Balkinization  

Friday, September 10, 2010

DADT: Wait It Out

Jason Mazzone

On Thursday, Judge Virginia A. Phillips (Central District of California) held that Don’t Ask Don’t Tell is facially unconstitutional. In a case brought by the Log Cabin Republicans, Judge Phillips found that DADT burdens the rights of gay and lesbian service members to same-sex intimacy recognized in Lawrence v. Texas; applying heightened scrutiny, Judge Phillips ruled that the government had failed to show that DADT significantly furthers the government’s asserted interest in military readiness or unit cohesion (or any other interest). Judge Phillips further held that DADT is a content-based regulation of speech in violation of the First Amendment.

Much of Judge Phillips’s ruling is based on the trial testimony of discharged service members. That testimony showed vividly the impact DADT has on gay and lesbian military personnel both on and off duty, including by forcing them to conceal or sever intimate ties, preventing them from engaging in normal conversation about family members or their weekend activities, and discouraging them from reporting harassment in violation of military rules for fear of being outed.

Judge Phillips ruled that the plaintiffs are entitled to an injunction barring enforcement of DADT. She ordered the plaintiffs to submit proposed terms by September 16 and gave the government a week after that to respond.

Judge Phillips's ruling puts the Obama Administration (which currently lacks a Solicitor General) in a tricky position.

Should the government appeal the decision?

President Obama has said publicly that he opposes DADT and he has promised its repeal. In Congress, a provision that would lead to the eventual repeal of DADT has already passed the House (but it has not yet come to the full Senate). These are tempting reasons not to appeal.

On the other hand, it would be highly unusual for the government to fail to appeal a district court decision striking down a federal statute. A failure to appeal this case will likely generate substantial criticism.

So wait it out.

The November elections are 53 days away. Under Rule 4 of the Federal Rules of Appellate Procedure, the government has 60 days after the entry of final judgment to file a notice of appeal. The Administration can wait until after the elections to decide whether or not to appeal. It can take the position now that government lawyers are reviewing options. The Administration can then see where things stand after the November elections. If Republicans make significant gains in Congress (thereby making repeal of DADT less likely), the Administration can decline to appeal, thereby leaving Judge Phillips's ruling in place, with the hope that the failure to appeal won't get much political traction in 2012.

Politics aside, there are at least two good legal reasons for the government to appeal. First, Judge Phillips’s decision, based heavily on trial testimony, reads very much like a ruling in an as-applied case rather than on a facial challenge. The government took the position in the case that on a facial challenge the only relevant evidence is the statute, legislative findings, and legislative history. (The government therefore called no witnesses.) Judge Phillips rejected this argument and issued a ruling based on a wide range of evidentiary materials. The government has an interest in pushing back on what defending a facial challenge requires.

Second, the government has an interest in asserting deference to the military particularly in times of war. In rejecting the interests the government asserted in cohesion and readiness, Judge Phillips deemed President Obama’s public statements against DADT as an “admission” by the government that DADT serves no government interest. Judge Phillips also relied upon the military’s practices of discharge under DADT, in particular the smaller number of discharged gay and lesbian service members during wars in Iraq and Afghanistan, as evidence that DADT serves no purpose. It is odd for a court to accept as evidence a statement by the Commander in Chief that an existing military policy is unwise and through a carefully coordinated process should be altered and at the same time dismiss as serving no interest the actual policies of the military that is overseen by the Commander in Chief. It is also odd that in a time of war and when military resources are stretched thin, the military’s decision not to implement fully a policy becomes proof that the policy has no point.

Comments:

You make some interesting points, but you have left out an important element of this calculation. The executive branch has a constitutional obligation to defend the constitutionality of federal statutes under all but a very limited set of circumstances. I think that it would be very difficult for the administration to argue that those circumstances are present here. Moreover, it has a specific statutory obligation to notify the congressional leadership and House and Senate legal counsels should it decide not to defend a federal statute. One of the reasons for this is to give the Congress an opportunity to intervene to defend the statute if the executive decides not to.

So waiting until the last minute and letting the time for appealing expire would not just generate criticism, it would be improper. I expect that the administration will defend the law. If not, it will either file a protective appeal to preserve Congress’s rights or, at a minimum, give Congress sufficient notice so that Congress can decide whether it wants to intervene in the case.
 

Second, the government has an interest in asserting deference to the military particularly in times of war.

But we're in a perpetual war. I think that that requires us to reassess the principle of deference to the military.
 

The executive branch has a constitutional obligation to defend the constitutionality of federal statutes under all but a very limited set of circumstances.

Where in the Constitution does it say that?
 

