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With DoJ Almost Certainly Appealing DADT Ruling, Nobody Knows If Obama Thinks The Law Is Unconstitutional

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Expect the Justice Department to appeal U.S. District Court Judge Virginia Philips’s worldwide injunction of Don’t Ask Don’t Tell, if “senior administration officials” are to be believed. With 60 days to file an appeal Log Cabin Republicans v. United States of America, the government won’t likely wait until the last minute, with an appeal filing coming as early as this week. As expected. But isn’t President Obama all torn up about it?

If he is, he’s not showing it.

Press Sec. Robert Gibbs was today asked about the ruling and DoJ’s possible response, to which he said he’d “refer you to the Department of Justice on some of the legal ruling questions.” Great! But doesn’t Obama get the final say as to whether there’s an appeal? “The president — the president I believe does.” And while we already know Obama thinks the law is discriminatory, does he think it’s unconstitutional? “The president believes the policy is unjust. The president believes that the policy discriminates against those, as I said earlier, that are willing to die for their country.” Yes, but unconstitutional? “I have not [asked him].”

Well. Do it.


  • 29 Comments
    • B
      B

      Regardless of his opinion on the question of whether DADT is constitutional, according the Judge Phillips ruling, “Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.”

      So, it sounds like they weren’t particularly enthusiastic defenders of this law. They basically said, “it passed, here’s the history of what went on, do whatever you think is best.”

      Oct 13, 2010 at 9:47 pm · @ReplyReply to this comment ·
    • Sean
      Sean

      Queerty must have a very limited understanding of Constitutional Law.

      This is the legal oath President Obama took upon taking office: “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

      It legally required that the President and his Justice Department appeal any ruling striking down federal law until a supreme decision by the Supreme Court.

      I repeat: THE JUSTICE DEPARTMENT IS LEGALLY, CONSTITUTIONALLY REQUIRED TO APPEAL THE DON’T ASK DON’T TELL RULING UNTIL IT IS OVERTURNED IN THE SUPREME COURT, REGARDLESS OF THE PRESIDENT OR THE ADMINISTRATION’S BELIEFS.

      Oct 13, 2010 at 10:45 pm · @ReplyReply to this comment ·
    • Kieran
      Kieran

      This is the CHANGE we can believe in? LOL.

      Oct 13, 2010 at 11:33 pm · @ReplyReply to this comment ·
    • Clarence J.
      Clarence J.

      I still have to read the recent case judge’s opinion, but I thought the Supreme Court already ruled on an early case that gay Americans had no implicit right, i.e. a constitutional right, to serve openly in the armed forces.

      The law might be completely constitutional and still be unjust. Nobody ever said we can’t have unjust constitutional amendments or laws. In fact the constitution itself provides us with various examples of that.

      But, I’m not exactly sure what Queerty is trying to get at with this piece. Is Obama suppose to be a worse guy–if such a feat is even possible in the eyes of Queerty’s writers–if he thinks the law is unjust but constitutional or a slightly less bad guy if he thinks the law is both unjust and unconstitutional (but still doesn’t issue an executive order)?

      Also, ideally the Justice Department is supposed to be independent of the rest of the executive branch, and defend the established laws of the land (which until Congress repeal DADT, includes DADT), and while we all know that this independence isn’t as black and white in real life, doesn’t it come across as highly political in nature and sketchy if the administration pressures the (independent) Justice Department to not defend the law because it will cost the president political points with his base, especially with such a charged issue like DADT.

      But more importantly, I think it’s clear that the Justice Department, having learned its lesson from pass cases like the DOMA case last year, have only argued these cases begrudgingly like the other comments have said, fulfilling their constitutional mandate without gusto.

      Oct 13, 2010 at 11:33 pm · @ReplyReply to this comment ·
    • Devon
      Devon

      Someone else 2012.

      Oct 14, 2010 at 12:37 am · @ReplyReply to this comment ·
    • Sean
      Sean

      Soooo done with this blog’s bullshit anti-intellectual temper tantrums regarding things they don’t understand.

