Ted Olson to Obama: Don't Defend "Don't Ask, Don't Tell"

ABC News has a useful summary of the Obama Administration's ongoing legal defense of the military's controversial "Don't Ask, Don't Tell" policy, including some choice legal advice from former Bush Solicitor General Ted Olson:

The administration's handling of the case has angered critics on both sides of the issue. Gay rights advocates, infuriated by what they see as hypocrisy, and some legal scholars, insist the "duty to defend" has already been fulfilled and that there is ample precedent for the administration to let Judge Phillips' decision [declaring the policy unconstitutional] stand. Meanwhile, supporters of the law say the administration's invocation of their "duty" is a smokescreen for a halfhearted defense.

"It happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law," said former George W. Bush administration solicitor general Ted Olson, who is leading the legal challenge of California's ban on same-sex marriage. Gov. Arnold Schwarzenegger and the state attorney general have both declined to defend the law in court.

"I don't know what is going through the [Obama] administration's thought process on 'don't ask, don't tell,'" Olson said. "It would be appropriate for them to say 'the law has been deemed unconstitutional, we are not going to seek further review of that.'"

Read the whole story here.

(Via Instapundit)

Comments

[Nick]

I think Obama must have made a bet somewhere along the way that he could piss off everyone. It may impossible considering how much head he gets from the media, but you can't fault him for accepting a challenge and trying his hardest to win the bet.

[Caleb Turberville]

Here's whats happening. Obama is trying to court the supporters on both sides of the issue in this crucial election year for his administration.

Defend the law until December. But that would be too realistic an interpretation for the Obama zombies so they invented this cock-ah-may-mee "defend the law" defense for their savior black president's homophobia.

[mad libertarian guy]

Bullshit.

Obama, if he intends to do something about DADT at all (which is debatable), is doing whatever necessary to save face. If he simply allows the judge's ruling to stand, then a Republican group will have effectively ended DADT by bringing about the lawsuit. He doesn't give a shit about ending DADT, only about being perceived as the one who did it.

He is stonewalling the effort so that he can say that it was he who lifted the chains of Republican oppression blah fucking blah blah blah.

Remember: he is the savior. Anything good that doesn't emanate from him must be stopped so that people won't get he idea that his shit doesn't stink

[Tony]

So has Ted come out of the closet yet?

[Episiarch]

OK, sockpuppet, I have to give you credit for that one. That's obnoxious on so many levels, I just have to admire it.

[ykw]

It's obnoxious and it's a troll, obviously... and, yet, it's the most plausible explanation of why a consummate Mr. Establishment Republican like Olson, after a few years alone, suddenly develops an immense libertarian streak -- but =only= on the one subject. He's not out there on the hustings to overturn marijuana prohibition or to roll back ObamaCare or even to promote a more reasonable level of taxation and spending at any level. He's politicking solely for gay causes. Gotta be a reason when someone makes that his or her single issue.

[Tara]

Or...

He does not see the wisdom of overturning current drug laws, but does recognize the way America treats gays as unjust.

Not EVERYBODY is slavishly devoted to Team Red or Team Blue. Or even Team Atlas Shrugged, for that matter.

[ykw]

"He does not see the wisdom of overturning current drug laws, but does recognize the way America treats gays as unjust."

Obviously, but that doesn't address the question of "Why?". Why the sudden realization, and why only on this specific matter?

I'd ask similar questions of establishment-types if they, say, developed a libertarian interest in pot issues -- WFB, f'r'instance, although he acknowledged that seeing pot's medicinal impact on others drove =his= change. Olson won't discuss his own road-to-Damascus event; it's not difficult to see why people would jump to a conclusion (if it really is a "jump").

[Pip]

"So has Ted come out of the closet yet?"

Someone's got a little crush.

[Brother Wolf]

Can anyone explain to me why the Obama Administration is doing this? It seems like such an easy thing to drop DADT (and fully within his authority as commander in chief. If he can't even pull that off.. wtf?

