In an op-ed in today’s New York Times, Walter Dellinger, who headed the Office of Legal Counsel in the Clinton administration and also served as acting Solicitor General, offers some advice on how the Obama administration might properly litigate the appeal of the district court’s ruling against the Don’t Ask, Don’t Tell law. Specifically, he proposes this option:
[W]hile appealing the lower court’s decision, [President Obama] 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.
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.
I intend to explore this broader matter more fully soon, but for now I’ll simply highlight that the particular grounds of my criticism of the Justice Department’s feeble defense of the Don’t Ask, Don’t Tell law wouldn’t apply to the course of action that Dellinger is recommending. Specifically, as I read his essay, Dellinger distinguishes between laws that an administration opposes or disfavors on policy grounds and laws that it regards as unconstitutional. Where an administration merely has policy objections to a law, it is nonetheless obligated to offer a vigorous defense of the law. That obligation flows from the president’s duty under Article II of the Constitution to “take Care that the Laws be faithfully executed.”
I think that Dellinger agrees with this. That, I gather, is what he means when he says that “the administration is required to comply with the law and defend it in court, regardless of Mr. Obama’s personal views.” In other words, as I read it, Dellinger is recognizing that President Obama has not, as of yet, taken the position that Don’t Ask, Don’t Tell is unconstitutional and has instead merely expressed his disagreement with it as a matter of policy. Therefore, as things now stand, his administration is obligated to defend it vigorously in court (an obligation that, as I’ve explained, I think that it has failed to perform responsibly).
I will note, that, unlike Dellinger, I’m unpersuaded that President Obama could responsibly determine that the Don’t Ask, Don’t Tell law is unconstitutional. But if the Obama administration isn’t going to vigorously defend Don’t Ask, Don’t Tell in court, it would be much better for it to adopt the course that Dellinger has charted than to continue to pretend to defend the law while in fact undermining it.