Could someone explain why the admistration is appealing the DADT decision?

[BrentWil]

I am not looking for emotion. I really want to know the rational. I mean, why not just leave it alone, if you are against it? So, if someone could honestly walk me through what the administration is thinking, would you please do so.

[TheWraith]

1. The Department of Justice is legally obligated to defend federal law.

It's called the "duty to defend," and the point is to make sure that laws passed by Congress receive rigorous judicial vetting before being declared constitutional or unconstitutional, no matter who is in the White House.

[Ken Burch]

4. They don't appeal every court decision invalidating a law.

There's no good reason to risk it going to the Supreme Court, where we KNOW it will be upheld and therefore set in stone for eternity. No Republican appointee to the Supremes can ever be capable of supporting justice on this issue.

[TheWraith]

7. What you said isn't true.

One, they don't appeal every case because multiple cases challenging the same law are usually consolidated into one.

Two, there is no reason to think the Supreme Court will uphold this, and plenty of reason to think they won't. We had the same balance on the SCOTUS when Lawrence vs. Texas came up. Kennedy has a good record on gay rights.

That is, of course, assuming that the SCOTUS takes the case, and doesn't leave it with the court of appeals. But realistically, it's probably never even going to get to the COA, since the Defense Approps bill comes back up in the lame duck session.

[ClarkUSA]

33. Thank you for another fine legal explanation, TheWraith.

Ken Burch claimed:

"They don't appeal every court decision invalidating a law. There's no good reason to risk it going to the Supreme Court, where we KNOW it will be upheld and therefore set in stone for eternity. No Republican appointee to the Supremes can ever be capable of supporting justice on this issue."

You said:

"What you said isn't true.

One, they don't appeal every case because multiple cases challenging the same law are usually consolidated into one.

Two, there is no reason to think the Supreme Court will uphold this, and plenty of reason to think they won't. We had the same balance on the SCOTUS when Lawrence vs. Texas came up. Kennedy has a good record on gay rights.

That is, of course, assuming that the SCOTUS takes the case, and doesn't leave it with the court of appeals. But realistically, it's probably never even going to get to the COA, since the Defense Approps bill comes back up in the lame duck session."

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=433&topic_id=483253&mesg_id=483271

Bookmarked for future rebuttals.

[northzax]

9. citations, please?

please do cite a single instance that the Obama administration has failed to appeal a Federal Judge overturning a Federal law. please also cite a single instance in which this DOJ has failed to appeal when not granted an emergency stay during an appeal. you said they don't, so bring me a citation, please.

[BrentWil]

17. Some of the more liberal members of the court have came from GOP Presidents..

So I would not be so sure.

[Ken Burch]

20. There's no chance that ANY current or future GOP appointee

could ever become Warren or Brennan. That day is over. There's no such thing as a non-ideological GOP appointee to anything anymore.

[jobycom]

11. Newsweek had a long article on why that's not exactly right.

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

Basically argues that the law was already weakened, that he has other obligations to the military that would justify him not enforcing the law anyway, that there is precedent, and such things. Cites a lot of legal experts. Ultimately, Obama doesn't want to, and that's the reason. Whether it's a personal opinion, a weakness of understanding of his job, lack of experience, lack of leadership skills, or just a political move to keep from angering Republicans, he just doesn't want to.

[nadinbrzezinski]

2. Process. The quotes from

The media told me this. They so bad want to lose, going through motions and balance.

[donco6]

3. Because they want to overturn it.

There is no other rational reason.

[LynneSin]

5. I think Obama's heart is in the right place but at this point just let it go

I mean being the president that finally creates equality for all and gives the GLBT community their equal rights will be something for the record books. But the way congress is created it just won't happen, it's so far divided that the right-wing nut jobs will just continue their record of hate and nothing will get done.

