Newsweek: Is Obama’s Excuse for Not Repealing ‘Don’t Ask Don’t Tell’ Legitimate?

[Better Believe It]

Is Obama’s Excuse for Not Repealing ‘Don’t Ask Don’t Tell’ Legitimate?
President Obama claims he must defend and enforce the ban on gays serving in the military, even though he opposes it. But most experts in constitutional and military law say he has other options.
by Ben Adler
October 19, 2010

Obama has now repeatedly angered the gay-rights advocates: first by refusing to undo DADT himself, then by vociferously defending the law in court, and now by appealing the ruling and asking for it to be stayed. “Obama has made choices identical to those that would have been made by the Bush administration,” says Jonathan Turley, a constitutional law expert at George Washington University.

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.

And even if Obama chose none of those options, once the Log Cabin Republicans suit was filed, Obama could order that DADT not be enforced pending the suit result. But what especially makes some DADT opponents’ blood boil is that the administration is fighting so hard for DADT in court. The Obama administration has consistently argued that it must vigorously defend laws that it opposes as part of its obligation to “faithfully execute” the president’s duties. But not all experts agree with that interpretation. “Why not just let the injunction stand?” Corn demands. “You don’t enforce laws overturned by the highest court in land, so why not accept the lower court ruling?” Many scholars say that there is no requirement for Obama to appeal. “The president has complete authority not to appeal the decision in these cases,” says Turley, who in 1989 successfully argued in federal appeals court for overturning a law and saw the George H.W. Bush administration choose not to ask the Supreme Court to hear an appeal of that decision. “The appeal is completely discretionary. Whatever duty the president has to defend the existing statute was satisfied before the trial court.”

Please read the full article at:

http://www.newsweek.com/2010/10/19/is-obama-s-excuse-for-not-repealing-don-t-ask-don-t-tell-legitimate.html

[emulatorloo]

1. Recruiters told by "top level" to accept openly gay applicants

There are a couple threads on this elsewhere.

[TheWraith]

3. Wheels are turning--all of the wheels.

Both the ones required to go though the motions of defending the law, and the ones required to finish putting this policy in the ground.

[TheWraith]

2. What crap.

"Obama has now repeatedly angered the gay-rights advocates: first by refusing to undo DADT himself"

He CANNOT undo statute law by executive fiat. It's simply not legal.

"then by vociferously defending the law in court, and now by appealing the ruling and asking for it to be stayed"

The Justice Department is legally obligated to defend federal law. Look up the phrase "duty to defend."

I expected better than this from Newsweek. Jonathon Turley I can understand, because he's pissed at Obama that he didn't get the Supreme Court seat that went to Kagan, so he glosses over the fact that the discretion not to appeal is dependent on the DOJ no longer having an actionable legal argument. But Newsweek should do better research than this.

[Better Believe It]

5. The article refutes all of your points! You'll have to present some hard ....

documented facts with credible links if you want to prove your claims.

I'm listening.

[joeybee12]

7. You'd think this person would just crawl under a rock..he/she is so wrong

on this, clearly indicating a TOTAL lack of knowledge on anything...I'm embarrassed for him/her at this point.

[TheWraith]

19. Here you go.

A discussion on the DOJ's duty to defend:

http://www.acslaw.org/node/17311

An explanation of how the DOJ handles challenges of constitutionality, first by arguing out the case and then by applying that precedent to future cases. This is the case they're arguing out. Back in the 1990s they declined to challenge a ruling about the admissibility of confessions, because the relevant portion of the law was in clear conflict with the SCOTUS Miranda ruling.

http://www.d1040331.dotsterhost.com/applications/serendipity/index.php?/archives/220-Miranda-and-the-Justice-Departments-Duty-to-Defend-Federal-Statutes.html

An article explaining the limitations on the President's ability to decline to execute laws he deems unconstitutional, and the role of the Supreme Court as the final arbiter in that situation.

http://www.justice.gov/olc/nonexcut.htm

Short answer: the Department of Justice always has and always will defend federal law, because they are legally bound to operate in accordance with federal law, NOT with the opinions of whoever happens to sit in the White House. The contrary position, which is that of the unitary executive, amounts to the claim that the law is whatever the President says it is, which we just dealt with for 8 years under Bush.

[zipplewrath]

25. Unless I missed it

I didn't see where they are obligated to take everything to the USSC. They defended it, and lost. The point is that at this point their duty is done and it becomes a choice. It's what they did in California.

[TheWraith]

38. The California Prop 8 case did not involve federal law.

And they're not required to take it to the SCOTUS, they're required to argue it until there is no longer any legal arguments in favor, or they reach the highest available court. If the Court of Appeals refuses to hear it, or the SCOTUS refuses to hear it, the case ends there.

[FreeState]

49. Prop 8 trial in CA relies on 100% federal law - its in the Federal Court

http://prop8trialtracker.com/about/

and the ruling was based on the federal constitution:

http://en.wikipedia.org/wiki/Perry_v._Schwarzenegger

On August 4, 2010, Chief Judge Vaughn Walker ruled that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. On August 16, 2010, the Ninth Circuit Court of Appeals ordered the judgment stayed pending appeal.