      Oct 14, 2010 at 12:40 am · @ReplyReply to this comment ·
    • CJ
      CJ

      @Sean:

      Obama is not forced to repeal this. The USA has a third arm of government called the judiciary. A judge has declared it unconstitutional. All he needs to do is accept that ruling. There is no requirement in the US Constitution that it must be seen by a higher court – or the highest court. If you see this, tell us exactly where it says this.

      Oct 14, 2010 at 12:51 am · @ReplyReply to this comment ·
    • CJ
      CJ

      *Not forced to APPEAL…

      Oct 14, 2010 at 12:55 am · @ReplyReply to this comment ·
    • ewe
      ewe

      @Sean: Thankyou Jan Brewer.

      Oct 14, 2010 at 1:12 am · @ReplyReply to this comment ·
    • Sean
      Sean

      @ewe: Fuck you.

      I’m sick of being attacked for being FOR the repeal of Don’t Ask Don’t Tell AND a student of American Constitutional law.

      There’s no point in being angry at the Justice Department or Obama for doing something they are Constitutionally obligated to do.

      And to CJ:

      The Oath of Office in the Constitution: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

      The Constitution also lays out the Enumerated Powers of Congress and says that Congress has the power to “Make Rules for the Government and Regulation of the land and naval Forces”.

      The Supreme Court is the ultimate judicial authority, and until a case makes its way to the Supreme Court, it is vulnerable to Congressional action and overturning/reinstating by lower courts.

      Until a decision is rendered by the Supreme Court, the Oath the President takes legally requires his Justice Department (part of the Executive Branch) to appeal lower court decisions that challenge current law. This is basic intro to Constitutional Law stuff.

      THIS IS VERY IMPORTANT: You will notice the Obama Administration does not aggressively pursue appeals. This is because the point of these appeals is to move the cases up to higher courts, and ultimately, ideally, The Supreme Court, so that a final and forever decision is rendered and solidified in the American Constitutional cannon. This is the same way Roe v. Wade was achieved, as well as the most meaningful Civil Rights victories in the 1950s and 1960s.

      I understand why people who don’t understand any of this would be angry at Obama, but it doesn’t do us or our country or our causes any good to ignore that this is just how this process works. You’re taking something that is Constitutionally obligated personally.

      Oct 14, 2010 at 1:42 am · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Sean said, “It legally required that the President and his Justice Department appeal any ruling striking down federal law until a supreme decision by the Supreme Court.”

      That is a lie, Sean.

      It’s a lie you repeat in every thread. It doesn’t become more true because you keep repeating it.

      Then you went on: “Queerty must have a very limited understanding of Constitutional Law…Soooo done with this blog’s bullshit anti-intellectual temper tantrums regarding things they don’t understand.”

      You, sweetie, are the one who clearly doesn’t understand Constitutional Law, and you are the one having the meltdown insisting you’re right and everybody else is stupid while refusing to support your argument with…facts.

      Support your argument with citations, or STFU.

      Oct 14, 2010 at 1:55 am · @ReplyReply to this comment ·
    • Sean
      Sean

      @the crustybastard: I just cited the Constitution and historic examples of this tactic of moving cases up the Supreme Court through the appeals process. What more do you want?

      Oct 14, 2010 at 1:58 am · @ReplyReply to this comment ·
    • ewe
      ewe

      @Sean: Spend money doing something knowing you will accomplish nothing. How convenient. PS. You may not fuck me. I am not interested.

      Oct 14, 2010 at 2:06 am · @ReplyReply to this comment ·
    • Sean
      Sean

      @ewe: I don’t really care if you have snippy one liners. This is an argument about the Judicial branch of the government and the Constitution and you’re out of your depth.

      Oct 14, 2010 at 2:18 am · @ReplyReply to this comment ·
    • ewe
      ewe

      @Sean: How original of you. The problem with your ego is that you have no idea what you are talking about.

