COMING TO GRIPS WITH THE APPARENT DADT CONTRADICTION…. At face value, the Obama administration’s approach to “Don’t Ask, Don’t Tell” doesn’t make sense. On the one hand, President Obama has repeatedly vowed to end the policy, and has pushed Congress to repeal the existing law. On the other hand, the Justice Department continues to fight for DADT in the courts, challenging litigants who the White House presumably agrees with.
Complicating matters, while the administration argues that it’s simply doing its due diligence in the courts, while waiting for Congress to act, there are many who believe Obama’s team is taking steps it need not take. After the law was recently struck down as unconstitutional by a federal court, some DADT critics say, the administration could have just accepted the verdict, rather than appealing.
Even Bush’s former solicitor general, Ted Olson, who’s become surprisingly progressive on LGBT issues, told ABC yesterday that “every once in a while” an administration will accept a lower-court ruling and choose not to appeal.
So, what’s the real story here? Why would Obama and his team fight to preserve a law they claim to oppose? It no doubt seems unsatisfying to those of us who abhor the policy — and I really do — but the AP has a compelling report on what the administration is thinking, and “they must secretly hate gays” isn’t the correct explanation.
The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them.
This practice cuts across party lines. And it has caused serious heartburn for more than one attorney general.
The tradition flows directly from the president’s constitutional duty to take care that the laws are faithfully executed, says Paul Clement, who served four years in President George W. Bush’s administration as solicitor general, the executive branch’s top lawyer at the Supreme Court.
Otherwise, Clement says, the nation would be subjected to “the spectacle of the executive branch defending only laws it likes, with Congress intervening to defend others.” … On occasion, the Justice Department will even defend a law it knows is likely to be judged unconstitutional, said Seth Waxman, who served as President Bill Clinton’s solicitor general.
This is just what administrations are supposed to do, and have done, as part of the legal process.
Indeed, Justice Department guidelines — which, admittedly, are not law, but nevertheless help dictate how the cabinet agency functions — call on officials to keep defending laws passed by Congress as long as “a reasonable argument can be made in [the law’s] support.” The “duty to defend” obligations don’t necessarily end after a lower-court ruling.
Beth Hillman, a constitutional law professor at the University of California Hastings College of Law and who also opposes DADT, also highlighted a larger legal context.
Hillman said the administration’s actions could be reasonably viewed as an honest attempt to adhere to tradition. But she also said the administration may have taken this course to avoid setting a precedent that could imperil the new health care law, which is facing challenges on constitutional grounds.
“Let’s say Obama is out of office before those legal challenges are resolved and then a president who follows Obama and opposes the health care reform bill and believes it not to be constitutional could fail to defend it. It’s that argument that this would set a precedent in motion,” she said.
What’s more, also note that while supporters of gay rights are outraged by the appeals, anti-gay conservatives are outraged by what they see as the administration’s deliberate attempts to lose in court. Ed Whelan insisted the Justice Department is “only pretending to mount a vigorous defense” of DADT, while Elaine Donnelly, arguably the nation’s leading supporter of military discrimination, argued that President Obama is actually “determined” to end the existing policy by losing in the courts on purpose.
I can’t speak to the veracity of right’s allegations, but I can say I truly loathe the “Don’t Ask, Don’t Tell” status quo. It’s discriminatory, expensive, offensive, and quite literally dangerous. I anxiously look forward to the day when Congress clears the way for repeal — a day that could come quickly, if literally just a few Senate Republicans showed a little decency.
But as much as I abhor the current DADT law, everything I’ve seen suggests the administration’s legal efforts are defensible.
Update: Yale Law School’s Robert Burt, who also opposes DADT, added, “If there is an act of Congress, it seems reasonable to me to say that it binds the president and he must faithfully execute it. It is within the president’s discretion to say that the ruling in Log Cabin Republicans is so clear that there’s no point in appealing. But that’s not the case here: there have been conflicts among district courts and courts of appeal that have looked at this statute.”