Declining Appeal Would Be Consistent With Other Executive Action Related to “Don’t Ask, Don’t Tell”
1. Declining to appeal would be consistent with the president’s authority under 10 U.S.C. § 12305 to issue an executive order suspending “don’t ask, don’t tell” during periods of national emergency. If the president has statutory authority to suspend the law in its entirety, he has discretionary authority to direct DOJ to not appeal a ruling that the law is unconstitutional.
2. Declining to appeal would be consistent with DOJ’s litigation decisions in Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008). In Witt, DOJ declined to seek Supreme Court review so the government could first present its strongest case at the trial court level. The government has now had that opportunity in Log Cabin Republicans.
3. Declining to appeal would be consistent with the president’s belief that “don’t ask, don’t tell” harms national security. On July 29, 2009, President Obama stated: "As I said before—I'll say it again—I believe 'don't ask, don't tell' doesn't contribute to our national security. In fact, I believe preventing patriotic Americans from serving their country weakens our national security."
4. Declining to appeal would be consistent with the mission of the current Department of Defense study group on “don’t ask, don’t tell,” which is to determine how best to implement an end to the policy. An appeal would extend legal proceedings beyond the Pentagon’s assigned reporting date of December 1, 2010.
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timeasmymeasure
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Date: 2010-10-19 01:08 am (UTC)Declining Appeal Would Be Consistent With Other Executive Action Related to “Don’t Ask, Don’t Tell”
1. Declining to appeal would be consistent with the president’s authority under 10 U.S.C. § 12305 to issue an executive order suspending “don’t ask, don’t tell” during periods of national emergency. If the president has statutory authority to suspend the law in its entirety, he has discretionary authority to direct DOJ to not appeal a ruling that the law is unconstitutional.
2. Declining to appeal would be consistent with DOJ’s litigation decisions in Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008). In Witt, DOJ declined to seek Supreme Court review so the government could first present its strongest case at the trial court level. The government has now had that opportunity in Log Cabin Republicans.
3. Declining to appeal would be consistent with the president’s belief that “don’t ask, don’t tell” harms national security. On July 29, 2009, President Obama stated: "As I said before—I'll say it again—I believe 'don't ask, don't tell' doesn't contribute to our national security. In fact, I believe preventing patriotic Americans from serving their country weakens our national security."
4. Declining to appeal would be consistent with the mission of the current Department of Defense study group on “don’t ask, don’t tell,” which is to determine how best to implement an end to the policy. An appeal would extend legal proceedings beyond the Pentagon’s assigned reporting date of December 1, 2010.