      Oct 14, 2010 at 2:25 am · @ReplyReply to this comment ·
    • Sean
      Sean

      @ewe: How original of you. You’re a moron who keeps turning the conversation away from the issue because you have no idea what you’re talking about.

      Oct 14, 2010 at 2:30 am · @ReplyReply to this comment ·
    • ewe
      ewe

      @Sean:Me turning things around? I thought you were “so out of here!!!”. Next you will be accusing me of holding you captive.

      Oct 14, 2010 at 2:32 am · @ReplyReply to this comment ·
    • Sean
      Sean

      @ewe: This is clearly going nowhere. So, goodnight.

      Oct 14, 2010 at 2:39 am · @ReplyReply to this comment ·
    • Sean
      Sean

      Just one final thing. Here’s an excerpt from a Washington Post article published yesterday:

      “The Justice Department is generally required to uphold existing law and is expected to appeal rulings even when the president might agree with them. But Walter Dellinger, who was solicitor general in the Clinton administration, said an appeal could make clear that the president believes the law is unconstitutional, an approach President Bill Clinton took in 1996 concerning a law that would have required the discharge of HIV-positive service members from the military.

      “I think this is the answer,” Dellinger said, noting that it would be politically untenable to allow a single district judge to set law for the country in a case that the Supreme Court has not heard.”

      http://www.washingtonpost.com/wp-dyn/content/article/2010/10/13/AR2010101306588.html

      Oct 14, 2010 at 2:42 am · @ReplyReply to this comment ·
    • ewe
      ewe

      @Sean: waving good bye.

      Oct 14, 2010 at 2:43 am · @ReplyReply to this comment ·
    • ewe
      ewe

      @Sean: again.

      Oct 14, 2010 at 2:43 am · @ReplyReply to this comment ·
    • reason
      reason

      That is correct, it would not be unconstitutional to not appeal, but would be an unorthodox and dangerous thing to do. Basically you would be granting strong powers to one judge to set policy for the entire nation. What happens when a strong Hickville conservative makes a cruel ruling towards LGBT and some republican administration gleeful decides not to appeal. Striking down the hate crimes law would just be the tip of the iceberg. It is best to let these matters be ruled on by the U.S. supreme court where a group of high caliber judges make a decision. That is the point of that court. Look at what Rand Paul is talking about in Kentucky, you would be putting a number of protections that have not been ruled on by the supreme court in the hands of lowly judges. The conformation by congress and the number of judges on the supreme court provides some buffer against a crazy judge unraveling America as we know it. That is one of the reasons I don’t support putting polarizing judges on the supreme court, even if they share my worldview, the court is there to decide on constitutionality not cater to my ideology.

      Oct 14, 2010 at 3:09 am · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Sean:

      You quoted the oath of office, that says the POTUS bears an obligation to defend THE CONSTITUTION.

      Not any old law. The CONSTITUTION.

      When a federal judge holds a federal law unconstitutional, that means that law is inconsistent with and/or violates the Constitution. Ergo, according to the oath of office, a president cannot defend or appeal to reinstate an unconstitutional law (except under very narrow and specific circumstances, inapplicable in this case) BECAUSE it’s unconstitutional.

      Why is this so difficult for you to understand?

      If Congress enacted a law that re-enslaved black people, do you seriously think the president has a legal obligation to defend that law? Of course not.

      Here’s the crazy thing: even this administration doesn’t claim a legal obligation to defend or appeal these unconstitutional laws. They say they’re doing it on the basis of “tradition.” Their words.

      Furthermore, a law doesn’t remain valid only until SCOTUS strikes it down. A SCOTUS decision simply means that (a) there is no other route of appeal for that case, and (b) every court in the country is bound by that holding. But SCOTUS itself isn’t necessarily bound. A different case on the same issue might be heard by SCOTUS even a short time later and lead to an entirely different outcome, the way Lawrence v Texas overruled the previous crap decision in Bowers v Hardwick.

      Oh, and a citation is supplying the precise words that purport support your argument as well as directions to where those words can be found in context.