[zipplewrath]

51. It relies upon STATE law

And the CA AG refused to argue it.

Where are you getting these "requirements"? From federal law? From the Constitution? They have made the legal arguments and lost. What you suggest is that they must basically keep making them to higher courts.

[The Philosopher]

You missed something

"4. The Supreme Court plays a special role in resolving disputes about the constitutionality of enactments. As a general matter, if the President believes that the Court would sustain a particular provision as constitutional, the President should execute the statute, notwithstanding his own beliefs about the constitutional issue. If, however, the President, exercising his independent judgment, determines both that a provision would violate the Constitution and that it is probable that the Court would agree with him, the President has the authority to decline to execute the statute. "

http://www.justice.gov/olc/nonexcut.htm

[TheWraith]

33. No, I didn't. It's describing a signing statement.

Don't Ask Don't Tell doesn't have a signing statement.

[The Philosopher]

52. No it doesn't

Read it again. It's about the line-item veto.

"In accordance with these propositions, we do not believe that a President is limited to choosing between vetoing, for example, the Defense Appropriations Act and executing an unconstitutional provision in it. In our view, the President has the authority to sign legislation containing desirable elements while refusing to execute a constitutionally defective provision."

But you knew that already. :eyes:

[JustinL]

29. the second link discusses limits on the duty to defend and therefore contradicts your position

In a responsive letter dated February 16, 2000 (which I drafted on his behalf), Speaker Hastert strongly objected to the Justice Department’s refusal to defend the statute. Hastert noted the Department’s longstanding position that it “appropriately refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid.”

Judge Phillips ruled DADT unconstitutional based on prior precedent, including Lawrence v. Texas. Can you point out the errors in her reasoning?

Solicitor General Waxman, in his 1997 confirmation hearings, expressly affirmed that the Department “is bound to defend the constitutionality of all acts of Congress unless no reasonable arguments can be made in support.”

What reasonable arguments can be made in support of DADT?

[TheWraith]

32. That's not what that means.

The scope of prior precedent for the duty to defend is extremely narrow, so as to prevent the DOJ from interpreting the law. Judge Phillips' ruling will become such precedent when the case has become settled, but it's the right and responsibility of the courts to make that determination, not the DOJ. The system is devised this way in order to guarantee that a law is robustly argued on all merits before it's confirmed or discarded.

As for "reasonable arguments," as I said, they mean a reasonable argument based on the law of why X is not unconstitutional, not what we would consider a reasonable argument in favor of keeping the challenged law.

[JustinL]

40. what reasonable argument can be made that DADT is not unconstitutional? n/t

[TheWraith]

41. I would imagine the argument would be based on the leeway given to the military by civilian courts.

The military enforces many laws which are, by any reasonable standard, grossly unconstitutional for the sake of "discipline."

[JustinL]

67. do you consider that argument to be reasonable?

How exactly does DADT advance "discipline"?

[The Philosopher]

43. The DOJ/President

Have the right to make an argument for the constitutionality or unconstitutionality of a law. Otherwise they couldn't do their job. If the President is under the belief that a law is unconstitutional and can make a reasonable argument in court, the President can direct the AG to challenge the law (or challenge himself, using the veto, if the law is presented to him by Congress) or, if the law has been challenged by another, not appeal its challenge.

[Better Believe It]

30. And your response to this is?

"“The president has complete authority not to appeal the decision in these cases,” says Turley, who in 1989 successfully argued in federal appeals court for overturning a law and saw the George H.W. Bush administration choose not to ask the Supreme Court to hear an appeal of that decision. “The appeal is completely discretionary. Whatever duty the president has to defend the existing statute was satisfied before the trial court.”

[TheWraith]

36. The DOJ and it's Office of Legal Counsel disagree.

And frankly I'm surprised to hear Turley arguing in favor of what is basically unitary executive type powers after he spent so much time attacking Bush and Obama for anything that hinted at that.

[The Philosopher]

39. Erm

They disagree with themselves? You know who wrote that opinion, don't you? It wasn't Jesus.

[zipplewrath]

9. He can functionally

"He CANNOT undo statute law by executive fiat. It's simply not legal."

He could easily suspend investigations and expulsions until the military review is done.

"The Justice Department is legally obligated to defend federal law."

Not through all appelate courts. As the articles suggest, once they defend it in court, and potentially through an appeal, they have satisfied their duty. This is especially true of cases in which there appears to be no real hope of success. You'll note that in California, neither the AG or the Govenor chose to "defend" Prop 8.

That said, although I don't agree with your assumed motivation, it is true that Turley has been on a tear with the administration from the very beginning and I hope the whole article doesn't depend entirely upon his views.

[TheWraith]

21. That would require him to violate federal law.

Don't Ask Don't Tell is a federal law. It says that if you're gay, and that comes to the attention of the military, you're out. And stop-loss doesn't apply to gay people. Ordering that law suspended is about as legal as ordering the laws against torture suspended--as in, not at all. It doesn't matter whether it's a good law or a bad law. It's a law. And the duty to defend extends as far as there is a reasonable legal case to be made. Which is not to be confused with a LOGICAL case, since that rarely intersects with law.

