Balkinization  

Tuesday, October 12, 2010

The DADT Injunction and the Obama Administration

Jason Mazzone

In issuing an injunction today prohibiting enforcement of Don’t Ask Don’t Tell, Judge Virginia Phillips has handed the Obama Administration a gift. Judge Phillips’s injunction applies immediately and everywhere in the world there is a U.S. military presence. Given the injunction’s sweeping scope, the Administration can now play both sides of the issue. It can maintain, plausibly, that it is opposed to DADT while asserting also that wholesale repeal by the stroke of a judge’s pen is too disruptive.

The Department of Justice can both appeal and not appeal. It can appeal the terms of the injunction as beyond the scope of Judge Phillips’s authority and argue to the appellate court that any relief Judge Phillips orders must be limited to the benefit of the plaintiffs before her or to the jurisdictional area of California where her court is located. At the same time, the DOJ can downplay objections to Judge Phillips’s ruling that DADT is unconstitutional; the DOJ can even forego entirely the constitutional issue on appeal. The message to gay rights advocates can be: “Judge Phillips is right.” The message to political challengers can be: “We’re appealing Judge Phillips’s ruling.”

The Administration likes to be all things to everyone. Judge Phillips has made this possible on DADT.

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