Sunday, October 17, 2010

DADT: Injunctions Can Be Orderly Too

Jason Mazzone

The Obama Administration opposes Don't Ask, Don't Tell but also opposes Judge Virginia Phillips's injunction against enforcement of the law. The explanation the Administration gives is that an injunction is too disruptive: repeal of DADT requires an orderly process. Thus, today on Meet the Press, White House Press Secretary Robert Gibbs, when asked why the President continues to support DADT in the courts, explained: "[W]e have a process in place right now to work with the Pentagon for an orderly and disciplined transition from the law that we have now to an era that 'don't ask, don't tell' doesn't exist. And I will say this . . . 'don't ask, don't tell' will end under this president."

The problem with the Administration's position is that it is based on a false notion that a judicial remedy is inconsistent with orderly change.

Courts have broad discretion when they craft remedies to cure constitutional violations. And when remedying a constitutional violation requires overhauling the organization or longstanding practices of a government entity, courts always aim for an orderly transition if possible. There are many examples. Most obviously, segregated schools were not desegregated overnight but pursuant to a multi-step process overseen by the courts over an extended period of time.

If the Administration's concern is with an orderly transition, it should have given Judge Phillips a proposal to end enforcement of DADT on a schedule and in a manner that would minimize disruptions. The Administration has never done that. It has never said "Give us six months" or "Here are the five things we need to do to achieve the goal" or "We'll come up with a specific plan as soon as we get the results of the study we are conducting." Instead, the Administration put forth its arguments about the need for orderly change as a reason for Judge Phillips not to issue an injunction at all and then as the reason for her to stay her injunction indefinitely. And the Administration will, presumably, ask the Ninth Circuit to stay the injunction on the same ground--that courts can only produce chaos.

If the Administration wants DADT to end in an orderly way, it can make that happen. All it needs to do is to work with the plaintiffs to come up with a concrete proposal and present that to Judge Phillips.

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