My assumption of Turley's motivation is based on the fact that the day Kagan was announced as the nominee, he went on MSNBC and basically just went off trashing both Kagan and Obama in really vicious and vindictive terms, among other things calling Obama worse than Bush.

[zipplewrath]

23. Considering the current environment

There is really nothing stopping him from suspending investigations and expulsions. Executive branches choose what to investigate and prosecute all the time. Suspending them pending the review wouldn't be any major stretch. His biggest problem would be if, when the review was done, they advised that the policy continued. But considering the bill in congress, the decision in courts, and the views and activities inside the DoD, a suspension for 1 year or until the review was done would not be all that extrodinary.

Turley was on Obama's case from very early on when he didn't close Gitmo, and didn't prosecute anyone, not to mention moving to classify the torture photos. He was also a hard ass on Clinton as well if I recall correctly. He's virtually made a career out of it. Doesn't mean he's wrong of course.

[The Philosopher]

31. No

The President can challenge a law. That's not violating it, that's his right. The Supreme Court upheld it, Congress recognizes it. Only people who don't want the President to be perceived negatively, or don't want gays anywhere near them, say otherwise. The President CAN and DOES challenge laws passed by Congress. Does he always win? That's irrelevant. Even if the Presidency across time lost every challenge it still does not take away his or her right to challenge a law passed by Congress. It's in the Constitution.

[The Philosopher]

10. Actually

The President has the authority to challenge the constitutionality of a law. That's been recognized by the Supreme Court several times. And the same way he can challenge the constitutionality of a law is also the same way he doesn't have to appeal when a Federal law is challenged. The President has done so several times.

[foxfeet]

11. And this is pretty much what I've come to expect from you.

I've learned over the past couple of years not to expect better.

[TheWraith]

20. Facts, you mean? nt

[foxfeet]

26. Naw, I mean constantly haunting any thread dealing with LGBTQI issues,

along with the other members of the poltergeist choir. Seriously, what is your preoccupation with these issues? You never, in my experience thus far, present yourself as an ally of the LGBTQI community or offer anything supportive, but you are always there to tell us that we're wrong, no matter what the specifics of the issue at hand. Is our very existence some kind of thorn in your side?

Facts? In your fevered dreams.

[ThomCat]

44. Your clear and persistant bias against anything having to do with

LGBTQ issues makes you incapable of presenting any facts without slanting them.

For some reason you have an obsessive need show up on every single thread and insist that there is a legal reason why we shouldn't have rights. That isn't you presenting any "facts." That's you displaying personal issues to all of DU. :eyes:

[Smashcut]

42. Oh PLEASE

I'm gonna take Turley's word on Constitutional law over yours.

The DOJ has no duty to defend a law which has been found unconstitutional. And if the best you can do is attack Turley as "jealous" and out to get Obama, it's clear how baseless your position is. Your agenda is showing.

[Tesha]

50. You keep telling us this but it appears, from multiple sources, that...

...you don't know what you're talking about.

This issue seems to really trouble you -- why is that?

Tesha

[sabrina 1]

55. Nonsense. He CAN honor the judge's ruling by halting

dismissals with an Executive Order. That would NOT interfere with Congress deciding, as he claims is what he wants, to end it. As if they will.

He could have stopped the implementation for at least two years, and possibly six, of this discriminatory law. By then, no one would have wanted to change the policy BACK.

He chose not to. It WAS a choice, and has secured for himself a place in history that will record his unwillingness to take bold action to end a law that is unconstitutional and that deprived American citizens of their rights under the Constitution.

You can continue to try to defend his actions on this, but this was an easy call. A vast majority of the American people support ending DADT, a judge rules that it is unConstitutional, and what does this administration do? They appeal that decision giving a lame excuse for why they 'want to wait' for Congress, knowning full well that without being pushed, Congress will do what it already did, vote down any attempt to end the policy.

He is on the wrong side of history on this and now has basically been rolled over by a Federal Judge who apparently DOES understand the U.S. Constitution and was unafraid to make the right decision.

[Radical Activist]

88. The article supports your argument

but that part wasn't copied, of course. Many of us weren't looking for a left wing version of Bush.

http://www.newsweek.com/2010/10/19/is-obama-s-excuse-for-not-repealing-don-t-ask-don-t-tell-legitimate.html

Most legal experts agree that a president cannot simply change a law by fiat. “Obama is correct in the most general terms,” says Diane Mazur, a former Air Force officer who teaches law at the University of Florida. “Federal law can go away in one of two ways: Congress can repeal it or a court can find it unconstitutional.” And it would seem hypocritical for liberals, who complained during the Bush administration that the executive branch was arrogating too much power to itself, to decide suddenly that they like the unitary executive when their side controls it. “I would be unhappy to hear Obama reading his commander-in-chief power to ignore Congress,” says Robert Burt, a professor at Yale Law School.

[Better Believe It]

89. Actually it doesn't.

'Diane Mazur, a former Air Force officer who teaches law at the University of Florida. “Federal law can go away in one of two ways: Congress can repeal it or a court can find it unconstitutional.”'

And a federal court found it to be unconstitutional.

Case closed.

Unless President Obama believes that government discrimination is constitutional.

