Do Appeal / Don’t Lie: The question of whether Justice should appeal decisions to strike down DADT and DoMA

by on October 21, 2010  •  In Military

Walter Dellinger has an op-ed in the NY Times today spelling out a principled way for the Justice Department to respond to the decision in the Log Cabin Republicans case:

  • The Justice Department should appeal Judge Phillips' ruling (and Judge Tauro's opinion reaching the same conclusion as to DoMA); but
  • The Department should not attempt to justify DADT as beneficial to national security (and thus as advancing an important government interest). 

There are many reasons why. As Walter points out, a non-appeal would not eliminate the law, and eliminating the law is after all the goal, not this or that tactical move toward the goal. The decision of one District Court judge is not binding on anyone, not even other federal judges; a different federal judge could reach the opposite conclusion tomorrow and the second opinion would have just as much weight as the Log Cabin Republicans decision. Unless the law is repealed or struck down by the Supreme Court, either a different President or a new Congress could also direct that it be reinstated.

Moreover, the decision by a President not to appeal a trial court ruling would set a horrible precedent for the Executive Branch, and perhaps produce major backlash in support of DADT just as the possibility of Congressional repeal looms. Presidential non-appeals happen only in the most extraordinary circumstances, which is the way it should be. Even the cases often cited by those who are arguing that this or that case should not be appealed can be misleading.  In Metro Broadcasting v. FCC, 497 US 547 (1990), for example, it is true that then Solicitor General John Roberts filed a brief arguing that the law being challenged was unconstitutional, but that was an amicus brief – the FCC acting independently defended the law. In general, in cases in which the administration declined to defend a law, that decision was made after the federal courts had jurisdiction of the question [eg, INS v Chadha, 462 US 919 (1983)]. 

The smart thing for lgbt advocates to do on this issue is to move on to a better strategy, by focusing on what the government can and should do.  These are the three strategies to concentrate on:

  1. Justice Department briefs should go beyond stating that the administration believes that the law is wrong and explain why it's wrong, rather that re-arguing anti-gay precedents. As long as the case is before an appellate court, it's fair game for the government to present arguments against a law; there will be plenty of voices before the court in absolute defense of the statute, and the Court of Appeals will reach its own conclusions.
  2. The Administration should actually lead on repeal of DADT and DoMA, by pressing Congress to treat them as priorities, rather than trying to jump in front of the parade after members of Congress have taken the lead.
  3. If there is no Congressional repeal in the lame duck session, the President should consider how to exercise his commander in chief powers so that national security is best served, as determined not only by him but by the Joint Chiefs of Staff. That could involve a stop-loss order or other partial mechanisms. Such an action would not eliminate DADT, but it would be a more legitimate process for mitigating its effects than trying to remove the question from the judiciary by a non-appeal of a trial court decision.


One Response to Do Appeal / Don’t Lie: The question of whether Justice should appeal decisions to strike down DADT and DoMA

  1. Jay October 22, 2010 at 12:45 PM

    I am sure that you are aware that constitutional experts–including former Bush Solicitor General Ted Olson–have recently declared that in fact that Obama does not, and should not appeal the ruling and injunction if he wants to end DADT.

    One of those experts is Diane Mazur, a former Air Force officer who is a law professor at the University of Florida Levin College of Law. In an interview with Michelangelo Signorile on Wednesday, she asserted that President Obama is on much more solid ground in not appealing this decision than even Bill Clinton was when he decided that the ban on people with HIV in the military was unconstitutional and refused to defend it. In Mazur’s legal analysis, not appealing is neither risky nor out of the ordinary. As Ted Olson said, it’s actually “appropriate.” Here is a link to Signorile’s blog, which has an audio clip of his conversation with Mazur.
    link to

    Any reactions?

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