Bench Memos

NRO’s home for judicial news and analysis.

“Don’t Defend, Don’t Appeal?”


My essay bearing that title in the new issue of the Weekly Standard explores the broader question whether and when it’s proper for a presidential administration to decline to defend a federal statute. In exploring the principles that govern this question, it’s useful to test those principles against one’s political biases:

So both supporters and opponents of “don’t ask, don’t tell” might consider, for example, the following hypothetical: It’s 2014, and Obama-care has withstood several constitutional attacks in the federal courts of appeals, but a district court has just issued a nationwide injunction against that law’s continued implementation. Is it proper for the Republican president who defeated Barack Obama’s bid for reelection to decline to appeal the injunction?

I’m hopeful that I’ve succeeded in sketching principles that ought to be able to garner a consensus across the political spectrum of legal commentators. In this regard, I’ll note that my essay partly builds on—and draws out concepts that I think are implicit in—Walter Dellinger’s recent New York Times op-ed (which I briefly discussed) on how the Department of Justice should appeal the ruling against Don’t Ask, Don’t Tell.


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