AP – In this photo provided by the Department of Justice, Paul Clement is seen in this photo, date unknown. … WASHINGTON – President Barack Obama opposes the Pentagon's "don't ask, don't tell" policy on gays in the military, so why are Obama administration lawyers in court fighting to save it?
The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them.
This practice cuts across party lines. And it has caused serious heartburn for more than one attorney general.
The tradition flows directly from the president's constitutional duty to take care that the laws are faithfully executed, says Paul Clement, who served four years in President George W. Bush's administration as solicitor general, the executive branch's top lawyer at the Supreme Court.
Otherwise, Clement says, the nation would be subjected to "the spectacle of the executive branch defending only laws it likes, with Congress intervening to defend others."
That is why solicitors general not only serve the president who nominated them but also have a special duty to Congress, "most notably, the vigorous defense of the statutes of this country against constitutional attack," Justice Elena Kagan testified to Congress in 2009 after Obama nominated her to be solicitor general. She joined the Supreme Court a year later.
On occasion, the Justice Department will even defend a law it knows is likely to be judged unconstitutional, said Seth Waxman, who served as President Bill Clinton's solicitor general.
Six federal judges had ruled against the Communications Decency Act, a 1996 law that made it a crime to make available to minors on the Internet material that was "indecent" or "patently offensive." Nevertheless, Waxman backed the law in an appeal to the Supreme Court. He lost there, but felt good about serving "our adversarial system of constitutional adjudication."
William French Smith, President Ronald Reagan's first attorney general, once said that defending congressional action that extended the ratification period for the proposed Equal Rights Amendment for women caused far and away his most uncomfortable moments in four years in office because of the irate calls he got from administration supporters — who staunchly opposed the ERA.
Obama's supporters have similarly criticized the administration for its legal efforts on behalf of "don't ask, don't tell," the law that bars gays from serving openly in the military, even after U.S. District Judge Virginia Phillips in Riverside, Calif., ordered the military to immediately suspend and discontinue any investigation or other proceeding to dismiss gay service members under the law.
Indeed, Justice lawyers delayed their response to Phillips because the White House weighed in on the matter, according to a government official with knowledge of the situation. A couple of White House lawyers did not want to seek a court order that would temporarily suspend the judge's ruling, this person said, speaking on condition of anonymity to discuss the administration's internal deliberations. Failing to challenge the ruling would have had the effect of ending the policy.
Obama says he supports repeal of "don't ask, don't tell" but only after careful review and an act of Congress.
Ultimately, the government did ask Phillips to suspend her ruling pending the government's appeal.
After Phillips refused, the administration asked the federal appeals court in San Francisco to freeze her ruling temporarily, which it did late Wednesday. Justice lawyers argued that while appeals were pending, abruptly ending "don't ask, don't tell" and immediately allowing openly gay service members could harm troop morale and unit cohesion when the military is fighting two wars.
On rare occasions, Justice officials conclude there is no reasonable argument that can be made in defense of a federal law.
Clement recalled two instances during his tenure. One posed free speech problems, because it sought to prevent recipients of federal transportation money from running ads favoring legalization of some drugs. The other was an obscure 1800s statute dealing with licensing of salvage operations.
When George H.W. Bush was president, he vetoed the Cable Television Act of 1992 in the belief that certain provisions were unconstitutional. The bill became law when Congress overrode Bush's veto.
Cable operators challenged the law in court, and Bush's Justice Department said it would not defend what the president had vetoed.
But then Clinton was elected. He reversed course and sent Justice lawyers into court on behalf of the law. The Supreme Court eventually upheld it.
The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them.
This practice cuts across party lines. And it has caused serious heartburn for more than one attorney general.
The tradition flows directly from the president's constitutional duty to take care that the laws are faithfully executed, says Paul Clement, who served four years in President George W. Bush's administration as solicitor general, the executive branch's top lawyer at the Supreme Court.
Otherwise, Clement says, the nation would be subjected to "the spectacle of the executive branch defending only laws it likes, with Congress intervening to defend others."
That is why solicitors general not only serve the president who nominated them but also have a special duty to Congress, "most notably, the vigorous defense of the statutes of this country against constitutional attack," Justice Elena Kagan testified to Congress in 2009 after Obama nominated her to be solicitor general. She joined the Supreme Court a year later.
On occasion, the Justice Department will even defend a law it knows is likely to be judged unconstitutional, said Seth Waxman, who served as President Bill Clinton's solicitor general.
Six federal judges had ruled against the Communications Decency Act, a 1996 law that made it a crime to make available to minors on the Internet material that was "indecent" or "patently offensive." Nevertheless, Waxman backed the law in an appeal to the Supreme Court. He lost there, but felt good about serving "our adversarial system of constitutional adjudication."
