More thinking through the Don’t Ask Don’t Tell appeal question

by on October 25, 2010  •  In Military

Penn Law Professor Tobias Wolfe has published a lucid analysis that identifies some of the misperceptions feeding the demand that the administration not appeal the District Court ruling in the Log Cabin Republicans case. I agree with Tobias' point of view. And as is so often the case in litigation, Judge Phillips' decision, together with the Witt case, has produced a powerful indirect effect. After a week of bungling and mixed messages in response to these court decisions, a new directive from Sec. Gates has essentially shut down DADT discharges:

Effective immediately and until further notice, no military member shall be separated … without the personal approval of the secretary of the military department concerned, in coordination with the under secretary of Defense for personnel and readiness and the general counsel of the Defense Department. These functions may not be delegated.

It's far from elegant and it doesn't shutter the entire system, but it does essentially freeze a new status quo: no DADT discharges.

Following are excerpts from Tobias' article:

…When a federal court finds a federal statute to be in violation of the Constitution, as Judge Phillips did in the LCR case, we often speak of the Court "striking down" that federal statute, as if the court's order removes it from the books altogether. That is not, in fact, what happens. Federal courts don't have the power either to enact or to repeal federal statutes. What they have the power to do is declare federal statutes unconstitutional and issue orders prohibiting their enforcement.

Even when a defendant decides not to appeal a ruling in a case like this, the federal district court needs to retain some kind of ongoing jurisdiction over the case in order for the injunction to continue in effect. Otherwise, for example, there would be no one to turn to if a party thinks that the injunction is not being complied with and a contempt citation is necessary.

Thus, the observation that frequently gets made that there cannot be any appeal once the time for requesting the appeal expires — in other words, that a decision not to appeal a ruling is permanent after the clock runs out — is not the whole story in the case of an ongoing injunction prohibiting enforcement of a federal statute. Rather, even when a party to a lawsuit does not appeal the original ruling, the party can still come back to the court and ask it to modify or end the injunction on the grounds that enforcement of the order is no longer equitable or appropriate.

Some commentators have pointed out that LCR brought a facial challenge to DADT, rather than an as-applied challenge. That fact is indeed important, but it does not change the impact of this ruling at the district court level. A facial challenge argues that the statute cannot be applied constitutionally to anyone, while an as-applied challenge argues only that the statute cannot be applied constitutionally to someone in the plaintiff's specific circumstances… 

But … a district court doesn't have the power to establish binding legal precedent for other courts, even within its own district. The significance of a facial challenge vs. an as-applied challenge comes into play primarily at the Court of Appeals or Supreme Court stage. When one of those courts grants a party a victory in a facial challenge to a statute, it establishes a legal principle that applies as precedent to everyone else in the Circuit (in the case of the Court of Appeals) or in the country (in the case of the Supreme Court). When the case is at the district court level, however, the difference between winning on a facial challenge and winning on an as-applied challenge is less significant…

According to my best understanding, here is the bottom line.

Even if the Obama administration were to embrace the LCR ruling and decline to take an appeal — and even if members of Congress did not step in and continue pressing the appeal, which they could try to do — the DADT statute would still be on the books. Only a repeal by Congress can change that. The only thing stopping the DADT statute from being enforced would be the court's worldwide injunction.

And if a hostile administration were to come into power in 2013 or 2017, that hostile administration could come to the court and ask it to lift or modify the injunction…

This does not resolve the debate over what the Obama administration should have done in this case. Some people might take the view that allowing the injunction to stand right now would make it easier to enact a legislative repeal of DADT, even if the injunction itself is not a permanent solution. I think that the opposite is true — that allowing the worldwide injunction to stand would make legislative repeal politically impossible in the present moment. There is room for disagreement on that issue.

But the assumption that has informed much of this debate — that not appealing the LCR ruling would mean that DADT would be permanently gone, once and for all — is incorrect.


7 Responses to More thinking through the Don’t Ask Don’t Tell appeal question

  1. Jay October 25, 2010 at 6:23 PM

    It is not true that the administrative changes freezes all discharges. We do not know what the ramifications of having fewer people authorized to actually discharge people means. Gates said that the purpose was not to reduce the number of discharges. Maybe he’s lying. But to infer that having political appointees review the discharges before they become official is a reach, and I doubt the person being discharged really cares whether there is a political appointee’s name or a general officer’s name on his or her discharge papers.

    In addition, Tobias Wolff’s argument that one should not rely on an injunction against enforcement of DADT because a hostile administration could go to court and ask it to be lifted is nonsensical. A hostile administration could also go to a hostile Congress and ask it to pass a new law reinstating the DADT policy. These arguments are simply attempts to defend the bungling of the Obama adminstration.

  2. Nan Hunter October 26, 2010 at 12:01 PM

    FYI – I replied but somehow my reply appears in the comments to the post about the Florida adoption case.

  3. Nan Hunter October 28, 2010 at 11:32 AM

    Hi Jay -

    I have now read the full article from National Law Journal and you can too, here: link to

    When you do, you will see that the excerpts used on Americablog were quite misleading.

  4. Jay October 28, 2010 at 12:01 PM

    Dear Nan,

    Thanks for the link to the full article.

    What struck me in the article were these paragraphs:

    “Another landmark case in which the government did not defend acts of Congress was Immigration and Naturalization Service v. Chadha in 1983. In numerous laws, Congress had given itself, in effect, a one-house “legislative veto” over certain executive actions — in this case, Justice Department decisions to delay deportations. Even though numerous presidents had acquiesced in the practice, and Ronald Reagan supported legislative vetoes, Reagan’s SG Rex Lee argued successfully that they were unconstitutional. In recalling the episode at a 2002 conference, Bush SG Theodore Olson said, “Rex’s experience with Chadha teaches that, as an executive officer, the solicitor general’s constitutional duty to the president is paramount to his duty to Congress where core executive power is threatened.”

    Indeed, laws that infringe on executive power are one category in which tradition runs the other way: The SG is expected not to defend those laws. The classic case is Myers v. U.S. in 1926, in which the SG argued against a law that limited presidential power to remove postmasters. The Court invited a senator to argue in favor of the law.”

    I think Obama’s Justice Department could have declined to appeal Judge Phillip’s decision because the DADT Act infringes on the President’s power as Commander-in-Chief. The Constitution gives the executive branch almost exclusive power over the military.

  5. Nan Hunter October 28, 2010 at 2:48 PM

    First, note that Chadha was a case in which the Justice Dept did defend the law in the initial stages of the case, then switched its position. But the effect of that was not to keep the case out of the Court of Appeals or the Supreme Court. In Myers also, the article is referring to a case that was in the Supreme Court. That makes a world of difference in how I think the factors should be weighed.

    Second, some of the rhetoric on this issue has included claims that a Justice Dept decision not to appeal the LCR ruling would get rid of DADT once and for all. Again, in both Chadha and Myers, the Court invited a lawyer representing Congress to defend the statute, so the cases were fully argued. A DoJ decision not to appeal might not even end the LCR case, much less end the policy “once and for all.”

    All that said, I think that a plausible argument could be made for DoJ declining to appeal on the ground of intrusion on Commander in Chief authority. If that happened, I am *quite* sure that Congress would be invited to defend the law. The litigation would not end, and very little would have been gained.

  6. Jay October 28, 2010 at 4:47 PM

    Thanks for the clarification. Sorry to take up so much of your time.

  7. Pepe Fenjul Jr. March 18, 2011 at 7:50 AM

    I think these arguments are simply attempts to defend the bungling of the Obama administration.

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