Instead of just asking a rhetorical question, let me add that separation of powers suggests that, just as the judicial branch may strike down legislation, the executive branch may decline to enforce it or to appeal a decision striking it down. A tradition of appealing does not equal a constitutional obligation.
 

The executive branch has a constitutional obligation to defend the constitutionality of federal statutes under all but a very limited set of circumstances.

Where in the Constitution does it say that?


Henry- a fair question. The basic answer is that the President’s obligation to take care that the laws are faithfully executed implies some level of obligation to defend the constitutionality of federal statutes, even where the President personally thinks the law is unconstitutional. You can see how the contrary view, where the administration could take a dive in court whenever it thinks a law is unconstitutional, would create a problem.

More pertinent to my earlier comment, however, is the fact that every administration going back at least to the 1970s has acknowledged this obligation. There is a basic formulation of the rule which was first set forth by Carter’s Attorney General and then repeated by Reagan’s Attorney General which has been adhered to by subsequent administrations. It is pretty routine for AG and SG nominees to be asked during their confirmations to agree to follow this rule, and I would be surprised if Holder and Kagan did not say that they would during the confirmation process. I am also fairly certain that Holder is on record during the Clinton Administration as agreeing to this rule.
 

Henry- if you want to debate whether the Obama administration should repudiate the longstanding executive branch position on defending federal statutes, that's fine. As a practical matter, it is not going to do that. And even if you thought that it might, the fact that this position exists is relevant to the calculation set forth in Professor Mazzone's original post.
 

It is pretty routine for AG and SG nominees to be asked during their confirmations to agree to follow this rule

One might view this as an unenforceable contract made under coercion. The legislative branch is saying to the executive branch, "if you don't waive your right to assess the constitutionality of our statutes, we won't confirm." In response, one might say that the executive branch nominee made his or her promise under oath. But, at least at confirmation hearings, Congress hasn't cared about that for years, from Clarence Thomas' multiple perjuries to Roberts' and Sotomayer's promising that they would not make law.
 

There is a very disturbing anti-democratic trend in progressivism today.

Here, we have what may soon be known as the California Way where interest groups find a judge to thwart the will of the voters and overturn a law they dislike followed by the government declining to appeal to shut off any possibility of remedy. First, there was Prop 187 stopping public services for illegal immigrants, then there was Prop 8 reversing a judicial redefinition of marriage and now there is this thread's suggestion of the same for DADT.

I would not put it past the politicized Obama Justice Department to decline to appeal the decision and then use the case as an excuse not to enforce the law. This morning, USA Today is reporting that the Obama ICE has declared an unofficial amnesty for illegal aliens who have not been convicted of a crime. They are dropping current deportation cases and will no longer accept referrals based on traffic stops (screw you AZ and any other state who follows your lead).

Progressives are playing with fire. It is just this sort of outlaw behavior which is fueling the electoral tsunami building towards November.
 

This post is unfortunately incomplete. A reader would get the idea that Judge Phillips was acting on her own here. But, as a local WA paper noteda few weeks ago:

Next month – more than four years after Maj. Margaret Witt was discharged from the Air Force for being gay – she may finally get the justice due her in a Tacoma courtroom.

Next month – more than four years after Maj. Margaret Witt was discharged from the Air Force for being gay – she may finally get the justice due her in a Tacoma courtroom.

A federal judge, in a trial set to begin Sept. 13, will apply a new standard to the military’s “don’t ask, don’t tell” policy. This time, the burden will be on the military to prove not that Witt is a lesbian – her sexual orientation is not in dispute – but that her homosexuality is harmful to her unit’s cohesiveness.


Judge Phillips applied the Witt standard, adding a First Amendment claim as well. The 9th Cir. handed that down over a year ago (resisting en banc review in Dec. 2008) and the Obama Administration is mostly ignoring it. Waiting things out, basically, while still defending DADT as a whole.

The 9CA is the one who cited Lawrence and put the government to heightened scrutiny. True that it was remanded for a district judge to apply the new standard (making this separate case and a step further), but it's pretty useful to know this.

I also find the last paragraph a bit confusing. The heightened scrutiny required means even if the government has "some" reason to defend the policy, it might not be enough. Also, citing Obama on one point while rejected the government on other points is a problem how? The opinion cites about five reasons why DADT is actually counterproductive.

It would be logical to delay though push comes to show "deference" doesn't mean "continuing indefinitely a policy you and various of your top military commanders oppose, that is in fact counterproductive to military needs." Of course, if it's unconstitutional, he has no duty to appeal. An independent judgment can be made on that, as it could be on DOMA (or some aspect of DOMA).