[Name removed]

10. Deleted message

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

[DURHAM D]

6. Because they don't like Log Cabin Republicans.

:bounce:

:bounce:

:bounce:

:bounce:

[northzax]

8. basically, it's their job

it is the job of the Attorney General to enforce the laws of the United States, at the direction (and even at times against the will of) the President. do we really want to live in a world (once again) where the President and AG simply decide which laws they want to enforce and defend?

look, DADT is a ridiculous and unconstitutional law. I want it overturned or repealed. but one federal judge ain't gonna cut it. what one federal judge giveth, another can take away.

[Ineeda]

12. Bingo.

Now, if we could only get those simple facts into the heads of the 'fix it right now' folks.

[Ken Burch]

13. Can we quote you on that when the Supremes carve DADT into stone for all eternity?

There's nothing in the process that justifies letting the haters get more chances to save DADT.

[Ineeda]

18. There's nothing in the process that justifies...?

Don't we want it done right? Quick would be great, but right is better. You might think doing it Georgie's way would be just ducky, but I don't.

[Ken Burch]

19. I don't want the haters to be given any more chances to win.

That's the only thing that comes of appealing. Giving the haters more chances. It's a sure loss in the Supremes and we all know it. Nothing could possibly be worth letting THAT happen.

[Ineeda]

22. I don't agree with your absolutes.

Look, we have an opportunity, after 17 years, to get this done so it can't be undone by a different judge or a different president. That's the key.

[Ken Burch]

24. If the Supremes uphold DADT, it's over. For good.

OR for at least seventy years like with Plessy V. Ferguson, which is the same thing. If it took THAT long to overturn injustice that time, it HAS to take that long this time. Why risk that?

[Pirate Smile]

27. That's not true. It just will have to be repealed by statute. It wont become a right protected

from infringement like if they found Gay Marriage to be protected by the 14th Amendment. That would have to be overturned by the Supreme Court or a Constitutional Amendment. This would just say Congress could legally enact that statute.

[Ken Burch]

28. And statuatory repeal can't happen because the Senate will block it forever.

If the Senate has enough haters to filibuster it now, it always will.

No one there is capable of changing.

Remember, if it hadn't been for JFK getting shot and those little girls getting blown up in the church, we'd STILL have Jim Crow. Nothing like that is going to happen on this one.

Justice for LGBT people can't happen in OUR Congress.

You're taking a massive, possibly hopeless risk for little reason.

[vaberella]

15. Yuppers. n/t

[ZombieHorde]

21. um...

do we really want to live in a world (once again) where the President and AG simply decide which laws they want to enforce and defend?

What about torture?

[northzax]

25. excellent point

how about it? both are wrong, do two wrongs make a right?

[no limit]

40. um...news flash...we already live in that world

The AG has decided that going after war criminials isn't a good idea. So they already pick and choose what they will enforce and what they wont. The Bush administration used the OLC to break any law they wanted with a get out of jail free card.

So I hate to break it to you, but we already lie in that world, we have been for a while now.

[CakeGrrl]

14. The President has said a number of times that he wants it done right

Which means in a way that will make it difficult for the Republicans to overturn or reverse or repeal - and they'd have no problem doing that.

The action the DOJ is taking is laying the groundwork for the long-term approach.

[ruggerson]

38. The law is dead either way - by an act of Congress or by the Courts

and a future Congress and Prez could resurrect it regardless of whether it's repealed by Congress or by the courts.

Obama's intent may not be malicious, but by not anticipating the events as they have unfolded, he is now pursuing a politically inept path.

[grantcart]

16. GLBT National Bar honoree explains it and supports it

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=9311547&mesg_id=9311547

[Phx_Dem]

23. A lawyer explained it Rachel Maddow very well last week.

There are only two ways to repeal this law – Congress or the Supreme Court. Since the Supreme Court is not a guaranteed repeal, Obama is pushing Congress to do it (as he has said repeatedly when asked about it.)

