The Obama administration recently decided to seek a stay of the injunction that prohibited enforcement of the Don't Ask, Don't Tell policy in the Log Cabin Republican lawsuit and (for now) to contest the ruling on appeal. There has been a vigorous discussion about that decision, much of it focused on whether the administration was obligated to defend this odious statute, even while they are working hard to repeal it, and what broader implications a decision not to appeal might have had for the rule of law in future cases.
My purpose in this essay is to clarify what is at stake in this discussion -- in other words, to make clear precisely what options we are debating. The back and forth over the administration's obligation to pursue this appeal has often proceeded on the implicit assumption that, if the government did not appeal, then DADT would be permanently over, a thing of the past. The assumption, in other words, is that we should be measuring any political, legal or institutional costs associated with the government not appealing against the benefit of eradicating DADT once and for all.
That assumption is incorrect. In fact, if the Obama administration were to decline to appeal this injunction, a hostile administration could come back at a later time and ask the federal courts to lift the district court's injunction and allow the DADT statute to go back into effect.
HOW INJUNCTIONS WORK
This is a complicated issue, relating to procedure in federal court and how injunctions work. Here is my best pass at a concise explanation.
When a federal court finds a federal statute to be in violation of the Constitution, as Judge Phillips did in the LCR case, we often speak of the Court "striking down" that federal statute, as if the court's order removes it from the books altogether. That is not, in fact, what happens. Federal courts don't have the power either to enact or to repeal federal statutes. What they have the power to do is declare federal statutes unconstitutional and issue orders prohibiting their enforcement.
When a court issues a decision like that, it has three potential types of impact.
First, the court's decision binds the parties to the lawsuit itself. In the LCR suit, the government is now bound to a ruling that the DADT statute cannot be enforced against LCR's members.
Second, the court's decision may set precedent that other courts must follow, so that if the same issue ever comes up in a subsequent lawsuit the earlier opinion will control the outcome. Federal district courts do not have the power to set binding precedent in this way -- only federal appeals courts and the Supreme Court can do so.
And third, the court may issue an injunction to carry into effect its ruling, requiring the losing party to take or refrain from taking certain actions. In this case, the federal district court issued a worldwide injunction prohibiting the government from enforcing DADT anywhere, against anyone.
The only part of the district court's LCR decision that affects people other than LCR and its members is the court's worldwide injunction. LCR did not bring a class action lawsuit that purported to include past, current or future members of the military as parties before the court -- it was only litigating on behalf of its own members. And, as mentioned above, the district court cannot establish binding legal precedent for any other courts, not even other district courts.
It is only because the court issued such a broad injunction that the ruling applies to anyone other than LCR. As a point of comparison, think of the case of Major Margaret Witt, who recently secured a ruling from a federal district court in Washington ordering that she be reinstated to the military. Her victory resulted in an injunction that applies only to her.
ENFORCING THE INJUNCTION
Even when a defendant decides not to appeal a ruling in a case like this, the federal district court needs to retain some kind of ongoing jurisdiction over the case in order for the injunction to continue in effect. Otherwise, for example, there would be no one to turn to if a party thinks that the injunction is not being complied with and a contempt citation is necessary.
Thus, the observation that frequently gets made that there cannot be any appeal once the time for requesting the appeal expires -- in other words, that a decision not to appeal a ruling is permanent after the clock runs out -- is not the whole story in the case of an ongoing injunction prohibiting enforcement of a federal statute. Rather, even when a party to a lawsuit does not appeal the original ruling, the party can still come back to the court and ask it to modify or end the injunction on the grounds that enforcement of the order is no longer equitable or appropriate.
"FACIAL" VS. "AS-APPLIED" CHALLENGES
Some commentators have pointed out that LCR brought a facial challenge to DADT, rather than an as-applied challenge. That fact is indeed important, but it does not change the impact of this ruling at the district court level. A facial challenge argues that the statute cannot be applied constitutionally to anyone, while an as-applied challenge argues only that the statute cannot be applied constitutionally to someone in the plaintiff's specific circumstances. (Once again, compare the recent victory of Major Margaret Witt, who won an as-applied challenge to the policy.) A victory in a facial challenge can thus set a precedent that renders the statute completely unenforceable. That precedent can then be invoked by future litigants, even if they were no part of the original lawsuit.
