an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
DADT: Harry Reid's Calculation -- and President Obama's
A measure that would have repealed Don’t Ask, Don’t Tell (DADT) failed to advance today in the Senate. (The measure has already cleared the House.) The repeal measure is part of a defense-spending bill. All of the Republican senators plus two Democratic senators indicated they would filibuster the bill. Repeal of DADT is therefore almost certainly stalled until after the mid-term elections in Novembers. Republican senators stated that they opposed last-minute additions by Democrats to the defense bill including the DREAM Act (which would legalize the status of certain undocumented aliens brought to the United States as children) and a provision repealing a ban on performing abortions in military hospitals.
By allowing these amendments did Harry Reid squander the opportunity to repeal DADT? In a word: no. Even without the last-minute additions, there was a very good chance Senate Republicans would have blocked the spending bill anyway because they have little incentive to allow President Obama to fulfill his pledge to end DADT.
Once Harry Reid recognized the bill probably wasn’t going to advance, it made sense to add on provisions that would appeal to Democratic voters. It made particular sense to add an immigration provision that would appeal to Hispanic voters. With an election a little more than a month away, losing on DADT was an opportunity too good to pass up.
Judge Virginia Phillips of federal district court in California, who last week held DADT unconstitutional, returns to center stage. She is about to issue a nationwide injunction against enforcement of DADT. Repeal of DADT in Congress would have allowed the Obama administration to avoid the delicate question of whether to appeal Judge Phillips’s ruling to the Ninth Circuit.
Today’s outcome in the Senate puts additional pressure on the administration not to appeal because the likelihood of Congress passing the repeal measure after Republicans gain seats in November is uncertain.
Regardless, the administration has nothing to gain by announcing before the November election whether it intends to appeal Judge Phillips’s ruling or not.
Update: Sept. 22, 2010, 7:52 pm Andrew Sullivan calls this post a "nauseating defense of Reid." It's not a defense of Reid at all. It's an explanation of why, rather than focus solely on repealing DADT, Reid sought to advance an amended bill that had little likelihood of success. Posted
by Jason Mazzone [link]