I won't try to make any conclusions on the facial challenge point though I'm not sure how that is too helpful for the government, especially with the 1A claim. A sodomy ban can have legitimate applications. What legitimate application is present for DADT? But, again, there are technical questions best left alone by me.

I look forward to see what happens to Margaret Witt.
 

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I apologize for the multiple posts; for some reason, it didn't process at first and then they all came up.
 

An excellent summary of the Executive Branch's so-called duty to defend federal statutes is set forth in this 2005 post from Marty Lederman, which discusses John Roberts' role in the Solicitor General's decision not to defend a minority preference statute.

Although Marty's post speaks for itself, I think it's fair to say that he doesn't claim the "duty to defend" is somehow of Constitutional origin. Rather, it's a recognition of the fact that in the typical case, for the DOJ to say "that statute is unconstitutional, we won't defend it" amounts to overruling the constitutional judgment of not only Congress but also the President who signed the law. Of course, some cases are different, which is why it's a guideline and not a hard-and-fast rule.
 

First, I think that there is some kind of constitutional origin to the government's role in defending duly-passed, at least facially and plausibly constitutional legislation - that doesn't seem to be so hard to get out of the Take Care Clause. The problem comes though, from the fact that any such duty generated by the Take Care Clause would naturally have to apply, via the Supremacy Clause, to the Constitution itself. The traditions and practice of the SG's office, and of the Executive Branch more generally, regarding somewhat routine defense of federal statutes, I think can be better understood as a judgment that in its good faith carrying out of such duty, there's no serious breach of duty in accepting the constitutional judgment of the Congress at least absent unusual reason not to. That is to say, it's a form of deference in judgment.

Nevertheless, I don't think there's a plausible case that such deference is constitutionally required in a strict or hard sense. For one, the veto ability clearly implies a sphere of independent constitutional judgment for the President; and for two, such deference could clearly create self-referential circles where, e.g. Congress says that a practice is constitutional because the Court says so, and the Court says so because it's deferring to Congress's judgment. (Which is the trend in, e.g. Commerce Clause cases, though rarely so visibly and explicitly).

What Marty's post also overlooks, is the - I think - profound difference between a President offering contradictory judgments in bad faith (i.e. failing to defend a law he/she signed into law), and a successive President having a different constitutional judgment than a previous one. The latter, it seems to me, would be a healthy (if hopefully not frequent) part of constitutional practice. Elections, at least in part, could be predicated on conflicting constitutional philosophy (if not put exactly in that way), and it would seem legitimate for a successor to question his predecessor's judgment.

Incidentally, any time a subsequent Congress repeals a law, it's doing precisely that - refusing to defer to the judgment of a previous Congress.
 

One of the peculiar things about DADT is that Judge Phillips (et al.) want the military to defend it using military memes... but the military neither asked for nor established the policy.* The policy was written and passed by Congressional aides/apparatchiks with no command experience — that is, precisely the people one would expect to screw things up. (Sorry, guys: Being a lawyer doesn't mean one has any understanding whatsoever of context.)

I'm against DADT, and most other restrictions on command authority involving personal concensual "orientation" (and even conduct), for a very simple reason: These policies, which are always established by people who are far to the rear of the REMFs**, are almost always about the "image" of the armed forces... and that brings back some bad memories about integrating the military but nonetheless ensuring that the front rank of any formation would have pale skin. It brings back bad memories about the "appearances" of officers going to church regularly. It brings back bad memories about how local communities around bases mistreated "Other" military members from different regions. And, amusingly, it brings back memories of a military recruiting poster from the mid-1980s showing a (known-to-everyone-in-the-unit) gay man... that didn't get pulled for three years after he left the service.

In short, if Judge Phillips wants the military to defend the policy, she's going to have to find some military personnel who were involved in formulating it... and there really weren't any who put it forth as anything more than a third-best choice. The Congressional findings of fact, however, do not — and cannot, by their very nature — provide proper findings of fact regarding the detailed workings of an exclusively executive-branch function.

* NB I was a sitting commanding officer at the time the allegedly-then-"harsher" policy first came up for review, and I'm thoroughly familiar with the "as applied" aspect. For the record, my "as applied" was "not": I refused to apply a policy to consensual relations that had no visible effect on my unit or the Air Force in general, in the face of institutional refusal to deal with nonconsensual sexual harassment — and worse (according to my successors, things haven't gotten much, if any, better). Does the word "Tailhook" mean anything to you? It should; and that was the tip of the iceberg, and it was just because a particularly stupid and drunk subset of miscreants got caught.

** The irony that I was formally a REMF is well appreciated.
 

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A question for C.E. Petit -- in respect to what the military wanted, the opinion noted "General Powell expressed his general support for the
Policy as then proposed by President Clinton." [he has changed his opinion since then]

Does this mean anything?

