I initially posted this diary as a comment in FogCityJohn's valuable diary on many of the legal issues arising with respect to the Log Cabin Republicans v. United States case, Judge Virginia Phillips's injunction against enforcing DADT, and the Ninth Circuit's motions panel's current consideration of the case. He said that he'd prefer that I take the discussion elsewhere, as he was interested in legal issues rather than political questions of motivation. So, I'm starting a separate diary.
It won't be clear what points I'm addressing from reading my comments in isolation. You should first read his "five myths"; you may want to open a second window. Out of respect for his preferences, though, please discuss my response here rather than there.
Re "Myth 1" (President must enforce DADT): Agreed
In fact, I'd go further -- I think that the President's C-in-C powers probably mean that he could refuse to enforce DADT even without this statutory authority. That certainly seems to be the direction of the law -- and the arguments of the Bushite conservatives.
Re "Myth 2" (President hasn't issued executive order because he wants "durable repeal" through the Defense Authorization Act): Mixed result -- ultimately the diarist may miss the point
FCJ is absolutely correct that the NDAA does not require the DoD or anyone else to repeal DADT administratively. I think his conclusion -- which I read as that, implicitly, the NDAA is pointless, is wrong. I speak as someone who has done some appellate law, though I'm sure much less than FCJ, but who spent a while as a political scientist, and I think that this is one of those cases where looking only at the legal argument is misleading.
Let's agree, if we can, that Obama is saying that DADT will be eliminated for good this year. There are basically three possibilities here:
(1) Obama is flat out lying
(2) Obama thinks that what he's saying is true, but is deluded
(3) Obama is being both sincere and accurate
How you feel about this depends on whether you think that Obama does indeed have a plan to repeal DADT -- one that does not involve letting Judge Phillips's injunction "settle" the issue (and my scare quotes are intentional, as I'll discuss below.) If you just look at the law itself, you'd choose (1) or (2), as does FCJ. But I believe that Obama is neither an idiot or a knave. I do think that he's capable of being an old-school pol, though, which leads me to believe that "the fix is in."
In other words, I believe that we're in the middle of a choreographed dance here, the moves of which have already been pre-negotiated with the critical parties. Here's what I think has been pre-arranged: Obama gets the military to agree to eliminate DADT, but they get to do it "their way." He's deferring to them in process in order to get the substantive result he wants.
This process means: Congress passes the NDAA (over the post-election failure of a filibuster led by McCain), the DOD report comes out saying that repeal will not injure troop readiness, the brass repeals the policy, maybe Obama then bolsters it with an executive order. The "right" of the military to be respected in matters regarding troop readiness and discipline is thus maintained. I differ from Obama in thinking that this is that important to concede, but this is one of many reasons why he is President and I am not.
Now, FCJ is correct that the result of such a process is not necessarily "durable" (although I appreciate his concession that backtracking would be damned hard.) However, I think -- and I think that Obama would probably agree -- that the injunction of DADT would be fine so long as it occurred after the DOD first got to do it "their way." For Obama, this is a matter of respect for the military brass -- which, you may have noticed, have not been friendly to him. I'd argue (as I suspect would FCJ) that, even after Obama's choreographed dance ends, LCR would have standing to continue their case because the infringement on civil rights created by DADT is not rendered moot by the elimination (I'll avoid the word "repeal" for now) of DADT. There may be an argument against considering the case based on "ripeness" grounds in that event, but I don't find this compelling. At worst, service members who came out after "repeal" would have standing for a new case -- or perhaps for joining LCR's case.
(The real problem, by the way, is that Phillips's ruling went to a bad [motions] panel. William Fletcher is good, though not always a reliable liberal vote when his analytical skills lead him otherwise, but Diarmuid O'Scannlain is, not to mince words, the Scalia of the Ninth Circuit -- among other things, very smart and politically adroit. The swing vote is Stephen Trott of Idaho, who is very socially conservative. I doubt that they'll uphold the permanent injunction; my best realistic hope is that Trott won't follow any inclination O'Scannlain may have to go further to the merits of the case. If I'm wrong and O'Scannlain upholds the injunction, then let the sucker go to the SCOTUS, because if it convinces him, it will convince them too.)
So, I think that FCJ is technically correct, but as a political rather than a purely legal matter, he ignores the likely prospect -- that Obama is practically spelling out for us in semaphore -- that "the fix is in."
