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filkertomEffective immediately.
Now it'll be interesting to see how the Obama DOJ decides to fight it. He keeps saying he wants it overturned legislatively, but his legal team has defended it vigorously. And they're also still defending DOMA.
In a time when young gays are literally being hounded to death, and when major homophobic asshats can get premium space on major newspaper editorial pages* -- on National Coming Out Day, no less -- this is long, long past due.
ETA: It has been pointed out, both here and on other blogs, that it is the Obama DOJ's duty to appeal the ruling. The best example I saw was from mistermix at Balloon Juice:
* It is a comfort to read the comments on that one, though -- almost no one agrees with him. Yet another mouthpiece that can't hear the people he claims to represent.
Now it'll be interesting to see how the Obama DOJ decides to fight it. He keeps saying he wants it overturned legislatively, but his legal team has defended it vigorously. And they're also still defending DOMA.
In a time when young gays are literally being hounded to death, and when major homophobic asshats can get premium space on major newspaper editorial pages* -- on National Coming Out Day, no less -- this is long, long past due.
ETA: It has been pointed out, both here and on other blogs, that it is the Obama DOJ's duty to appeal the ruling. The best example I saw was from mistermix at Balloon Juice:
Imagine it’s 2013 and a federal judge somewhere declares the Patient Protection and Affordable Care Act unconstitutional. Imagine further that a group of Senators ask President Palin not to appeal the ruling. If she instructed Attorney General Christine O’Donnell not to appeal the ruling, would that be OK?Honestly, I can't argue with that.
If it isn’t, then it’s not OK for the Obama administration to skip the appeal of the recent ruling against DADT.
* It is a comfort to read the comments on that one, though -- almost no one agrees with him. Yet another mouthpiece that can't hear the people he claims to represent.
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(no subject)
Date: 2010-10-12 09:59 pm (UTC)(no subject)
Date: 2010-10-12 10:03 pm (UTC)(no subject)
Date: 2010-10-12 10:14 pm (UTC)but for right now, HAPPY HAPPY JOY JOY, HAPPY HAPPY JOY JOY, HAPPY HAPPY JOY JOY, HAPPY HAPPY JOY JOY JOY!!!
(no subject)
Date: 2010-10-13 03:17 pm (UTC)(no subject)
Date: 2010-10-13 03:56 pm (UTC)(no subject)
Date: 2010-10-13 10:06 pm (UTC)More or less.
(no subject)
Date: 2010-10-13 10:15 pm (UTC)(no subject)
Date: 2010-10-14 02:36 am (UTC)(no subject)
Date: 2010-10-12 10:05 pm (UTC)My understanding (which is limited, I know, but still...) is that the administration isn't HAPPY with defending these laws, but they still have to.
Although, don't forget, Obama did NOT campaign on a promise of allowing gay marriage or repealing DOMA. Would have been nice if he did, but he didn't. Given that, he was STILL better than the alternative available.
And, given all of that... THIS judicial order is a wonderful thing. :-)
(no subject)
Date: 2010-10-12 10:46 pm (UTC)(also, o hai icon sibling!)
(no subject)
Date: 2010-10-12 11:20 pm (UTC)Obama's DOJ defended DOMA by saying that gay people had no rights worth respecting, not even the right to be gay. Their filing in that case was as homophobic as any Republican could have asked for.
I personally am of the belief that Obama is a class A homophobe who only mouths the bare minimum required to be a part of the Democratic Party. He's quite deliberately dragged his feet on DOMA ("Let's form a committee to discuss it, and then we'll ask the generals if they're still afraid of gay cooties, and then we'll consider it"). He turned his back on gay marriage efforts in California and Maine. Meanwhile, his DoJ has aggressively and on occasion maliciously defended the status quo and stepped UP the dismissals from service of gay and lesbian officers and servicepeople.
(no subject)
Date: 2010-10-13 12:04 am (UTC)(no subject)
Date: 2010-10-13 06:33 am (UTC)Imagine in a few years we have a Uber Right Wing Republican President and a Circuit Court overturns a hate crime law.
Eisenhower enforced the Civil Rights Act and it wasn't popular with his party.
We just can't have it both ways. I'm sure Obama hopes they lose the appeals process, but he's gotta go to the mat defending it until the legislature says otherwise.
(no subject)
Date: 2010-10-13 12:57 am (UTC)It is incredibly frustrating to have a car full of clowns on the left and a pack of hungry, rabidly reactionary wolves on the right. American government has become a farce, and I just can't bring myself to shoot myself in the foot by voting Republican in the present climate. Even if the Democrats did take a lesson from it, I fear it would only push them toward the right.
We need a true left wing in this country, one that has a chance of taking power, and we need it now.