Overall, I welcome your perspective. What did the military support in respect to rules regarding homosexuals at that time? Was it the general opinion of the military at that time that consensual homosexual conduct among service members should be allowed, on equal basis as heterosexual conduct?

I also am not sure (perhaps a cite) that the judge necessarily wants the military itself to justify the policy. The ultimate justification in this country rests in civilian leadership. The rule would seem to be that they have to justify it, perhaps using military rationales.
 

The executive branch is perfectly capable of pointing out unconstitutional statutes and refusing to execute them in whole or in part. One need not look beyond the War Powers Act and the recent addiction to signing statements to see that.

That's hardly "defending the constitutionality of federal statutes." How is a refusal to appeal any different in effect from refusing to execute?

Note that refusing to appeal isn't a tactic that belongs to progressives; this "outlaw behavior" was used by conservatives in the Bush administration to undermine laws they found distasteful. Of course, the usual suspect wasn't up in arms about that at the time, and those actions don't fit the "progressives are anti-constitutional" narrative that is currently popular among the very people who were cheerleaders for ignoring that "piece of paper" in favor of their own ends.
 

PMS:

When have conservative executives employed the California Way?
 

First of all, I know it's hard for people in other states to see it, but Schwarzenegger is considered a conservative here.

Secondly, one prime example is the Roadless Rule. When courts ruled against its implementation, the Bush administration refused to appeal the decision, but other agencies were able to intervene.
 

PMS:

Arnold has been nothing approaching a moderate, nevertheless a conservative, for years now. He likes being in power more than being right.

The legal wrangling over the roadless rule continued all the way through the Bush and into the Obama Administrations.

http://www.earthjustice.org/features/timeline-of-the-roadless-rule

This wrangling is not at all analogous to the California Way of seeking judges to reverse democratically enacted laws and then declining to appeal them so there is no democratic or judicial remedy.
 

Responding to Joe:

General Powell's statement was truncated for public consumption; what he "really meant" was something more like this:
"Given the choices presented to us by the civilian leadership, we dislike DADT less than we dislike any of the other policy choices."

Neither I, nor my contemporaries in the USAF, agreed with General Powell's position. However, it was his right and authority (under the way the military works) to present his opinion as "the military's opinion" — and it was our responsibility to appropriately implement that position once it went through the proper chain of command. (The Chairman is not always in the chain of command... particularly for administrative details of personnel policy in the individual services.)

In a more legal context, what General Powell said has much the same authority as a public statement (not in an opinion) by Chief Justice Roberts imploring US District Judges to interpret Fed. R. Civ. P. 1 as broadly as possible. Such a statement can only guide trial judges — not bind them on the particular circumstances before them in specific cases. Only if that statement had appeared in an opinion that was at least analogous, and perhaps on point, could it be interpreted as the equivalent of a lawful order requiring that trial judge (squadron/battalion commander) to make the obey/resign decision.

As far as "general support in the military," there was none. For any policy. The services were fragmented both against each other and within generations and cohorts/cliques in each service. Anyone who tries to pretend otherwise is working from warped data. It was General Powell's right to state the final conclusion as to policy, as the chief military advisor to the President; implementing such a general policy down to the squadron/battalion level, though, is another question entirely...
 

BDP:

Again, the Governator's status as a conservative is only in question to those who don't have their paychecks regularly slashed because he refuses to compromise with the majority party's legislature citing "fiscal conservatism."

And yes, the decision to block the enforcement of Clinton's Roadless Rule by refusing to appeal an adverse decision is analogous, if not homologous, to the decision by the California executive to block the enforcement of Prop 8 by refusing to appeal an adverse decision. Both were attempts to let something wither and die.

On the environmental front, it was a favorite tool of the Bush administration to wait for a decision that favored business over environmental concerns, and then refuse to appeal. It worked for making salmon counts more favorable to business, allowing companies to pollute despite violations of EPA rules, permitting ski lodge expansions without necessary permits, preventing lease money slated for tribes to be collected from drillers, etc. etc. etc. All of which just conveniently seem to be positions that were more in line with the political views of the administration than the intent of the "democratically enacted laws" and rules that were being overturned.
 

I appreciate the reply. The reference to Powell in the ruling goes beyond my one quote and your analysis does not necessarily run counter to the summary in the ruling on his position at that time.
 

as applied vs facial challenge:

What's the legal basis, if any, for the govt's position that "on a facial challenge the only relevant evidence is the statute, legislative findings, and legislative history."

It's easy to think of statutes being overturned based, in part, on evidence external to the statute and legislative history. For example, in Brown v. Board of Ed the challengers used expert testimony to show that segregation could not, in fact, produce equal results.
 

