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
President Obama opposes Don’t Ask, Don’t Tell and he has asked Congress to repeal the law. Repeal, however, is now stalled. Despite the continued urgings from the White House, there is little likelihood that Congress will pass a repeal measure before the 112th Congress convenes on January 3, 2011.
The President has a way around the problem, one that can result in the end of DADT with congressional acquiescence.
Here is what the President should tell Congress: In my judgment as Commander in Chief, the law known as Don’t Ask, Don’t Tell (DADT), which was enacted in 1993, today undermines the effectiveness of our military. Evidently, many members of Congress agree with my assessment. Earlier this year, the House of Representatives approved a provision repealing DADT. The same measure has been approved by the Senate Armed Service’s Committee but it has not been brought before the full Senate for a vote.
Meanwhile, a federal district court in California has recently held that DADT violates the Constitution and has issued an injunction barring enforcement of the law. At the request of the government, the Ninth Circuit has stayed that injunction pending an appeal in the case.
Ideally, the Senate will join the House in voting to repeal DADT and further litigation will be unnecessary. Repeal by Congress is preferable to judicial enforcement of an injunction. However, given the ongoing harm DADT causes our armed forces and in light of the district court’s finding of the law’s unconstitutionality, continued enforcement of DADT raises serious concerns that Congress should promptly address.
Accordingly, the Department of Justice will continue its current efforts in court to defend DADT from constitutional challenge only if doing so reflects the will of Congress. DOJ attorneys have filed with the Ninth Circuit a notice of appeal from the district court’s judgment. According to the schedule the Ninth Circuit has set, the government’s appellate brief is due on January 24, 2011. The DOJ will file a brief and continue with the appeal if prior to January 24, 2011, Congress affirms in a concurrent resolution that it supports the continued defense of DADT in court.
If neither the 111th nor 112th Congress adopts a concurrent resolution to this effect prior to January 24, 2011, on that date the DOJ will withdraw its appeal and the district court’s injunction will take permanent effect.
Declining to appeal a court’s order holding a federal statute unconstitutional is not something the executive branch should do lightly. However, the approach I have described best ensures I can both carry out my duties as Commander in Chief and satisfy my obligation to take care that the laws be faithfully executed. Posted
by Jason Mazzone [link]