      “This is basic intro to Constitutional Law stuff” isn’t a citation, champ.

      Oct 14, 2010 at 3:12 am · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Sean:

      Finding two newspaper reporters who, like you, incorrectly believe the president bears some legal obligation to defend and appeal all or most federal laws is also NOT A CITATION to the law that you believe creates the obligation.

      Cite the law, please — or STFU.

      Oct 14, 2010 at 3:30 am · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @reason said, “it would not be unconstitutional to not appeal, but would be an unorthodox and dangerous thing to do. Basically you would be granting strong powers to one judge to set policy for the entire nation.

      “It is emphatically the province and duty of the Judicial [branch] to say what the law is…

      So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

      Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

      This doctrine would subvert the very foundation of all written constitutions.

      – Chief Justice Marshall, writing for the majority in Marbury v Madison, 5 U.S. at 177-78.

      Oct 14, 2010 at 3:40 am · @ReplyReply to this comment ·
    • Casey
      Casey

      So effectively Obama is choosing to appeal the DADT ruling, but is not obliged to.

      Why is he appealing a law he thinks is abhorrent, and which the courts have declared unconstitutional?

      Because he’s a homophobic @$$hole?

      Oct 14, 2010 at 5:33 am · @ReplyReply to this comment ·
    • Equal Rights Now
      Equal Rights Now

      If Obama showed half the courage of our gay men & women serving in the armed forces, DADT would have been repealed already. He’s a coward.

      Oct 14, 2010 at 8:31 am · @ReplyReply to this comment ·
    • Baxter
      Baxter

      @Sean: Umm…no. If the Justice Department thinks the law is unconstitutional, they don’t have to appeal the ruling. That falls under the whole “preserve, protect and defend the Constitution of the United States” bit. Contrary to popular opinion, the Supreme Court isn’t the only branch of government that’s supposed to protect us from unconstitutional laws.

      Oct 14, 2010 at 12:23 pm · @ReplyReply to this comment ·
    • the crustybastard
      the crustybastard

      @Sean:

      In the other thread you insisted, “ACCORDING THE CONSTITUTION, THE PRESIDENT AND HIS ADMINISTRATION (THE JUSTICE DEPARTMENT) HAVE A CONSTITUTIONAL OBLIGATION TO APPEAL ANY RULING…”

      But you can provide no citation where the Constitution says that — because it isn’t there.

      In this thread you started hedging your ridiculous argument, insisting, “THE JUSTICE DEPARTMENT IS LEGALLY, CONSTITUTIONALLY REQUIRED TO APPEAL THE DON’T ASK DON’T TELL RULING UNTIL IT IS OVERTURNED IN THE SUPREME COURT, REGARDLESS OF THE PRESIDENT OR THE ADMINISTRATION’S BELIEFS.”

      You’ve again been asked to provide a citation for this law you imagine exists, but once again you cannot — because it likewise doesn’t exist.

      Instead, you lamely provide a link to a newspaper article which states a reporter’s equally unsupported opinion that defending laws is “generally required” of the DOJ (which, to be fair, is only vaguely incorrect as opposed to your argument, which is profoundly, spectacularly wrong.)

      Meanwhile, you’ve condescendingly denounced others for their “very limited understanding of Constitutional Law,” for “having no idea what you’re talking about,” for being “out of your depth,” et cetera. Likewise, you’ve attacked me personally in various ways, most amusingly on the basis I lack legal analytical credentials because you assumed (wrongly) I’m a law student. Then you wrote some 14 or so hours ago, “I also just emailed 2 of my professors. I’ll just post what they write back when they respond and this will all be over.”

      Putting aside your pathetic final resort to a logical fallacy (the appeal from authority), the day has passed and evidently your professors are either ignoring you (which doesn’t speak well for you), or have written something that embarrasses you.

      Now admit you were wrong and apologize for being a dick about it.

      Oct 14, 2010 at 5:34 pm · @ReplyReply to this comment ·

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