PMS:

Your Governantor is suggesting a slightly slower slide into progressive sovereign default in CA rather that the wholesale reforms which need to be implemented. The standard for conservative gubernatorial governance is Chris Christie and Tim Pawlenty.

As for Bush allowing a court to reverse the Clinton Roadless Rule, I am unsure to what you are referring. After Clinton imposed the rule at the end of his Administration, a lumber company used and obtained a temporary injunction. Then, it went back and forth in the courts as the Bushies tried to amend the rule administratively.

This is nothing like the California Way. The Clinton rule was not democratically enacted, was not reversed by a court on constitutional grounds and there was not a decision to forego appeals because the Administration opposed the rule.

The California Way is about abusing the courts and the executive to thwart the voters' will.
 

Progressives are playing with fire. It is just this sort of outlaw behavior which is fueling the electoral tsunami building towards November.

Bart, that electoral tsunami is about the economy. You may think the "California Way" is clever spin (hey, you CAPITALIZED it), but only a small portion of the electorate gives a shit about the issue of whether court decisions get appealed, and they were voting Republican anyway.
 

As for Bush allowing a court to reverse the Clinton Roadless Rule, I am unsure to what you are referring.

Remember that timeline you linked to? Try reading the entry for July 14:

"Judge Brimmer of the federal court in Wyoming found the rule illegal and issued an injunction that purported to cover the entire country. That ruling was appealed by intervenors represented by Earthjustice. It was not appealed by the government defendants."

No big deal for you perhaps, but environmentalists thought it was a fairly big deal, given the Bush Administration's expressed intent to leave that particular rule in place despite it being one of Clinton's last-minute rules. And yes, they worked on a new version of the rule that was better for business, but that's beside the point--they refused to appeal in order to kill the original rule they were supposedly obliged to enforce.
 

Don't forget, in the "California Way" you must also win a trial on the merits before a randomly-chosen judge. Oh, the procedural trickery!
 

PMS:

Thanks you for finally identifying the action to which you were referring. The Bushies had already announced they were revising the rule before the court entered the injunction in that particular action. Why exactly would they appeal something that was already being changed? Your analogy to the California Way is inapt.

Steve M:

You offer a variation on the California Way - creating and relying upon a one sided and often completely speculative finding of facts to substitute for an actual legal basis to make a finding of constitutional law. Judge Walker's opinion is a prime example of this technique.
 

A bit more on the ruling. First, interesting interview on Rachel Maddow last night (9/10) with a witness from the case.

Also, the district court relied upon the Ninth Circuit Court of Appeals decision in Witt v. Department of the Air Force, which in turn partially relied upon United States v. Marcum, a decision of the Court of Appeals for the Armed Services.

Marcum applied Lawrence v. Texas to the military context but there consent issues (sex between people of a different rank) made things different. But, it is notable that the Court of Appeals for the Armed Services applied the case all the same. Again, this is not just some crazy lib judge in the 9th Cir.
 

Here's our yodeler's obfuscating response to Steve M:

"You offer a variation on the California Way - creating and relying upon a one sided and often completely speculative finding of facts to substitute for an actual legal basis to make a finding of constitutional law. Judge Walker's opinion is a prime example of this technique."

What is the alternative to a "one sided ... finding of facts ..."? Two sided, three sided, ad nauseum? (Is there such a thing as a hydra-headed finding of facts?) Our yodeler has long offered up his "Colorado Way" which he self-creates, with completely speculative and one sided finding of (non) facts, with no actual legal bases in coming up with his view of constitutional law, all an example of his "Colorado Way" technique.

By the Bybee (who's for both tattoos and torture, the former via the First Amendment speech clause, the latter via Yoo-know-whom), we here in MA voted for McGovern in 1972, with the rest of the country reelecting Richard Nixon. We need not repeat the infamous history of Tricky Dick, except to mention the MA inspired bumper sticker: "DON'T BLAME ME, I'M FROM MASSACHUSETTS" when the s**t hit the fan post Watergate. So let's look at this the "MA WAY" with Goodridge. (Thank you, Paul Anka.) I don't have to ask or tell; besides, who cares?
 

Shag:

You have my sympathy. This race between Nixon and McGovern had to be the worst choice for President in the 20th Century.
 

