The government today made its case for a stay of Judge Virginia Phillips' cease and desist injunction against Don't Ask, Don't Tell. In its appeal to the Ninth Circuit Court, the government once again claimed:
the district court's order... risks causing significant immediate harm to the military and its efforts to be prepared to implement an orderly repeal of the statute.
Clever readers might note the obvious flaws.
First, while there may be a risk of significant immediate harm, no evidence of such harm was introduced, either at the trial or in the stay request. In fact in the week since the injunction was issued there has neither been any immediate harm nor has any been alleged.
Second, while the military way wish to implement an orderly repeal, no such repeal exists nor is there any good reason to believe such a repeal will exist in the near future (given that the Senate voted it down once already). As Judge Phillips noted, such assertions are highly speculative.
Unfortunately, the judges of the Ninth Circuit aren't likely to pay any attention to these flawed arguments, because the government has an ace up its sleeve:
Given the presumptive constitutional validity of an Act of Congress, the court's invalidation of a statute itself causes the government the kind of irreparableinjury that is routinely recognized as a basis for a stay pending appeal.See Coalition for Economic Equality v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997) ("it is clear that a state suffers irreparable injury whenever an enactment of its people or their representatives is enjoined"); New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); see also Walters v. Nat'l Ass'n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in chambers).
Because of this well-recognized harm, in virtually all cases in which a single district judge declares an Act of Congress unconstitutional, courts appropriately grant a stay if requested to do so by the government. See Bowen v. Kendrick, 483 U.S. 1304, 1304 (1987) (Rehnquist, J., in chambers).
Because an Act of Congress is deemed to be "in itself a declaration of public interest and policy which should be persuasive," Virginian Ry. Co. v. Sys. Fed'n No. 40, 300 U.S. 515, 552 (1937), ending "Don't Ask, Don't Tell" in this manner is itself irreparable harm.
And so, unless the Ninth Circuit judges find within themselves the same kind of courage Judge Phillips had in standing up to the government's claims, we will be back to square one: Dan Choi will not be allowed to re-enlist, the Department of Defense will go back to conducting discharge proceedings and discharges, and Judge Phillips' decision will become just another footnote on a Wikipedia page.
There is one -- very tiny -- ray of hope. The government makes an interesting claim in its filing:
The Working Group's review will result in recommended changes to Department regulations, policies, and guidance that would be necessary to implement an orderly repeal of the statute.
(emphasis added). So the government is formally attesting in a court document that the Report to be issued on December 1st will indeed recommend changes that would be necessary to implement repeal. The implication, at least, is that those changes would not be impractical, and that the changes would be recommended, not put out there as straw men.
Of course, those recommendations could include years of preparation and training. Or the recommendations could be rejected by Congress, or if not, by the President, the Secretary of Defense, or the Joint Chief of Staff. And the government has put out contradictory statements before on DADT matters (Cf segregated barracks).
So, as I said, it's a very tiny ray. But when you've gotten almost nothing else you've been promised given two years of a Democratic administration and a Democratic Congress, well, you take the crumb and thank so very slavishly the people who might, maybe, one day, if they deign you worthy, give you a slice of the cake of real equality. Instead of the people who hate you.
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Note: If this diary is alive still I will update it if the Ninth Circuit issues a decision on the stay request, and/or if I see that the Plaintiffs (Log Cabin Republicans) issue a rejoinder.
Update MetroWeekly
[UPDATE: The lawyers for LCR responded to the news of the government's request for a stay -- including the request for a temporary stay to be issued today while it considers the request for a stay pending the appeal of the case -- by stating that they planned to file written opposition to the emergency motion for temporary administrative stay later today and written opposition to the motion for a stay of the injunction late this week or early next week. No oral arguments are expected at the Ninth Circuit for consideration of either request.
LCR's deputy executive director, Christian Berle, wrote in response to an inquiry from Metro Weekly, "It has been eight days since the Department of Defense has suspended enforcement of the 'Don't Ask, Don't Tell' policy, and there has been no evidence of any adverse consequences.
"Log Cabin Republicans believes that the Department of Justice is seriously underestimating the professional capacity of our brave servicemembers in continuing under a military that allows open service by gays and lesbians," he wrote. "We are prepared to defend this injunction and this ruling in whatever court or forum in which we are challenged."]
Background:
Log Cabin Republicans v. United States of America
Constitutionality Queries Dog Obama
Judge Phillips: DADT Still Null And Void. 175 hours and counting.
DADT BREAKING: Phillips to DoD: Stop Lying and Start Obeying.
Don't Ask, Don't Tell: The President Gets Angry.
Judicial System: 6, Democrats: 0.