[Radical Activist]

90. It does

in some parts and there are other quotes by people who disagree. You choose to ignore those quotes that don't support your views. Just like Fox News listeners.

[Better Believe It]

91. DADT has been declared unconstitutional by a federal court. Case Closed.

You can disagree with the court and may think that DADT is a perfectly fine discriminatory law but your opinion doesn't make DADT constitutional.

[Radical Activist]

94. And many people who want DADT repealed disagree with that interpretation.

So, no the case is not closed. That has been shown to you many times and you ignore it, just like a talk radio zombie. Accusing me of supporting DADT just because I don't agree with your interpretation is a mentally weak, ugly tactic.




"Case closed! Case closed! Quotes in the article I disagree with don't count!"

[Better Believe It]

95. So they think that discrimination against gay people is or should be OK and constitutional?

Who are these "many people" who think discrimination is just fine?

[Radical Activist]

96. No, I just stated that it's not OK.

Do you have trouble reading?

You must think discrimination is OK because you don't want the case to go before the Supreme Court, which will make defeat of DADT final. You must think discrimination is OK because you don't want it repealed by Congress, but instead by only a district court decision which could later be reversed.

How do you like your little game when someone plays it on you?

[Better Believe It]

99. Deleted Duplicate

Deleted

[Better Believe It]

100. "They" not you. Do you have trouble reading?

Again, who are these "many people" who think discrimination under DADT is and should be constitutional?

And, outside of the Obama administration, who else is taking the position that DADT is constitutional and are therefore appealing the courts decision?

Name them.

[polichick]

4. I like the first argument: "he could say it was unconstitutional."

That paragraph sums it up nicely.

[Better Believe It]

6. And a federal judge has ruled it is unconsitutional! What more can President Obama want?

And he doesn't agree with that ruling!

[polichick]

15. I guess he's trying to cover his ass politically, but imo that's a mistake...

Most people are for the repeal of DADT, and those who aren't hate Obama anyway.

Plus, people like a strong leader who stands up for what he believes in.

[laughingliberal]

8. I *heart* Jonathan Turley! eom

[RainDog]

12. K&R

shame on Obama.

[SidDithers]

13. Unrec for posting without comment...

what do you think of the article, OP?

Sid

[Name removed]

16. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Forkboy]

82. Oh ffs, Sid.

C'mon now. :shrug:

[mitchtv]

14. I gave up expecting anything from the president

sometime about 1/20/09 after I saw Rick Warren on the podium

[polichick]

17. That truly was a despicable choice! nt

[alc]

18. I see one reason to appeal

He is under no obligation to enforce or defend the law and I think he should not appeal DADT. But it is common for the president to defend most laws and he may want to be able to claim that his administration even defended laws they disagree with. The policy of defending all laws actually makes sense. Without it, an administration could pretty easily get rid of the previous administration's laws. Just have opponents delay their law suit until the new administration. Then have the new administration not put up much of a defense, and not appeal all the way to the supreme court.

Health reform lawsuits are likely to be going on for a decade since some parts don't start for 8 years. If a republican wins in 2012 it's possible they will be defending the current lawsuit as it gets to the supreme court or the lawsuits that happen after mandates take affect. Defending DADT would put Obama in better position to demand that the 2012 or 2016 administration fully defends health reform.

I have read that Bush didn't defend XYZ, so Obama doesn't have to defend DADT. I'm sure repubs will be screaming that Obama didn't defend DADT so the next pres doesn't need to defend health reform.

[TheWraith]

22. They are, in fact, under obligation to defend federal law. Read my post #19. nt

[ThomCat]

45. Y0ur post #19 has been refuted

repeatedly on this and other threads.

[JustinL]

35. they don't need to defend ALL laws, just the ones that have reasonable arguments in their support

There are reasonable arguments in support of the health reform law. The same is not true of DADT. And the notion that if the current administration defends DADT, a future Republican administration will feel honor-bound to defend health care reform is absurd. The specter of a right-wing administration failing to defend health care reform is just another reason to ensure that a right-winger is never again elected president. If the American people are stupid and/or bigoted enough to elect a right-winger in 2012, that will be a sad day, but it will after all be what they voted for.

[Cali_Democrat]

24. **Jonathan Turley supported the impeachment of President Clinton***

Don't trust this assclown. He's always got some other agenda and it's usually about advancing Jonathan Turley.

[SidDithers]

27. Good post...

Facts are good.

Sid

[VMI Dem]

37. Obama opposes gay marriage. Should we trust him?

:shrug:

[Cali_Democrat]

46. Well did you vote for him?

Obama said from the start of his campaign that he was opposed to gay marriage. So did Clinton, Biden etc...

The big time politicians all say they are opposed to gay marriage. It's a calculated strategy.

[VMI Dem]

47. Ah. He's lying about opposing it. And about his religious reasons for opposing it.

It must get tiresome spinning for this shit.

[Cali_Democrat]

48. He's not lying about opposing gay marriage

What does it matter if he opposes it for religious reasons or not?

The guy is opposed to gay marriage plain and simple. Stop covering for Obama.

[ruggerson]

57. The NY Times editorial page has made many of these same points

But I guess we are to disregard the old, gray lady, too.