This yodelism:

"This race between Nixon and McGovern had to be the worst choice for President in the 20th Century."

is subject to several interpretations. I wonder which one our yodeler thinks was the "worser." But back in 1972 could so many Republicans have been so wrong about Tricky Dick? Or perhaps our yodeler thinks that Tricky Dick was in fact great and worthy of those who voted for him. But a side-by-side comparison of Nixon and McGovern going back to their military service during WW II and politically thereafter by any fair standard would put McGovern at the top. Remember how in 1968 Nixon as a candidate had a plan to end the Vietnam War that was still going on in 1972 in spades when McGovern challenged Nixon. And that's not Water(gate) under the bridge. So query, is our yodeler disowning Nixon as he seems to have recently "disowned" Bush/Cheney?

By the Bybee (imagine a tortured tattoo), my sympathies to our yodeler for Tom Tancredo.
 

Shag:

Nixon was one of the worst Presidents in American history - putting the Great Society on steroids and implementing appeasement under the guise of detente. McGovern was openly worse in both categories.

The worst choice for President in my and I dare say your lifetime.
 

Our yodeler's selection of Nixon as:

"The worst choice for President in my and I dare say your lifetime."

displays his short term memory loss regarding George W. Bush, making Nixon the second worst in my lifetime (and, I dare say, his). The evidence was there for all to see except for those blindly in awe of all things Bush/Cheney for 8 years.

But what does it say about those who heavily reelected Nixon in 1972? Bush's reelection in 2004 might compare to Nixon's.

We've now got Tony "Poodle" Blair's memoirs on the bookshelves. Presumably Bush's memoirs should be interesting in contrast. What challenges for fact-checkers!
 

Shag:

I am speaking of the worst choice of two candidates, not your personal pantheon of two term GOP Presidents you hated.

BTW, the second worst choice was in 2008 between Obama and McCain.
 

The Bushies had already announced they were revising the rule before the court entered the injunction in that particular action.

So what? It took them two years to actually implement the new rule, which was a stripped down version of the original rule. The whole point here is that they refused to appeal an adverse decision against a more stringent version of the rule in order to effect a more ideologically desirable outcome.

In short, industry lobbyists found a judge to thwart the will of the voters and overturn a democratically enacted rule that they disliked followed by the government declining to appeal to shut off any possibility of remedy.

And it wasn't just that one case, either, Mr. DePalma. The same tactic was used on a series of different cases to block environmental regulations that the Bush administration found unsavory to their backers, despite those regulations being the law of the land.

Tell me exactly how that differs from what you were speaking of during your first comment about the "California Way."
 

PMS:

Regulations are not democratically enacted either through a direct referendum like the CA initiatives or by our elected officials. They are imposed by unelected and unaccountable bureaucrats.

Once again, the California Way is about thwarting democracy.

The lead post is a proposal to avoid democratic accountability after using the California Way.
 

Bart,

"unaccountable bureaucrats" only exist when the elected representatives do not hold them accountable -- like in the Cheney/Bush administration or the Reagan administration.

If you had ever been on the receiving end of a Congressional investigation, you would know just how stupid your "unaccountable" is.

Speaking of which, one of the metaphorical bullets I dodged in order to be here today was as a result of a Congressional investigation by Senator McGovern.

The vast majority of the country had no understanding of McGovern's real politics, thanks to the GOP's standard methodology for driving elections (see: southern strategy, for example) through fear, innuendo, voter intimidation, and the like. That he didn't run a particularly good campaign hardly made him a bad choice as President. By that measure, the brilliant campaign run by Barack Obama in 2008 means he was a wonderful choice.

The attempt to pretend that obtaining political goals through the courts or any other method which isn't what you say it should be is simply dishonest. What, for example, do we call the use of the filibuster, much used by the GOP in recent years?

For that matter, what is the point of the teabagger protests other than to drive government through means other than elections?
 

C2H50H said...

"unaccountable bureaucrats" only exist when the elected representatives do not hold them accountable -- like in the Cheney/Bush administration or the Reagan administration.

:::chuckle:::

Actually, the bureaucrats won nearly every time Bush's political appointees tries to change the regulations.

An unelected bureaucracy backed up by an unelected court is progressivism's most pernicious creation. The elected President cannot change the regulations and all it takes is a progressive minority in the Senate or a progressive President's veto to stop Congress from reversing the unelected bureaucracy. We will see an example of both of these tyrannies when the Obama EPA starts to run the carbon based economy next year with a GOP Congress.

If you had ever been on the receiving end of a Congressional investigation, you would know just how stupid your "unaccountable" is.

Congress can only give the political appointees a hard time. The bureaucrats are untouchable by Congress.

The attempt to pretend that obtaining political goals through the courts or any other method which isn't what you say it should be is simply dishonest. What, for example, do we call the use of the filibuster, much used by the GOP in recent years?

Elected representatives voting under rules established by representatives officials - just like the Dems did when the GOP was in charge.

For that matter, what is the point of the teabagger protests other than to drive government through means other than elections?