But, as noted above, a district court doesn't have the power to establish binding legal precedent for other courts, even within its own district. The significance of a facial challenge vs. an as-applied challenge comes into play primarily at the Court of Appeals or Supreme Court stage. When one of those courts grants a party a victory in a facial challenge to a statute, it establishes a legal principle that applies as precedent to everyone else in the Circuit (in the case of the Court of Appeals) or in the country (in the case of the Supreme Court). When the case is at the district court level, however, the difference between winning on a facial challenge and winning on an as-applied challenge is less significant.
All of this is separate from the question of the type of injunction that the district court enters to enforce its order. When a court issues an injunction, it is crafting a remedy to carry into effect the rights of the parties that are before it. The court has very broad discretion in determining what type of remedy is appropriate. But its task is still to carry into effect the rights of the parties that are before it.
I assume that the district court in this case felt justified in issuing a worldwide injunction because, having ruled on a facial constitutional challenge, it had concluded that the DADT statute could not be applied constitutionally to anyone, anywhere. But it is still the case that the district court's task was to issue an order that would enforce the rights of the parties before the court -- here, LCR and its members. As I understand it, that's part of why the government took the view that the worldwide injunction was inappropriate -- because, in the government's view, it was an excessively broad and unwarranted way of enforcing the rights of LCR and its members, which was all that was before the court.
WHAT DOES ALL THIS MEAN?
According to my best understanding, here is the bottom line.
Even if the Obama administration were to embrace the LCR ruling and decline to take an appeal -- and even if members of Congress did not step in and continue pressing the appeal, which they could try to do -- the DADT statute would still be on the books. Only a repeal by Congress can change that. The only thing stopping the DADT statute from being enforced would be the court's worldwide injunction.
And if a hostile administration were to come into power in 2013 or 2017, that hostile administration could come to the court and ask it to lift or modify the injunction. If the court refused, a hostile administration could take an appeal from that refusal and ask the Ninth Circuit or the Supreme Court to do so. The original ruling on behalf of LCR and its members might still be permanent. But the worldwide injunction would be vulnerable and probably would not survive, meaning that the DADT statute would go back into effect for everyone else.
This does not resolve the debate over what the Obama administration should have done in this case. Some people might take the view that allowing the injunction to stand right now would make it easier to enact a legislative repeal of DADT, even if the injunction itself is not a permanent solution. I think that the opposite is true -- that allowing the worldwide injunction to stand would make legislative repeal politically impossible in the present moment. There is room for disagreement on that issue.
But the assumption that has informed much of this debate -- that not appealing the LCR ruling would mean that DADT would be permanently gone, once and for all -- is incorrect.
(This essay first appeared on the EqualityGiving website at http://www.equalitygiving.org/DADT-Appeal)
There are different levels of judicial review of the constitutionality of a given statute. The easiest standard for a suspect statute to overcome is the “Mere Rationality Standard.” To pass the rationality standard for constitutionality a statute must 1) pursue a legitimate state objective (state as in gov’t, not as in 50 states) and 2) the means chosen to pursue this objective must be rationally related to the objective.
Here’s where the PR attack comes in. Ask Obama/Ax/Gibbs/Whoever what the legitimate state objective of DADT is, then ask them how DADT is rationally related to achieving that objective.
For example:
Press Secretary Gibbs, is DADT a rational method to achieve increased unit cohesion in the military?
President Obama, you’ve stated DADT harms unit moral/cohesion and damages military readiness, as a constitutional scholar, do you believe DADT rationally pursues a legitimate state interest?
The answer will either directly lead to the conclusion that DADT fails the mere rationality standard (i.e. is unconstitutional and should not be defended in court), OR
The answer will show a prominent WH official saying they think DADT is rational – a serious flip-flop and slam on the GLBT community.