[EFerrari]

72. What does that have to do with his analysis? Thanks. n/t

[The Philosopher]

28. Two arguments I really hate are:

1) If the President didn't enforce a Federal Law, he'll be a Dictator. We don't want dictators in the WH, do we?

2) Another is that a Federal Law is an act of Congress and it takes an act of Congress to strike it down. There's a reason there's two other branches of the government. A law can be overturned by the Supreme Court. A law can also be challenged by the President (after all, this is essentially what the veto is).

We want the President to have the ability to challenge laws. Even if they challenge laws we like, it's like Free Speech: it has to be for everyone or else it's not free. Just because the President can challenge a law does not mean that there isn't a Congress to challenge him back. Or us. After all, if a President and Congress decide to stop enforcing a law that we believe is right and constitutional, we always have the option of suing them in Federal court to get them to enforce a constitutional law. And in the end we have the ultimate veto, if we want to do the work, in voting someone else into office. That's politics. It can be ugly, but we should not be afraid to do what's right simply because it can be ugly.

[Azathoth]

85. That's not correct

If the President didn't enforce a Federal Law, he'll be a Dictator.

Doing so would be a direct violation of his oath of office. ("...faithfully execute...") Selectively and capriciously deciding to ignore laws or parts of laws is one of the hallmarks of a despot. It also happens to be the functional equivalent of issuing a retroactive line-item veto -- which is, of course, a doubly-unconstitutional concept.

A law can also be challenged by the President (after all, this is essentially what the veto is).

That's not what a veto is. A veto occurs before legislation becomes law. Once the Executive Branch signs off on a bill, that's it. In fact, that's the whole point of a law -- it has been approved by both elected branches of government (or at least two-thirds of one of them). There aren't any second-guesses, mulligans, or retroactive Presidential "challenges". The only way the President can "challenge" a law is to sue in federal court, and he would still have to enforce it while the case was adjudicated.

we always have the option of suing them in Federal court to get them to enforce a constitutional law

Assuming, of course, that a court decides we have standing to sue. But to the larger point, the very fact that we are suing means we believe that the President IS VIOLATING HIS DUTIES by not enforcing the law. We are explicitly asserting that the President has an unequivocal, constitutional duty to enforce a constitutional law, which means, of course, that he never had the right to ignore or "challenge" it in the first place. We're asserting an impeachable offense.

[The Philosopher]

97. Nope

Mm. A dictator ignoring their own laws. A dictator! A dictator's essence isn't wrapped up in how he handles the law. It's his position within the government. A dictator is the sole ruler of the government. So for the President to become a dictator, he'd have to use the military to abolish Congress and the Judiciary. Then he'd have to re-appoint the Governors of the states, disband their Houses and Senates, and force all government services to be subservient to him. Telling Congress, "I believe this law to be unconstitutional. See you in court," is not anywhere close to any of that.

Doing so would be a direct violation of his oath of office. ("...faithfully execute...") Selectively and capriciously deciding to ignore laws or parts of laws is one of the hallmarks of a despot. It also happens to be the functional equivalent of issuing a retroactive line-item veto -- which is, of course, a doubly-unconstitutional concept.

Now, it's important to read in my post that, those two points I gave, aren't my views. I've read them here on DU time and time again as an argument to protect the image of the President. I do not believe the President can just ignore law. No one can. The President just isn't that special. But what the President CAN do is challenge a law. He can force Congress to reflect upon the legislation they passed. Either in the Courts or among themselves. He isn't as passive a partner in the legislative process as some people would claim. Article 4, Section 3, Clause 4 has never been interpreted to mean that the President must enforce the law. Not himself, not at all. It would be absurd. Instead the Constitution charges the President to "take care that that the laws be faithfully executed." That's a difference than being charged to "faithfully execute" (as you wrote) laws. It means that the President has the right to challenge Congress on points of law, if he believes he's right and the court will agree. The Supreme Court has said this several times.

That's not what a veto is. A veto occurs before legislation becomes law. Once the Executive Branch signs off on a bill, that's it. In fact, that's the whole point of a law -- it has been approved by both elected branches of government (or at least two-thirds of one of them). There aren't any second-guesses, mulligans, or retroactive Presidential "challenges". The only way the President can "challenge" a law is to sue in federal court, and he would still have to enforce it while the case was adjudicated.

You're right that the veto occurs before legislation becomes law. However, you are forgetting something. If the President does veto a piece of legislation, it can still become law. That, in effect, means that the legislation is law before it arrives on his desk. Does that mean the signing into law is a formality? No. The law can't be enforced until the President (or Congress overrides his veto) signs it. Legislation passed by Congress is essentially law, but it's not a functional law yet. The President has the right, with his veto, to challenge that legislation as essential law. If you read Walter Dillinger's legal opinion that's been posted in #19, you'll see him write basically the same thing. In fact, his entire opinion is in disagreement with everything you just said there.

Assuming, of course, that a court decides we have standing to sue. But to the larger point, the very fact that we are suing means we believe that the President IS VIOLATING HIS DUTIES by not enforcing the law. We are explicitly asserting that the President has an unequivocal, constitutional duty to enforce a constitutional law, which means, of course, that he never had the right to ignore or "challenge" it in the first place. We're asserting an impeachable offense.