Our government is supposed to implement the will of the People. When it acts contrary to the will of the People and ignores the communications of the People at townhall meetings, mail, email and by telephone prior to an election, then protests are the only way left to get the message through.
 

Bart,

Sorry, but "The elected President cannot change the regulations" -- is a blatant, obvious lie. The President can direct the civilian bureaucrats, and any civil servant caught violating a presidential directive will find their tenure is very short.

"The bureaucrats are untouchable by Congress." is another obvious lie, with certain exceptions. Sure, political appointees, once confirmed, are pretty secure -- but can always be impeached. I recall some conservatives putting impeachment forth as the palliative for an out-of-control executive branch only a few years ago. Now, suddenly, they're "untouchable".

As for civil servants, unless protected, ultimately by the President, they would find their employment rather brief if they make a habit of dissing Congress.

Claiming that the filibuster is somehow an "established rule" while the delegation of regulatory power to the bureaucracy isn't is the height of dishonesty.

What is left out in your little lecture on "the will of the people" is that the will of the people is determined by past elections. Live with it. Even if your wet dreams come true this November, it will still be January before the results take effect. Until then, we are -- and should be -- governed by the results of November, 2008 (and the special elections since).
 

Our government is supposed to implement the will of the People. W
# posted by Bart DePalma : 3:57 PM


That is what elections are for, you lying sack of shit.
 

C2H50H said...

Sorry, but "The elected President cannot change the regulations" -- is a blatant, obvious lie. The President can direct the civilian bureaucrats...

What on Earth are you talking about?

You review the history of the roadless rule litigation you raised earlier.

, and any civil servant caught violating a presidential directive will find their tenure is very short..."The bureaucrats are untouchable by Congress." is another obvious lie, with certain exceptions...As for civil servants, unless protected, ultimately by the President, they would find their employment rather brief if they make a habit of dissing Congress.

Next, review the civil service code. Show me a single example of a career bureaucrat fired for declining to follow presidential or congressional guidance to change a rule.

Sure, political appointees, once confirmed, are pretty secure -- but can always be impeached.

The political appointees are the ones chosen and confirmed by our elected representatives to guide the bureaucracies. Why would they be impeached?

What is left out in your little lecture on "the will of the people" is that the will of the people is determined by past elections. Live with it.

If Obama and the Dems ran on nationalizing the automakers, borrowing and spending three trillion dollars, Obamacare or Cap and Tax as they were written by Congress, then you might have a point about mandates. Because they did not, we are instead talking about something more akin to electoral fraud.

Even if your wet dreams come true this November, it will still be January before the results take effect. Until then, we are -- and should be -- governed by the results of November, 2008 (and the special elections since).

Progressives to the People: "Dumb asses, you were stupid enough to believe our campaigns and elect us. You deserve what is coming to you."
 

This comment has been removed by the author.
 

Blankshot, as someone who spent the last 8 years defending the Cheney/Bush disaster, it's funny as hell watching you whine like a little bitch about Obama.
 

Bart,

You are massively confused. I did not raise the "roadless rule". Not that that has anything to do with the price of tea in Colorado.

As for reviewing records for why people were fired, you surely know that that is not a matter of public record, don't you?

Even if such records were public, they would seldom, if ever, reflect the truth. They'd instead show that the person left "to spend more time with their family".

When was the last time you ever saw a firing notice that actually reflected the real reason?

Asking why someone would be impeached after having been confirmed is simply more willful ignorance on your part.

If, as you imply, representatives should be restricted to only those things they ran on, then this country would be in even more trouble than it already is. That's so stupid I'm surprised you even brought it up.

As for the "you were stupid enough to believe our campaigns and elect us." -- both parties govern that way, but the GOP is far the more egregious in taking support from the population and then governing for the wealthy. But then, regarding the intelligence of their base, especially the teabaggers, their opinion is quite accurate.
 

Judicial review is part of our democratic process, and the initiative process in CA results in nearly half of our initiatives being overturned in state courts. Most, if not all, of our initiatives that have been challenged in federal courts have been overturned. This is not a new development or a new ploy by progressives to overturn democracy and replace it with--I dunno--killer zeppelins as our supreme gods of law (AKA "The Zeppelin Way").

To the contrary, this is the way the initiative process has worked in California for a long time--you Colorado types probably prefer no judicial review at all for your initiatives--understandable given your history.

But your characterization that the review process favors progressive ideas may not be far off. Reagan was elected our governor in 1966 at least partly on the outrage that Pat Brown supported the repeal of Proposition 14, which intended to permit discrimination in housing despite state laws to the contrary. Reagan famously said that "if an individual wants to discriminate against Negroes or others in selling or renting his house, it is his right to do so." Landslide victory in a state with 65% support for Prop 14.

