The 9th Circuit Court of Appeals in a an order issued Monday gave the Department of Justice 10 days to decide whether it will appeal the decision to immediately halt the enforcement of the military’s open service ban “Don’t Ask, Don’t Tell” (DADT).
While noting that it “appears” the department has dropped defending the constitutionality of DADT, the appelate court has now directed the Obama administration to declare its intent so that, if it has decided to no longer defend the constitutionality of the law, Congress may step in if it so desires and take up the defense.
In an order dated July 11, the U.S. Ninth Circuit Court of Appeals states that the Justice Department must announce if it will continue to defend “Don’t Ask, Don’t Tell” or, as was the case with DOMA, allow Congress to intervene to take up defense of the military’s gay ban.
“The Government is hereby ordered to advise the court whether it intends to submit a report to Congress outlining its decision to refrain from defending ['Don't Ask, Don't Tell'],” the order states. ”The Government is further ordered, if such a report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding.”
While it is standard legal practice for the presiding administration to defend existing statutes there is discretion that, while an administration must generally enforce laws until they are repealed or struck down, the administration can decline to defend laws it believes to be unconstitutional.
Such was the case in February of this year when the Obama administration announced that it would no longer defend Section 3 of the Defense of Marriage Act because the administration, forced to carry out its own review where no legal standard had been established, had concluded it unconstitutional.
Interestingly, the Court also asks if, with repeal legislation apparently just weeks away, this case should be dismissed as moot.
“After reviewing the briefs filed by the parties, it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. ยง 654,” the order begins.
The brief order goes on to note that the government only defended the constitutionality of the Don’t Ask, Don’t Tell Repeal Act — and not the DADT law at issue in the case — and states, “No party to this appeal has indicated an intention to defend the constitutionality of ยง 654 or to argue that the constitutionality holding of the district court should be reversed.”
Additionally, the court asks the parties to explain “why this case should not be dismissed as moot,” either now or upon certification of the Don’t Ask, Don’t Tell Repeal Act.
The Log Cabin Republicans who brought this suit have already said that they would be happy to again argue that it is necessary to keep the injunction against DADT enforcement, noting that Congress has now passed various amendments to impede DADT repeal (they gloss over the fact that it’s a purely House Republican move). This, they argue, makes the case vitally important to the constitutional rights of servicemembers.
How the Obama administration chooses to act next will be of key interest not just for repeal advocates, but also for the opposition who will be keen to sniff out signs of indecision or perceived weakness.