No, suing the President doesn't always mean he's violating his duty. If the President challenges a law and he's sued, it only means that someone disagrees with him and the courts have to decide if the President is in the right or wrong. As stated over and over and over again, it is the President's right to challenge. What isn't his right is to ignore the court's ruling after his challenge, as then it would be a violation of his duty, because that's when he would be saying, "I don't care what the Judiciary or Congress says, I'm doing it my way."

[Azathoth]

102. Have to disagree

Mm. A dictator ignoring their own laws. A dictator! A dictator's essence isn't wrapped up in how he handles the law. It's his position within the government. A dictator is the sole ruler of the government. So for the President to become a dictator, he'd have to use the military to abolish Congress and the Judiciary.

This is a completely fatuous and ahistorical argument. There are plenty of despots and dictators who keep a token "congress" or legislature to legitimize themselves, at least during the initial stages of their rule. In fact, that's usually how it's done. Hitler kept the Reichstag around till at least 1942. Abolishing congress and/or the judiciary is unnecessary and would not be the preliminary stage of despotism; it would be the terminal stage. Heck, even Saddam Hussein had a "judiciary".

It means that the President has the right to challenge Congress on points of law, if he believes he's right and the court will agree. The Supreme Court has said this several times.

Yes, if the Executive Branch hasn't already signed off on the legislation. Otherwise, the President is left with the same recourse as everyone else: to sue. In extreme cases he he could refuse to execute a law by arguing that it was manifestly unconstitutional. However, the DOJ clearly believes DADT might be constitutional, particularly since various courts have ruled in different directions on the matter, and most people certainly aren't convinced that the SCOTUS would rule it unconstitutional. The President does not have the right to ignore laws that he disagrees with for political reasons. If you can find countervailing precedent, I'd welcome you to post it.

Article 4, Section 3, Clause 4 has never been interpreted to mean that the President must enforce the law. Not himself, not at all. It would be absurd. Instead the Constitution charges the President to "take care that that the laws be faithfully executed." That's a difference than being charged to "faithfully execute" (as you wrote) laws.

Say wha? This is borderline word-salad. First of all, I quoted accurately (as you just proved). Second, I'd like to see the case where the Supreme Court held that the President wasn't obligated to uphold and defend a constitutionally-valid law of the land. Sure, he has a certain degree of *discretion*, just as prosecutors and US attorneys do, but he doesn't have the option of simply deciding which laws he will uphold and which he will ignore.

The President has the right, with his veto, to challenge that legislation as essential law.

What the hell are you talking about? DADT was not vetoed; it was signed by a President of the United States over a decade ago. The time for vetoes and "challenges" has long past.

No, suing the President doesn't always mean he's violating his duty.

Yes, it does, at least in this case. The judicial branch cannot impinge on the powers or prerogative of the executive branch. The only thing they can compel the President to do is to uphold his constitutional duty. If he isn't violating or refusing to uphold his duties, they ain't interested.

[The Philosopher]

103. You know what?

You spent a major part of your time making crap up. You're arguing for argument's sake in many of those instances. And others, you either deliberately didn't read what I wrote, or ignored it just to state I'm wrong. You think "executed" and "execute" are the same thing? Especially in that context? That's a joke. Your response isn't even worth my time, which means I'm ashamed to even be responding this much to it. If you feel like really discussing what we've both said, you can try again. But only if there's honesty in your writing.

[VMI Dem]

34. Rec for posting without comment.

[Better Believe It]

53. Judge reaffirms ruling allowing gays into military in otder to safeguard "constitutional rights"

Judge reaffirms ruling allowing gays into military
Advocates already had been testing Pentagon policy on recruiting
NBC News and news services
October 19, 2010

A federal judge formally refused on Tuesday to let the Pentagon reinstate its ban on openly gay men and women in the U.S. military while it appeals her decision declaring its "don't ask, don't tell" policy unconstitutional.

A day after tentatively siding against the Obama administration, U.S. District Judge Virginia Phillips issued a written decision denying a government request to lift her own injunction barring further Pentagon enforcement of the ban.

Although government concerns about military readiness and cohesion are important, "these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights," she wrote in a six-page opinion.

http://www.msnbc.msn.com/id/39743668/?GT1=43001

[MrScorpio]

54. The president can't repeal laws and is constitutionally obligated to adhere to those on the books

Rehashing these arguments are tiresome.

DADT is being eviscerated in the courts and the repeal process is ongoing in the Congress, where it belongs.

Blaming Obama for using the ACTUAL CONSTITUTION, instead of going the unilateral route like Bush always did, is pretty fucking ridiculous.

[ruggerson]

56. Not if they are declared unconstitutional

EVen his DOJ has admitted that they are not required to defend laws which have been found to be unconstitutional.

[MrScorpio]

60. The president can't declare laws unconstitutional.

That's the role of the COURTS.

The mere fact that the writer even stated that the president should have declared a law on the books as "unconstitutional" should be enough to disregard EVERYTHING in that article.

