Dr. Jillian T. Weiss

Obama Administration Mulls Appeal Of DADT Ruling

Filed By Dr. Jillian T. Weiss | July 14, 2011 9:00 AM | comments

Filed in: Politics
Tags: Don't Ask Don't Tell, gay servicemembers, Jay Carney, Ninth Circuit, Supreme Court, unconstitutional, Washington Blade, White House

According to the Washington Blade, an anonymous source familiar with the case has said that the Obama Administration is "likely" to appeal an injunction barring the enforcement of "Don't Ask, Don't Tell" to the U.S. Supreme Court.

The Blade's calls to the Justice Department didn't receive a response. In addition, the Blade also reported that White House Press Secretary Jay Carney deferred to the Justice and Defense departments on Tuesday in response to inquiries about the possibility of challenging the order.

However, it makes sense that the Administration will appeal the order. In fact, not appealing the order could be worse for gay servicemembers. The Ninth Circuit Courts of Appeals's order on Monday indicated a possible inclination to dismiss the case as moot, because the case has been effectively resolved by the Obama Administration's admission that DADT is unconstitutional and unenforceable. If that happens, then the District Court Order barring enforcement of DADT goes away. But there are many effects of DADT still on the books, and finding them all and changing them legally will take quite a while, likely months.

Alternatively, the Court could permit, as it indicated, the intervention of "amicus curiae" to defend the constitutionality of DADT, whether via Speaker Boehner and the House of Representatives, or others, such as public interest advocacy groups supporting DADT. That could result in a long delay in a final resolution of the case, or, worse, court decisions unfavorable to unwinding DADT. The Supreme Court could reinstate the stay, thus blocking the District Court's DADT ban. Furthermore, the appeal on the merits of the case itself, rather than just the issue of the ban, is coming, and if third parties, like amicus curiae or, heaven forbid, intervening parties, are inserted into the case, then we might be stuck with the case like an albatross around our necks long after the Administration provides the necessary certifications for the repeal bill enacted last year.

It would make much more sense for the Administration to maintain a stance of moving forward to appeal the DADT ruling, rather than let all these complex mechanisms of mootness, amicus curiae and possible intervenors get started. At least until the necessary certifications are provided to put the DADT repeal bill into full effect.

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As a non-attorney I may not be phrasing this well, but I'd thought the idea would be to let the repeal certification process deal with the 1993 issue specifically, but leave it to the courts to declare that a possible future attempt (as many in the House are grandstanding to do) should be nipped in the bud?