Mr. DePalma, if that kind of populist discrimination is what you are favoring against the judicial review process, I have news for you: you shouldn't be calling it the "California Way"--you should be calling it the "American Way."
 

PMS_CC said...

Judicial review is part of our democratic process...

This is getting ridiculous now. Judicial review consists of applying the law as written to a claim. It has or should have nothing to do with either the differing policy preferences of the judge or the People.
 

Back during the 2008 presidential campaigns, when I recall our yodeler may have been burdened with his signature Backpack-of-Lies, I do not recall any commentary by him that the choice between McCain/Palin and Obama/Biden was, in his opinion, the second worst choice (first place going to the 1972 Nixon and McGovern race), faced by voters. Perhaps some commenters at this Blog with younger and sharper eyes can come up with something our yodeler said back then about this second worst choice. I predict the bottom line will be that our yodeler even with the benefit of hindsight lacks 20-20 vision. Our yodeler's lament seems to be with the choice that voters made. McCain had opposition; he was the creme de la crap. Which GOP candidate did our yodeler root for? And did he hold his nose? We do know he was against Obama in spades, the first African American to be elected President.

As to our yodeler's first place choice of the worst, I was 42 years old during the 1972. I don't know if our yodeler was quite weaned by then, so his memory is historical (hysterical?) at best. I don't recall back during that campaign that it was considered the worst choice presidential election of the 20th century. Considering that state-wise Nixon won 49-1, the voters' choice was strong. It took several years for the voters to accept that Nixon was indeed a crook. So instead of being the worst choice election, it was the worst result. A friend of mine even more liberal than I had cursed Nixon's victory in 1968 over Hubert. I tried to console him by saying that Nixon wouldn't ruin America; and he didn't, but he came close. In later years, Republicans tried to resurrect Nixon's image. Now, our yodeler says that the 1972 election choice was the worst in the 20th century. No, it the was choice made by an overwhelming (lemming?) number of voters who had "faith" in the Republican party with its Southern Strategy (that Republicans continue to rely upon, Nixon's legacy to the party that resurfaced in 2008) that was the worst. We of course don't know what would have been the course of history had McGovern won that election. But I doubt it would have been as bad as Nixon. Keep in mind Nixon's paranoia that led to Watergate as the 1972 election was approaching. And keep in mind the path of the Vietnam War that in the 1968 campaign Nixon said he had a plan. Query whether the subsequent course of the Vietnam War as it played out was his actual plan?

Our yodeler proves the adage that the memory is the second thing to go.
 

Judicial review consists of applying the law as written to a claim. It has or should have nothing to do with either the differing policy preferences of the judge or the People.

Agreed. When the law is unconstitutional, it should be overturned. Prop 8 is clearly unconstitutional, and it should be overturned just as Prop 14 was back in the day.

However, that check on legislative power--whether derived from the legislature or the initiative process--is fundamental to the American form of government, and so, yes, it is part of our democratic process.
 

PMS:

A constitutional republic needs a neutral judiciary to enforce the constitution, but a democracy does not. See classical Greece.

A democracy simply requires a popular vote to choose policy or the government which implements the People's policy preferences.
 

Blankshot, it appears that your idea of a "neutral judiciary" is one that always agrees with you.
 

See classical Greece.

See the graphe paranomon.

"Democratic process" can include epiphenomena like a judicial system with appointments made by elected officials, unless you adhere to a conceptualization of "democracy" so vulgar that you'd offend an instructor of high school social science.

Additionally, the justices on the CA supreme court that ruled that same-sex couples have a constitutional right to marry were both appointed by elected officials and then ratified by the electorate. They are subject to additional retention votes every twelve years.

Of course, all that doesn't fit very well with the "anti-democratic progressives are hijacking the courts and using unaccountable judges to defeat the people's will--and I think they have zeppelins" party line.
 

You make some interesting points, but you have left out an important element of this calculation. The executive branch has a constitutional obligation to defend the constitutionality of federal statutes under all but a very limited set of circumstances. I think that it would be very difficult for the administration to argue that those circumstances are present here. Moreover, it has a specific statutory obligation to notify the congressional leadership and House and Senate legal counsels should it decide not to defend a federal statute. One of the reasons for this is to give the Congress an opportunity to intervene to defend the statute if the executive decides not to.

So waiting until the last minute and letting the time for appealing expire would not just generate criticism, it would be improper. I expect that the administration will defend the law. If not, it will either file a protective appeal to preserve Congress’s rights or, at a minimum, give Congress sufficient notice so that Congress can decide whether it wants to intervene in the case.
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