Barney Franks figured out that the best and fastest way to dispose of DADT was to take it TO THE COURTS. He was very correct to use that approach. An approach, knowing full well, that the Holder led DOJ would be obligated to defend it. That's just the way things are.

And I'm sorry, if the DOJ loses a case in lower courts, they are entitled to appeal. And since this case was ONLY decided in the Ninth Circuit, there are still the other circuits where it can still be problematic.

Unless the USSC refuses to hear an appeal OR rules to uphold the Ninth Circuit ruling, OR a complete repeal in the Lame Duck occurs, I'm not happy with leaving any part of it extant.

There's another thing to consider as well, which I'm surprised that no one has mentioned: Had Obama used this suggested unilateral route, not only would he left vulnerable to a valid attack from his enemies for not upholding his oath to defend and follow the Constitution, but his actions would be highly counter-productive, because they would obstructive to all the events that have already occurred.

So it's quite possible that we would not have gotten to the point where we are today.

We elected the guy PRECISELY because we expected him to follow the rules, unlike Bush. And the mere fact that the law was declared unconstitutional in the courts (where it belongs), shows that FOLLOWING THE RULES ACTUALLY WORKS.

Apparently, that article was written by someone who can't take yes for an answer.

[ruggerson]

63. No one said anything about the President declaring anything

The COURTS have found DADT unconstitutional.

As you say, the admininstration is "entitled" to appeal, but in cases where a Federal Judge has issued a sweeping ruling striking down the statute as patently unconsitutional, the DOJ is NOT REQUIRED to appeal.

21 Senators have written to the Administration asking the DOJ not to appeal, many of them legal scholars.

Leading editorial pages around the country have asked the administration not to appeal.

Including lead editorials in the New York Times.

The train has left the station.

Still time for you to hop on, though.

[MrScorpio]

64. The writer is putting the cart before the horse...

Obama has now repeatedly angered the gay-rights advocates: first by refusing to undo DADT himself, then by vociferously defending the law in court, and now by appealing the ruling and asking for it to be stayed....

Tell me, how in the hell was expected to dispose of a law on the books, "post-veto" it? Apparently, Obama was in trouble with some anti-DADT folks long before he could do anything about it, because the process wasn't even initiated to destroy in the courts yet. And in trouble again for doing his freaking JOB after it is.

But nooooo, disregard the fact that he said that he wanted it done away with in the first place, mind you. Which is the ONLY way that this ridiculous scenario of theirs can be proffered.

Twenty-One Senators need to get their shit together and work to repeal this freaking law in the lame duck, otherwise they can be honestly accused of dropping the ball for political expediency and passing the buck to the President, when they have the opportunity to get something done themselves.

Doing a preemptive happy dance over this issue does not satisfy my desire to see it completely done away with.

[JustinL]

70. I notice you didn't answer what REQUIRES the DOJ to appeal the ruling n/t

[MrScorpio]

73. My knowledge on that particular point is somewhat limited at this point...

I excluded addressing that question because I'd rather get the answer for myself from an independent source.

I figured that it's not exactly smart to rely on the article writer, as he is apparently, someone with an ax to grind.

[MrScorpio]

71. .

[Better Believe It]

58. Do you think a Congress with a lot more Republicans will repeal DADT?

[MrScorpio]

61. I expect repeal to occur in the lame duck beforehand

Which is what Barney Franks expects to happen.

[Danger Mouse]

65. McCain is going to filibuster. He's already said he will.

So repeal is already dead in the water.

[MrScorpio]

68. Well it's up to the Log Cabin Republicans to get 2 or 3 GOPers on board then

Just as Barney suggested they should.

Hell. Even quite a few DUers were celebrating those guys for suing to get the law declared unconstitutional. Nice happy dance, that was.

So, where are the Log Cabins TODAY, when we need them to put McCain and his stupid filibuster away?

[The Philosopher]

75. As it's been said several times

The President has the authority to challenge the constitutionality of a law. The Courts or Congress could have either agreed with him or challenged him on that point. If it's okay with you that the Supreme Court would've heard the DADT and declared it unconstitutional or that Congress would've taken action themselves, we could've been at this point two years ago.

[MrScorpio]

76. If I remember correctly, two years ago we were trying to save the economy

So, pretty much anyone else with a pet agenda to push while the Prez was occupied with something so pressing at the time can make the exact same argument.

"What about us? What about right now?" It always amazes me when people can't take, "We're getting to you right now." for an answer.

However, all the correct moves were indeed made and DADT is well on its way to become as dead as Julius Caesar indeed. Happiness should be abounding.

Frankly, these coulda-woulda-shoulda arguments about something that's going to come to completion anyway has all the markings of sour grapes about other unrelated subjects at this point.

Elections have consequences, which is something that a LOT of people are reminded of all the time, so they go out of their way to share that very point whenever it suits them.

[The Philosopher]

78. Pet agenda?

Is that anything like the Gay Agenda?

Frankly, your post is offensive. It's obvious you're not for Human Rights, but rather hero worshiping. And I believe the President spoke out against that when he took office. How does it feel knowing your hero worshiping is hurting other people?

Because there's no reason that we think the President, Congress, the Supreme Court, and everyone else in the Government are children. They are adults. They can do more than one thing at a time. They don't meet in January and decide which thing they'll concentrate on and drop everything else. We'd get nowhere if they did that.

