Two Foundations Of Our Freedom

A U.S. District Judge has found the “Don’t Ask, Don’t Tell” law unconstitutional.  Appropriately, in my opinion; admittedly, I like the result but Judge Phillips reasoning seems sound to me.

Despite having urged Congress to repeal DADT and a bill to do so having been introduced and passed the House, the provision wound up being filibustered in the Senate. As I wrote before (in comments to this thread) I sincerely doubt anyone thinks any Senator is actually voting against the military and everyone paying attention to the issue knows that the Senators who led the filibuster attempt did so for the purpose of preserving DADT and not because they’re anti-soldier (they’re only anti-gay-soldier, you all can do the rest of the algebra on that yourselves) or because they consider themselves the principled guardians of pure parliamentary practices.

So despite having urged repeal of DADT, the Obama Administration, through its Justice Department, has been fighting the legal challenge to DADT in the courts. I don’t have a particular grievance with that; the executive branch of government has a duty to defend a colorably constitutional law. But there is a limit beyond which that duty has been fulfilled, and that duty is, in my opinion, discharged when it becomes apparent that the statute in question truly does violate the Constitution. Executive officers swear an oath to uphold and defend the Constitution of the United States. Having fought to preserve the law and obtained a ruling that despite the government’s best arguments to the contrary, a law does contradict the Constitution, at that point the executive can lay down its burden and say, “We defended the statute but it’s more important to defend the Constitution.”

This principle has implications for the Prop. 8 case now pending before the Ninth Circuit, by the way. Regular Readers here will recall that I have been critical of Governor Schwarzenegger and Attorney General Brown for not offering a spirited defense of Prop. 8 in the case of Perry v. Schwarzenegger. An adversarial system requires that adversaries engage one another, and since they chose not to do this, the resulting opinion has that much more reason to be suspect in the eyes of those who already find its result distasteful. Comments made even here on this humble blog demonstrate that very well; people who really, really don’t like a result in a case will work very hard to find fault with the process used to reach it, particularly when the merits of the result are difficult to refute — which is one of the reasons why process is important. Usually, the responsibility for process rests mainly with the judge, but the advocates bear some burdens, too.

But as to DADT, there can be no doubt that the Obama Administration did offer a full-throated defense of the policy. Which is all well and good. Now that it has lost in court, the Administration is at the point that it has real discretion about what to do next. It can decide that the judge’s opinion is well-reasoned and decline to appeal. This would seem to be consistent, at least on a political level, with the Administration’s prior call for DADT to be repealed by Congress.

Nevertheless, President Obama seems to have ordered his Justice Department to seek a stay on implementation of Judge Phillips’ order in Log Cabin Republicans v. Gates, and to seek appellate review of her opinion before the Ninth Circuit. While I think he had to order a defense of DADT at the district court level, I don’t think he has to do this.

In fact, Obama is actually taking a legally tenable position here: DADT is Constitutional, therefore I have to defend it; at the same time, I think it’s a bad law, so it should be repealed. That is actually an intellectually principled and appropriate way to handle the situation. But it’s awful, awful politics. It also ignores a third facet of the issue: as President, he exercises a substantial amount of discretion in how the laws are to be executed. All Presidents do; it’s part of the inherent authority of being the executive. The President has the power to, the necessity to, and is expected to, prioritize in discharging his duty to faithfully execute the laws.

He could say, “I think our biggest law enforcement problems within the military are 1) suicide prevention, 2) domestic violence, and 3) misappropriation and theft of war materiel. We don’t seem to have any significant problem with violations of Don’t Ask, Don’t Tell, so I’m instructing the Secretary of Defense to issue policies to the various JAG Corps to devote their prosecutorial resources to the problem areas and to bypass prosecution of non-problem areas because violation of DADT doesn’t appear to be a particularly big problem right now.” He could even say, “I think DADT is bad policy and unfair, so I’m instructing the military to not initiate any discharge proceedings for violations of DADT in cases where they do not have tangible and compelling evidence that the violation of DADT has had a significant impact on unit morale and efficiency.”  He would need no authorization from Congress or anyone else to issue such orders, but has not chosen to do so.

The reason is, he doesn’t have to. It’s not like significant numbers of gays are going to vote for Republicans any time soon, after all. A cadre of Republicans have gone to considerable effort to ensure that not only will gays never vote for them, but also to serve up those voters to the Democrats on a silver platter; all the Demos have to do is call the Republicans a few names, drop a few scare tactics, and boom! those votes are locked up. If they aren’t the most enthusiastic Democratic voters in the coalition, well, Obama can live with that.  In the meantime, Obama has precious little political capital, so expending it on issues that improve the rights and lives of people who are already going to support him anyway (albeit in a lukewarm fashion) doesn’t make sense — especially if he believes that doing so will alienate a bloc of voters whose support really is up for grabs. Here, I speak of probably older, probably blue-collar voters; many of whom grew up in a world where it was literally illegal to engage in gay sex acts and they thought those laws were just fine. It’s in a bid for their support that Obama doesn’t actually lift a finger to help out gay people and therefore only makes nice noises about gay rights when it is politically required that he do so.

While he has found an intellectually tenable reason to thread the needle in this way, I wouldn’t accuse the President of being “principled” on this issue. “Craven” seems like a better adjective.

Fortunately, the Pentagon has less of a problem with Judge Phillips’ order than the White House does.  It has suspended enforcement of DADT for all branches pending the resolution of the Log Cabin Republicans case, in compliance with the court order. Once again, our military is conducts itself with professionalism, honor, and obedience to civilian political and legal authorities; it deserves praise for so doing and the rest of us should recognize in that act one of the deepest and most profound foundations of our collective freedom.

We can also point to Judge Phillips as representative of the other other significant bulwark of our freedom. She responded to the case before her with an unflinching and well-reasoned application of the law. She couldn’t help but know that she would probably come under significant personal attack for her ruling and no doubt some of the same people who suddenly became whizzes at legal procedure after the Perry v. Schwarzenegger opinion are busy coming up with talking points about why Log Cabin Republicans also suffers from fatal procedural flaws.  So far, though, about all I’ve heard or read are the usual cries of “Liberal judicial activism! Liberal judicial activism! Oh noes our democracy is in peril!” which are substantively nothing more than whining.

Because our democracy is not in peril. Not at all. We live in a nation governed by laws, not a nation governed by the day-to-day passions of a majority of various factions. (Those phrases should sound familiar to those who have read their Constitutional history.) It was decided long ago that yes indeed, the judiciary has the power to uphold the Constitution even if the President objects to the reasoning thus deployed and the orders which result therefrom. And a single District Court judge does indeed have the power to stop the President in his tracks when he undertakes to violate the Constitution. That is not a danger to our liberty — it is a foundation of it.

We should celebrate that a judge has made this order. The reasoning is fair, principled, logical, and consistent with the law. It vindicates the rights of Americans who amply deserve it. It makes our military stronger because it lets the military retain people whose service is vital. The order bypasses what was turning into a messy and contra-majoritarian political struggle. But most of all, it represents the triumph of the rule of law over arbitrary and callous political calculations by an unprincipled, craven President.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.