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Don’t Defend, Don’t Appeal?

When may a president decline to defend a federal law?

Nov 8, 2010, Vol. 16, No. 08 • By EDWARD WHELAN
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To date, the Obama administration’s objection to “don’t ask, don’t tell” has been entirely on policy grounds. It has therefore been obligated, under the president’s “take Care” duty, to defend “don’t ask, don’t tell” vigorously in court. It has badly failed to live up to that obligation. Among other things, taking the path of least political resistance within the administration, then-Solicitor General Elena Kagan chose in 2009 not to seek Supreme Court review of a rogue Ninth Circuit decision that, in conflict with precedents from the Supreme Court and other circuits, subjected “don’t ask, don’t tell” to heightened scrutiny. Then, when the district court applied the heightened scrutiny required by the Ninth Circuit decision, the Department of Justice (in the words of the district court) “called no witnesses, put on no affirmative case, and only entered into evidence [the law’s] legislative history.” Only a naif would fail to recognize that the Obama administration has been deliberately sabotaging the litigation (just as it has also been undermining the Defense of Marriage Act).

Obama’s Department of Justice has filed an appeal of the “don’t ask, don’t tell” ruling. But that appeal is consistent with a continued desire merely to pretend to defend “don’t ask, don’t tell.” The Ninth Circuit panel on appeal will be applying the heightened-scrutiny standard that the Department of Justice chose not to challenge last year, and it will be reviewing the wildly one-sided record that Justice let the district court compile. So the result in the Ninth Circuit is virtually foreordained.

Might the Obama administration now take the position, as Dellinger recommends, that “don’t ask, don’t tell” is unconstitutional? Such a position would be a remarkable about-face: In implausibly explaining to Congress the Justice Department’s decision last year not to seek Supreme Court review of the Ninth Circuit ruling, Attorney General Eric Holder never remotely suggested that Justice had any doubts about the constitutionality of “don’t ask, don’t tell.” Nor is there any apparent principle that would explain why an administration that has conspicuously claimed to adhere to the general practice of defending the constitutionality of laws that can reasonably be defended would make an exception in this instance.

That said, since the Obama administration clearly isn’t going to comply with its constitutional duty to vigorously defend “don’t ask, don’t tell” in court, it would do better to get largely out of the way and let others offer a real defense, both in the Ninth Circuit and in any subsequent Supreme Court review. If that displacement requires a flimsy and implausible constitutional assertion by the Department of Justice and only a nominal defense, that would be a small price to pay.

As for the Obamacare hypothetical: A Republican president in 2014 whose objections to Obamacare rested entirely on policy grounds would be constitutionally obligated to defend the law vigorously in court. That vigorous defense would require appealing any district-court ruling against the law and seeking to block the court’s injunction from taking effect pending appeal.

If the Republican president had constitutional objections to Obama-care, he would have the option of doing what he could to implement those objections unilaterally as soon as he took office in 2013. If he chose not to do so, he would be obligated to defend the law with vigor, and he shouldn’t pretend that the district court’s injunction gave him any basis not to continue to do so. The Obama administration’s dereliction of duty in “don’t ask, don’t tell” litigation is not a worthy model to follow.

Edward Whelan is president of the Ethics and Public Policy Center and a regular contributor to National Review Online’s Bench Memos blog on constitutional law.

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