[ClubMedSux]

To be fair, he said "Yes We CAN," not "Yes We WILL."

[Pip]

Continuing to study Obamaese.

[R C Dean]

It seems like such an easy thing to drop DADT (and fully within his authority as commander in chief).

I believe DADT is enshrined in statute (could be wrong on this, as DADT is one of those issues that never seems to get out of my "I have other things to worry about" pile), which means that revoking it is not within his authority as CinC.

[Xenocles]

This is correct. Congress is empowered to make "Rules for the Government and Regulation of the land and naval Forces," and this is one of them.

[prolefeed]

Not getting into a pissing match between the judiciary and legislative branches, however, is within the CinC's authority.

Obama could say, hey, the judiciary said it is unconstitutional. We're gonna abide by that ruling, at least in the jurisdiction of that particular judge, unless it is overturned by a higher court or the legislature changes the law.

[Xenocles]

Yeah, that does seem to be an option. He's got to faithfully execute the laws Congress passes. I could even see an honest, if unenthusiastic defense of DADT but there's nothing in the Constitution about defending the laws all the way to the Supreme Court.

[R C Dean]

there is ample precedent for the administration to let Judge Phillips' decision [declaring the policy unconstitutional] stand.

Regardless of your views on DADT, Judge Phillips' opinion was gibberish, and failed even on its own terms to justify the order issued.

[Pablo]

I got into an argument last week with a friend who said she votes Democrat because "they are better on civil liberties." I responded with Gitmo, the drug war, medical MJ, the DUI war, assasination of US citizens, indefinite detention, secret trials, the NSA/TSA/DHS, etc. Im sorely tempted to send her a link to this article, just to rub in it.

I too would love to know what is going on inside Obama's head with this issue. Does he think DADT is unconstitutional? If so, I have never heard of any government official saying "OK we know it's unconstitutional to do this but let's go ahead and keep doing it anyway until we figure out how not to do it." That seems to be his position. Didn't he and all his minions, before doing anything on the job, swear an oath to uphold and defend the constitution? Or does he think DADT is constitutional?

[John Thacker]

Remember all those outraged articles from Dahlia Lithwick and Nina Totenberg that some Republican politicians were saying that they'd consider constitutionality when deciding whether or not to vote for something?

There's actually a viewpoint (I think it's ridiculous) among some people that the Congress and President should only try to pass things, and let the Supreme Court worry about Constitutionality.

[wylie]

and let the Supreme Court worry about Constitutionality.

"Fucking activist judges, get them out of the legislative process."

Ta-da, blank check for whatever you want to do.

[Ken Shultz]

"I don't know what is going through the [Obama] administration's thought process on 'don't ask, don't tell,'" Olson said. "It would be appropriate for them to say 'the law has been deemed unconstitutional, we are not going to seek further review of that.'"

Just throwing it out for consideration, but I think it's entirely plausible to assume that just like everything else the Obama Administration has tried to handle, maybe they just don't know what they're doing.

On the one hand, seeing something like this happen just before an election, which may not benefit Obama? That's one consideration, but why assume some nefarious motive when plain incompetence so effectively explains everything else they've done?

[R C Dean]

I can think of two reasons for Obama not being delighted that DADT wa struck down by a court.

(1) He wants to keep it a live issue because its an issue that cranks up his base. Opposing your base passionately in court strikes me as an odd way to go about it, though.

(2) He is genuinely homophobic. If he was African-American, I would point out this shouldn't be too surprising, as they tend to be pretty socially conservative. But he's not culturally African-American, so you can draw your own conclusions.

[Pablo]

Now that I think of it I have never heard him say anything positive about gay people. Did I miss something?

[Ken Shultz]

Speaking to your point 1, whether it'll crank up his base come 2012, I'm sure that could help, but getting rid of DADT for sure right before this election?

That will definitely galvanize conservative Republicans this November. If this were happening in January, I suspect we might see a different response from the Obama Administration.