Just like with hero worshiping.

And if you're just afraid the Democrats will lose because they're criticized (and forced to do something), well...my faith in the Democratic Party is a little more firm than that.

[MrScorpio]

79. I was speaking in general terms of, course

And "any agenda" would include any reason to attack the president... as some will dock at any port in a storm.

It's a particular tool to hype one's importance, because we all know that the squeakiest fence gets the oil. That's just how the game is played and it's always been that way. That includes extremely important fights like killing DOMA and DADT, as well as other, less pressing, issues.

The point being that full equality and human rights ARE being pursued, in spite of the timing and method and it's being done by THIS President.

Hey, I'm quite happy to admit that I admire the President, and I'm generally satisfied by his performance and, of course, I'm CERTAINLY happy that we have a Democrat in the White House. I defer to him in a lot of ways... So, sue me.

With the election coming up, I'm really not digging this penchant for bad mouthing the guy, because of the detrimental effects that constant bad mouthing would have on our effort to keep the GOPers from regaining control.

But, from what I can see, some people find it extremely hard to take "yes" for an answer.

[Major Hogwash]

59. If the US Government loses the appeal, then it is settled law. That's why he should appeal it now.

While he has the majority in Congress to act if they lose the appeal.

It's a game of 3-D chess.

[MrScorpio]

62. Exactly!

Welcome to the wonderful world of the Constitution

[JustinL]

69. and if they don't appeal the ruling, it will be settled law

Why does Congress need to wait for the appeal to play out to act?

[Better Believe It]

81. Exactly!

[Statistical]

83. If they win the appeal (remember it is going to the current SCOTUS) then it re-affirms DADT.

There is no further appeal possible and DADT will stand forever until repealed by Congress.

Why would anyone think that is a good gamble especially w/ current SCOTUS?

[riderinthestorm]

87. I don't have any faith that even THIS congress will repeal it.

Do you really believe that will happen?

And furthermore, I don't have any faith that this SCOTUS will find DADT unconstitutional either.

[Major Hogwash]

101. Honest to gawd, I don't know. I'm not a constitutional expert nor a lawyer. It was the only thing I

could think of at the time.
Quite frankly, I'm perplexed by Obama about half of the time.
It doesn't make any sense to me why he would want to appeal this decision if he is against the law of DADT to begin with.

I don't think the SCOTUS will uphold the lower court's decision to stay the DADT law.
And like you, I really don't trust this Congress to overturn DADT if the courts refuse to overturn DADT.

But, I was surprised to learn that the law itself may now be considered unconstitutional since it was first passed 17 years ago, based on a different case involving gay people and how they are treated in our society.
So, I have hope that this law will be struck down.

And I even have some hope that whatever moves the justices to make their minds up one way or the other, that they will come to the realization that the DADT law is now unconstitutional, in this modern day and age.

My grandmother told me once that when she and my grandfather were first married, about 1926, that they were so poor that all they could afford to have much of, was hope.
So, they went to church and prayed that their hopes would come true.
They were "depression-era poor" before the Great Depression hit in 1929.
My grandmother told me that no matter how poor I was, no matter how bad things were in my life, that I should always hold on to my dreams and have hope.
Because sometimes . . times like these . . that's all we've got!!

I'm not gay, so I don't know how a gay person would feel who was in the military right now. It must be like being caught between the claws of a pair of pliers, and no matter what day of the week, someone is wrenching down on the pliers of this legal battle.
Before too long, something has to give -- either the damn law will be declared unconstitutional by the damn courts, or the damn Congress has to overturn it.

[Danger Mouse]

66. Interesting article. I'd like to read more about this.

[agentS]

74. Sure, it's "dead" as long as Obama DOJ doesn't appeal, but what about 3rd parties?

What about a Republican president or a Boner Congress or a third party? Would a future DOJ be able to appeal the law in the future? If I were president I wouldn't want to leave GLBTs at the tender mercy of a future administration, especially if there's a change that admin may be Republican.

[laughingliberal]

77. No reason Congress can't do that repeal thingie. What about the injunction precludes it? nt

[Tesha]

80. The deadline to appeal will have expired by the time of...

...a future President or Congress. And few or no
third parties will have legal "standing" to appeal
right now.

"War is over if Obama wants it", but he doesn't seem
to want this war to be over.

Tesha

[Azathoth]

84. The Executive Branch has already made it clear that it believes DADT could be constitutional

Declaring DADT manifestly unconstitutional is the only way Obama could legitimately justify not mounting a vigorous defense of it in court. He and the DOJ have already explicitly stated they believe that the law is potentially constitutional. Given that belief, Obama would be blantantly violating his oath of office if he used his power to overturn the law and the express will of Congress.

[Better Believe It]

86. So Obama believes gov't discrimination against gay people is constitutional. How liberal of him!

I believe that was also the position of George W. Bush in defense of DADT.

[WinkyDink]

92. Missing the POINT: What words stand out? "Is Obama.......Legitimate?" It's called "subliminal."

[dionysus]

93. bless your little heart for trying so very hard.

[Name removed]

98. Deleted message

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