(no subject)
Date: 2010-10-13 02:01 am (UTC)When suit is files, yes, then they (probably) have to defend. Especially when they are continuing a case that started under a previous administration.
But once the court *rules* they don't have to appeal if the decision goes against them. In fact, they do it all the time when a decision in a lower court goes against them and they *don't* want to risk it being applied to the rest of the country.
A lot of suits about gun laws got treated that way. The plaintiff won at the district court level and the government *didn't* appeal. Which is why it took a suit in DC (where the appeals court is the Supreme Court) to get a ruling on second amendment rights that applied to the entire country.
Trust me. They *could* let this stand.
(no subject)
Date: 2010-10-13 06:41 am (UTC)The President won't always be a Democrat and the law in question might be one the Republican Presient didn't like. This is not the way to fix the problem.
The President not going to court to defend the laws he doesn't is one step away from choosing to not enforce laws he doesn't like. Lots of people were telling Eisenhower he didn't have to intervene in Arkansas. We're all glad he knew better.
(no subject)
Date: 2010-10-13 07:52 pm (UTC)As I noted, the government chooses not to appeal *all the time*. Both Republican and Democratic administrations have done it, ovrer various issues.
It's not *remotely* the same as deciding not to *enforce* a law.
Failing to appeal merely means that they agree that the court decision was correct and it's not worth wasting resources over (or, as in the second amendment cases I mentioned, that they don't want to risk the court decision being upheld at a higher level where it will affect more of the country, a situation which doesn't exist with this decision as it is *global* in effect already).
No more, no less.
Failing to enforce a law is a situation where there's actually a legal process for *forcing* them to. Look up writ of mandamus (if I'm recalling correctly).
(no subject)
Date: 2010-10-14 10:24 am (UTC)http://usgovinfo.about.com/library/news/aa062600b.htm
During the Clinton administration, the Miranda decision was overturned by a Federals Appeals court, or large parts of it were anyway.
Now Imagine if Alberto Gonzalez had been our A.G. when it happened. So yes, a lot more goes into it than the feeling the decision was correct or not. If nothing else, large parts of the electorate who disagrees with the decision will feel they were paid a disservice by their govt for not appealing it. Stuff like this is how we got to the need for a march to restore sanity next week.
I'm not going to say an A.G. must appeal everything, but under no circumstances should there the decision be made for poltical reasons. Disagreement with a law is not the reason to let it die.
Even if it was a consideration, I still think appealing is the right wayto go because appealing it and losing gets the precedent set at a higher level. I'm stunned the anti-gun lobby never tried this when they could have gotten a ruling on the 2nd amendment the NRA specifically avoided arguing for in court from 1939 until a few years ago.
(no subject)
Date: 2010-10-14 03:21 pm (UTC)The court in the Dickerson appeal did not overturn Miranda. It held that Congress, in a 1968 act, passed a law that overturned Miranda. The AG appealed that ruling to the Supreme Court as a matter of policy, not as a blind requirement. If that ruling had come during the Bush administration and Thumbscrews had decided not to appeal it, or if Bush had instructed Thumbscrews not to appeal it, they would have been entirely within their rights to do so. Our objection would not be one of malfeasance in that case, it would be a policy dispute.
(no subject)
Date: 2010-10-13 04:31 am (UTC)He didn't campaign on marriage equality. He absolutely, specifically, explicitly campaigned to the GBLT community that he would work - be a "courageous advocate" - in repealing DOMA. That promise disappeared from his website within a week of his election victory.
(no subject)
Date: 2010-10-13 04:58 am (UTC)(no subject)
Date: 2010-10-13 06:45 am (UTC)(no subject)
Date: 2010-10-13 12:24 pm (UTC)(no subject)
Date: 2010-10-13 02:03 pm (UTC)As to the second point, yeah, Atty Generalisimo Gonzalez would have done it but surely youre not saying that makes it acceptable are you? If it's wrong, it's wrong, regardless of who does it and how they justify it. Y'know, like that torture thing.
(no subject)
Date: 2010-10-13 03:59 pm (UTC)Had Thumbscrews elected to become the third AG to so request, or had Thumbscrews elected not to appeal some hypothetical lower court's overturning it, my objection would not be that he was acting outside the authority of the AG; my objection would be that the AG was wrong on the specific issue.
Do you feel that Attorney General Brown should appeal Judge Walker's ruling on Prop 8? Or do you agree with Attorney General Brown that part of his job as Attorney General is to determine whether it is in the best interests of his client the State of California to file such an appeal or not and act accordingly?
Attorneys General are not required to blindly appeal adverse findings.