The reason they are appealing the court ruling is because it was a law that was passed by Congress so the Justice Department and the Obama Administration believe Congress should have the opportunity to be heard in court about the law that they wrote/passed.. The guy that explained it to Maddow said the Justice Department will tell the court they agree with its decision, and that they do not support the law, but believe that Congress should be heard on the matter. Also, the Appeals process pushes the decision up through the courts so that the Supreme Court can ultimately rule on it and, hopefully, repeal it once and for all. If Congress doesn’t do it’s job first.

[stray cat]

35. Now this post should be the one getting recomends if we could - rationale and informative

[Ineeda]

39. Here's a link to Rachel's guest

Listen from 5 minute mark onward, if you don't want to listen to all 11 minutes.
http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#39679402

[emulatorloo]

26. They haven't appealed the decision yet, despite what all the threads tell you

[azmouse]

29. Something I heard this morning:

If one judge can be allowed to overturn a law, no matter how bad a law like DADT, then what stops one other judge from overturning Civil Rights laws, voting laws or any law the Republicans don't like?
It could set a dangerous precedent.

[jillan]

30. Okay - now that is something I could accept.

[Ken Burch]

31. Which means that gays could once again be thrown under the bus

in the name of some fantasy notion of "the big picture"-a picture that always excludes defending ANY group whose rights aren't popular.

[Name removed]

32. Deleted message

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

[stray cat]

34. Rachel Maddow had a great show on the reasoning a few days ago

but that requires listening and not a knee jerk reaction

[rug]

36. It values consensus over justice.

[ruggerson]

37. Because Obama made a deal with the military that they would move slowly

and the military wants their "review" to be finished before the policy is killed.

They had what they thought was a political deal in place. The Congress would vote earlier on a bill that allowed the military to wait until December. And Obama and the military would get to strip out the anti discrimination language that was in the pre-compromise bill that the military found objectionable. Unfortunately, the Senate Republilcans had the votes to prevent cloture and the "compromise" repeal failed. Thus they were left hopoing they could get it done in the lame duck session.

Then, Judge Phillips threw a wrench into the mix. She not only declared DADT unconstitutional, she issued an injunction against the military nationwide and forced them to end it immediately.

Obama's DOJ does not have to appeal this, because it is widely accepoted that once a law has been found unconstitutional, an administration is not bound to defend it any longer.

My best guess (and no one but the inner circle as the WH truly knows this) is that Obama;s administration is appealing this, because they feel duty bound to the agreement he made with the Sec'y of Defense and other military leaders.

The problem is, the appeal could be upheld by the Ninth Circuit and the repeal could fail in the lame duck session and then the administration is not left with many options.

IMHO, Obama should have rolled with the punches, abandoned the deal with the armed forces, not ask for a stay nor purse an appeal and leave the lawd dead - as it is now.

Had he done that, he would have been free to issue an EO when the "review" comes in, and he could phase in the recommendations from the armed forces.

Instead, he's pursuing a path that is politically damaging, morally indefensible and could possibly end up with DADT being the law of the land for a lot longer than the American people want.

[Phx_Dem]

41. A good explanation posted on Huffington Post (don't faint).

http://www.huffingtonpost.com/2010/10/21/dadt-conflict-explained-w_n_771035.html

[Unvanguard]

42. There are two main reasons, as best I can tell.

The first, and probably the more important, is that the Obama Administration is very wedded to its repeal plan, which requires the cooperation of the Pentagon. They want DADT gone, but they want it gone without alienating the Pentagon leadership. There used to be compelling reasons for this, because Congress would have balked at repeal without Pentagon support, but the case for continuing with this strategy is much weaker now that there is (was?) a reasonable alternative to Congressional repeal, and that the Senate has proven reluctant to go through with it.

The second, procedural argument is the "rule of law" one: the DOJ nearly always defends federal law, except in a small handful of exceptions that arguably do not apply to this case (there is debate about whether or not they do, my inclination is to think they do not.)