How to Really End ‘Don’t Ask, Don’t Tell’
A FEDERAL appeals court on Wednesday granted the Obama administration’s emergency request for a stay against a lower court orderlifting the military’s “don’t ask, don’t tell” policy barring openly gay service members.
The decision will strike some people as odd, since popular belief holds that the president, who has said he opposes the law, can make the policy go away by simply letting the lower court order stand. In fact, the administration is required to comply with the law and defend it in court, regardless of Mr. Obama’s personal views.
Fortunately, there is another, seemingly contradictory step the White House could take that would not only make its position clear, but deal a significant blow to the law’s prospects: while continuing to appeal the ruling, the administration could inform the courts that it believes “don’t ask, don’t tell” is unconstitutional.
Many people seem to believe that the law would disappear if the Justice Department refused to appeal the court order. But there are two reasons that’s not the case.
First, the government has an obligation to comply with the nation’s laws, regardless of whether the president agrees with a particular statute. Doing otherwise would also set a precedent justifying similar nullifications by future administrations. The next president might, for example, decide not to enforce the recent health care reform law; all he would need would be a single ruling against the law by a single district court judge, which he would then refuse to appeal.
Presidents in rare instances can determine that a law is unconstitutional and decline to comply with it. But a 1994 opinion by the Office of Legal Counsel (where I was the head) concluded that a president can do so only under very special circumstances, including a conclusion on his part that it is “probable” that the Supreme Court would agree with him — a tough argument to make about “don’t ask, don’t tell” at this point.
Declining to appeal, moreover, wouldn’t resolve the issue. The law would remain on the books, and a future president could always seek to reopen and set aside the district court’s order.
However, Mr. Obama may have another option: while appealing the lower court’s decision, he could have the Justice Department tell the appellate court that the executive branch believes the law is unconstitutional.
In other words, the Justice Department would take the formal steps necessary to defend the law, but it would also make substantive arguments about why the law should be struck down. The Supreme Court could still vote to uphold the law, but the president’s position could significantly influence how the court rules.
Doing so wouldn’t unfairly strip the law of adequate defense: if the administration took a stand against the law, the appellate courts would very likely allow lawyers for Congress or outside groups to appear and argue on its behalf.
This approach is not unprecedented. In 1943, Congress passed a law prohibiting the payment of salaries to three particular government employees. Arguing that the law was unconstitutional, the employees sued and won in claims court. The solicitor general asked the Supreme Court to review the lower court’s decision, but he also told the justices that the administration agreed with the original ruling; the court ultimately struck down the law.
That case and others like it provided a precedent for President Bill Clinton in 1996 both to comply with a law requiring the military to discharge service members who had H.I.V., and at the same time inform the courts that he found it to be unconstitutional. Thanks in part to support from the military, Congress repealed the law before litigation ensued.
Telling the courts that a federal law should be struck down is not a position to be taken lightly by a president wary of overstepping his bounds. But if he concludes that the law restricts important liberties without advancing a government purpose, he has the right to say so. After all, while courts usually defer to Congress on such questions, the president is under no such obligation: he is a constitutional officer entitled to his own views on governmental necessity, particularly on matters of national defense.
True, having the administration argue that the law is unconstitutional wouldn’t guarantee that the Supreme Court would strike it down: in 1990, for example, the Supreme Courtupheld a federal minority preference program even though the acting solicitor general (and future Supreme Court chief justice), John G. Roberts Jr., argued it was unconstitutional.
But the president could increase the chances that the appellate courts would agree with him by following a deliberate process that gives consideration to the views of the military leadership, some of whom have already come out against the policy. The courts would be more likely to defer to such a clear, unified position.
Since 1993 more than 13,000 men and women have been unfairly discharged from the military, people who could have been of service in America’s overseas conflicts. The best path to ending “don’t ask, don’t tell” is for Congress to repeal the law as soon as possible. If it doesn’t, President Obama should give the Supreme Court his administration’s honest view: that the law is harmful to national security.
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