(no subject)
Date: 2010-10-13 11:00 pm (UTC)Far as AG Brown and Prop 8 goes, good question but again an example that isn't on point because it was passed via a ballot initiative and I'm not sure about the details of those being actual laws or being more like executive orders (not laws, but carrying the full force of law) but in general, yes he probably should "defend" it if for no other reason than to get the highest applicable court to agree with him.
I dont think what Gonzalez did what in any regard while AG means the act is okay. He's also a bad example.
Here's one that might fit:
I said for years that if the gun control lobby wanted to win their argument, all they needed to do was to find a convicted felon during the mid 80's and challenge the brady laws on the basis of them being a violation of the dude's 2nd amendment rights. Yes, the gun control lawyers trying to assert someone having an individual right to own a gun.
Because:
SCOTUS in those days would have set a very different precedent than this incarnation did. The NRA in those days stayed away from direct 2nd amendment cases because of that very fear. They beat the National Brady Law on a 10th amendment argument.
And this assumes the appelant's lawyers werent phoning the case in which they would have been.
So what's wrong with this idea? Not only is it doing the job as it should be done, its getting good precedents made.
(no subject)
Date: 2010-10-14 04:25 am (UTC)The gun lobby's choices of which cases to bring have no bearing, they are private parties.
Nor is it necessary to appeal to get good precedents made: Both Walker's Prop 8 ruling and the DADT ruling and injunction are perfectly good precedents.
If you want to discuss whether an AG "should" appeal a particular ruling and why, that's a debate we could have. But when you assert an Attorney General has a responsibility to appeal an adverse ruling, you're just plain wrong.
(no subject)
Date: 2010-10-14 10:11 am (UTC)But the reason he should is one that goes right down to the fundamentals of why we have an orderly exchange of power in this country.
We all got mad when we saw GWB doing crap with signing statements, recess appts, wiretapping without a warranty and gaming the system any way he could, Constitution be damned.
There should never be a *political* consideration going into why the AG shoudn't do it.
Can we agree on that?
(no subject)
Date: 2010-10-14 10:27 am (UTC)The Constitution make no provision for a President to make a "signing statement" that affects the law. The law expressly forbids (forbade) wiretapping without a warrant. That's not gaming the system, those things are expressly illegal, and if we had been possessed of a congress that was less afraid of Bush during those 8 years, he would have been impeached for either. That's entirely different from an AG's discretion to appeal an adverse decision, which is part of their proper duties.
I don't know about you, but my anger at Bush's appointments was who he appointed, not that he used his proper power to make recess appointments to appoint them. Frankly, I think President Obama should have been doing alot more of those.
Of course there should be a political consideration going into how the AG selects which cases to appeal! What the country's best interests are is a policy matter!
(no subject)
Date: 2010-10-14 10:36 am (UTC)Yknow why Obama can't make more Recess Appts?
Because both the Dems and Republicans in Congress agreed to gavel into session every few days even during a "Recess" because they all felt it was wrong for the President to use a power that was designed to keep the govt functioning even when it's members werent around, and turn it into one for political gain.
GWB started using the manuever. We were all appalled. At least I'm still appalled. Both parties in Congress stopped it cold. As well they should have.
First point:
We've had wiretapping without a warrant even before GWB. The FISA court system is the closest thing we have to a star chamber. But even then there were rules about how it had to be done. GWB tossed those rules. But that's neither here nor there.
What we're both driving to is that laws are subject to interpretation (Obviously GWB disagreed with what you saythe laws said there, right?) If the laws mean one thing when one party is in power and something else when another party is in power, why bother having them? Why bother with precedents?
It was wrong when they did it. It's wrong when anyone does it. I just hope some party decides to act like a grownup for once and can gain votes from it, rather than catering to it's supporters and screw the other guy's point of view.
(no subject)
Date: 2010-10-14 03:06 pm (UTC)In making your "it's was wrong when they did it. It's wrong when anyone does it" argument, you are creating false equivalencies. An attorney general exercising discretion regarding whether to appeal an adverse ruling is in no way comparable to circumventing conducting secret searches without obtaining a warrant from the FISA court or issuing a "signing statement" to assert part of a law congress passes is invalid and then acting on the basis of that signing statement. The later two circumvent the rules. The former is the rules.
Attorneys General really, truly, have that discretion. That's exactly why the California Supreme court dismissed without comment the lawsuit attempting to force AG Brown to appeal the Prop 8 ruling.
(no subject)
Date: 2010-10-14 03:23 pm (UTC)Anyway -- FISA Courts issue warrants, but like I said, "THERE WERE RULES" (caps emphasis mine) as to how one could do it without a warrant before GWB tried to give the govt a totally free hand.