Re "Myth 3" (DOJ had to appeal): Agreed
What I think FCJ overlooks here is that they may have appealed mainly for dilatory reasons, as Judge Phillips's injunction may be disturbing the choreography of the above dance. Once it's repealed, I expect DOJ may drop the appeal -- and hopefully not even offer the "ripeness" argument I anticipate -- that the plaintiffs should have to wait for a future administration to try to reinstate DADT. I think that prudential standing doctrine would strongly suggest that this position is wrong, and if DOJ pushed it after the "dance is done," then I would seriously be pissed. I think -- and I think Obama thinks -- that to kill this off we need to have all three branches acting.
Re "Myth 4" (DOJ is appealing to get a broader ruling): Yes, but....
I don't think that DOJ is sandbagging here, hoping to lose the case at SCOTUS. I think that they are primarily appealing because they have to do so to ensure that the "fix" remains in -- because the military wants to be the one to act rather than having the courts impose a solution on them. But let's be clear -- Phillips's injunction is itself not necessarily "durable" even if they didn't appeal. She's just a district court judge, in one circuit, and her decision simply does not preclude a new case coming up in the Ninth Circuit or any other circuit -- a case that a future Republican Administration could appeal all the way to SCOTUS.
The counter-argument here is worth considering: FJC would argue (and I think has, when we've argued about this previously) that no one could have standing to bring a new case favoring discrimination. I think this argument is wrong. With a compliant judge, standing for a case that would get to the appellate level even if Log Cabin Republicans did not wouldn't be that hard to arrange. For one thing, the President could issue an Executive Order violating the injunction on grounds of "unit cohesion" -- remember, a lawsuit doesn't have to make sense to get into court -- and you have an instant lawsuit that could serve as a vehicle to get an appellate decision vacating Judge Phillips's injunction. Or, you could have someone who claims to have experiences same-sex sexual harassment by an openly gay superior officer to argue that this had happened only because of the elimination of DADT -- again, I don't argue that such a case would make sense, but simply that it would get them into court if a judge were sympathetic -- and again you have a vehicle to vacate the injunction. So Judge Phillips's injunction truly is not durable; concerns about "durability" are not misplaced.
Re "Myth 5" (A future Administration could appeal): Technically true but misleading
I don't know anyone who is arguing that a Romnabee Administration could challenge Judge Phillips's ruling on a direct appeal in 2013. Clearly, they can't. No less clearly, though, they wouldn't need to. As argued above, President Romnabee could order violation of the injunction via executive order and invite anyone who is harmed by his action to file suit. He gets into court that way -- and if he argues that the DOJ had colluded with the district court (which is certainly what it would have looked like if DOJ hadn't appealed within the 60-day period), his argument on procedural grounds for being able to challenge the injunction would be pretty compelling. That is the "appeal" that I'd fear -- and it would not run afoul of FRAP 4(a)(1)(b).
I acknowledge right here that FCJ accepts the possibility of something like I suggest above: that a President could ask for a modification of the injunction, which would get them into court. With my ears still ringing from the Bush Administration, I'm suggesting something slightly different, and one that would not require "some ground for seeking modification": the President doesn't have to ask the court's permission. He or she could just order DADT to be reinstated and let the other side be the Plaintiffs. And, of course, during that time, gay and lesbian soldiers would be subject to discharge. That's why I would ideally want all three branches of government to fall in line -- but if Obama says it has to be in a certain order, well, what the hell. Just get it done.
A final point on "durability" -- making change "durable" is hard. We don't often focus on this, but the Voting Rights Act and the Civil Rights Acts are not in the Constitution, but are "mere" statutes -- which can be repealed by other statutes -- and that much civil rights jurisprudence that we think is grounded in the 14th Amendment is, potentially, liable to being seen as vulnerable should those statutes be repealed by a future heinous Congress and President.
So, one rarely if ever achieves true durability of a court decision. But, the sort of plan that Obama seems to have in mind, especially as I'd amend it, seems to be as good as we could hope for: Congress authorizes (if it will not itself order) elimination of DADT, DOD with the support of the President gives the go-ahead to do so, and then the district court's injunction goes into effect on constitutional grounds, "sealing the deal," with standing established because otherwise gay and lesbian service members would remain vulnerable to discharge based on discriminatory animus.
I understand why many people are royally pissed at Obama and Holder over what has happened this month. This explains why I'm not -- yet. I still think that they'll get it done -- and that, yes, it will be more durable if done their way.
And I say all this with great respect for the cause of eliminating DADT and more.