Jed Babbin makes a great point in his column today about the Obama administration's failure to adequately defend the "Don't Ask, Don't Tell" law. And, in so doing, he underscores what may well be this administration's dereliction of constitutional duty.
"Gates," Babbin notes, "claimed that if Congress didn't act, the courts would overturn the law too quickly and not allow the Defense Department enough time to implement a policy to allow homosexuals to serve openly. But Gates's claim of urgency is a strawman that the Obama administration created by failing to defend the law in court."
True enough. However, as Pentagon General Counsel Jeh Johnson observed during last week's congressional testimony, the appellate courts are now applying an "immediate level of scrutiny" to so-called military gay rights cases. This because of the infamous 2003 Supreme Court decision Lawrence v. Texas which, amazingly, discovered a hitherto unknown constitutional right to sodomy.
"We used to win all these cases," but not anymore Johnson told Congress. "There is, I suspect, a trend that is taking place, after the Lawrence decision in 2003 that we all need to be mindful of."
For these reasons, Defense Secretary Robert Gates and the Chairman of the Joint Chiefs of Staff, Adm. Mike Mullen, have called upon Congress to repeal "Don't Ask, Don't Tell."
"It is only a matter of time before the federal courts are drawn once more into the fray, with the very real possibility that this change would be imposed immediately by judicial fiat," Gates said last week. That would be, "by far the most disruptive and damaging scenario I can imagine -- and the one most hazardous to military morale, readiness and battlefield performance."
Gates is right that it would be a disaster for the courts to suddenly, arbitrarily and brazenly try and dictate U.S. military policy. It also would be profoundly unconstitutional.
Indeed, as Sen. Jeff Sessions (R-Alabama) observed last week, the Supreme Court almost certainly would strike down rogue lower-court rulings to the contrary if ever these cases reached its docket. Problem is the Obama administration has been slow-walking these cases and failing to vigorously contest them.
"I believe the record is crystal clear," Sessions said:
The Department of Justice -- and you acquiescing as counsel for the Defense Department -- did not take the Witt case up to the Supreme Court, and did not take the First Circuit case to the Supreme Court, because you wanted to remain have a cloud over the legality of this matter.
[You also] did not want a clear decision from the Supreme Court; [so that you] would have an additional argument to [make to] this Congress to overturn the statute because there's a legal cloud over it. That's my best judgment.
Johnson didn't really dispute this. The Department of Defense, he said, didn't think it was a good idea to petition the Witt case because the factual record wasn't very strong. There would be an opportunity to appeal after the case had been tried and after, presumably, the factual record had been better developed, he explained.
"I've recommended appeal now that we've had the trial," he said.
Sessions didn't buy this.
Clearly to me, the Witt case should have been appealed. I believe you could have gotten an opinion from the Supreme Court that would have affirmed this [DADT] statute. There's no history, legally, that would suggest otherwise.
But it has been allowed to be under a cloud. And to have some of our top military leaders today say one of the reasons for changing the policy is the likelihood of a Supreme Court or legal decision that would undermine the statute… I believe [that] had it [the law] been vigorously defended, we would not have that cloud today.
Sessions has it exactly right. As the president of the Ethics and Public Policy Center, Ed Whelan, observed recently in the Weekly Standard:
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."
Because the Obama administration is deliberately failing in its constitutional duty to uphold the law, Whelan recommends that the Department of Justice "get largely out of the way and let others offer a real defense" of "Don't Ask, Don't Tell."
"The urgency Gates claims is false," Babbin notes.
Article 1, Section 8 of the Constitution gives Congress the duty "to make rules for the government and regulation of the land and naval forces." The courts must -- and will -- defer to so clear a constitutional mandate if it is defended properly and skillfully. Which has not been done.
The Obama administration, then, appears to be in dereliction of its constitutional duty. It appears to be failing in its obligation to faithfully uphold the laws of the land. Surely, this is one area that is ripe for further congressional oversight and elucidation: the extent to which Obama and his team are discharging -- or failing to discharge -- their constitutional duties. Bring it on.
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