Under the statutes, if law enforcement claimed they have an emergency situation on their hands they could start the wiretap before they get the warrant approved. I want to say 48 or 72 hrs. And if they got something good, then they could ask for a warrant. I thought that was scary even before GWB tried to make it easier.
But now I gotta ask you this:
If we're talking about playing by the rules-
Do you have a problem with the DOJ not enforcing Contempt of Congress citations? (i.e. picking up members of the executive branch and arresting them when they refused to testify) We almost had that little controversy. There was talk about if we would have the Sgt at Arms enforce the citations themselves (apparently there is a "Congressional Holding Cell" somewhere).
Would it really be okay if it came to that??? Is that how the founding fathers intended it to be? It's all codified in the rules though...
Again I go back to the real problem being that rules are subject to intepretation. What you say is circumvention someone else may not.
I don't want to be anywhere near blast radius if it comes down to you and..oh...say...
What you say the rules are, someone else may not. The game can be played your way, or it can be played my way. I think my way's goal is to underscore the fact that IT IS NOT A GAME.
(no subject)
Date: 2010-10-14 04:26 pm (UTC)You're still creating false equivalencies: the Department of Justice is required by law to impanel a grand jury and prosecute contempt of congress citations that are referred to it. There is no law that requires an Attorney General to appeal an adverse court finding. One is within the scope of the discretion, the other is not. If congress passes a law that requires the AG to appeal all adverse court rulings, then you'd have a valid comparison here.
It is, incidentally, worth noting that the statute that creates the process described above also affirms that Congress retains its inherent power to enforce contempt of congress citations, and indeed the process of having the Sergeant at Arms enforce the citation by arresting the accused and bringing them to the citing House to answer the charges and receive sentence was the process that the Founders put in place and had in mind. The statutory process didn't exist before 1857.
What I say the rules are, someone else may not, but someone else did. The notion that the Attorney General has discretion to choose whether to appeal or accept an adverse court ruling, and the notion that that decision is a matter of policy, is not only new, it was recently upheld in the Prop 8 case. You even acknowledge that you don't think the AG should appeal every adverse decision, though I'm not sure how you think the AG is supposed to decide which to appeal.
(no subject)
Date: 2010-10-13 11:42 am (UTC)They certainly have a choice between defending the laws the way that the three hundred Spartans defended the pass or defending the laws the way White in my userpic plays chess.
(no subject)
Date: 2010-10-12 10:08 pm (UTC)(no subject)
Date: 2010-10-12 10:43 pm (UTC)Tom
(no subject)
Date: 2010-10-14 10:41 am (UTC)Better his administration doing it now than a Republican one later when another case comes along, right?
(no subject)
Date: 2010-10-14 03:13 pm (UTC)If you're President and you don't want the ruling overturned, you direct the Attorney General to accept the ruling and issue an opinion that the ruling is correct.
Better his administration doing it now than a Republican one later when another case comes along, right?
Wrong. That's not how the appeals process works. The next Republican President can't simply pick up the phone and say, "Remember that ruling on DADT in 2010? Let's appeal that." They would have to create case and controversy from scratch, work it through the courts, and appeal that to the Supreme Court. Getting a Supreme Court precedent knocking it down at this point doesn't change that later administrations's ability to go that route -- as a review of the history of Roe v Wade shows.
All President Obama has to do is tell the AG not to appeal the ruling, and we have a federal precedent that DADT is Unconstitutional.
(no subject)
Date: 2010-10-14 03:28 pm (UTC)Point #2 you have misquoted me on. I pointedly said "When another case comes along". To attack the precedent generated by the first case, not the 1st case itself. Yes it would be more work. That's kind of the point of making it a precedent issued by SCOTUS.
You quit reading before you replied. So I think I'm done here as it's clear I'm talking to myself.
(no subject)
Date: 2010-10-12 11:23 pm (UTC)Obama is absolutely no friend of gay people.
(no subject)
Date: 2010-10-14 10:44 am (UTC)The Republican one would put much more heart into the job. Phoning in the appeal and losing it though kind of settles the matter.
(no subject)
Date: 2010-10-12 11:31 pm (UTC)(no subject)
Date: 2010-10-13 12:04 am (UTC)National Scope
Date: 2010-10-13 05:44 pm (UTC)If so, then appealing the decision becomes a path to overturning DADTBSA (Don't Ask, Don't Tell, Be Screwed Anyway).
Re: National Scope
Date: 2010-10-13 07:58 pm (UTC)So all a higher court decision will do is either uphold the decision which would just continue the injunction barring further appeals, or overturn it, in which case the injunction goes away (again barring more appeals farther up)
If it makes it to the Supreme Court and is upheld, then we'd no longer have an injunction, but rather the law *would* be effectively repealed.
(no subject)
Date: 2010-10-14 04:17 pm (UTC)