Michael
OutMaturity.com
So yes, we're angry and lashing out, but if someone could coherently lay out the plan going forward if the Senate doesn't act next month (and that's looking likely that it won't happen) we'd be all ears. But so far, no one, I repeat no one, has done that.
Once this is said and done, it will be one more major accomplishment that the Obama administration was able to acheive DESPITE the best efforts of hypocritical congresscritters from the Party of Repeal/No - PORN.
If the president had taken affirmative action against DADT in a timely manner he might not now be in a reactive position with regard to the lawsuit.
If the president had a history--any history--of working for gay rights, he might not need people like you trying to stem the rather ugly tide at this time.
He made his own bed.
Thank you for this clarifying article. Your last line, however, about the political impossibility fo bringing back DADT undermines everything you said earlier.
That is true, but...by the time there is a new President (2013, 17, 21, etc), there will have been openly gay service people serving for years. The only argument used at trial to support DADT was "unit cohesion." If gays are already serving openly and unit cohesion has not been disrupted, there will be no basis for DADT. Every day DADT is not enforced makes the case against DADT stronger.
Yes, the next administration can argue against the injunction, just like the next Congress could pass a new law, or the next Supreme Court could overturn its previous ruling. None of these solutions are "permanent".
So why is the administration passing up a chance to prove that DADT is wrong.
This article explains why that anger is misplaced.
Obama has made a commitment to ending DADT. Not "temporarily" ending it, "permanently" ending it. He is laying the ground work for permanently ending this obscene practice.
People who want a quick fix to this process are not understanding all the complex legal angles. The President has thought this through and understands a solid permanent end requires "patience" to dot all the "i's.
A decision to not vote Democratic because you are upset DADT has not yet been resolved is short sighted and would be cutting off your nose to spite your face.
Knowing what the Conservative's will do when it comes to DADT is not a question, it is a GIVEN. Nothing. Period. END of STORY.
The best and ONLY chance for ending DADT is with Democrats. That is a knowable fact.
President Obama with a Democratic majority, deserves at least one full four year term to accomplish moving our Country in a FORWARD direction...the frustration that has grown among Democrats in the country in just TWO years because Change isn't absolutely perfect already in every area of failure and chaos that Conservatives brought us...and the threats of "not voting" in the mid terms, in my opinion...
is akin to being Sarah Palin quitters after just half a term.
But, I think you are misinterpreting why people are angry. Its one thing for Obama to need time to get DADT repeal through Congress. Its another thing to take an appeal in the injunction case. That is him affirmatively acting to keep DADT on the books.
That's why people are angry, and rightfully should be angry.
and the ramifications of the courts' decisions.
As a gay person I am sick and tired of the LGBT trying to pin this debacle on Obama. We have waited a long time, but a little more patience is going to serve us better in the long run. Stamping our feet and pounding our fists, and threatening to vote for GOP'ers or stay home is not going to help.
Don't expect any action before the election, so Obama does not create more Republican votes by helping Gays with
A-- DADT, which is FAR better voted out of law by Congress or declared Unconstitutional by the courts, so it does not turn up again.
B-- Gay marriage. Marriage is a state issue, regulated by the states. If the Prop 8 case goes to SCOTUS and 8 is struck down as unconstitutional, it will invalidate STATE laws.
All Obama could do is make us feel good, while bringing more rednecks to the polls to defeat the Dem congresspeople we need
Although I do not agree with the entire Health Care Reform Bill, and personally wanted a Public Option, there is MUCH in the HCR that is a hugely positive Change and accomplishment. The things that aren't can be, and I believe WILL BE improved moving forwards. At Least there is a HCR Bill TO IMPROVE ON now.
What would you have if Conservatives had been in power? NOTHING at all. NADA.
You have the previous 8 years of Conservatives in power as the perfect example of what THEY will do for YOU. NOTHING at all, unless YOU are in the top 2% of the wealthiest people in America and can afford to donate MILLIONS of $ to Conservatives to make sure the wealth continues to be intentionally directed their way.
Believe you me, the grass is NOT greener for you on the Conservative side of the isle!