"Don't Ask, Don't Tell" Must Stop Now, Federal Jud

[frigidmagi]

Time

The federal judge who ruled the Pentagon's "don't ask, don't tell" policy unconstitutional last month ordered the U.S. military to stop kicking openly gay men and women out of uniform Tuesday.

Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment

U.S. District Court Judge Virginia Phillips said in her injunction.

The federal government has 60 days to appeal, but has not indicated what it will do. Whether or not ousters will continue in the interim was not immediately clear. "A court should not compel the executive to implement an immediate cessation of the 17-year-old policy without regard for any effect such an abrupt change might have on the military's operations, particularly at a time when the military is engaged in combat operations and other demanding military activities around the globe," Justice Department attorneys vainly argued earlier in their objection to Phillips' Sept. 9 ruling, filed in U.S. District Court for Central California.

The ruling is a big victory for gay-rights advocates, who were quick to cheer it. There is concern in some Pentagon quarters that a judge's ruling to lift the ban could cause more problems than if the action were taken by the nation's political leaders in Congress and the White House. While President Obama has sought to end the ban, the Senate refused to take such a step recently. Military officers -- even those who support ending the ban -- believe having the nation's political leaders, and not an unelected jurist, would give its termination more legitimacy.

Traditionally, judges have given the military much slack in writing rules and regulations for its personnel, contending they lack the experience to do so. In her amended opinion accompanying her injunction, Philips said that while "judicial deference" to Congress is highest when it comes to the military, "deference does not mean abdication."

"Military officers -- even those who support ending the ban -- believe having the nation's political leaders, and not an unelected jurist, would give its termination more legitimacy."

That and we would really like to see Congress show some backbone for once.

[Charon]

It's election season. Congress is more likely to spontaneously sprout a second fire breathing head than they are likely to grow a spine.

[frigidmagi]

I would accept that excuse, expect Congress never shows a spine election or no election.

[SirNitram]

Enough Judges, and maybe we can simply bypass Congress.

[Charon]

I would accept that excuse, expect Congress never shows a spine election or no election.

You misunderstand. I wasn't excusing them.

I was pointing out that they don't normally have a spine, so to actually expect them to grow one when elections are around the corner is ludicrous.

[The Minx]

It's a real shame it has to be done this way, but it's a victory nonetheless.

I honestly don't get what Obama is trying to do opposing it. Does he really think that the right wing and the centrists are likely to support him because he opposes the repeal of DADT? Doesn't he see that he's just alienating his own base? Or was he just stringing us along all the time?

[SirNitram]

Actually, the DOJ is required to defend all laws in effect by the feds. They can't really fail to do anything. Andrew Jackson's Nullification was a bad thing.

[frigidmagi]

Obama put alot of pressure on Reid to have Congress strike it down, mainly because if Congress does it, it'll take a full vote of Congress to bring it back. If he does it through executive order, the law is still in effect and can be used by any other President who comes down the pipe. Another element to remember is that this is the Harvard Constitutional Professor, this is actually Congress' fucking job, not the President's or the Courts!

This doesn't mean that Obama is a blameless lily white sheep (... the irony of that statement hurt me) in regards to executive power and privilege. But in this case he is correct.

The problem is that for decades, longer then any of us been alive, pretty much since the end of WWII at least, Congress has been gratefully ceding any responsibility it can to the courts or the President. This has been subverting and if the board will excuse the strong language, perverting the balance of power set up in our Constitution.

My view is still that there is nothing wrong with our system as outlined in the Constitution but that we have wondered away from it and surrounded it with petty rules and procedures.

[The Minx]

And they have already appealed it:

Link

Washington (CNN) -- The Justice Department Thursday formally appealed a federal court ruling that struck down the government's "don't ask, don't tell" policy, requesting an emergency stay to block the judge's injunction stopping enforcement of the policy.

Justice Department lawyers say they want the federal court in California to grant a stay of the injunction, which would remain in effect throughout the appeals process.

The government says the stay would allow for an orderly transition to a policy allowing openly gay men and women to serve in the U.S. military.

Log Cabin Republicans, a gay organization challenging the current law, has indicated it will promptly oppose the government's proposed stay.

U.S. District Court judge Virginia Philips in California issued her injunction Tuesday.

Although President Barack Obama has stated his view that the current law is discriminatory, the administration says the Congress, not the courts, should change the law allowing openly gay individuals to serve in the armed forces.

Meanwhile, senior military lawyers at the Department of Defense directed military lawyers to stop any proceedings related to "don't ask, don't tell," a Pentagon spokesman said.

The staff judge advocate generals from the military services -- the senior military lawyers -- sent an e-mail informing the military to abide by the injunction.

"The Department of Defense will of course obey the law, and the e-mail noted that, in the meantime, the Department will abide by the terms in the court's ruling, effective as of the time and date of the ruling," said Col. Dave Lapan, Pentagon spokesman.

Frigid, I don't deny that Congress has been ceding too much power to the courts, but I can't really see how declaring DADT unconstitutional is excessive use of court power if it can be found to violate people's rights. Do you have a link to this professor's comments on the matter?

[frigidmagi]

I'm afraid I've been unclear, I'm not saying that the courts action here is unconstitutional. I'm saying it should never had gotten to the point where the court is the only institution able to actually do anything about it. Congress had plenty of opportunities to fix this but instead fled screaming in terror. Maybe I'm being to Marine here but I cannot and do have a single ounce of pity or sympathy for those in power who weep and wail over being forced to do something or take a stand. Welcome to the fucking big leagues kids, put on your big boy pants.

And Harvard Constitutional Professor is actually a reference to Obama, a number of right wing blogs have been using that to refer to him and I find it funny that they think it's a negative label.

Sorry about the misunderstanding.