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Government’s Decision Whether to Appeal Anti-DADT Ruling



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“Ruling Against ‘Don’t Ask’ May Not Face Obama Appeal.”  That’s the title of a National Law Journal article today that draws on comments by law professor Erwin Chemerinsky to speculate that the Obama administration might simply abandon its right to appeal last week’s district-court ruling (in Log Cabin Republicans v. United States) that Don’t Ask, Don’t Tell is unconstitutional.

Failing to appeal the case would be a remarkable—and scandalous—development.  As I’ve explained (in point 1 of my post commenting on the Log Cabin ruling), the district court applied to the Don’t Ask, Don’t Tell law the heightened scrutiny that the recent rogue Ninth Circuit ruling in Witt v. Department of Air Force wrongly required.  In April 2009 (as I discuss here), Attorney General Holder told Congress that the Department of Justice had decided not to seek immediate Supreme Court review of the Witt ruling because there wasn’t yet a final judgment in the case.  Elena Kagan (who as Solicitor General made the decision not to seek immediate Supreme Court review) offered the same unpersuasive explanation at her Supreme Court confirmation hearing.  Yet now that the Log Cabin case presents a final judgment—and a clear opportunity to have the Supreme Court override the Witt error—there’s speculation that the Obama administration will simply surrender.

I find it difficult to imagine that the Obama Department of Justice will actually decline to appeal Log Cabin.  That’s not because I have any particular hope that Obama’s DOJ will mount a vigorous defense of the Don’t Ask, Don’t Tell law.  Rather, it’s because I think that Obama’s DOJ will, on balance, find it politically more attractive to go through the motions of pretending to defend Don’t Ask, Don’t Tell while in fact continuing its sabotage of it.



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