JONATHAN COHN SEPTEMBER 10, 2010
A federal judge has ruled that "Don't Ask Don't Tell" is unconstitutional. What does this mean for the Obama Justice Department, which is supposed to defend the constitutionality of laws but is part of an administration that has said it wants to repeal DADT? An anonymous but informed legal observer sends the following:
The decision actually puts the administration in a box, although they’re probably used to it by now. As a general matter, the Justice Department will defend the constitutionality of federal laws unless the law is totally beyond the pale--which, in the current state of the law, DADT is not. What’s more, if they refuse to appeal this decision, it is likely to inflame opinion in Congress--supporters of DADT will say that the administration is trying to accomplish a back-door repeal, subverting Congress’s role--which will make it tougher to get DADT repealed. So they almost certainly have to appeal--which will anger their supporters who think DADT is terrible. But they’ve been in this position before, and will be again, with DOMA and maybe some other laws too.
What makes things even worse for the administration is that the appeal would go to the U.S. Court of Appeals for the Ninth Circuit, which has some very liberal judges. If the Ninth Circuit upholds this decision, then the administration would (unless Congress has repealed the law by then) have to decide whether to defend it in the Supreme Court, which would be really a mess, from their point of view.
The one possible way out that I can see is this: While the judge has decided that DADT is unconstitutional, she hasn’t said what, exactly, the government has to do in response. If she says the government has to stop enforcing DADT, then Justice has to appeal, for the reason I said. But, based on what I've seen, it sounds like it’s possible that she would just order the reinstatement of the plaintiffs in this case. If so, then it is barely possible--unlikely, but imaginable--that the government would just drop the case. That is because a decision by a district court does not establish a precedent binding on anyone. I could imagine the government saying that it’s not worth spending the time and money on an appeal when the case establishes no precedent and just requires the reinstatement of a couple of service-members.