As bmaz already noted, the Obama Administration’s Justice Department filed an emergency stay with the 9th Circuit Court of Appeals on the injunction banning gay and lesbian service member discharges under the military’s Don’t Ask Don’t Tell policy. He notes that, while the brief does state plainly that the Administration strongly supports repeal of DADT through, they decline to consider the unconstitutional nature of the policy as a reason not to support upholding it in court. As Newsweek points out in an excellent piece, this remains an option available to them, in contrast to the claim that the Administration is defenseless and must defend the policy.
There are two different arguments for why Obama could choose not to enforce the law. The first one: he could say it was unconstitutional. At the time that DADT was passed, it was constitutional because there was no Supreme Court precedent establishing that homosexual relationships are protected under the implied privacy rights of the Bill of Rights. Then, 10 years later, the Supreme Court ruling in Lawrence v. Texas overturned an anti-sodomy statute on the grounds that it violated the privacy rights of gay couples. Since then, laws that impinge upon the sexual-privacy rights of gay couples are presumed unconstitutional if they have no rational state interest to justify them. “Since Lawrence v. Texas, you can no longer discriminate against gays without reason,” says Mazur. “The constitutionality of ‘Don’t Ask Don’t Tell’ has changed since Congress enacted it.” Given that top military leaders have said that DADT is harmful to the military, Obama could have simply announced that, absent the state interest to justify DADT, it is now unconstitutional and will no longer be enforced.
Obama’s other option: simply using his executive power to decide how the laws will be, or won’t be, executed. So Obama could simply order the military to stop applying the law, or to use it much more narrowly and infrequently. “There are a lot of laws on the books he doesn’t rigorously enforce,” notes Geoffrey Corn, a military law expert who teaches at South Texas College of Law. “The courts have recognized that while Congress has full authority to pass laws, the president has authority over when to enforce laws,” says Turley. Many criminal statutes, for example, are often unenforced and prosecutors have a lot of discretion on when to bring charges and what sentence to seek. [cont’d.]
The president would be on strong footing in this case because he has especially wide latitude in interpreting laws that govern the military. Congress clearly was acting within its authority under Article I of the Constitution to “make Rules for the Government and Regulation of the land and naval Forces.” Some experts would argue that President Obama would be trampling that right if he chose not to enforce DADT. But others note that the president has historically been granted a lot of freedom by Congress and the courts to manage the details. “Traditionally, the executive is given latitude in putting meat on the proverbial bones,” says Corn. “There are certainly options the president could take with an executive order, particularly as commander in chief of the military,” says Mark Zaid, a lawyer in Washington, D.C. who frequently represents members of the military. “From a strict constitutionalist standpoint, a presidential order contradicting a law could lead to a judicial battle. But courts defer to the president as commander in chief.”
Go read the whole thing. The President has a lot of options here, and they do not merely reflect picking and choosing what laws to implement and what to ignore (which makes me personally uncomfortable). The appeal is discretionary, a stop-loss order is available and in general the DADT ban doesn’t have to be stayed as a matter of Constitutional precedent.
You can argue over whether Judge Phillips has jurisdiction to grant a worldwide injunction based on one case in Riverside. You cannot argue whether the President has the power to end the discharges in a myriad of ways.