Judge Phillips' DADT ruling applies to ALL servicemembers WORLDWIDE

[ruggerson]

All President Obama has to do is decide not to appeal the ruling, and DADT is dead.

"Tuesday’s ruling, in Log Cabin Republicans v. United States of America, could have a potentially sweeping impact, as it would apply to all United States service members anywhere in the world."

http://www.nytimes.com/2010/10/13/us/13military.html?_r=1&ref=us

Anyone who tells you that this ruling must be appealed, because it only applies to soldiers in
Phillips' Federal district, is not telling you the truth.

This ruling does not have to be appealed - it already applies worldwide.

This is the moment for Obama to be a leader and decline to appeal.

If the administration doesn't appeal, the law is killed.

http://graphics8.nytimes.com/packages/pdf/13military/031111036345.pdf">LINK TO FULL TEXT OF RULING

[Hell Hath No Fury]

1. "This is the moment for Obama to be a leader ..."

I pray to the gods he has what it takes to seize this opportunity to do the right thing.

If he doesn't, shame on him and he deserves everything coming.

[Unvanguard]

2. Given the Senate vote, not appealing is probably the best way to end it.

It is problematic on "rule of law" grounds--the political views of the President should not have a role in how the Department of Justice defends federal law--but the filibuster is worse, and letting this blatantly unconstitutional and transparently bigoted law stand for two more years or longer is untenable.

[TheWraith]

4. "political views of the President should not have a role in how the Department of Justice" works

Precisely. Some people here don't get checks and balances, and how little power the POTUS is actually supposed to wield.

That said, I have no doubts the DOJ will appeal it if it isn't repealed by Congress before then, and that we'll win in higher court.

[Unvanguard]

6. Fifty-six members of the Senate and 234 members of the House voted to repeal.

Yet the legislation is blocked. In the context of Congress's dysfunction (hardly constitutionally obliged), it is not so unreasonable to let the President have more discretion to undermine terrible, constitutionally-dubious statutes.

I have no idea whether or not LCR will win in higher courts--I'd like to think the answer is "yes", DADT is pretty unjustifiable, but the courts often defer to military policy--but, regardless, appealing will certainly mean a stay, and so the litigation will go on for years more while the discharges continue. I do not find that an acceptable outcome. Seventeen years is already far too long.

[TheWraith]

11. The Senate is dysfunctional, yes. Unfortunately, it's sort of intended to be.

Impeding progress has always been the job description of the Senate since the time of it's creation, and it's arguably the stupidest decision made by the framers of the constitution--but one demanded by the less populous southern states as the price of their participation. The Senate has always been and likely will always be the most inactivist part of the US government.

As an aside, appealing does not necessarily mean a stay, that's on the discretion of the court taking the appeal. In this case, it would be a lot easier to make an argument against a stay--typically a decision is stayed to prevent something from happening while the case is decided. In this situation, a stay would mean something DID happen while the case was decided.

[Unvanguard]

13. The present use of the filibuster was never intended by anyone.

It is a historical accident that remains only through legislative inertia, and the way it is presently used is contrary to the spirit if not the letter of the Constitution: legislation is supposed to be passed by majority vote.

The only reason DADT's repeal is in doubt is because of the filibuster. Congress is institutionally incapable of carrying out the will of the majority of its members; this strikes me as a good reason to permit more discretion in the exercise of executive power than otherwise might be proper.

Appealing does not necessarily mean a stay, but almost certainly does. Indeed, that would be the major point of the appeal, given that the White House seems convinced that DADT is going away soon, probably before an appeal is even heard. What a stay would prevent is the suspension of DADT and the potential disruption and uncertainty such suspension (prior to a final determination) might bring, factors which (unfortunately) probably figure larger in the minds of an institutionally-conservative federal judiciary than the continuation of the unconstitutional discharges of gay service-people.

[ruggerson]

7. You and I both know that Presidents have open channels to their DOJ

including this President.

Anyone who says otherwise is either deliberately trying to mislead or ignorant of the process. See my post below about the coordination involved in the revision of the Smelt brief.

[Unvanguard]

8. I did not mean to suggest otherwise. The DOJ is not the Federal Reserve.

As I said, I think they should decline to appeal, and that would almost certainly involve an exercise of presidential power.

It remains true, however, that, as a general matter, the DOJ should not (not always "does not") act to undermine federal laws because the President opposes them. I am strongly inclined to make an exception in this case. But I think it is an exception.

[ruggerson]

9. I agree

This ruling has the same effect as repealing it in Congress.

If Obama declines to appeal, the only way the law rises from the dead is for some future Congress to reinstate it (and a future President to go along with it.)

That scenario could also happen with Congressional repeal, so it's essentially the same outcome.

[TheWraith]

3. First, Obama does not decide what to appeal and what not to.

The DOJ is an independent organization within the government, like the FDA. The President can nominate someone to run it, but he can't micromanage.

Second, no matter what the scope of the ruling, higher precedent is ALWAYS better. If you don't think that the Republicans are waiting in the wings to reestablish DADT the next time one of their guys is in office, you're not paying attention. A SCOTUS case would make that impossible.

Third, the DOJ has what's called the "duty to defend," meaning that they are required to defend federal law until it's determined that legal recourse has been exhausted, which usually means the Court of Appeals.

[ruggerson]

5. Then why did the DOJ CHANGE THE BRIEF in the Smelt case after meeting at the WH

with gay legal advocates and Obama administration officials following a nationwide uproar?

A coordination that included a STATEMENT from the White House the same day the revised brief was issued.

Of course the WH micromanages in cases like this. They are politically charged and past administrations have done the exact same thing.

[QC]

10. kick

[muffin1]

12. K&R n/t

[ruggerson]

14. It's very simple - it covers ALL U.S. Servicemembers worldwide