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The Justice Department will seek a short-term emergency stay to the bar on the military’s Don’t Ask Don’t Tell policy at the Ninth Circuit Court of Appeals, a puzzling twist to a court case that appeared to end the policy outright.
In the brief, DoJ seeks reinstatement of the policy by close of business today, July 15. It says that DoJ continues to defend the constitutionality of Don’t Ask Don’t Tell, which the President opposes and which was repealed by Congress late last year.
This appears to be a case about separation of powers and timing more than anything. The Pentagon is ready to certify repeal; all of the service chiefs, service secretaries and combatant commanders have submitted their final assessments. Repeal is scheduled to be certified by the end of the month or the beginning of next month, and after certification there is a 60-day Congressional review period (put in to earn Robert Byrd’s vote).
But the Justice Department says that the injunction banning the policy, coming just weeks before the Pentagon’s own certification process, will cause “real and immediate harm.” If that’s the case, why did the Pentagon meekly implement the injunction worldwide, allowing for the acceptance of gay and lesbian recruits, along with an end to all discharges? Maybe DoJ and DoD aren’t speaking to one another, but ending the policy only to fight to start it up again will cause a supreme amount of confusion and could lead to actual harm to the lives of soldiers.
What’s more, the Ninth Circuit denied the injunction because of the DoJ’s own policies on the Defense of Marriage Act, where it calls for heightened scrutiny for discrimination based on sexual orientation. DoJ in its brief says that the court “misapprehended the significance” of their DOMA policy. I don’t see how. Sexual orientation either gets heightened scrutiny or it doesn’t, you cannot pick and choose when to scrutinize.
The meat of the DoJ order is right here:
In sum, the government argues that lifting the stay unjustifiably takes the authority for repealing DADT away from the executive branch and it does so, at least in part, because of confusion by the Ninth Circuit panel regarding the DOJ’s view of whether DADT is constitutional after the passage of the repeal act and regarding the application of the DOJ’s DOMA decisions to military laws like DADT.
The executive branch wants to defend its policy work and doesn’t want the court bigfooting around finding its laws unconstitutional. Unless we’re talking about DOMA, where that’s precisely what DoJ has requested.
It looks like a question of who gets the power to overturn DADT. The President wants his signing ceremony.
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Assuming there is even a rational, legally compelling reason for this move (which for the life of me, I just can’t see), DADT is typical of Obama’s style of governing.
On the very rare occasions he actually makes the right call – it takes forever, it goes through a tortuous path of inconsistent starts and stops, it’s politically calculated to the nth degree (and the math is usually wrong), and its implemented by folks who could give the Three Stooges lessons in incompetency.
Well, if the courts take this opportunity to declare DADT unconstitutional, that ought to mean people discharged under DADT in the past have lots of rights that they don’t have under the statutory repeal: reinstatement in the military if they want, back pay, benefits (including retirement), reimbursement of any reimbursement that they had to pay to the government upon discharge. This may work out for the best.
(I assume the fear of all those additional costs is why the administration is continuing to argue that DADT is constitutional. Although it’s certainly hard to square that position with the administration’s current position that DOMA is unconstitutional.)
Lyle Denniston on this:
U.S.: Restore military gay ban now; Lyle Denniston; ScotusBlog; 7/14/11
http://www.scotusblog.com/2011/07/u-s-restore-military-gay-ban-now/
I am still baffled why they cant simply do away with it… it requires them to literally do nothing. How much preparation does it take to do nothing?
Dylan Ratigan for President! With Cenk Uygur for Vice President!
Optics, Optics Über Alles !
So, they COULD pursue torturers, etc., even though BO opposes?
I guess that’s a case Holder’s DOJ could really get its teeth into.
Meanwhile, there are other matters which will, of course, take some time to ponder and carefully consider:
Attorney general considers investigation into News Corp.
LINK.
You can judge Obama by his words or by his actions but they are two very different things.
Maybe it is about Bradley Manning? They need DADT for that case?
Very nice. And I thikn absolutely right.
Well, you’ve got to admit he sure does talk purdy.
Unreal. Obama is the definition of a Trojan Horse.
Insane . . . teh crazy keeps multiplying faster n Bachman/Palin Overload . . . .
LOL – excellent :-)
Next to a David Brooks comment on the economy or a Barack Obama comment that he is a stout advocate for the needs of middle and working class American, the comment least likely to be taken seriously or credibly is that the DoJ considers something to pose a “real and irreparable harm”. Its past actions make its claim to understand that concept laughable.
Oh, no. The DoJ understands “real and irreparable harm” perfectly – when it applies to power wielded by the Executive. Anyone else, not so much.
Sure! What’s a few more careers ended and lives ruined compared to the only meat Obama has to throw to Progressives? Stop wasting your time fierce advocate. I still wouldn’t cross the street to piss on your leg if you were on fire, much less vote for your worthless, traitorous ass.