will also cover the Obama administration’s siding with John Ashcroft in the al-Kidd case. I don’t watch TV and missed your comments on Keith Olberman.

  15. Six,

    “Similarly, as the Commander in Chief, the President has the authority to just bypass the legislature all together if he believes a policy within the military is wrong and unconstitutional and he can sign an executive order ending the policy of DADT”

    I don’t believe the President has the power to invalidate an Act of Congress with which he disagrees. To the best of my knowledge, that is not within the discretionary powers of the President.

    I might agree with the President’s reason for doing something, but that does not mean it is a constitutional act.

  16. Buddha Is Laughing,

    I’m looking for any pronouncement whatsoever. I know that review by the Judiciary was discussed at the Constitutional Convention, and that those attending the convention decided not to grant it as a power stated in the Constitution. I can only find on State Convention where it was even discussed (Connecticut). And I can find where the person who brought it up at the Connecticut Convention authored the Act in which the power was granted specifically to SCOTUS. I can even find where John Marshall and Joseph Story dreaded the repeal of such power.

    If Joseph Story truly believed that the Supreme Court (let alone a lower court) derived the power of judicial review from some implied provision of the Constitution, I doubt he would have held this belief regarding repeal of the twenty-fifth section.

    “If it should prevail, (of which I have not any expectation,) it would deprive the Supreme Court of the power to revise the decisions of the State Courts and State Legislatures, in all cases in which they were repugnant to the Constitution of the United States. So that all laws passed, and all decisions made, however destructive to the National Government, would be utterly without redress.”

    An implied power can be repealed? And Joseph Story recognized that an implied power could be repealed? And John Marshall expected that the power would be repealed? I have trouble finding that to be a logical conclusion.

    It was 74 years before SCOTUS relied on Marbury as the source of their power. I’m not sure when the first time a judge of the District Court decided that he also had that power. (If anyone knows the first time a District Court Judge exercised the power of judicial review please let me know.)

    I firmly believe that a power not granted by the Constitution nor by statute is not a power exercised in accordance with the Constitution. I do believe that Congress can provide any federal court with the power of judicial review. The question is; Did they?

  17. @TheRaven – I’ve always been under the impression that one of the most important roles of the Federal Courts is to determine the constitutionality of laws. Just because Congress passes a law does not mean that it is therefore automatically constitutional and should be enforced…

    If the Congress suddenly passed a law stating that only people of a certain race could join the military, the Federal District Court could rule that the law is unconstitutional… something I presume you would support them doing.

    Similarly, as the Commander in Chief, the President has the authority to just bypass the legislature all together if he believes a policy within the military is wrong and unconstitutional and he can sign an executive order ending the policy of DADT – just like President Truman had the authority to sign executive order 9981 that established equal treatment for all military servicemembers regardless of race, religion or national origin. When Truman signed that Executive Order, virtually all of the military leaders stood in opposition to him and claimed many of the same arguments the administration is making today such as weakening the armed forces, cost of integration, and so on down the line.

  18. Gov’t seeks stay of ‘Don’t ask, don’t tell’ ruling

    The Associated Press
    Wednesday, October 20, 2010; 12:21 PM

    WASHINGTON — The Obama administration on Wednesday asked a federal appeals court to immediately suspend a judge’s ruling that overturned the military’s “don’t ask, don’t tell” policy on gays.

    The government says it wants the U.S. Court of Appeals for the 9th Circuit in San Francisco to take action on Wednesday. The federal government is preparing arguments for the appeals court on why the ruling on “don’t ask, don’t tell” should be suspended while the case is appealed.


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