[John Thacker]

Eh, repealing DADT right now is actually popular. If he dropped it and enough GOPers went apeshit about it, then that could actually push moderates towards the Dems.

[ClubMedSux]

I think (1) could partly explain it. I also think that, while he's not culturally African-American, he certainly relies upon that base and perhaps fears that taking a hardline stance on gay rights may make him appear further removed from black culture.

[Ornithorhyncus]

The only explanation that occured to me for Obama's actions is that he is such a strong believer in Government power, and most likely executive power, that he can't stand the thought of the courts striking down any Government policy. Maybe he'd rather defend a policy he doesn't like than admit that courts can place limits on his godlike authority.

[Caleb Turberville]

Recently, on The Rachel Maddow Show, a guest (a Democrat, obviously) made the point of saying that if a court can strike down DADT, then they can strike down the healthcare plan, and "We just can't have that!"

[Mainer]

I think this is the simplest explanation. A weak person can't stand to give in.

[bigbigslacker]

I'm with you on that. While the right people are in charge they don't want the court to ever say no to anything they have the power to change themselves. Just as for medical marijuana in Cali and their prop 19 threats, you just don't mess with their authority. They may (sometimes) let medical marijuana go unprosecuted, but they retain the right to go after individuals acting entirely within their own state, and certainly Obama doesn't think he is prevented from doing so by the tenth or any other amendment.

[prolefeed]

Shorter: Obama: "Respect mah authori-tah!"

[MJ]

So what will Reason writer's reaction be if Prop 19 passes but the sitting Governor and Solicitor General decide they have no interest supporting it against potential court challenges?

Will they understand that they have the discretion to do so or will the Root, Welch, et al pitch a fit?

[wayne]

I don't think the sitting governor will have the option of declining to defend the California constitution against a federal challenge.

[MJ]

"Gov. Arnold Schwarzenegger and the state attorney general have both declined to defend [California's ban on same-sex marriage] in court."

Which is part of California's Constitution.

Does Reason support Executive discretion on legally defending the law in all cases, or only when they dislike the law. Is such support principled or utilitarian?

[John Thacker]

I'd be interested in the legal theory under which a state not banning something, even something banned by the Feds, is unConstitutional.

Mind you, this paragraph in the Prop I think is unconstitutional, violating employers' freedom of association:

11304 (c) No person shall be punished, fined, discriminated against, or be denied any right or privilege for lawfully engaging in any conduct permitted by this act or authorized pursuant to Section 11301. Provided, however, that the existing right of an employer to address consumption that actually impairs job performance by an employee shall not be affected.

But I'm also pretty sure that that boat sailed long ago on those types of laws.

[John Thacker]

A better and more plausible analogy would be to a governor and AG not fighting a state Supreme Court ruling that says that the state has to spend more on education (at a state level, relying less on local property taxes) in order to bring up standards in poorer areas, because the state Constitution requires equal public schooling.

There actually have been rulings along those lines, as in Vermont.

[John Thacker]

MJ, you're setting up a false dichotomy between "understand[ing] that they have the discretion to do so" and "pitch[ing] a fit."

You can certainly understand that the executive has the discretion to make a decision (both for political and constitutional reasons) to side with the judiciary over the legislature, and yet still pitch a fit if you think that the executive made the wrong decision.

The executive hiding behind the court and pretending that his hands are tied is dishonest, sure, but so long as it's obvious that it's a voluntary decision by the executive, there's nothing wrong with it.

Executives voluntarily ceding power (or, if you like, siding with one branch instead of the other) is hardly an enormous problem.

[wayne]

"Which is part of California's Constitution."

Prop 19, if it passes, will amend the CA constitution.

[wayne]

"It would be appropriate for them to say 'the law has been deemed unconstitutional, we are not going to seek further review of that.'"

Sounds like pretty good advice.

[rhea]

People always defining and redefining self and changing, sexuality is not what one does but who they are. Military let people be who they are or internal combustion occurs and detonation of mini explosions of soldiers loss of dignity and self and that borders on taking their inalienable rights away.

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