William French Smith, President Ronald Reagan's first attorney general, once said that defending congressional action that extended the ratification period for the proposed Equal Rights Amendment for women caused far and away his most uncomfortable moments in four years in office because of the irate calls he got from administration supporters — who staunchly opposed the ERA.
Obama's supporters have similarly criticized the administration for its legal efforts on behalf of "don't ask, don't tell," the law that bars gays from serving openly in the military, even after U.S. District Judge Virginia Phillips in Riverside, Calif., ordered the military to immediately suspend and discontinue any investigation or other proceeding to dismiss gay service members under the law.
Indeed, Justice lawyers delayed their response to Phillips because the White House weighed in on the matter, according to a government official with knowledge of the situation. A couple of White House lawyers did not want to seek a court order that would temporarily suspend the judge's ruling, this person said, speaking on condition of anonymity to discuss the administration's internal deliberations. Failing to challenge the ruling would have had the effect of ending the policy.
Ask America: Learn. Listen. Be heard.
Ultimately, the government did ask Phillips to suspend her ruling pending the government's appeal.
After Phillips refused, the administration asked the federal appeals court in San Francisco to freeze her ruling temporarily, which it did late Wednesday. Justice lawyers argued that while appeals were pending, abruptly ending "don't ask, don't tell" and immediately allowing openly gay service members could harm troop morale and unit cohesion when the military is fighting two wars.
On rare occasions, Justice officials conclude there is no reasonable argument that can be made in defense of a federal law.
Clement recalled two instances during his tenure. One posed free speech problems, because it sought to prevent recipients of federal transportation money from running ads favoring legalization of some drugs. The other was an obscure 1800s statute dealing with licensing of salvage operations.
When George H.W. Bush was president, he vetoed the Cable Television Act of 1992 in the belief that certain provisions were unconstitutional. The bill became law when Congress overrode Bush's veto.
Cable operators challenged the law in court, and Bush's Justice Department said it would not defend what the president had vetoed.
But then Clinton was elected. He reversed course and sent Justice lawyers into court on behalf of the law. The Supreme Court eventually upheld it.
4 comments:
As far as I know from here, Obama doesn't oppose the DADT policy in principle. It's just not the right time to do it as there are a number of wars going on around the world in which the US is involved. We, the public, do not know ALL the details of these conflicts and how a law like DADT if it was rescinded would affect things.
For some reason I trust Obama and I am not American. Everything the US does affects the rest of the world. Sometimes this scares me but I feel a whole lot better with Obama in power. There is a lot of 'clean up' to do from the Bush, and I hear the Clinton years too.
As much as I would like to see the US join the rest of the more 'liberal' world as far as gay rights go, it is just not on the top of his list. And with me from this vantage point, it is OK to wait.
Jim
Can anyone explain to me why the military segregates the sexes in sleeping quarters?
:)
I was talking to a guy in the ROTC program here and he said he wasn't homophobic and has a number of gay firneds, but in combat the idea of unit cohesion is paramount. You have to absolutely trust the staying power of the person next to you, as they have to trust yours. Combat is not about the enemy he said, it's about not letting your unit down. He wondered about the ability of gay men to endure the terror and emotional shock of real combat. He had the honesty to wonder about himself as well. He mentioned that he would rather a gay man not touch him if he was wounded. I still don't understand that statement but I guessed it meant what if the gay soldier had to rip off his uniform to get to an artery or something.
On the other hand, my grandfather (U.S. Army, Combat Engineers, two tours in Viet Nam, Bronze Star and two Purple Hearts) told me there have always been gay men in all branches of the military, with the U.S. Navy being almost a laughing stock about it. ("It ain't queer if it's away from the pier!") He said everyone knew the gay dudes, and nobody bothered them if they did their duty like everyone else.
I think one of the problems here is that we are trying to force the straight world to formalize a "right" we have always had. I think DADT is a good policy. A person's sexuality is nobody's business but their own. Straight military personnel don't rush around telling people they are straight, why do we feel we have to rush around letting everyone know we're gay?
There have always been gay men in the military. The Baron von Steuben who nearly single-handedly got the Continental Army into shape was gay, the relationship between Washington and Lafayette was loaded with homoerotic overtones, and now there is very strong evidence that Lincoln slept with a number of studly young army officers while in office and had gay relationships prior to his marriage and after.
I'm just grateful there are people, men and women, gay and straight, who stand watch over me so we can have the liberties we have... like posting opinions on blogs.
When they started DADT, it was because a witch hunt DID exist. There was the threat of AIDS which nobody understood. It was started as a good thing to protect gay service members from the ridicule and beatings.
In an ideal world, there would be no sexuality at all in the military. We are however, employing 18 year olds. Sex will happen.
Rather than an appeal of DADT, we need a strict policy against any kind of hazing or harassment in the military and the civilian world.
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