Executive Discretion to Decline Appeal in the Log Cabin Republicans Case
Under the second exception, the constitutionality of “don’t ask, don’t tell” has been seriously undermined by the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, the Supreme Court held that the Constitution protects the liberty of all persons, straight and gay, to enter into private, intimate relationships without interference by the government, unless there is sufficient justification for government regulation. Lawrence was the basis for Judge Phillips’s ruling in Log Cabin Republicans.
She held that, after Lawrence, the government could no longer rest on unsupported congressional and military opinion alone. Before the government could impose sweeping restrictions on personal intimacy and autonomy, it had to offer evidence that “don’t ask, don’t tell” significantly furthered the government’s interest in military readiness, and that the policy was necessary to further that interest. However, in Log Cabin Republicans the government was unable to produce any evidence beyond the opinions offered in support of the law back in 1993. In contrast, the plaintiffs’ evidence established that “don’t ask, don’t tell” was actually causing the military significant harm today.
The usual reasons for DOJ’s customary practice of defending federal law against constitutional challenge fall away when an intervening decision of the Supreme Court, issued after the law was passed, calls the law’s constitutionality into serious question. In this situation, DOJ has discretion to make a constitutional judgment, and it can do so within the traditional structure of how these decisions to defend, or not to defend, are typically made. Now that the government has had full opportunity in Log Cabin Republicans to introduce evidence in justification of “don’t ask, don’t tell”—and has had none to offer beyond the law’s legislative history—DOJ is in a position to make a discretionary constitutional judgment that continued appeal is unwarranted.
While the president has a constitutional obligation to “take care that the laws be faithfully executed” (Art. II, Sec. 3), he also takes an oath to “preserve, protect and defend the Constitution of the United States” (Art. II, Sec. 1). Both the president and Congress have an independent duty to ensure their actions conform to the Constitution.
Although the second exception—an intervening Supreme Court decision that upsets the constitutional assumptions under which the law was enacted—is sufficient to justify a DOJ decision to not appeal in Log Cabin Republicans, the first exception supports the same use of discretion. The president has discretionary authority to conclude that the law intrudes too deeply on commander-in-chief authority because it can remove valuable service members from the chain of command, normally without warning and without needed replacements.
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timeasmymeasure
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Date: 2010-10-19 01:08 am (UTC)Executive Discretion to Decline Appeal in the Log Cabin Republicans Case
Under the second exception, the constitutionality of “don’t ask, don’t tell” has been seriously undermined by the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003). In Lawrence, the Supreme Court held that the Constitution protects the liberty of all persons, straight and gay, to enter into private, intimate relationships without interference by the government, unless there is sufficient justification for government regulation. Lawrence was the basis for Judge Phillips’s ruling in Log Cabin Republicans.
She held that, after Lawrence, the government could no longer rest on unsupported congressional and military opinion alone. Before the government could impose sweeping restrictions on personal intimacy and autonomy, it had to offer evidence that “don’t ask, don’t tell” significantly furthered the government’s interest in military readiness, and that the policy was necessary to further that interest. However, in Log Cabin Republicans the government was unable to produce any evidence beyond the opinions offered in support of the law back in 1993. In contrast, the plaintiffs’ evidence established that “don’t ask, don’t tell” was actually causing the military significant harm today.
The usual reasons for DOJ’s customary practice of defending federal law against constitutional challenge fall away when an intervening decision of the Supreme Court, issued after the law was passed, calls the law’s constitutionality into serious question. In this situation, DOJ has discretion to make a constitutional judgment, and it can do so within the traditional structure of how these decisions to defend, or not to defend, are typically made. Now that the government has had full opportunity in Log Cabin Republicans to introduce evidence in justification of “don’t ask, don’t tell”—and has had none to offer beyond the law’s legislative history—DOJ is in a position to make a discretionary constitutional judgment that continued appeal is unwarranted.
While the president has a constitutional obligation to “take care that the laws be faithfully executed” (Art. II, Sec. 3), he also takes an oath to “preserve, protect and defend the Constitution of the United States” (Art. II, Sec. 1). Both the president and Congress have an independent duty to ensure their actions conform to the Constitution.
Although the second exception—an intervening Supreme Court decision that
upsets the constitutional assumptions under which the law was enacted—is sufficient to justify a DOJ decision to not appeal in Log Cabin Republicans, the first exception supports the same use of discretion. The president has discretionary authority to conclude that the law intrudes too deeply on commander-in-chief authority because it can remove valuable service members from the chain of command, normally without warning and without needed replacements.